Opinion
98 Civ. 7561 (LAK)
August 1, 2002
ORDER
On August 10, 1990, petitioner was convicted of murder in the second degree in the Supreme Court of New York, Bronx County, and sentenced to an indeterminate term of 25 years to life. His conviction was affirmed by the First Department in 1996 and by the Court of Appeals in 1997. People v. Carracedo, 228 A.D.2d 199, 644 N.Y.S.2d 11 (1st Dept. 1996), aff'd, 89 N.Y.2d 1059, 659 N.Y.S.2d 830 (1997). He petitioned for habeas relief under 28 U.S.C. § 2254, and the matter was referred to Magistrate Judge Theodore H. Katz. On April 9, 2002, the magistrate judge issued his Report and Recommendation (the "Report"), recommending that the petition be denied and a certificate of appealability be issued. Petitioner filed objections to the Report, contesting, inter alia, the magistrate judge erred when he concluded that the introduction of certain transcript testimony in violation of petitioner's Confrontation Clause rights was harmless error. Having considered petitioner's objections, the Court agrees with the magistrate judge's conclusions and concurs in his rationale, except as specifically addressed below.
1. In the section of the Report reciting the evidence received at petitioner's second trial, the magistrate judge cited to what he referred to as the "Trial Transcript." E.g., Report 4-8. It is apparent, however, that the transcript of the entire second trial is missing and that the magistrate judge used citations to the transcript found in the parties' state appellate briefs. Upon discovery of this problem, the Court contacted the parties, and they stipulated that their state appellate briefs "accurately reflect the evidence presented at the second trial" of the petitioner. See Docket Item 27. Given this stipulation, the magistrate judge's statement of facts is adequate. See, e.g., Jamison v. Berbary, No. 01 Civ. 5547 (RMB) (AJP), 2002 WL 1000283, at *1 n. 1 (S.D.N.Y. May 15, 2002); Santana v. Kuhlmann, No. 97 Civ. 3882 (RMB) (GWG), 2001 WL 1143182, at *1 n. 1 (S.D.N.Y. Sept. 26, 2001); Abreu v. Kuhlmann, No. 99 Civ. 9726 (RWS), 2000 WL 1773476, at *2 n. 2, 10 (S.D.N.Y. Dec. 4, 2000); Lile v. McKune, 45 F. Supp.2d 1157, 1160 n. 1 (D.Kan. 1999), appeal dismissed, 242 F.3d 389 (10th Cir. 2000); United States ex rel. Richards v. Bartlett, No. Civ. 92-2448, 1993 WL 372267, at *10 n. 2 (E.D.N.Y. Sept. 9, 1993); Rivera v. Abrams, No. 89 Civ. 0935 (JFK), 1989 WL 82449, at *1 (S.D.N.Y. July 17, 1989); see also United States ex rel. Preston v. Mancusi, 422 F.2d 940, 92-43 (2d Cir. 1970) (upholding district judge's use of state court opinion's summary of relevant testimony when pages of transcript were missing, calling the state court summary an "adequate substitute for the unavailable portion of the transcript").
2. The magistrate judge held that the standard enunciated in Chapman v. California, 386 U.S. 18, 23-24 (1967), rather than that set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993), applied to the question of whether the admission of Ms. Alessandro's testimony was harmless error because no state court had previously applied Chapman analysis. See Report 29. In doing so, he followed Orndorff v. Lockhart, 998 F.2d 1426, 1429-30 (8th Cir. 1993), cert. denied, 511 U.S. 1060 (1994), and Lyons v. Johnson, 912 F. Supp. 679, 687-89 (S.D.N.Y.) (Wood, J.), aff'd on other grounds, 99 F.3d 499 (2d Cir. 1996), both of which held that the Chapman standard applies on habeas review when no state court previously has performed Chapman analysis. See Orndorff, 998 F.2d at 1429-30; Lyons, 912 F. Supp. at 687-89. The Court finds the reasoning of these opinions unpersuasive in light of Brecht's rationale, which hinged on a balancing of social costs and benefits rather than the competence of state courts, and its broad holding. See 507 U.S. at 631-638; id. at 638 ("[W]e hold that the Kotteakos harmless-error standard applies in determining whether habeas relief must be granted because of constitutional error of the trial type."); see also Hassine v. Zimmerman, 160 F.3d 941, 951 (3d Cir. 1998) ("The Court never restricted the issues or the holding in Brecht to situations where a petitioner has already has his or her claim evaluated by the state courts under Chapman [and] we are not persuaded that we should read an exception into Brecht's harmless error rule when no such exception is even implicit in the Court's opinion."), cert. denied, 526 U.S. 1065 (1999); Tyson v. Trigg, 50 F.3d 436, 446 (7th Cir. 1995) (characterizing the Brecht holding as a "standard formula"), cert. denied, 516 U.S. 1041 (1996).
