Opinion
01 Civ. 11605 (MBM) (AJP).
May 29, 2002.
REPORT AND RECOMMENDATION
To the Honorable Michael B. Mukasey, United States District Judge:
In connection with a July 1996 shooting, petitioner Conway Christie was indicted for second and third degree criminal possession of a weapon and first degree reckless endangerment, and had two jury trials in Supreme Court, New York County. (Dkt. No. 3: Christie Br. at 1-2.) See People v. Christie, 278 A.D.2d 37, 38, 717 N.Y.S.2d 523, 523 (1st Dept 2000),appeal denied, 96 N.Y.2d 798, 726 N.Y.S.2d 376 (2001). The first trial resulted in Christie's acquittal of second degree weapons possession and reckless endangerment, and a hung jury on the third degree weapons possession count. (See Dkt. No. 11: 7/30/97 Sentencing Transcript ["S."] 8; Christie Br. at 1-2.) Christie's second trial in July 1997 resulted in his conviction of criminal possession of a weapon in the third degree and sentence as a predicate felon to the maximum term of seven years imprisonment. (Dkt. No. 1: Pet. ¶ ¶ 1-4; S. 11-14.) See People v. Christie, 278 A.D.2d at 38, 717 N.Y.S.2d at 523. Christie seeks a writ of habeas corpus from his 1997 conviction on the single ground that "[t]he trial court denied Conway Christie his due process right of a fair trial and compulsory process rights by denying his motion to admit the former testimony of an exculpatory witness." (Pet. ¶ 12(A).)
For the reasons set forth below, Christie's petition should be DENIED.
FACTS
Evidence at Trial Prosecution Case: Police Testimony
The exclusion of defense witness Violet Smith's testimony is the only issue in this case, and the parties do not dispute that the second trial consisted of essentially the same evidence and testimony as the first trial in May 1997, except for Smith's testimony. (See Dkt. No. 3: Christie Br. at 2 ("The prosecution's case consisted of the testimony of the same four witnesses who had testified at Christie's first trial.").) The minutes of the first (May 1997) trial were not submitted to the Court in their entirety because they were not transcribed. (See Dkt. No. 12: 4/11/02 Scott Letter to the Court at 1) (explaining that "where there has been a declaration of mistrial at the first trial followed by a conviction after the second trial — the Appellate Division typically does not order the minutes from the first trial transcribed."). Therefore, unless otherwise indicated, references to the trial transcript are to the second (July 1997) trial.
Christie's second trial commenced with jury selection on July 2, 1997, and opening statements on July 8, 1997. (See Dkt. No. 10: Trial Transcript ["Tr."] at 1.) Police Officers Richard Breece, Rodney Vargas and Sergeant Stephen Barrett testified for the prosecution.
The officers testified that they did not know each other prior to the day of the shooting. (Breece: Tr. 66-67, 111-12, 117; Barrett: Tr. 148-49; Vargas: Tr. 189, 199-200; see also Defense Summation: Tr. 619.) Sergeant Barrett testified that he knew Officer Vargas "from working in the precinct" but had never supervised or worked with him before. (Barrett: Tr. 144.)
On June 27, 1996 at around 7:45 p.m., Officer Breece and Officer Vargas and Sergeant Barrett were on uniformed "crowd control" duty in front of the State Building on 125th Street near Seventh Avenue in Manhattan for an outdoor rap concert attended by "a couple of thousand" people. (E.g., Breece: Tr. 44-45, 47, 52, 70; Barrett: Tr. 133-35; Vargas: Tr. 185-86.)
Officer Breece testified that he was standing at 125th Street and Seventh Avenue facing eastbound toward the concert stage, when he "heard a shot come from behind" him. (Breece: Tr. 47-49.) Officer Breece "immediately spun around" and saw petitioner Christie, standing "approximately two car lengths" (Breece: Tr. 48, 52, 68), or "about 25 feet" (Breece: Tr. 69), from him, "right off the sidewalk on the curb" (Breece: Tr. 50-51, 76), "next to [a] telephone" booth (Breece: Tr. 66, 73), "wearing a bright yellow shirt" (Breece: Tr. 63-64). Officer Breece had an unobstructed "view of the defendant" Christie (Breece: Tr. 125-26), who was "holding a gun in his right hand with his left finger in his left ear smiling, looking back and forth, firing two more shots into the air." (Breece: Tr. 48, 81). Officer Breece "saw [Christie] fire two shots; before that [Officer Breece] heard one" shot. (Breece: Tr. 51.) The prosecution admitted a "silver" gun into evidence, and Officer Breece identified it as the same gun he "saw in [Christie's] hand." (Breece: Tr. 62, 106-07; see also Barrett: Tr. 146-47; Vargas: Tr. 196-97.)
According to Officer Breece, "people scattered away from [Christie who then] was in a circle by himself." (Breece: Tr. 48, 51, 81.) Officer Breece "immediately pulled out [his] gun and ran in [Christie's] direction . . . . [and] Mr. Christie ran behind [a female] in the crowd that was behind him." (Breece: Tr. 48-49.) Sergeant Barrett reached Christie first and "pointed a gun at his head." (Breece: Tr. 48-49, 82; Barrett: Tr. 161, 164.) The female behind which Christie ran "just got out of the way and Mr. Christie threw the gun to the ground" (Breece: Tr. 49, 52, 82-83 107; see also Barrett: Tr. 140, 181), "chuck[ing] it underhand with his right hand to the left" (Breece: Tr. 83), while saying, "It wasn't me" (Barrett: Tr. 140, 162, 164).
Officer Breece "took [his] handcuffs out" (Breece: Tr. 49), "grabbed [Christie] by the waist and spun him around." (Breece: Tr. 49, 83-84.) Officer Breece and Christie "hit the ground" and "other cops came and piled on top." (Breece: Tr. 49, 52, 84.) Because Christie "had his hands underneath him. He didn't want to be handcuffed and a bunch of other cops came and assisted [Breece] in pulling his hands out. . . ." (Breece: Tr. 49, 109-10.) "[T]hey basically flipped him over" "on his face . . . basically on his chest." (Barrett: Tr. 142.) Officer Breece and other officers handcuffed Christie and immediately brought him to a police car and then to the precinct. (Breece: Tr. 49, 53-54.) Officer Breece was "basing [his] attention on getting [Christie] handcuffed and getting him out of there," away from the "large group" of "angry" people, and consequently was not aware of whether other people were grabbed or searched by police in connection with the shooting. (Breece: Tr. 53, 84-85, 108-09.)
It is undisputed that Christie was injured during his arrest (e.g., Breece: Tr. 105, 126; Barrett: Tr. 169; Greene: Tr. 242-53, 268-69, 290-95; Manggrum: Tr. 336, 358; Christie: Tr. 455-59, 473, 477), although Breece and Barrett denied striking Christie (Breece: Tr. 86; Barrett: 164, 170, 179) and maintained that his injuries were caused by his resistance to being handcuffed (Breece: Tr. 126; Barrett: Tr. 169). The police took photos of Christie on the day of his arrest, showing the extent of his injuries to his face. (Breece: Tr. 86-87, 99-101, 105-06, 126-28; Christie: Tr. 470-72.) Christie denied resisting arrest in any way and claimed that the police used excessive force on him during and after his arrest. (Christie: Tr. 460-61.) Christie conceded that the officers obtained medical attention for Christie for his injuries. (Breece: Tr. 101-02; Barrett: Tr. 169; Christie: Tr. 473-76; see also Tedford: Tr. 499-508.)
Officer Vargas was standing on Seventh Avenue at the intersection of 125th Street when he heard "some shots" fired from "125th Street and Seventh Avenue approximately, in front of 209 West 125th Street." (Vargas: Tr. 187.) When Officer Vargas heard "[t]he first shot [he] didn't know where it was coming from. . . . [He] started looking around to see as to where it might have been coming and then there was a second shot. [Vargas] saw other officers draw their weapons and start running towards the direction of 209 West 125th Street. [Vargas] drew [his] weapon and started running in the same direction. By the third shot [he] was able to zero in on where the noise was coming from. . . . In front of 209 West 125th Street." (Vargas: Tr. 188-89.) Officer Vargas did not see Christie holding or shooting a gun. (Vargas: Tr. 191, 194.)
