Maurice Turner v. Administrator New Jersey State Prison ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 22-1668
_______________
MAURICE TURNER,
Appellant
v.
ADMINISTRATOR NEW JERSEY STATE PRISON; ATTORNEY GENERAL NEW
JERSEY; PROSECUTOR MERCER COUNTY
_______________
On Appeal from the United States District Court
For the District of New Jersey
(D.C. No. 3-18-cv-17384)
District Judge: Honorable Freda L. Wolfson
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 24, 2023
Before: JORDAN, GREENAWAY, JR., and McKEE, Circuit Judges
(Filed April 6, 2023)
_______________
OPINION
_______________

This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
Maurice Turner appeals the denial of his habeas petition. He argues that, at his
state court trial in New Jersey, a prosecution witness impermissibly implicated him by
relating information from a non-testifying co-defendant, in violation of the Confrontation
Clause of the Sixth Amendment. Even assuming that a constitutional violation occurred,
however, the error was harmless, so we will affirm.
I. BACKGROUND
In 2003, William Goldware was robbed and murdered in the home of Turner’s co-
defendant Karla Freeman, who police found at the scene of the crime crying and covered
in blood. A grand jury in Mercer County, New Jersey returned an indictment charging
both Turner and Freeman with crimes related to the homicide. The trials for Turner and
Freeman were ultimately severed,1 and both were convicted of the robbery and murder of
Goldware.2 Turner was sentenced to life imprisonment and Freeman to thirty years to
life imprisonment.
1
There are some open questions about the procedural history in this case, though
they are not relevant here. Turner claims that there were two joint jury trials with co-
defendant Freeman before the final, severed trials, and that the first two trials ended in
mistrials. He provides no record support for those assertions. (Opening Br. at 3.)
Evidently, the New Jersey appeals court had the same experience with him, since it said
that, “[a]lthough there is no record support … [Turner] includes in his brief an
observation that his first two trials ended in mistrials, the first because of a Bruton
problem, … when a witness testified to Freeman’s statement implicating him, and the
second as a result of a deadlocked jury.” State v. Turner, No. A-1227-07T4, 2009 WL
3416031, at *4 n.3 (N.J. Super. Ct. App. Div. Oct. 8, 2009). The State does not address
the procedural history of this case other than to mention that Turner’s jury trial was
“bifurcated from [his] co-defendant’s case.” (Answering Br. at 2.)
2
Turner was convicted of first-degree murder, first-degree felony murder, and
2
Freeman gave conflicting stories about what happened that night. Her statements
to detectives are set out in detail in State v. Freeman, 2010 WL 3611979, at *2-4 (N.J.
Super. App. Div. Sept. 10, 2010). At first, she told Detective Timothy Thomas that an
intruder came into the house and attacked Goldware, but when Thomas observed no signs
of forced entry in the home, Freeman confessed that she had a sex-for-money
arrangement with Goldware and stabbed him during a fight after Goldware refused to
pay. Id. at *2-3. As Thomas was compiling her statement, however, Freeman said,
“Detective, that’s not what happened. Me and Maurice set him up to rob him, and
Maurice stabbed him.” Id. at *3. When Thomas asked if she was sure, she replied, “No,
no, that’s not what happened .... I killed him.” Id. Her story changed again, when, upon
meeting Thomas later to give a taped statement, she claimed that she and Turner set up
Goldware to rob him and that she did not know that Turner planned to stab Goldware. Id.
at *3-4. She said that Turner told her to leave her door open so he could enter and rob
Goldware. Id. at *3. She claimed that she did not think Turner had guns or knives and
only thought he was going to “hit [Goldware] in his head and go in his pockets and
leave.” Id. at *4 (alteration in original). She said they planned to split the money “half
and half.” Id. When Turner arrived at the home, Freeman distracted Goldware by
kissing him; Turner entered the bedroom and stabbed Goldware three or four times;3
first-degree robbery (Counts I, II, and IV); Freeman was convicted of first-degree felony
murder and second-degree robbery (Counts II and IV).
