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In 2254 petition, cautionary instruction unrang the bell.

In Glenn v. Wynder, the Court affirmed the district court’s denial of Glenn’s 2254 petition.

First, Glenn claimed that his due process rights were violated when the trial court denied his motion for mistrial after a supposed eyewitness proffered wildly contradictory testimony that was based on hearsay. The eyewitness was drunk and high at the time of the shooting and gave inconsistent testimony as to whether she saw Glenn shoot the decedent or whether she had just heard that Glenn had shot the decedent. She then said she didn’t really see the shooting itself, but she saw Glenn at the scene of the shooting and she was scared for the life of someone who really knew what happened. The trial court struck the testimony and told the jury to disregard it. Glenn argued that the trial court’s cautionary instruction could not cure the taint of the testimony and that a mistrial was the only appropriate remedy.

The Third Circuit found that, because a jury is presumed to follow instructions, the testimony did not render the trial fundamentally unfair and the state court’s denial of Glenn’s due process claim was not an unreasonable application of clearly established federal law. Other cases in which the Third Circuit had found that cautionary instructions were insufficient to cure a taint were distinguishable. Basically, because the trial attorney here did such a good job of cross-examining this witness, it was easy for the jury to follow the trial court’s instruction and disregard this witness’s testimony.

Second, Glenn claimed that trial counsel was ineffective for failing to move to strike five other pieces of evidence in the record that referred to the witness’s identification of Glenn as the shooter. Four of these pieces of evidence consisted of police testimony regarding the witness’s statements during the course of their investigation.  Fifth piece of "evidence" was the prosecutor’s opening statement discussing the witness’s anticipated testimony. Glenn’s claims were procedurally defaulted because he did not present them to the PCRA court. Glenn claimed he had cause for the procedural default under Martinez because PCRA counsel was ineffective in failing to raise them.

However, the Third Circuit found that Martinez did not apply because the underlying claim of IAC of trial counsel was not substantial. The police testimony could have been admissible not for the truth of the matter asserted but to explain the course of their investigation. Therefore, trial counsel was not "objectively unreasonable" for failing to object to that testimony. The prosecutor’s opening statement was not prejudicial because the court repeatedly told the jury that the statements of lawyers were not evidence.

Bottom line, even though the jury heard the foundation-less testimony of an eyewitness who pointed the finger directly at defendant in a murder trial, the defendant’s due process rights were not violated because the trial attorney did a bang-up job of discrediting her, because the trial court struck her testimony, and because the jury could be expected to follow the court’s instruction to ignore everything they heard from her.

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