Officer Vargas "saw [Officer Breece] take a civilian down" and "take him to the ground" and "[t]hey rolled around" while "two or three" other officers joined in. (Vargas: Tr. 189-91.) Officer Vargas "couldn't really make anything out. . . . [He saw] some type of yellow and blue [clothing] and [could] also see the patches from the NYPD." (Vargas: Tr. 196). "[A] gun fell from between. . . . Officer Breece and [Christie]" and landed "[r]ight in front of' Officer Vargas. (Vargas: Tr. 191, 205-08.) Officer Vargas "heard Sergeant Barrett say, that is the gun, get the gun. So, [Vargas] kicked it to move it [about fifteen feet] away," "[b]ecause [he] was scared that the defendant would have gotten to it" and "had to chase it down the block." (Vargas: Tr. 191-92, 207; see also Barrett: Tr. 170-72; Breece: Tr. 107-08, 117.) The gun "was spiraling up the block" and Officer Vargas "dove for the gun and . . . wound up injuring [his] knee from [a] bike" (Vargas: Tr. 192-93) Officer Vargas testified that when he picked up the gun it was "warm" and left "nitrate" from the "gunpowder" "residue . . . on [his] fingertips." (Vargas: Tr. 208-09, 222.) Officer Vargas gave Sergeant Barrett the gun. (Barrett: Tr. 180; Vargas: Tr. 193, 198.)
Vargas explained that "[n]itrate from the gun powder . . . . leaves a mark on your hand . . . [l]ike a black soot, something you get touching the newspaper, similar to that." (Vargas: Tr. 209.)
Charles Haase, a former New York police officer and detective who performed "ballistics and crime scene work" (Haase: Tr. 545-46), testified as a forensics expert for the defense that contrary to Officer Vargas' testimony, a .38 caliber would not have been "hot or warm to the touch" "five to ten seconds after it was fired" (Haase: Tr. 564) and that there would only be a "minimal amount of any kind of soot" "on the front of the barrel and possibly on the front of the cylinder" after the gun is fired (Haase: Tr. 565).
Sergeant Barrett testified that at 7:45 p.m. he was standing "basically on the yellow line" (Barrett: Tr. 136-37, 154), "facing south" (Barrett: Tr. 138) "on 125th Street, just off the [northwest] corner of 7th Avenue" (Barrett: Tr. 136), "directing a car . . . through the intersection" (Barrett: Tr. 137, 160, 174-75), when he "heard one shot" (Barrett: Tr. 137-38). Sergeant Barrett had an unobstructed view of Christie (Barrett: Tr. 140) holding a gun in his "right hand" and "point[ing] [it] straight up in the air" (Barrett: Tr. 139). According to Sergeant Barrett, "at the time the shots were being fired, people had dispersed away from Mr. Christie." (Barrett: Tr. 161.) Sergeant Barrett testified:
I turned around and faced the [north] and there was a telephone booth there and I saw [Christie] standing next to [a] telephone booth, at which time people ran by me. [Christie] shot, another shot off while I was walking towards him. I took my gun out when I got to about five feet away from him, and . . . he shot another shot off. I was basically now on top of him. I pointed my gun at his head and I told him, let me see your flicking hands. At that time he threw the gun to his left side and started going back. At that time, other officers just tackled him from the right and left side.
(Barrett: Tr. 137; see also id. at 138, 158-62, 177-78.) Sergeant Barrett heard the first shot, saw the gun in Christie's hand and saw Christie fire two other shots. (Barrett: Tr. 140, 160.) There was a "struggle" as "[o]fficers were attempting to get [Christie's] hands behind his back and he still didn't want to get his hands behind his back, so some officers were on [Christie's] back . . . . one officer had his knee in the small of his back, basically in the top, top part of his neck trying to get his hands behind his back [and] [e]ventually they did." (Barrett: Tr. 142, 163.)
Sergeant Barrett "told [Officer Vargas to] pick up the gun . . . [and Officer Vargas] stepped over and kicked it and it went about eight to ten feet. . . . [Sergeant Barrett] ran for it [and Officer Vargas] ran for it; [Officer Vargas] tripped and hit his knee on a bicycle [but] he was able to recover" and get the gun. (Barrett: Tr. 143-44, 170-72; see also Vargas: Tr. 191-92.) Officer Vargas handed Sergeant Barrett a "Smith and Wesson" "[t]hirty-eight" caliber gun (Barrett: Tr. 144-45), with "a total of five rounds; three were spent, two were live" (Barrett: Tr 145;see also Breece: Tr. 59-60, 110-11; Vargas: Tr. 197-98.)
A police ballistics expert confirmed that the gun retrieved that day was a ".38 caliber Smith and Wes[s]on revolver." (O'Connell: Tr. 440.)
Officer Breece explained that "[t]he three empty shell casings are what is left of the bullet. It's just the empty shell. There is no bullet left in the shell casing itself when the bullet is fired out, it is what is left in the gun and the two live rounds is the two bullets that weren't fired." (Breece: Tr. 59-60.)
Christie was arrested and was taken to the 28th Precinct. (Breece: Tr. 53-55.) Officer Breece testified that he was filling out the paperwork incidental to Christie's arrest "a few feet away" from Christie's holding cell (Breece: Tr. 55-56), when he heard Christie talking to himself, saying "someone was shooting first, kick my ass, I deserve it, I know I was wrong, my life is over, I'm on parole, how do you know it came from my gun. . . . I can beat this rap." (Breece: Tr. 56, 102-03.) Officer Breece testified that he contemporaneously recorded Christie's statements (Breece: 56-57) and that he did not ask Christie any direct questions except his "name, date of birth and social security number" which he needed for his paperwork. (Breece: Tr. 55-56, 102-03.)
Officer Breece explained that post-arrest the police prepare "a complaint report . . . and online booking report [and] fingerprints." (Breece: Tr. 55.)
Officer Breece testified that there were at least two other incidents involving gun shots at the concert that day, one of which occurred approximately five minutes before Christie's arrest. (See Breece: Tr. 47, 78-81, 108-16; see also, e.g., Castro: Tr. 300-01; Christie: Tr. 455-57; Greene: Tr. 244; Manggrum: Tr. 333-34; Dkt. No. 2: Scott Aff. Ex. C: Smith Tr. 323.) Officer Breece did not "participate at all" in the first shooting (Breece: Tr. 80-81, 116-17) and Officer Vargas and Sergeant Barrett were not aware of any other shooting incidents (Barrett: Tr. 166; Vargas: Tr. 213-15).
Officer Breece testified that while seated next to Christie in the van transporting Christie to another precinct to later be taken to Central Booking, Christie said, "I don't know why I did it. I was stupid. . . . I fucked up my life. I didn't want to get anybody hurt." (Breece: Tr. 57-58, 103-04.) Officer Breece did not write the statement down but told the prosecutor about the statement the next day, "the first opportunity" he had to discuss the case with the District Attorney's Office. (Breece: Tr. 58, 103-04.)
Both Officer Breece and Sergeant Barrett unequivocally identified Christie at trial as the shooter. (Breece: Tr. 50, 52, 125-26; Barrett: Tr. 137-38, 151.)
The Defense Case
Christie testified in his own defense, along with Officer Peter Castro, who was also on duty at the concert, as well as Christie's friends, Walter Greene, Douglas Manggrum, George Waller and Louis Jones, who testified as eyewitnesses, under defense subpoenas. (See Waller: Tr. 404-05.)
Eyewitnesses Testimony of Christie's Friends: Walter Greene, Douglas Manggrum, George Waller and Louis Jones
Long time friends of Christie, eyewitnesses Walter Greene, Douglas Manggrum, George Waller and Louis Jones testified that they were with Christie and another friend, Violet Smith, on the evening of June 27, 1996. (Greene: Tr. 237-38; Manggrum: Tr. 328-30; Waller: Tr. 374-75; Jones: Tr. 412-13.) After eating together at Copeland's, a "restaurant on 125th" Street (Greene: Tr. 239-40), they attended a nearby free outdoor concert. (Greene: Tr. 237-39; Manggrum: Tr. 328-30; Waller: Tr. 375; Jones: Tr. 413.) The group "stayed a little ways back . . . watch[ing] the concert from afar," "a couple of feet away from the corner, by a telephone booth" on 125th Street and Seventh Avenue. (Greene: Tr. 239-40; see also Manggrum: Tr. 328-30; Waller: Tr. 375, 378; Jones: Tr. 413.) There were "many people" — "thousands of people . . . just in this area [of the telephone booth] alone." (Greene: Tr. 241.) Christie and his friends were standing together "around th[e] phone booth" and Jones was "sitting on top" of the booth. (Greene: Tr. 240-41; Waller: Tr. 378; Jones: Tr. 414-15, 421.)
Greene explained that they "were all on the phone taking turns, getting on top of the phone" booth "because there were so many people you couldn't exactly see. You had to be on top of something to get an actual visual of everything." (Greene: Tr. 243.)