3
A medical examiner testified at trial that Goldware suffered twenty-four stab
wounds on his upper body and that the stab wounds, particularly to his lungs and heart,
3
Freeman and Goldware fled to the bathroom where Turner followed them; and Turner
“was pulling the door toward him and [Freeman] was pulling the door toward [her] …
[and] [t]hat’s when [Turner] busted the bathroom door window out[.]” (App. at 11-12
(quoting Freeman’s May 25, 2003 Statement at 3) (first and second alterations in
original).)
When asked about her contradictory versions of the events, Freeman stated that
she “was terrified, and [she] knew [she] had part in robbing [Goldware], but [she] did not
know [Turner] was going to stab [Goldware].” Freeman, 2010 WL 3611979 at *4 (third,
fifth, and sixth alterations in original). She further stated that she felt guilty and initially
accepted blame because if she had not left the door open, Goldware would not have been
stabbed. And she was worried about her cousin, Kandis Queen, who had a child with
Turner. When asked why this final statement implicating Turner was more reliable than
her previous statements, she declared, “[b]ecause I’m willing to take my punishment, but
I’m not willing to pay for somebody else murdering. Also, this is the truth about what
happened.” Id. (alteration in original.)
The State did not call Freeman to testify at Turner’s trial and did not submit her
taped statement into evidence. But the State did call Thomas, who testified about the
condition of the crime scene based on his observations shortly after arriving. The crux of
this appeal is whether Thomas’s testimony improperly incorporated information from
Freeman’s prior statements that inculpated Turner.
were the cause of his death. Turner, 2009 WL 3416031, at *2.
4
Specifically, defense counsel prodded Thomas during cross-examination to
describe why he did not think any struggle occurred in the bathroom given the large
amount of blood on site:
[THOMAS:] I believe the struggle, most of the struggle happened in that
back part of the bedroom area, because of the blood, the damage to the walls
and the cell phone recovery and the ironing board.
[THE DEFENSE:] And that certainly explains why there was blood
throughout the entire bathroom, is that correct?
[THOMAS:] That’s where [Goldware] went into. He closed the door and
started bleeding, and [Turner] was trying to get in. [Goldware] kept bleeding.
[Turner] was trying to get in, and that’s where [Goldware] lost most of his
blood.
[THE DEFENSE:] That’s your theory, huh?
[THOMAS:] That’s the information I have, yes.
State v. Turner, No. A-1227-07T4, 2009 WL 3416031, at *2-3 (N.J. Super. Ct. App.
Div. Oct. 8, 2009) (emphasis removed).
Defense counsel did not contemporaneously object to the “[t]hat’s the information
I have” remark.4 The day following Thomas’s testimony, however, Turner moved for a
4
Turner also raised an argument for the first time in his reply brief that additional
testimony from Thomas on cross-examination was prejudicial. Thomas testified that
“[Turner] was a frequent visitor to [Freeman’s] residence …”, which the defense objected
to and which Turner now characterizes as improperly implicating him in the murder.
(Reply Br. at 16-17.) Issues raised for the first time in a reply brief are generally
forfeited. Hoxworth v. Blinder, Robinson & Co., Inc., 903 F.2d 186, 204 n.29 (3d Cir.
1990) (“As a general matter, the courts of appeals will not consider arguments raised on
appeal for the first time in a reply brief.”). Regardless, the State withdrew the testimony
and line of questioning, and the trial judge’s jury instructions expressly told the jurors not
to consider any “evidence excluded by the court,” including evidence withdrawn after a
successful objection. Turner, 2009 WL 3416031, at *6.
5
mistrial, “arguing that Thomas’s testimony was taken ‘almost verbatim’ from the
statements Freeman provided to police.” (App. at 13.) The state trial judge denied the
motion, concluding that there was no prejudice because the jury was unaware that
Thomas’s testimony conformed to one of Freeman’s statements and that sufficient
evidence in the record supported Thomas’s theory. Turner appealed, but the New Jersey
Superior Court, Appellate Division, agreed and clarified that it found no Confrontation
Clause violation occurred at all. See Turner, 2009 WL 3416031, at *5, *14. The New
Jersey Supreme Court subsequently denied his petition for certification without an
accompanying opinion, and his post-conviction relief petitions were unsuccessful.