In rejecting the magistrate judge's position, the Court joins the overwhelming majority of circuit courts that have considered the issue. E.g., Bains v. Cambra, 204 F.3d 964, 976-77 (9th Cir.), cert. denied, 531 U.S. 1037 (2000); Gilliam v. Mitchell, 179 F.3d 990, 994-95 (6th Cir. 1999), cert. denied, 528 U.S. 1120 (2000); Hassine, 160 F.3d at 950-53; Hogue v. Johnson, 131 F.3d 466 (5th Cir. 1997), cert. denied, 523 U.S. 1014 (1998); Sherman v. Smith, 89 F.3d 1134, 1140-41 (4th Cir. 1996), cert. denied, 519 U.S. 1091 (1997); Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th Cir. 1995), cert. denied, 516 U.S. 1123 (1996); Tyson, 50 F.3d at 446-47; Horsley v. Alabama, 45 F.3d 1486, 1492 n. 11 (11th Cir.), cert. denied, 516 U.S. 960 (1995); cf. Fortini v. Murphy, 257 F.3d 39, 48 (1st Cir. 2001) (assuming without deciding that Brecht applies and reasoning that, while there is language in Brecht supporting both positions, "most of [the Brecht opinion's] expression of rationale suggests that the Brecht test applies in habeas cases regardless of whether the state court itself made a Chapman harmless error analysis"), cert. denied, 122 S.Ct. 1609 (2002). Accordingly, the Brecht standard controls the determination of whether the Confrontation Clause violation constituted harmless error. Under that standard, a reviewing court need correct a constitutional error only if it "`had substantial injurious effect or influence in determining the jury's verdict.'" Brecht, 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
In Noble v. Kelly, 246 F.3d 93 (2d Cir.), cert. denied, 122 S.Ct. 197 (2001), the Second Circuit questioned the continued vitality of Brecht when a state court previously has performed Chapman analysis. Id. at 101 n. 5. It indicated that, under AEDPA, the appropriate inquiry in such a situation might well be "whether the state court's decision was `contrary to, or involved an unreasonable application of' Chapman." Id. (quoting 18 U.S.C. § 2254(d)(1)). Noble does not speak to the situation at hand, however, because the state court did not perform Chapman analysis.
3. Petitioner correctly assails some aspects of the magistrate judge's harmless error analysis. In the final analysis, however, the Court has concluded that the magistrate judge reached the correct conclusion.
In determining whether the erroneous admission of evidence had a substantial and injurious effect on a jury's decision, the principal factors to be considered are the importance of the witness's wrongly admitted testimony and the overall strength of the prosecution's case. Raheem v. Kelly, 257 F.3d 122, 142 (2d Cir. 2001), cert. denied, 122 S.Ct. 930 (2002); Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2001). In assessing the importance of the wrongly admitted testimony, a district court should consider such factors as whether the testimony bore on an issue that was plainly critical to the jury's decision, whether that testimony was material to the establishment of the critical fact or whether instead it was corroborated and cumulative, and whether the wrongly admitted evidence was emphasized in arguments to the jury. Id. (citing Brecht, 507 U.S. at 639, Chapman, 386 U.S. at 25-26, and United States v. Peterson, 808 F.2d 969, 976 (2d Cir. 1987)); see Delaware v. VanArsdall, 475 U.S. 673, 684 (1986). These issues are to be analyzed in light of the record as a whole. Wray, 202 F.3d at 526 (citing Brecht, 507 U.S. at 639).