Suddenly, they "heard gunshots," and Jones "got down off the phone" booth and "ran around the corner to Seventh Avenue" (Jones: Tr. 416, 42 1-22), falling over a bike in the process (Jones: Tr. 426-27; see also Manggrum: Tr. 335). "[J]ust prior to the shots," Christie was "standing on the right of' Jones (Jones: Tr. 416), to Greene's immediate right" (Greene: Tr. 246), "within arms distance" to the right of Manggrum (Manggrum: Tr. 356-57). Greene testified, "We heard the shots. We hit the floor. [T]he next thing we know the police were everywhere. Police were just coming around the corner because, I guess, the shots came from around this way." (Greene: Tr. 244.) Waller and Jones testified that the shots came from "behind" them. (Waller: Tr. 390, 396; Jones: Tr. 425.) Greene described the scene as "chaotic" with "thousands of people" running and "a lot of confusion." (Greene: Tr. 250-51.)
The police arrived "with their guns pointed" and "asked [Christie's group] to get up slowly and they put [them] against the wall" and "searched" them. (Greene: Tr. 246-49.) The police searched Greene and let him go (Greene: Tr. 259-60), and "checked" Waller and also released him (Waller: Tr. 383). The police handcuffed Manggrum "laying on the ground" when another officer "came running over" and said "That's not him." (Manggrum: Tr. 334, 336-37, 341-42.) The police "released [Manggrum] when the cop came, looked in [his] face and said 'No.'" (Manggrum: Tr. 341-43.) Waller testified that he was also stopped and frisked by police:
Q. You had a phone in your pocket?
A. Yes.
Q. The police frisked you?
A. Yes.
Q. And what did they find?
A. When they felt the pocket, that's when they, you know, they got tight on the guns and they was pointing the guns at me.
I said, "It's a phone, it's a phone" and [the officer] checked it and he was like, "Get out of here" like.
(Waller: Tr. 405-07.)
While Waller and Manggrum were being searched, Christie "was being arrested." (Greene: Tr. 252, 265.) Greene, Manggrum, Waller and Jones testified that they did not see Christie with a gun at any time that day and did not see the shooter. (Greene: Tr. 245, 276-77, 291; Manggrum: Tr. 338-40, 361, 369; Waller: Tr. 384, 402-03; Jones: Tr. 420.) The Prosecution's Impeachment of Defense Witnesses with Prior Convictions
When Jones returned five to ten minutes after the shots, Christie and all his friends were gone. (Jones: Tr. 417, 423.) Because Jones had run away when he heard the shots, he testified that he "didn't really see what happened." (Jones: Tr. 423, 425-26.)
On cross-examination, Waller testified he knew about guns because his "father was a[n] ex-cop" and initially testified that "it was a small gun from the sounds of it" "like a .22 or .25." (Waller: Tr. 386-87.) Waller then directly contradicted himself and testified that "a little gun ain't going to make no big noise like the noise we heard" and then immediately stated that the noise they heard was "a little noise." (Waller: Tr. 388.)
The prosecutor impeached the credibility of defense witnesses Greene, Manggrum, Waller and Jones by cross-examining them about their prior convictions. (Greece: Tr. 261-64; Manggrum: Tr. 362-68; Waller: Tr. 398-403; Jones: 427-28.)
Specifically, the prosecution questioned Greene about his 1990 conviction for resisting arrest (Greene: Tr. 261-62) and his 1996 conviction for attempted sale of a controlled substance. (Greene: Tr. 264.) Greene testified that he did not "think the police told the truth" in his case but that he did not harbor "any resentment" towards police officers as a result and that despite these incidents, he has "nothing against" the police. (Greene: Tr. 263-64.)
Similarly, the prosecutor heatedly cross-examined Manggrum regarding a prior felony conviction. (Manggrum: Tr. 362-68.) Even a cold record reveals that Manggrum was an incredible witness. For example, Manggrum testified that even though he "pleaded guilty to a felony" in 1992 and that it was "the only time [he] ever pled guilty in [his] life," he testified that he "d[i]dn't remember what [he] pled guilty to." (Manggrum: Tr. 362-63.) He argued that he "didn't commit the crime" to which he pled guilty (Manggrum: Tr. 363-64) and that he "lied" (Manggrum: Tr. 365, 367-68) when he said he was guilty "because [he] did not want to serve jailtime and [the plea] was [for] probation" (Manggrum: Tr. 363-64), because he did not want to "go . . . through the court motions" (Manggrum: Tr. 365, 368), and because he "had no lawyers fee" (Manggrum: Tr. 364), even though he was represented by Legal Aid (Manggrum: Tr. 365-66). Nevertheless, Manggrum expected the jury to "[b]elieve that [he was] telling the truth," "[e]ven though they know . . . that in the past in connection with a case, [his] case, [he] lied." (Manggrum: Tr. 368.)
The prosecutor questioned Waller regarding his 1991 conviction, upon a guilty plea, for marijuana possession. (Waller: Tr. 398.) Waller testified that he "didn't commit the crime," but that he "lied" and pled guilty because "[t]hat's what my mother wanted me to do." (Waller: Tr. 400-03.) Nevertheless, Waller maintained that if he had seen Christie shoot a gun the day of the concert he "would come in and say the truth." (Waller: Tr. 403.)
The prosecutor cross-examined Jones about his Washington D.C. shoplifting conviction, a crime Jones admitted committing. (Jones: Tr. 427-28.)
Officer Peter Castro
Officer Peter Castro, called by the defense as a hostile witness (Castro: Tr. 306), also was assigned to crowd control duty on 125th Street and Seventh Avenue. (Castro: Tr. 297-98.) Officer Castro testified that he did not "see Mr. Christie [or anyone else] fire any shots" that evening. (Castro: Tr. 305.) Officer Castro "heard the shots. [He] went over to the north — the northwest corner of 125th Street, at which time an individual was stopped. [Castro] took custody of him and that is about it." (Castro: Tr. 301-02.) Officer Castro searched, handcuffed, "put [this other individual] in the back of the [police] car," "and took him to the precinct" (Castro: Tr. 302, 305, 318), but testified that he did not "arrest that individual" and explained that "that individual was not Mr. Christie." (Castro: Tr. 302, 304-05, 310.) At the time Castro handcuffed this individual, "Mr. Christie had already been taken away." (Castro: Tr. 307, 321.) Officer Castro had not "seen [the person he stopped] committing any crime" (Castro: Tr. 316), and "wasn't sure whether he was involved in anything" (Castro: Tr. 325). But he stopped him "[b]ecause he was standing near or next to the individual that was shooting the gun." (Castro: Tr. 318-20.)
Officer Castro nevertheless took this other individual who was on "the corner" of "125th Street and 7th Avenue" (Castro: Tr. 303) into custody, handcuffed him and brought him to the precinct on his "own initiative" because he "couldn't interview him at that location because of what was going on. So, Officer Castro had to get him out of there. It was an emergency situation." (Castro: Tr. 305-07.) Officer Castro testified:
A. Like [I] said before, it was chaos. So for my safety I felt that I should handcuff him.
Q. So, you thought that he'd fired the weapon.
A. Did I think that he'd fired the weapon? I didn't know what he might have on him. He could have had a concealed knife or gun or anything.
Q. But, you searched him right there when you approached him?
A. I did a pat down. I didn't do a search.
Q. And you didn't find any knives on him. Is that correct?
A. Not right there, no.
Q. You indicated that the individual wasn't under arrest, but you did handcuff him?
A. Yes, sir.
Q. Let me ask you another question. At the time you went up to this individual, Mr. Christie had already been taken away. Is that correct?
A. That is correct.
Q. . . . You don't remember why you took this individual in, other than for your own safety?
A. Right. Well, also, I didn't know if he was in concert with someone else, the person that had been arrested or anything like that. I wanted to get him out of there so I could do a proper investigation.
I wanted to get the individual out of there so I could get his pedigree information to find out whether or not he had or was with anyone else that might have done the shooting.
(Castro: Tr. 305-09.)
Officer Castro described "the atmosphere, at that time, as being very chaotic, people [were] running, police [were] running around with guns, trying to find out what is going on." (Castro: Tr. 302-03.) According to Officer Castro, when he "frisk[s] somebody, [he is] compelled to make out a report, and [he] couldn't do it right there . . . . there was chaos." (Castro: Tr. 316, 326.) Officer Castro took this individual to the station, "took information" from him, and "turned him loose." (Castro: Tr. 312-13.) Officer Castro did not "charge [this individual] with anything because he didn't commit a crime." (Castro: Tr. 320.)
Christie's Testimony
Christie testified that on June 27, 1996 he was at a concert with friends he has "known for a while": Violet Smith, George Waller, Douglas Manggrum and Walter Greene. (Christie: Tr. 450-51.) Christie testified that he did not have a gun in his possession (Christie: Tr. 457-58, 488), denied shooting a gun (Christie: Tr. 458, 460) and denied making spontaneous incriminating post-arrest statements at the police station and in transit to central booking. (Christie: Tr. 460-63, 467-69, 490.) Christie testified that he was at the concert standing "[r]ight by the phone booth" facing north, "talking to Violet" Smith, when he "heard the shots coming from the State Building area." (Christie: Tr. 453-54, 477-78.)