Turner then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254with the United States District Court for the District of New Jersey, citing multiple
grounds, including a violation of his Sixth Amendment right to confront the witnesses
against him. The District Court denied his petition. Turner timely appealed, and we
granted a Certificate of Appealability with respect to the Confrontation Clause issue.
II. DISCUSSION5
Turner’s claims were adjudicated on the merits and exhausted in state court
proceedings, so the “highly deferential” standards of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”) apply.6 28 U.S.C. § 2254(d); Renico v. Lett, 559
5
The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254. We have
appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.
6
The state appeals court did not engage in a harmlessness analysis typically
required under Chapman v. California, 386 U.S. 18, 24 (1967), because it found no
constitutional error ab initio. Turner, 2009 WL 3416031, at *5. Thus, there is no
6
U.S. 766, 773 (2010) (“AEDPA … imposes a highly deferential standard for evaluating
state-court rulings and demands that state-court decisions be given the benefit of the
doubt.”) (cleaned up). Turner is not entitled to a writ of habeas corpus unless the state
proceedings
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
In addition, habeas petitioners “are not entitled to habeas relief based on trial error
unless they can establish that it resulted in actual prejudice.” Brecht v. Abrahamson, 507
U.S. 619, 637 (1993) (internal quotation marks omitted). “Actual prejudice” is “more
than a reasonable possibility that the error was harmful.” Davis v. Ayala, 576 U.S. 257,
267-68 (2015) (internal quotation marks omitted). “[A]n error is harmless unless it had
substantial and injurious effect or influence in determining the jury’s verdict.” Fry v.
Pliler, 551 U.S. 112, 116 (2007) (internal quotation marks and citations omitted). Our
role is to understand as best we can whether constitutional error “substantially influenced
the jury’s decision.” O’Neal v. McAninch, 513 U.S. 432, 436 (1995). “If, when all is
said and done, the court’s conviction is sure that the [alleged] error did not influence the
jury, or had but very slight effect, the verdict and the judgment should stand.” Id. at 437
“decision” subject to AEDPA deference as it pertains to harmlessness, and we engage in
harmless error review pursuant to Brecht v. Abrahamson, 507 U.S. 619 (1993).
7
(cleaned up). If, on the other hand, we have “grave doubt as to the harmlessness of an
error that affects substantial rights, [we] should grant relief.” Id. at 445; see also id. at
435 (“‘grave doubt’ … mean[s] that, in the judge’s mind, the matter is so evenly balanced
that he feels himself in virtual equipoise as to the harmlessness of the error.”).
The Supreme Court has stated that the following factors bear upon harmlessness:
“the importance of the witness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, the extent of cross-
examination otherwise permitted, and, of course, the overall strength of the prosecution’s
case.” Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
Here, after review of the record, we do have some reservations about the state
courts’ conclusion that Turner’s trial was not infected with impermissible testimonial
hearsay and thus not problematic under the Confrontation Clause. Thomas testified about
facts that went beyond his observation of the crime scene. For example, Thomas testified
about the tussle between Turner and Goldware in the bathroom, saying “[Turner] was
trying to get in. [Goldware] kept bleeding. [Turner] was trying to get in, and that’s
where [Goldware] lost most of his blood.” Turner, 2009 WL 3416031, at *3. It is
unclear how this account could have been ascertained by merely walking the crime scene.
While it is true that forensic evidence at trial showed Turner’s blood on the bathroom
doorknob, id., that fact alone does not show a struggle occurred any more than it shows
Turner may have merely opened the door with a bloody hand at the crime scene. Cf., id.8
at *6 (the New Jersey Appellate Division concluding that a struggle was “an entirely
proper inference reasonably drawn from the State’s DNA evidence.”).