In the course of his harmless error analysis, the magistrate judge concluded that Ms. Alessandro's testimony was peripheral to the prosecution's case because "[w]hether or not Petitioner was in the pizza store at around midnight in no way addresses whether he was with the victim an hour earlier, when she was murdered in the park." Report 30. As petitioner points out, this statement inaccurately reflects the prosecution's theory of the case and the evidence presented at trial. According to the testimony of the People's witnesses, the murder very well could have occurred at midnight or slightly thereafter, and it certainly did not occur in the early portion of the 11 o'clock hour as intimated by the magistrate judge. For instance, Ms. Bay and Mr. Cottiers testified that they saw Gigi alive between 11:00 and 11:30 p.m, see Pet. App. Brief 7-10; Resp. App. Brief 6-8, and Victor Cruz placed the defendant running up Decatur Avenue away from the park shortly after midnight, see Pet. App. Brief 12; Resp. App. Brief 8-9. Thus, Ms. Alessandro's testimony went to a critical issue — whether petitioner's June 29, 1987 statement to the police accurately reflected his activities the night before or whether he in fact was with Gigi Santiago in the park when she was killed.
The Court agrees with petitioner also the prosecution's case against petitioner is not properly characterized as "overwhelming." Report 31. In fact, the prosecution's case was largely circumstantial. There were no eyewitnesses to the murder itself, and petitioner did not confess. Besides the penknife, there was no physical evidence directly connecting petitioner to the crime. Moreover, most of the government's witnesses suffered from flaws in the accuracy of their observations and/or their credibility. For instance, Ms. Millet was a drug user at the time of the events in question and had been Gigi's best friend. Pet. App. Brief 6. Ms. Bay was not wearing her prescription glasses on the night she apparently saw petitioner in the park, and she failed to disclose that Mr. Cottiers had been with her until the time of the second trial. Id. at 10; Resp. App. Brief 6 n. 5. Mr. Cottiers admitted that he was testifying in exchange for the dismissal of a misdemeanor drug charge. Pet. App. Brief 11. Victor Cruz was looking out of a fourth floor window at night for only five to ten seconds. Id. at 12; Resp. App. Brief 9.
This is not to say, however, that the People's case was weak. Its witnesses presented a coherent timeline of the events of June 28 that coincided with Dr. Ferenc's opinion regarding the approximate time of death. Furthermore, the presence of the penknife at the murder scene was particularly damaging to petitioner, although the testimony of Leo Tribuzio that he had admired the knife, see Resp. App. Brief 10, made at least colorable petitioner's claim that he gave it to Gigi because she had admired it. And although State Trooper O'Hearn rated the bloodhound's performance as "inconclusive" and the trial judge instructed the jury to view this evidence with "utmost caution," this evidence at least reinforced the People's other evidence of guilt. Finally, as discussed in greater detail below, the prosecution's evidence convincingly impeached petitioner's statement to the police, giving rise to the inference that he consciously was trying to cover up something undoubtedly inculpating.
More importantly, although Ms. Alessandro's testimony bore on the veracity of petitioner's statement, it was cumulative of other evidence adduced on this issue. Indeed, while the People's case as a whole may not have been overwhelming, it had witnesses lined up to contradict petitioner's statement. The testimony of Ms. Bay, Mr. Cottiers, Victor Cruz, Leo and Joan Tribuzio, and Kathy Rivera all did so. For example, petitioner said that he parted with Gigi on the street without entering the park. The testimony of Ms. Bay and Mr. Cottiers placed him inside the park with her, see id. 6-8; Pet. App. Brief 7-11, and Joan Tribuzio testified that petitioner told her that he had been in a fight inside the park, id. at 13. Petitioner said that he bought a slice of pizza and a soda at Mike's Pizza and that he did not eat the pizza and brought the soda home. None of the witnesses who saw petitioner after midnight testified that he had a bottle of soda with him, despite their having noticed other details about his person and clothing. Petitioner claimed that he went home after going to the pizzeria, but the testimony of Joan and Leo Tribuzio established that he went to their apartment. Id. at 13-14. Finally, petitioner said that he got home at around 12:30 a.m. and stayed there the rest of the night. The testimony of his own witness, Kathy Rivera, established that he was outside of his apartment as late as 1 a.m. See Resp. App. Brief 20. While most of these witnesses had perception and credibility problems, these problems were not so severe as completely to undercut their testimony. Moreover, the fact that their testimony as a group apparently was consistent gave strength to what otherwise might have been shaky individual testimony.