Q. You heard the shots coming from the State Building?
A. Yes.
Q. You heard everyone else testif[y] that they heard the shots coming from further down towards Copeland's [Restaurant]?
A. Yes.
Q. Are they all mistaken?
A. I don't know; that's what they heard.
Q. Walter Greene, Louis Jones, George Waller, they all heard it from Copeland's [Restaurant]; you heard it from the other direction?
A. Yes because the people then started coming, rushing straight down on us, so I figured that's where the shots was coming, they rushing down on us.
Q. But I'm asking you not from where the people were running, but from what you heard, it sounded like it was coming from over at the State Office Building?
A. Yes.
Q. Now as soon as you heard the shots, you went down?
A. Yeah.
Q. And that's because you knew that they were gunshots, right?
A. Yes.
Q. . . . . [W]hen you hit the ground, how long were you down on the ground before the police showed up?
A. About a minute.
Q. And the police showed up, and did you say you were getting up or still on the ground?
A. I was getting up off the ground.
Q. And Officer Breece tackled you right down to the ground, tackled you hard?
A. Yes.
Q. And you had nothing in your hands?
A. No I did not.
(Christie: Tr. 478-80.)
Christie conceded that he was essentially struggling with the officer who was trying to handcuff him, but alleged that he was doing so because he didn't "know who was on [his] back" and he "was using [his] whole body to try to turn around." (Christie: Tr. 481-83.) When he realized it was a police officer, Christie told the officer "it wasn't me." (Christie: Tr. 483, 484-85.) Christie alleges that after he was arrested he only made "one statement" to Officer Breece — that he was on parole. (Christie: Tr. 462-64, 467.) On direct, Christie admitted to being convicted of a felony in June 1993. (Christie: Tr. 463.)
The Trial Court's Exclusion At Christie's Second Trial of Smith's Prior Testimony
On July 16, 1997, two weeks after the start of Christie's second trial, defense counsel informed the court for the first time that he "was unable to locate" Violet Smith. (Tr. 513; see also Tr. 428-31 (trial court informing counsel and jury that the case is finishing soon).) At a hearing outside the jury's presence, Dwayne Matthews, the defense's investigator, testified at length as to his efforts "to run [Smith] down." (Tr. 513; Matthews: Tr. 515-19.) Specifically, Matthews testified that he called Smith's home on July 9 and left a message with Smith's mother who informed Matthews that Smith "had gone to California;" visited Smith's home on July 10 and left a message with his name and number on the mailbox after there was no answer to the doorbell; and called Smith's residence and spoke with her mother and left messages for Smith on July 12, 13 and 14. (Matthews: Tr. 515-17). On July 13, Smith's mother said Smith was back in the City. (Matthews: Tr. 516.) When Matthews spoke with Smith's mother on July 14, he "gave the mother the information on the court date, the courtroom location, [and] the time to appear in court." (Matthews: Tr. 516-17.) When Matthews "received no response [from Smith] . . . on the 15th, about 9:30 p.m. [he] spoke with the mother again and she told [him] that she'd spoken with Violet late in the afternoon on the 15th, but she didn't give Violet the information on the court date because it was late in the day and just the day before on the 14th [Matthews had] informed her that [the court date] was for 9:30 in the morning. So, she felt no need to give it to her because it was after the date and after the time." (Matthews: Tr. 517, 527-28.) Matthews also testified that he left messages for Smith's agent on a machine and on the agent's beeper but received no response. (Matthews: Tr. 517-18.)
Voir Dire for Christie's second trial commenced on Wednesday July 2, 1997, continued through July 3, was adjourned for the July 4th holiday and reconvened on Monday July 7. (See Voir Dire ["VD"] Tr. 1, 115-16, 202, 540.) Voir dire was completed on July 7 (VD Tr. 417) and trial commenced on Tuesday July 8 (see Tr. 1-2, 202). The trial was in recess from Wednesday July 9 through Friday July 11 due to the trial judge's attendance at a previously scheduled conference; trial resumed on July 14 and continued until the trial's conclusion on July 16. (See Tr. 227, 228, 512, 527.)
Matthews was "in contact" with Smith, who "did have a subpoena" for the first trial, but for the second trial, for which she was not subpoenaed, he "d[i]dn't know what happened." (Matthews: Tr. 519-20.) Mathews explained that Smith "travels" and "is into modeling." (Matthews: Tr. 518.) Smith "always maintain[ed] that she would testi[f]y for" Christie. (Matthews: Tr. 521) Matthews explained that he originally gave Smith a June trial date, but Christie's case was adjourned until July 2. (Matthews: Tr. 523-24.) Matthews testified that "[b]etween July 2nd, the date th[e] case started, and July 9th . . . there was no effort to contact Miss Smith and arrange for her to come to court." (Matthews: Tr. 527; see also id. at 526.)
The prosecution questioned Matthews in depth about his efforts to contact Smith:
Q: Did you speak to [George Waller, Douglas Manggrum, and Walter Greene] and ask them to get in touch with Violet Smith?
A. No. I didn't. Basically, what either of them would have said to me was that they don't see Violet that much and that was even from the previous court date that they don't see Violet that much. They see each other, but they don't see her that much.
Q. Did you ever just pick up the phone and just check and say, hey, have you seen her?
A. I may have asked that of Douglas Manggrum, I believe it was Douglas Manggrum. I asked him, I recall speaking to him and asking him had he seen Violet, but he didn't see her.
Q. When was that you spoke to Manggrum?
A. I know that was on July 10th because I saw him.
Q. Did you tell him that it was important to get in touch with her and, if he could make any effort to get in touch with her and let her know?
A. I asked him if he'd seen her or heard from her and he told me, no.
Q. Did you go to the business of the agent where it is actually located and try to speak to anyone there?
A. I don't have that address. I had a phone number and a beeper number for that individual.
Q. And none of those phone calls were returned to the agent.
A. They weren't returned to myself, no.
Q. Did you ask Miss Smith's mother who the agent was and try to ascertain a business address to speak to the agent?
A. No. I didn't.
Q. Did you look up the agent's number in a phone book to try to get a place of employment or business?
A. No. I didn't.
Q. So, other than the two messages on the agent's beeper, no effort was made by you to contact her through her business?
A. Other than the phone calls, that was my attempt to contact her.
Q. When you spoke to Miss Smith in the past, other than her agent and her mother, did she give you any other information as to how she could be contacted?
A. To myself, no.
Q. Did you ask her for any other information?
A. No. I had her home number which, in the beginning, was somewhat successful. And then later I received the agent's telephone number and beeper number.
Q. Did you ever ask her, since you're traveling a lot, can't reach you at home, other than your agent is there anyone else that may know where you are? Did you ever ask her that?
A. No. I didn't.
Q. Did you ever ask her if she has a husband or a boyfriend or someone else who might know where she is?
A. No. I didn't.
Q. Did you ask if she has any brothers or sisters [who] might know where she is?
A. No. I didn't.
(Matthews: Tr. 529-32.)
Matthews explained that "prior to July 2nd" he did not have any problems with Smith; "[s]he was cooperative. There [were] times [Matthews] called, she was home, [he] . . . gave her the information on the court date or [he] would speak to her mother and give the information to her mother. Sometimes Violet would call [Matthews] and sometimes [he] would call her and she would be home. But, there were occasions when she was away." (Matthews: Tr. 533.)
Defense counsel moved to admit Smith's previous testimony. (Tr. 536.) The trial court denied the motion:
THE COURT: . . . It is clear what is going on here. [The defense has] been trying to reach this woman. She went to California. She is back now. The mother has told her that you are trying to reach her. She knows that you are trying to reach her, but she is not showing up. . . .
I have no question that everybody that I have had contact with tried desperately to get her to come to court. I have no question about that. I have no question that you have notified her of the court date.
It's clear to me, that you have done everything to bring this woman into court. It's clear to me, for whatever reason, she is not coming.
I think it's clear that a sincere effort has been made by everybody to get Miss Smith to come to court. That has been going on for two weeks, from July 2nd until today, I believe. I accept [the investigator's] testimony. I believe that is correct. I believe you have been trying for two weeks to get her to come to court and she has not come.
Now, [defense counsel is] making an application to admit her prior testimony on the prior trial in view of her absence?