Additionally, prior to the bathroom-struggle testimony, the jury heard Thomas
testify about interacting with Freeman upon first arriving at the crime scene and receiving
then and later multiple, conflicting statements from her.7 Thus, it is possible that the jury
could have suspected that Thomas’s testimony was informed by Freeman’s account,8
even if he did not come out and say it.9 In any event, that would not have been an
illogical implication, contrary to the state appellate court’s conclusion, Turner, 2009 WL
3416031, at *5 (“[N]either [the] defendant nor Thomas specified that Thomas’s
testimony was derived from Freeman’s statements given to police. … The logical
implication to be drawn from Thomas’s testimony was that ‘the information’ he had was
based on his own physical observations of the scene.”). What is more, the jury asked for
Freeman’s statements during deliberations, although that request was later withdrawn.
Id. at *5. Turner asserts that this was further evidence that the jury believed that (at least
part of) Thomas’s testimony was gleaned from Freeman, id.; the state court dismissed the
7
The content of Freeman’s statements was never revealed by Thomas during
testimony.
8
The jury also heard Thomas testify that the police “started looking for” Turner as
a suspect after recording Freeman’s statement. (Opening Br. at 15 (quoting trial
transcript, District Court Docket Item No. 17 at 161-62).)
9
Indeed, even the trial judge at sidebar told the prosecutor he was “skating on real
thin ice … and h[ad] been for [a] … few minutes” with respect to Thomas’s testimony.
(App. Vol. 2 at 231.)
9
connection as “sheer speculation[.]” Id. at *5. Considered in totality, however, the
defense view is not entirely without foundation.
Finally, the State offered additional facts during summation that could only have
come from Freeman’s statements: that she lured Goldware to her house with the promise
of sex, and that she left the door open for Turner to enter the house and rob Goldware.10
The State did not call Freeman as a witness to testify about any of these theories, and yet
the jury heard them during closing argument without the benefit of adversarial cross-
examination.11
Against this backdrop, the state trial court considered and rejected Turner’s
request for a mistrial, reasoning that the defense “opened the door to the complained-of
testimony” by asking Thomas for “his theory about what happened”; that there was no
10
These statements are purportedly from the State’s summations during closing
arguments. Improper statements made in closing arguments are typically subject to
prosecutorial misconduct claims. Gov’t of the V.I. v. Mills, 821 F.3d 448, 456 (3d Cir.
2016) (arguing that prosecutorial misconduct violated the defendant’s Fifth Amendment
right to due process to receive a fair trial).
11
While, in his opening brief in this appeal, Turner makes a passing reference to
the allegedly improper summation, he waited until his reply brief to introduce the actual
trial transcript excerpts. Moreover, Turner has not supplied us with the relevant trial
transcripts in the Appendix. Counsel should always provide the Court with materials
cited in the briefing. Again, issues raised for the first time in a reply brief are generally
forfeited. See supra n.4 (citing Hoxworth, 903 F.2d at 204 n.29); see also Laborers’ Int’l
Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir.
1994) (“An issue is waived unless a party raises it in its opening brief, and for those
purposes a passing reference to an issue ... will not suffice to bring that issue before this
court.”) (internal quotation marks omitted). But, given the weighty Sixth Amendment
issues involved, we will consider Turner’s belated claim. And we do so without
requesting corroboration of the quoted trial transcript or allowing the State to respond
because we ultimately decide this case on the ground of harmless error.
10
prejudice because the jury was unaware that Thomas’s testimony conformed to one of
Freeman’s statements; and that there was sufficient scientific evidence in the record to
support Thomas’s theory. Turner, 2009 WL 3416031, at *3. It thus appears that the trial
court assessed prejudice and sufficiency of the evidence but did not explicitly decide
whether there was constitutional error and, if there was, whether it was harmless.
Under AEDPA, we review the “highest-level state court[’s]” decision, which, in
this instance, is the New Jersey Superior Court’s Appellate Division.12 Vazquez v.
Wilson, 550 F.3d 270, 276 (3d Cir. 2008) (“Under the AEDPA we must review the state
court proceedings and affirm the denial of the petition unless we are satisfied that [the
petitioner] has demonstrated that the … highest-level state court to review the [alleged
constitutional error], made a determination that ‘resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.’” (quoting 28 U.S.C.
§ 254(d)(1))). The Appellate Division affirmed the trial court but chose a different
analytical route by holding that no constitutional error occurred during trial, and thus no
harmless error analysis was required. Turner, 2009 WL 3416031, at *5. As stated
before, we have some doubt about that conclusion, especially in light of Douglas v.
12
Although the New Jersey Supreme Court reviewed and denied Turner’s petition
for certification, the Supreme Court of the United States has held that “a discretionary
denial of leave to appeal does not typically entail an ‘adjudication’ of the underlying
claim’s ‘merits’ under AEDPA’s terms. Instead, it usually represents ‘a decision by the
state supreme court not to hear the appeal – that is, not to decide at all.’” Brown v.
Davenport, ___ U.S. ___, 142 S. Ct. 1510, 1529 (2022).
11
Alabama, 380 U.S. 415, 419 (1965), which held that the statements of a non-testifying
co-defendant cannot be introduced in trial through the testimony of law enforcement.
Nevertheless, we do not have a sufficient doubt that any purported constitutional error at
trial caused actual prejudice to Turner.
Assuming without deciding that a trial error of constitutional magnitude occurred,
that error was harmless under Brecht, given the overwhelming countervailing evidence.13
Voluminous evidence thoroughly implicated Turner in the crimes. For example, Turner’s
cell phone, complete with a sticker with his known nickname “Young Reese,” was found
at the crime scene;14 Turner’s girlfriend, Kandis Queen, testified that she lent Turner her
car on the night of the murder and that he left their apartment at 8:00 pm and did not
return for five or six hours;15 the State presented phone records which established that
13
The Supreme Court of the United States has instructed that we are required only
to consider the more deferential Brecht harmless error standard on collateral review even
when the highest-level state court on direct review did not engage in the initial, more
defendant-friendly “harmless beyond a reasonable doubt” test under Chapman v.
California, 386 U.S. 18, 24 (1967), as is the case here. See Fry v. Pliler, 551 U.S. 112,
121-22 (2007) (holding “that in § 2254 proceedings a court must assess the prejudicial
impact of constitutional error in a state-court criminal trial under the ‘substantial and
injurious effect’ standard set forth in Brecht … whether or not the state appellate court
recognized the error and reviewed it for harmlessness under the ‘harmless beyond a
reasonable doubt’ standard set forth in Chapman[.]”) “Brecht effectively inverted
Chapman’s burden” and requires the petitioner to now prove that any error had a
substantial and injurious effect on the verdict. Davenport, 142 S. Ct. at 1519.
14
The cell phone was registered to Turner’s girlfriend, Kandis Queen, who
testified that she lent it to Turner on the night of the murder. (App. at 5); see also
Freeman, 2010 WL 3611979 at *2 (noting in the factual recitation that “‘Young Reese[]’
[was] a nickname for … Maurice Turner.”).
15
Telephone records established that calls between Freeman and Turner were
made between 1:31 a.m. and 2:16 a.m. Freeman, 2010 WL 3611979 at *4. A 911 call
12
five phone calls were exchanged between Freeman and Turner, and eleven between
Freeman and Goldware; the State presented a black t-shirt found in Turner’s closet with
blood on the back hem; testimony was presented about lacerations on Turner’s arms
when he was arrested a few days after the crime; and a forensic scientist testified that the
blood on Turner’s black t-shirt was in fact Goldware’s, as was the blood found on the gas
pedal of the car Turner borrowed from Queen; the forensic scientist also confirmed that
Turner’s blood was found throughout crime scene (on the front door, top of the stairwell,
and the bathroom door knob), and on the steering wheel and dashboard of Queen’s car.
Turner, 2009 WL 3416031, at *2. There was thus a trove of evidence, unconnected with
Thomas’s testimony, from which a jury could convict beyond a reasonable doubt.
When all is said and done, we are not persuaded that the alleged error had a
“substantial and injurious effect” on the jury’s verdict. Brecht, 507 U.S. at 637.
III. CONCLUSION
For the foregoing reasons, we will affirm the District Court’s denial of habeas
relief.
was placed at 2:44 a.m. to the City of Trenton reporting an assault in progress at
Freeman’s home.
13