Leo Tribuzio testified that petitioner told him yet a different story — that petitioner had been in a fight on Mosholu Parkway. Resp. App. Brief 10. This testimony also contradicts petitioner's story to the police because he did not mention a fight — certainly an important detail — to the police.
Petitioner contends that Ms. Alessandro "was the only prosecution witness who was able conclusively to contradict a concrete detail of petitioner's alibi." Pet. Obj. 6. This assertion is simply wrong. First, Ms. Alessandro's testimony did not "conclusively" contradict his statement. The transcript of her cross-examination at the first trial was read into evidence at the second trial, and she there admitted that the restaurant had been busy on the night in question and that she was absent from the front of the restaurant from time to time. Resp. App. Brief 19. Second, petitioner's argument that all of the other witnesses' testimony can be squared with his statement depends on an overly narrow notion of contradiction. See Pet. Obj. 7. For example, the testimony of Leo and Joan Tribuzio unquestionably contradicted his statement because he mentioned neither the visit to their apartment nor a fight (whether inside or outside of the park). In a situation as serious as the one facing petitioner when he gave his statement, the suggestion that petitioner left out such key details simply because "[t]he police never asked [him]" about them, see id., strains credulity. At bottom, Ms. Alessandro simply was one among many witnesses who made petitioner's statement appear fabricated, and her testimony was neither more concrete nor more damaging than that of her fellow witnesses.
The Supreme Court enunciated the factors to be considered in harmless error analysis in Confrontation Clause cases as follows: "These factors include 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 the cross-examination otherwise permitted, and of course, the overall strength of the prosecution's case." VanArsdall, 475 U.S. at 684 (emphasis added). Petitioner claims that the magistrate judge erred by relying in part on the extent to which Ms. Alessandro had been cross-examined at the first trial because the Supreme Court set out the above VanArsdall factors while analyzing an improper limitation on the scope of cross-examination, not an erroneous admission of testimony. Pet. Obj. 6 n. 5. The VanArsdall case, however, suggests that these factors apply to both the erroneous limitation of cross-examination and the erroneous admission of testimony. Immediately before setting them out, the Court rejected the defendant's argument that there was a fundamental difference between erroneous exclusion of evidence and erroneous admission of testimony for purposes of conducting harmless error review. See VanArsdall, 475 U.S. at 683-84. The Court noted : "In both cases the prosecution was thus able to introduce evidence that was not subject to constitutionally adequate cross-examination. And in both cases the reviewing court should be able to decide whether the not-fully-impeached evidence might have affected the reliability of the factfinding process." Id. at 684.
Finally, petitioner makes much of the fact that the jury in his first trial failed to reach a verdict. Given the myriad and diverse reasons why a jury might deadlock, the Court considers it unwise to place emphasis on this extra-record event.
While it is a close call, the Court has concluded that introduction of Ms. Alessandro's prior testimony did not have a "substantial injurious effect or influence in determining the jury's verdict" because of the moderate strength of the People's case and the cumulative nature of her testimony. Brecht, 507 U.S. at 637 (internal quotation marks omitted). The violation of petitioner's Confrontation Clause rights therefore was harmless error.
For the reasons stated by the magistrate judge in the Report, as modified by the above analysis, the petition for a writ of habeas corpus is denied, but a certificate of appealability shall issue with respect to (a) the legal standard governing the harmless error analysis, and (b) whether the error was harmless.
SO ORDERED.