[ASSISTANT DISTRICT ATTORNEY]: I'm opposed to that motion. First of all. in the Steeps [People v. Steeps, 52 A.D.2d 887, 383 N.Y.S.2d 74 (2d Dep't 1976)] case it is indicated that the temporary nature of the complainant's absence wasn't sufficient reason to permit the reading of her pretrial testimony. Citing Davis vs. State [ 20 Okla. Cr. 203, 201 P. 1001 (Okla.Cr. 1921)] and it goes on to say where the proof shows that a witness is temporarily absent from the state and in the ordinary course of events, such absence will be ended by return, the predicate for the brief reproduction of his or her testimony at the trial is insufficient, mere absence, such as a business or pleasure trip of a temporary nature has been held insufficient to justify the reading of such prior testimony at the trial.
[A]nd there is also, in People of the State of New York versus Phan, [ 150 Misc.2d 435,] 568 N.Y.S.2d 498 [(Sup.Ct. NY. Co. 1990)] it indicates that the Court finds, while the defendant has made attempts to find the witness, his effort has not met the good faith due diligence to finding that the witness is unavailable.
It goes on the say, that the visiting of one relative of the witness and telephone calls does not satisfy this Court that the witness is unavailable. That is almost on point with what happened here, in that they rang the doorbells, they visited the one relative, in each case, and they made telephone calls in this case . . . and also [left] some beeper messages and that was found insufficient, as well.
The problem is. that no effort had been made from July 2nd to July 9th. [The investigator] didn't have any contact. He had contact with her previously and he picked up the contact again on the 9th and. in fact. his notes indicated that on the 9th he was having problems in trying to locate her.
I believe, also, there was a statement made yesterday that she was told that she would be testifying the week of the 21st. That being the case, clearly and unequivocally her failure to be here today would be attributable to that. If she was told personally, you're going to testify the week of the 21st, then she is not looking to come in these two weeks. She should not have been told the 21st. I was here. You told this jury from the very beginning that, when this case started on July 2nd. that it would be done by the end of this week. There was no indication that it would be going on to the following week and, certainly no indication that it would be going on for the week of the 21st, for actual testimony.
I think we have a miscommunication via defense to the witness and the witness in. as in the Steeps case, is going on with her business and is simply being unavailable, in that Mr. Matthews seemed to be a step or two behind her. . . . I don't think that the evidence here reaches a level that would allow a prior trial testimony to be read into the court before the jury.
[DEFENSE COUNSEL]: . . . . In all fairness, when this was initially set for the June date, she was available.
THE COURT: The point of the thing is this case was sent to me on July 2nd, ready for trial. Both sides told me they were ready for trial. That means they had their witnesses, they were ready to proceed.
We started the trial on July 2nd. The trial has gone forward since that time without break, except for the July 4th holiday and the three days I spent in judge's camp up in Westchester. Those were the only interruptions. Apart from that, this court has had no other business except to try this case.
You have been diligent in getting your witnesses here. It's clear to me you made an effort to find this witness. It's clear to me. for whatever reason, she hasn't shown up. I don't find that a sufficient basis to find her an unavailable witness.
We've been talking to her mother, her mother knows she's suppose[d] to be here . . . . she knew she was suppose[d] to be here on the 14th; she doesn't show up.
It might make her a hostile witness, but there is nothing on the record that would indicate that.
It appears she was a willing witness in the past and she apparently would be willing to testify again now, but for whatever reason, she's choosing not to do so.
I don't think the efforts by Mr. Matthews — I admit he's made some efforts — I don't think they are sufficient.
He didn't find out her beeper number, he didn't speak to her again after July 2nd. He let it lie for a week where he should have been on her.
If she was a witness that you wanted, he should have made some effort to get her in here.
I do not find her an unavailable witness. I believe she is walking around the city this very moment and would be available to us if Mr. Matthews would go out and find her, but I don't find there is a sufficient good faith basis to locate her, and I am not going to delay this trial any further.
She was supposed to be here on the 14th, she was supposed to be here on the 15th and this is the 16th. I'm not giving you one more day to bring her in. This is three days you've had. I'm not blaming you, but I don't think the efforts here w[ere] sufficient.
If you can't get a witness here in three days, clearly that witness has lost interest. That's the only conclusion I could draw.
[DEFENSE COUNSEL]: I wouldn't comment to that. So the record is clear, she was told the 21st by me and therefore, that's the reason she's not here, I wanted to say though she was advised of the new date, unfortunately she didn't show up, but it wasn't because she wasn't originally told that week, but as the date changed, we supplied the information. I wanted to correct that.
THE COURT: That's standard in every trial. Dates change, witnesses are called out of turn, that's part of it, but if she knew she had to be here this week and she's not here, I can only assume, for whatever reason, she doesn't want to come.
She's not unavailable, she's simply not coming, so that application is denied. You cannot offer her prior testimony, and you have an exception to that ruling.
(Tr. 534-43, emphasis added.)
Summations
It was evident from closing arguments that trial hinged on witness credibility.
Defense counsel argued in summation that this was a case of mistaken identity.
(Defense Summation: Tr. 608-09.) Counsel addressed the prior convictions of defense eyewitnesses:
His Honor will instruct you as to how you should evaluate the conviction of a person. It basically goes to his credibility.
Now it doesn't fall, as part of our daily life, that a person who has been convicted of a crime would automatically lie, nor does it fall that a person who has been convicted would tell the truth. That's something you have to decide.
We have a number, at least four civilian witnesses who indicate that Mr. Christie was not the individual who fired the weapon and Mr. Christie never had possession of a weapon on the date and time of this incident. . . .
Now we've had much to do about the fact that these guys [police officers] were just thrown into this duty assignment accidentally, they just happen to draw, they didn't know anyone, they didn't know each other, they didn't socialize, but the one common thread that runs through this whole thing, they're police officers, police officers, and if you believe that [an officer is] going to come in and say [Sergeant] Barrett is lying or the other guy is lying, then I got a bridge to sell you because it's not going to happen, so the fact that they didn't know each other until that day is of no moment here.
The question is did they tell you the truth? How can a police officer who is a sergeant, who has been trained to observe, supposedly, tells you on one hand, the crowd parts and it's a very light crowd, at most a few hundred people, when he's in the midst of fifteen thousand people, when another police officer comes around the corner and describes the atmosphere as chaotic, crowded, people running, bicycles all over the place?
[Y]ou saw those individuals [who testified in Christie's defense]. They are not police officers. They are not trained to testify, but the one thing they can tell you is, and many of them told you things that were not in their best interest because they were asked the question, it just came out and they tried to be as honest as they could, and that's something you have to decide by looking at them as you did as they testified . . . as to whether or not these individuals were forthcoming, whether or not they told you everything without trying to hide anything.
Now, Mr. Christie himself is convicted of a crime. He admitted to that and you'll apply that in the equa[t]ion in trying to determine his credibility and his Honor will explain to you how to do that. You saw him on the stand. He testified. He denies ever having that gun. He denies ever being involved in that shooting. He indicates that he, along with his friends, were in that area around the telephone at the time that the incident happened, that it came from the back.
(Defense Summation: Tr. 610-11, 619-21, 627.)
The prosecution agreed with the defense that there is "only one issue in this case and that is, whether the defendant had the gun." (State Summation: Tr. 638.) Like defense counsel, the prosecutor emphasized that the case hinged on witness credibility:
For you to believe the defendant's witnesses, for you to find the defendant not guilty, you have to say, [the police officers are] lying, they didn't see what they said they saw because those two men [Officer Breece and Sergeant Barrett] took the stand and they told you that they saw the defendant holding that gun and firing that gun.
[Defense counsel] is asking you to say, that those two officers lied. They said they saw something they didn't see. But, what he doesn't tell you is, he didn't tell you why they would say that. He doesn't say anything about why Barrett or Breece would come into court and lie. He talked about how his client had an interest and he says that because the Judge is going to charge you as a matter of law that the defendant is an interested witness, the police officers are not interested witnesses in the same way that the defendant is an interested witness. of course, they care about the case. They made arrests. They are in court. You would expect that they would care about the case. But they're not interested witnesses in the same way.
So, you should ask yourself, well, why would they come in and lie, would they take the stand and come in and say that [Christie] did it when he didn't?
If you think back to [defense counsel's] summation, he didn't give you a reason. . . . His answer is, they're cops and because they're cops they lie together, they cheat together and will do anything together and you heard the Judge tell you that that is not fair and that is not what you do. You look at them as individuals. You don't look at uniforms. He wants you to assume that just because they're cops, they're going to lie for each other and that is wrong. It's wrong. It's unfair and the Judge specifically told you, treat them as individuals because if you treat them as individuals, there isn't a reason to say that these two men, Barrett and Breece, would lie, that they would get together and arrange a story. That is just the same two men that don't work together, socialize together. He can't give you any other reasons.
It's important to remember that Barrett and Breece were close to the defendant when he fired the shot. They both described it. A shot is fired and everybody parted. That is corroborated by the defendant's own witnesses. Some of the defendant's witnesses talked about everybody went to the ground and everybody else ran. That is pretty much what Barrett and Breece are saying, that when the shots are fired and they turned, after the first set of shots, they saw the defendant standing there with the gun. There wasn't anyone around them, that is because Walter Greene, Douglas Mang[g]rum and the defendant said, everybody went down or everybody either scattered.
So, it's just not the People's witnesses that show you that Barrett and Breece could see what happened. The defendant's witnesses show you that Barrett and Breece could see what happened.
You have to ask yourselves, why would these two officers, Barrett and Breece, go right on that corner by the telephone booth, grab this defendant and arrest him if he is not the person that did it? They're not getting paid to just make an arrest out of a crowd. Their job is to apprehend the person with the gun. So, ask yourselves why are they grabbing him if he didn't do anything different than Walter Green[e], George Waller and Douglas Mang[g]rum, why aren't those people frisked, those people are released, but the defendant is held, if he didn't do anything different than the other ones, why the defendant? He couldn't give you an answer to that.
Most importantly, what you have to take from the defendant's case is, if you believe the defendant's version. you don't believe the cops. what it means is that Barrett and Breece and also Vargas. three cops that have nothing to do with each other until this incident, get together and all decide to frame this defendant. They are all going to come into court and they are all going to lie and it doesn't appear to be any reason why they would do that, absolutely no reason.
The fact that [defense's eyewitnesses] have criminal records is important. It's important for the reason that the judge will tell you that it bears upon a person's credibility. That's sort of common sense.
(State Summation: Tr. 639-44, 650-51, emphasis added.)
Violet Smith's Testimony at Christie's Prior Trial
Had Christie's motion to use eyewitness Violet Smith's testimony from the first May 1997 trial been successful, the following testimony would have been (but was not) presented to the second jury:
Smith testified that she "model[s], act[s], and [has] a rap group." (Ex. C: Smith: Tr. 322.) Smith testified that she and Christie, who she called "Chris," were "very close friends," "went to school together," and occasionally modeled together. (Smith: Tr. 322, 324, 328-29.) Smith testified that she had never been convicted of a crime. (Smith: Tr. 331.)
Referenced exhibits are attached to the 12/19/01 Affidavit of Christie's counsel, Jeffrey T. Scott. (Dkt. No. 2.)
Smith "attend[ed] th[e] rap concert" with Christie. (Smith: Tr. 322.) At the concert, Smith and Christie "were standing by a phone in front of Copeland's restaurant." (Smith: Tr. 323.) Smith described the scene as "[c]haotic [with] wall-to-wall crowds of people everywhere . . . like roaches." (Smith: Tr. 323-34.) They heard gun shots and "everyone scattered in their own direction. Chris . . . grabbed [Smith] and [they] fell down on the ground." (Smith: Tr. 324-25.) Smith testified:
A. After we fell down, I went to try to get up. [Christie] was like helping me up, and as soon as I moved out of the way, all the officers just started grabbing guys up. They specifically jumped on him. They started kicking and harassing him, kicking him, shoving him, all types of things. They were just beating him up.
Q. Okay. And at that point in time, did he have a gun in his hand.
A. No.
Q. On that date, did you ever see Mr. Christie with a gun in his hand?
A. No.
Q. Did you ever see anybody in the area where you were that was actually shooting a gun?
A. No, I didn't see any gun. I just heard shots behind us.
Q. So, you believe the shots came from behind you?
A. I know they came from behind us.
Q. All right. Now, did you ever see a gun anywhere near where Mr. Christie was?
A. I never saw a gun, period.
Q. Did you ever see any police pick up a gun?
A. I didn't see any gun, period. I haven't seen any gun.
(Smith: Tr. 325-26.) According to Smith, the police just "grabbed [Christie] at random." (Smith: Tr. 336-37.)
Verdict and Sentence
On July 16, 1997, the jury in Christie's second trial convicted Christie of criminal possession of a weapon in the third degree. (Dkt. No. 11: Tr. 729-31; see Dkt. No. 1: Pet. ¶ 4.) On July 30, 1997, Christie was sentenced as a predicate felon to the maximum term of seven years imprisonment. (Dkt. No. 11: S. 10-14; see Pet. ¶ ¶ 2-3.)
Christie's Direct Appeal
Represented by counsel, Christie appealed to the First Department, arguing inter alia that "the [trial] court denied [Christie] his due process right of a fair trial and compulsory process rights by (a) denying [Christie's] motion to admit the former testimony of an exculpatory witness, and (b) failing to grant [Christie] a limited adjournment to obtain the testimony of a known exculpatory witness." (Ex. E: Christie 1st Dep't Br. at 29-41.)
The First Department affirmed Christie's conviction:
The [trial] court properly denied defendant's request to have the testimony of a witness who testified at defendant's first trial admitted into evidence since defendant failed to meet his burden of establishing that the witness could not "with due diligence be brought before the court." (see CPL 670.10(1); People v. Broome, 222 A.D.2d 1094, 636 N.Y.S.2d 243 [(4th Dep't 1995)]. In any event, upon our review of the entire trial, we conclude that there was no reasonable possibility that this witness's testimony would have affected the verdict.People v. Christie, 278 A.D.2d 37, 38, 717 N.Y.S.2d 523, 523 (1st Dep't 2000) (emphasis added).
C.P.L. § 670.10(1) provides:
Under circumstances prescribed in this article, testimony given by a witness at (a) a trial . . . may, where otherwise admissible, be received into evidence at a subsequent proceeding in or relating to the action involved when at the time of such subsequent proceeding the witness is unable to attend the same by reason of death, illness or incapacity, or cannot with due diligence be found, or is outside the state or in federal custody and cannot with due diligence be brought before the court. . . .
The New York Court of Appeals denied leave to appeal on April 6, 2001.People v. Christie, 96 N.Y.2d 798, 726 N.Y.S.2d 376 (2001).
Christie's Current Federal Habeas Petition
In Christie's current single-issue habeas petition, Christie's counsel argues that "[t]he trial court denied Conway Christie his due process right of a fair trial and compulsory process rights by denying his motion to admit the former testimony of an exculpatory witness." (Dkt. No. 1: Pet. ¶ 12(A); see also Dkt. No. 3: Christie Br. at 27-40.)
ANALYSIS
I. APPLICABLE LEGAL PRINCIPLES A. The AEDPA Review Standard
For additional decisions authored by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of the Report Recommendation, see Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *89 (S.D.N.Y. May 15, 2002) (Peck, M.J.);Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *1243 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *89 (S.D.N Y Jan. 25, 2002) (Peck, M.J.); Thomas v. Breslin, 01 Civ. 6657, 2002 WL 22015 at *45 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.); Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *7 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *6 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *16 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); James v. People of the State of New York, 99 Civ. 8796, 2001 WL 706044 at *11 (S.D.N.Y. June 8, 2001) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *22 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *10 (S.D.N.Y. May 25, 2000) (Peck, M.J.).
Before the Court can determine whether Christie is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").
In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners."Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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) . . . 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)(1)-(2).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519. Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence."Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523. "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context."Kennaugh v. Miller, 2002 WL 769444 at *5.
Accord, e.g., Jones v. Stinson, 229 F.3d 112 119 (2d Cir. 2000);Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 532 U.S. 943, 121 S.Ct. 1404 (2001); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000), cert. denied, 531 U.S. 1116, 121 S.Ct. 865 (2001).
Accord, e.g., Kennaugh v. Miller, No. 01-2281, 2002 WL 769444 at *4 (2d Cir. Apr. 12, 2002); Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).
As to the "contrary to" clause:
A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.
Accord, e.g., Kennaugh v. Miller, 2002 WL 769444 at *4; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.
In Williams, the Supreme Court explained that "[u]nder the "unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523. However, "[t]he term 'unreasonable' is . . . difficult to define." Id. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409, 120 S.Ct. at 1521.
Accord, e.g., Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.
The Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)); see also, e.g., Loliscio v. Goord, 263 F.3d at 184. Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed."Kennaugh v. Miller, 2002 WL 769444 at *7.
Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254 (d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.Sellan v. Kuhlman, 261 F.3d at 312; accord, e.g., Jenkins v. Artuz, Nos. 01-2355, 01-2328, 2002 WL 483547 at *6 (2d Cir. Apr. 1, 2002) ("InSellan, we found that an even more concise Appellate Division disposition — the word "denied" — triggered AEDPA deference."); Norde v. Keane, No. 01-2049, 2002 WL 483488 at *7 (2d Cir. Mar. 29, 2002);Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001). On the other hand, "[i]f it cannot be determined from the state-court opinion whether the denial of a given claim was based on a procedural ground rather than on the merits, no AEDPA deference is due the state-court decision on that claim." Rudenko v. Costello, 286 F.3d 51, 69 (2d Cir. 2002).
