On Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. Civil Action No. 04-cv-00128 (Honorable Anita B. Brody).
The opinion of the court was delivered by: ALARCÓN, Circuit Judge
Before: SCIRICA, Chief Judge, NYGAARD and ALARCÓN,*fn1 Circuit Judges.
David Diguglielmo, the District Attorney of the County of Philadelphia, and the Attorney General of the State of Pennsylvania ("the Commonwealth") appeal from the order granting habeas corpus relief to state prisoner Jose Medina pursuant to 28 U. S. C. § 2254(a) (1994).
Mr. Medina was convicted in a Commonwealth Court of first degree murder and sentenced to life imprisonment. In ruling on his federal habeas corpus petition, the District Court concluded that Mr. Medina's trial counsel provided ineffective assistance because he failed to object to the competency of a twelve-year old witness. The District Court concluded that the state court's decision upholding Mr. Medina's conviction was an unreasonable application of clearly established federal law.
The Commonwealth contends that the District Court "erred in concluding that every reasonable attorney would have challenged Marcos Toro's competency at trial."*fn2 It also maintains that Mr. Medina "was not prejudiced by counsel's decision not to challenge Marcos's competency." We will reverse the District Court's order because Mr. Medina has failed to demonstrate that he was prejudiced by his trial counsel's failure to object to Marcos Toro's competency.
At the preliminary hearing in this matter, Marcos Toro testified that during the evening of October 18, 1991, he and his ten-year old brother Hector encountered Mr. Medina in a "Chinese store" at Cambria Street and Mascher Street in Philadelphia. Mr. Medina was known as "Harry." Both boys were familiar with Mr. Medina because he was a friend of their older brother. They saw him on a daily basis. Marcos Toro had known Mr. Medina since he was five years old.
Mr. Medina showed the boys a long-bladed "Rambo" knife. Hector testified that Mr. Medina "was drunk and he said 'Today I am going to kill somebody with this knife.'" The boys then left the "Chinese store" and went to their home, which was one block away. A short time later, Marcos Toro heard Mr. Medina shouting that he was owed forty dollars. Marcos Toro testified that he saw Mr. Medina stab William Bogan in the heart with the same knife he had seen earlier.
On cross-examination, however, Marcos Toro testified that he did not see Mr. Medina stab Mr. Bogan. Instead, he stated that his brother told him he saw the assault. On redirect examination, Assistant District Attorney ("ADA") Ann Ponterio questioned Marcus Toro as follows:
Q: Before we came in here today, the defendant's sister and mother came up to speak to you; right?"
Q: And they made you nervous, didn't they?
Q: Did you tell me they scared you?
Q: They are here in the courtroom and they are staring in your direction [from the] back row?
Q: Are [sic] do they make you nervous now that you are binding your hands?
ADA Ponterio: [Indicate nodding his head up and down.]
Following this colloquy, Judge Charles J. Margiotti ordered the removal of Mr. Medina's family from the courtroom. After the family was removed, ADA Ponterio continued her redirect examination. In response to her questions, Marcos Toro testified that he saw Mr. Medina stab Mr. Bogan once and then dig through his pockets.
On recross-examination, defense counsel, O. Robert Silverstein, asked Marcos Toro whether he saw Mr. Medina stab Mr. Bogan. Marcos Toro replied: "Yes."
ADA Ponterio then questioned Marcos Toro as follows:
Q: Now, is what you are telling the judge the truth?
Q: Do you know the difference between the truth and a lie?
Before the witness could answer the question, Judge Margiotti stated: "I am satisfied he is precocious. He is a very bright boy."
Mr. Silverstein did not move for a competency hearing based on Marcos Toro's age, or his inconsistent responses to the questions posed during direct and cross-examination, nor did he object to Judge Margiotti's sua sponte finding that Marcos Toro was "precocious."*fn3 Judge Margiotti determined that the Commonwealth had presented a prima facie case. He ordered that Mr. Medina be held for trial.
Mr. Medina was represented at his trial by Edward Daly. Judge Juanita Kidd Stout presided over the trial. Before the jury was sworn in, Assistant District Attorney Carol Sweeney informed the court in an in-chambers conference as follows:
Today, he and his brother Hector, Michael now being 12, Hector now being 11, were sitting in the anteroom looking, in my opinion, somewhat nervous about testifying as you might expect from children, but composed and under control until the defendant's family arrived and when his mother, meaning the defendant's mother, walked by and sat in the courtroom and the defendant's sister and when the defendant's brother, I believe it is his brother, a young man about the same age began milling around in the area outside the anteroom.
Michael Toro began to cry, and really lost his composure and said he was very nervous about testifying. The impression I got from the police that is, what I was supposedly told by the police and the officers are right here to relate to it, that is he is afraid to testify, his family fears some kind of retaliation. I am not saying they were justified in fearing that. I am not asking for any instruction. There has been no problem, but I ask you, during Michael's testimony and possibly during Hector, although Hector was not an emotional person, Michael was, to ask the defendant's family to remain outside.
Judge Stout asked Mr. Daly if he had seen Marcos Toro cry. Mr. Daly replied: "I saw the child cry this morning." Mr. Daly stated further that he had no objection to excluding Mr. Medina's family. He also noted that "they would be sequestered anyway" because they would be testifying during the trial.
Judge Stout granted the motion.
ADA Sweeney began her direct examination of Marcos Toro by questioning him about his age and whether he knew the difference between telling the truth and telling a lie as follows:
Q: What grade are you in?
Q: You are in the fifth grade. Is that right?
Q: Do you know what it means to tell the truth?
Q: Let me ask it the other way. Do you know what it means to tell a lie?
Q: Do you know the difference between telling the truth and telling a lie?
Q: You just told the jury and the judge when you put your hand on the Bible you were going to tell the truth?
Q: What does the truth mean?
THE COURT: First of all, let's sit up straight and take your hand down. What happens to you if you tell a lie? (No response.)
THE COURT: What happens to you? Take your hand down and look at me. Tell me what will happen to you if you tell a lie? (No response.)
Q: Do you want to be here, Marcos? I said, do you want to be here?
MR. DALY: I object. THE COURT: Overruled. BY MS. SWEENEY: