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Lambert v. Greene SCI

United States Court of Appeals, Third Circuit

June 28, 2017

BERNARD LAMBERT, Appellant
v.
WARDEN GREENE SCI

          Argued: January 18, 2017

         Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2-10-cv-01339) District Judge: Honorable C. Darnell Jones, II

          Cheryl J. Sturm (ARGUED) Counsel for Appellant.

          Catherine B. Kiefer (ARGUED) Assistant District Attorney Susan E. Affronti Chief, Federal Litigation Unit Ronald Eisenberg Deputy District Attorney, Law Division George D. Mosee, Jr. First Assistant District Attorney R. Seth Williams District Attorney Philadelphia County Office of District Attorney 3 South Penn Square Philadelphia, PA 19107 Counsel for Appellee.

          Before: AMBRO, VANASKIE, and SCIRICA, Circuit Judges

          OPINION

          AMBRO, CIRCUIT JUDGE

         The Commonwealth of Pennsylvania charged Bernard Lambert as a co-conspirator with and accomplice to Aquil Tillman's acts of murder, aggravated assault, and burglary. Their trial was joint. In preparation for trial, Tillman made statements to a testifying expert that implicated Lambert in Tillman's criminal plan. Recognizing that Tillman (who did not testify) would not be subject to cross-examination when the expert recounted his statements, the trial judge required counsel to redact facially incriminating references to Lambert from that testimony. However, the expert testified about parts of Tillman's statements that may have become inferentially incriminating in the context of trial.

         Lambert asserts that the prosecution used these statements for an impermissible hearsay purpose in its case against him. Our review of the record persuades us that there is some merit to his argument that his Confrontation Clause rights were violated. Because counsel may have been ineffective for failing to cure this potential constitutional violation, we vacate and remand for an evidentiary hearing to determine whether the Commonwealth used Tillman's testimonial statements for their hearsay purpose and, if so, whether trial counsel was ineffective in failing to request a limiting jury instruction.

         I. Background

         A. The trial

         In January of 1997 Tillman went to the house in Philadelphia of his former girlfriend, Khadijah Freeman. He entered without permission, broke the lock on her bedroom door, and found her with another man, Shaheed Smith. Tillman and Smith fought each other, and Tillman left.

         The next night, Tillman returned to Freeman's house and broke the front door to enter. Freeman's mother, Ann Marie Thomas, demanded that Tillman pay for the broken door and took $300 from his pocket. Tillman and Smith fought a second time, and Tillman left saying he would come back for Smith. Lambert drove Tillman back to Freeman's house 15 minutes later. Lambert waited outside when Tillman reentered.

         Inside, Thomas denied having any money of Tillman's, and Tillman shot her in the head, killing her instantly. Tillman then dragged Freeman out to the front porch and shot her by the car, causing serious injuries. Tillman then got in the car, and Lambert drove away from the house.

         The Commonwealth prosecuted Lambert and Tillman in a joint jury trial. Tillman was charged with first-degree murder, aggravated assault, burglary, and criminal conspiracy. But for the murder charge being second degree, the same offenses applied to Lambert under the Commonwealth's theory that he was a co-conspirator and accomplice.

         The Commonwealth presented no direct evidence of any criminal plan between Lambert and Tillman prior to Tillman's third return to the house. It relied only on their prior friendship (Tillman was a PCP user with a history of mental health problems, and Lambert would give Tillman rides to pick up his psychiatric medications), Lambert's presence, and that Lambert drove Tillman away after witnessing him shoot Freeman.

         At trial, Tillman admitted to the crimes, but argued that he lacked specific intent because of his mental illness. Tillman did not take the stand; instead, an expert psychiatrist, Dr. Julie Kessel, testified about the statements Tillman made to her describing what happened to him and how he responded. While the court required the parties to redact a portion of the statements in which Tillman asserted that Lambert gave him a gun, it did not otherwise limit Dr. Kessel's testimony or provide instructions to the jury that the statements could not be used against Lambert.

         When the prosecution cross-examined Dr. Kessel, she provided the following testimony about how Tillman explained the events that occurred between when he left the house and when he returned with a gun (to repeat, a 15-minute time-frame):

Prosecutor: All right. And he [Tillman] used the word "angry." Those other words that are in your notes, correct?
Dr. Kessel: Yes, I believe so.
Prosecutor: It says "very angry, " does it not?
Dr. Kessel: I trust your reading of my record. . . .
Prosecutor: All right. And he also indicated underneath that he said, damn, you let him beat you up, you got to get him back, you can't let him do that, right?
Dr. Kessel: I indicated that he is hearing that.
Prosecutor: Okay. And that's what he told you, correct?
Dr. Kessel: Yes.
Prosecutor: All right. And he went and he got a gun, right?
Dr. Kessel: Yes.

J.A. at 617-18.

         On redirect, Tillman's counsel asked a clarifying question:

Counsel: And she asked you whether Mr. Tillman told you that he had to get his money back and he said he had to get his money back and you made mention, I think, of some kind of reference to that's what he was hearing, voices or something of that nature. Would ...

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