The Second Circuit "recognize[d] that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the "unreasonable application' or "contrary to' tests." Sellan v. Kuhlman, 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:
We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999).Sellan v. Kuhlman, 261 F.3d at 314; accord, e.g., Norde v. Keane, 2002 WL 483488 at *7; Aparicio v. Artuz, 269 F.3d at 93.
The First Department's decision affirming Christie's conviction, People v. Christie, 278 A.D.2d 37, 38, 717 N.Y.S.2d 523, 523 (1st Dep't 2000),appeal denied, 96 N.Y.2d 798, 726 N.Y.S.2d 376 (2001), constituted an adjudication "on the merits" since the decision was based solely on substantive grounds. See Sellan v. Kuhlman, 261 F.3d at 314 (describing factors to consider in determining whether AEDPA applies). Therefore, the First Department's decision triggers the deferential AEDPA review standard as set forth in 28 U.S.C. § 2254 (d).
Indeed, the First Department cited the Appellate Division's decision in People v. Broome, 222 A.D.2d 1094, 636 N.Y.S.2d 243 (4th Dep't 1995), which in turn cited two federal cases — Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 2543 (1980), and Gonzalez v. Scully, 578 F. Supp. 1063, 1071 (S.D.N.Y.), aff'd, 738 F.2d 418 (2d Cir.), cert. denied, 469 U.S. 1020, 105 S.Ct. 438 (1984).
Both Christie's counsel and the State concede that Christie's claim was adjudicated on the merits in state court, thus triggering AEDPA deferential review. (Dkt. No. 7: State Br. at 11, 13; Dkt. No. 3: Christie Br. at 25, 27.)
The First Department's conclusion that Smith was not unavailable (i.e., that Christie failed to establish that Smith could not "with due diligence be brought before the court"), People v. Christie, 278 A.D.2d at 38, 717 N.Y.S.2d at 523, is a mixed question of law and fact. See, e.g., Rosario v. Kuhlman, 839 F.2d 918 923 fn. 3 (2d Cir. 1988) (pre-AEDPA case, holding that the determination of whether witness was unavailable so that prior testimony could be used is a mixed question of law and fact) (citing Cuyler v. Sullivan, 446 U.S. 335, 341, 100 S.Ct. 1708, 1714 (1980)); Phan v. Greiner, 165 F. Supp.2d 385, 401 (E.D.N.Y. 2001) (citing cases). On federal habeas review, mixed questions of law and fact translate to "mixed constitutional questions (i.e., application of constitutional law to fact)," Williams v. Taylor, 529 U.S. at 400, 120 S.Ct. at 1516, and under the AEDPA are reviewed under the standard set forth in 28 U.S.C. § 2254 (d)(1), requiring a habeas court to determine whether the state court's decision "was contrary to or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." E.g., Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *18 n. 44 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.) (citing cases); Phan v. Greiner, 165 F. Supp.2d at 401.
B. The Relevant Supreme Court Standards on the Use of Prior Testimony of an Unavailable Witness
Christie argues that "habeas corpus relief should be granted because the state court decision denying Christie's motion to admit the former testimony of Smith was contrary to, and involved an unreasonable application of, the clearly established Supreme Court precedent inChambers [v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038 (1973),] and [Ohio v.] Roberts," 448 U.S. 56, 100 S.Ct. 2531 (1980). (Dkt. No. 3: Christie Br. at 29; see also Dkt. No. 9: Christie Reply Br. at 2-5.)
In Chambers v. Mississippi, the Supreme Court held that "[t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations. The right to . . . call witnesses in one's own behalf has long been recognized as essential to due process." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045 (1973). "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.' . . . [A]n essential component of procedural fairness is an opportunity to be heard." Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146-47 (1986) (citations omitted); accord, e.g., Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *23 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); Rosario v. Attorney General of the State of New York, 00 Civ. 6681, 2001 WL 267641 at *11 (S.D.N.Y. Mar. 19, 2001) (Peck, M.J.), report rec. adopted, 2001 WL 521828 (S.D.N.Y. May 15, 2001) (Kaplan, D.J.); Cruz v. Greiner, 99 Civ. 7939, 1999 WL 1043961 at *32 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Gillette v. Greiner, 76 F. Supp.2d 363, 373 (S.D.N.Y. 1999) (Stein, D.J. Peck, M.J.). The right to present a defense "comprehends more than the right to present the direct testimony of live witnesses, and includes the right under certain circumstances, to place before the jury secondary forms of evidence, such as hearsay or, as here, prior testimony." Rosario v. Kuhlman, 839 F.2d at 924.
See e.g., Chambers v. Mississippi, 410 U.S. at 294, 93 S.Ct. at 1045; Williams v. Lord, 996 F.2d 1481, 1483 (2d Cir. 1993), cert. denied, 510 U.S. 1120, 114 S.Ct. 1073 (1994); United States v. Almonte, 956 F.2d 27, 30 (2d Cir. 1992) ("[T]he right to present a defense is one of the "minimum essentials of a fair trial"); Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988); see also, e.g., Taylor v. Illinois, 484 U.S. 400, 409, 108 S.Ct. 646, 653 (1988); Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435 (1986); Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110 (1974).
The Second Circuit, in a pre-AEDPA habeas decision, acknowledged that a "defendant has the constitutional right to introduce a secondary form of evidence such as prior testimony when two circumstances are present: first, the evidence bears sufficient indicia of reliability, Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539 (1980); and second, the witness who gave the original testimony is no longer available. Prior testimony where the same party has had a full and fair opportunity to cross-examine the witness is a reliable form of such evidence." Rosario v. Kuhlman, 839 F.2d at 924 (citation omitted). The Second Circuit further addressed the unavailability issue:
The State has never argued, in state court or here, that Violet Smith's prior testimony was unreliable. (See, e.g., Dkt. No. 2: Scott Aff. Ex. G: State 1st Dep't Br. at 17-39; Dkt. No. 7: State Br. at 12-23.) Accordingly, the reliability prong will not be further discussed in this Report Recommendation.
In Roberts, the Supreme Court made it clear that the asserted unavailability of a prosecution witness is a federal constitutional question. The Court stated that such a witness is not unavailable "for purposes of . . . the exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial."
Unless a defendant's rights under the confrontation clause are greater than under the compulsory process clause of the sixth amendment, it seems clear that a good faith effort to locate a witness is the standard with respect to either clause. A state court finding that a defense witness is not unavailable necessarily limits a defendant's right under the compulsory process clause. We must therefore apply to a defendant seeking to demonstrate the unavailability of a witness the same constitutional standard that applies to a prosecutor seeking to establish the same thing, i.e., a good faith effort to locate the witness. We do not believe such a standard is incompatible with the New York statute, N.Y. Crim. Proc. Law § 670.10(1) (McKinney 1984), pursuant to which the defense sought to introduce the perpetuated testimony of [defense witness]. The New York Court of Appeals has observed that the purpose of the due diligence requirement of that statute is to ensure that failure to produce the witness "was not due to indifference or a strategic preference for presenting [the witness'] testimony in the more sheltered form of . . . minutes rather than in the confrontational setting of a personal appearance on the stand."Rosario v. Kuhlman, 839 F.2d at 924-25 (fn. citation omitted, emphasis in first ¶ in original, emphasis in second ¶ added).
However, "[t]he Sixth Amendment right to present a defense is not unqualified; [it is] subject to countervailing public interests." Lurie v. Wittner, 228 F.3d 113, 133 (2d Cir. 2000) (internal quotations omitted), cert. denied, 532 U.S. 943, 121 S.Ct. 1404 (2001). "Restrictions on a defendant's presentation of evidence are constitutional if they serve 'legitimate interests in the criminal trial process,' and are not 'arbitrary or disproportionate to the purposes they are designed to serve.'" United States v. Almonte, 956 F.2d at 30 (quoting Rock v. Arkansas, 483 U.S. 44, 55-56, 107 S.Ct. 2704, 2711 (1987)).
Accord, e.g., United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 1264 (1998); Michigan v. Lucas, 500 U.S. 145, 151, 111 S.Ct. 1743, 1747 (1991); Taylor v. Illinois, 484 U.S. 400, 424, 108 S.Ct. 646, 660-61; Williams v. Lord, 996 F.2d at 1483; see also, e.g., Rodriguez v. Lord, 2001 WL 1223864 at *23; Rosario v. Attorney General, 2001 WL 267641 at *12; Cruz v. Greiner, 1999 WL 1043961 at *32; Lugo v. Edwards, 97 Civ. 7789, 1998 WL 601080 at *2 (S.D.N.Y. Sept. 9, 1998); Sorenson v. Superintendent, Fishkill Corr. Facility, No. 97 CV 3498, 1998 WL 474149 at *5 (E.D.N.Y. Aug. 7, 1998); Lora v. Artuz, 95 Civ. 6319, 1997 WL 249966 at *4 (S.D.N.Y. May 12, 1997); Perfetto v. Hoke, 898 F. Supp. 105, 114 (E.D.N.Y. 1995); Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y. 1995), aff'd mem., 71 F.3d 406 (2d Cir. 1995).
Whether the exclusion of evidence violates a defendant's "right to present a defense depends upon whether the omitted evidence [evaluated in the context of the entire record] creates a reasonable doubt that did not otherwise exist. Thus, where 'the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.'" Justice v. Hoke, 90 F.3d 43, 47 (2d Cir. 1996) (citations internal quotations omitted, brackets in original). "It is the materiality of the excluded evidence to the presentation of the defense that determines whether a defendant has been deprived of a fundamentally fair trial." Rosario v. Kuhlman, 839 F.2d at 925; accord, e.g., Rock v. Arkansas, 483 U.S. at 52, 107 S.Ct. at 2709.
Accord, e.g., Washington v. Schriver, 255 F.3d 45, 56 (2d Cir. 2001); Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000); Rodriguez v. Lord, 2001 WL 1223864 at *23; Morales v. Portuondo, 154 F. Supp.2d 706, 723-24 (S.D.N.Y. 2001); Rosario v. Attorney General, 2001 WL 267641 at *12; Gillette v. Greiner, 76 F. Supp.2d at 373.
See also, e.g., Taylor v. Curry, 708 F.2d 886, 891 (2d Cir.),cert. denied, 464 U.S. 1000, 104 S.Ct. 503 (1983); Rodriguez v. Lord, 2001 WL 1223864 at *23; Rosario v. Attorney General, 2001 WL 267641 at *12; Cruz v. Greiner, 1999 WL 1043961 at *33; Roberts v. Scully, 875 F. Supp. at 190.
The Second Circuit in Rosario v. Kuhlman adopted for this purpose the standard for materiality previously defined by the Supreme Court inUnited States v. Agurs:
"The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist. constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt."Rosario v. Kuhlman, 839 F.2d at 925 (emphasis in original) (quotingUnited States v. Agurs, 427 U.S. at 112-13, 96 S.Ct. at 2401-02).
The final question in light of the Supreme Court Agurs standard is how to apply the AEDPA in the context of a fundamental fairness analysis, an issue recently addressed by the Second Circuit in Jones v. Stinson, 229 F.3d at 120-21. In Jones, the state appellate court decided that the trial court's evidentiary rulings had not denied the defendant a fair trial. Id. at 116. The Second Circuit held that, although it might have found, under the Agurs standard, that one of the trial court's rulings "create[d] a reasonable doubt that did not otherwise exist," the Second Circuit could not conclude that the excluded testimony "would so certainly have created new ground for reasonable doubt that the appellate division's decision [affirming the trial court's ruling] was objectively unreasonable." Id. at 120. The Second Circuit thus denied habeas relief based on the AEDPA's deferential review standard. Id. at 120-21; see also Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *16 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.).
III. THE FIRST DEPARTMENT'S DETERMINATION THAT SMITH WAS NOT UNAVAILABLE AND THAT THE EXCLUDED TESTIMONY DID NOT AFFECT THE VERDICT DID NOT CONSTITUTE AN UNREASONABLE APPLICATION OF SUPREME COURT PRECEDENT
The First Department's decision — that Christie did not meet his burden of showing that Smith was unavailable, and in any event, that the testimony would not have affected the verdict — is not "contrary to" any Supreme Court precedent. The First Department did not "appl[y] a rule that contradicts the governing law set forth in [Supreme Court] cases" nor "confront a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrive at a result different from [Supreme Court] precedent." Williams v. Taylor, 529 U.S. 362, 367, 405-06, 120 S.Ct. 1518, 1519-20 (2000).
Christie relies on Chambers v. Mississippi and Ohio v. Roberts. (See, e.g., Dkt. No. 3: Christie Br. at 29.) The First Department, in fact, cited People v. Broome, which in turn had cited Ohio v. Roberts. People v. Christie, 278 A.D.2d 37, 38, 717 N.Y.S.2d 523, 523 (1st Dep't 2000) (citing People v. Broome, 222 A.D. 1094, 1094, 636 N.Y.S.2d 243, 244 (4th Dep't 1995) (citing Ohio v. Roberts)). Ohio v. Roberts, however, involved the Confrontation Clause — the prosecution's attempt to use prior testimony of an unavailable witness against the criminal defendant.Chambers v. Mississippi involved a state rule prohibiting a party, including a criminal defendant, from cross-examining a witness called by that party and also a hearsay ruling that did not recognize the statement against penal interest exception; the case did not involve an unavailable witness or prior testimony. Thus, the First Department's decision was not "contrary to" Supreme Court precedent.
The Court next turns to the AEDPA's "unreasonable application" clause — did the First Department unreasonably apply Chambers v. Mississippi's (and its progeny's) "due process" based right to j)resent a defense standard to Christie's case. That, in turn, involves two issues: (1) was Smith "unavailable," and (2) even if she was, would her testimony have created a reasonable doubt that did riot otherwise exist, utilizing the Agurs materiality standard. (See discussion at pages 39-41 above.)
The trial court's conclusion that Smith was unavailable is based on its finding that the defense did not make sufficient efforts to locate her, or only made belated efforts. (See pages 23-24 above.) The applicable standard regarding witness availability requires that the defense undertake "good faith" efforts to procure the witness' attendance at trial. See, e.g., Rosario v. Kuhlman, 839 F.2d 918, 924-25 (2d Cir. 1988) (citing Ohio v. Roberts, 448 U.S. 56, 74-76, 100 S.Ct. 2531, 2543-44 (1980)); see also C.P.L. 670.10(1).
On Monday July 14, 1997, the trial court announced to counsel and to the jury: "Okay ladies and gentlemen we'll recess until 10 o'clock tomorrow morning. I would say on our present schedule we'll charge you on Wednesday," July 16th. (Tr. 428.) Before adjourning for the day, counsel discussed the order of witnesses with the trial court outside the jury's presence, and the prosecutor indicated that defense counsel would probably "try to call Miss Smith first." (Tr. 431.) Defense counsel did not advise the trial judge of any problems locating Smith. On July 15th the prosecution rested. (Tr. 444.) On July 16th, after the charge conference (Tr. 513), defense counsel notified the trial court for the first time of difficulties locating Smith. (Tr. 513-14; Matthews: Tr. 514-34.) Christie concedes that Smith was in New York at the time of the July 1997 trial; in fact, Smith's mother confirmed this fact to the defense's investigator. (See page 18 above.) Moreover, Christie did not subpoena Smith, even though she was subpoenaed for the first trial (see page 18 above), and the defense subpoenaed all of Christie's other eyewitness friends for the second trial. (See page 9 above.) It was therefore not unreasonable in light of the circumstances for the state court to conclude that Smith was not unavailable under C.P.L. § 670.10(1), which is equivalent to the good faith effort to locate witnesses under the federal standard, as explained in Rosario v. Kuhlman, 839 F.2d 918, 924-25 (2d Cir. 1988). See, e.g., People v. Combo, 272 A.D.2d 992, 992-93, 708 N.Y.S.2d 781, 781-82 (4th Dep't 2000) (trial court "erred in admitting at trial the testimony of a police officer at a prior proceeding. The officer left the country before the commencement of defendant's trial because the child that he was adopting was born prematurely. At the time of trial, his location in the country of Turkey was unknown and his date of return was uncertain. . . . The People utterly failed to make any showing of due diligence to justify the admission of the officer's prior testimony. . . . The People made no attempt to locate the witness and otherwise 'failed to show that they conducted a thorough investigation of "those possibilit[ies], albeit remote, that might produce the declarant" [nor can it] be said that "it was very unlikely that any additional efforts would have resulted in locating the witness.'"); People v. Broome, 222 A.D.2d 1094, 1094, 636 N.Y.S.2d 243, 244 (4th Dep't 1995) (prosecution's efforts to locate missing witness insufficient although two investigators attempted to locate the witness for a week before trial); People v. Peterson, 160 A.D.2d 563, 564, 554 N.Y.S.2d 521, 522 (1st Dep't) (affirming exclusion of witness' prior testimony where "[t]he record shows no effort by defendant to subpoena or otherwise compel the attendance of the witness"), appeal denied, 76 N.Y.2d 863, 560 N.Y.S.2d 1002 (1990); People v. Steeps, 52 A.D.2d 887, 888-89, 383 N.Y.S.2d 74, 76-77 (2d Dep't 1976) (prosecution's "cursory and superficial" efforts to produce witness did not constitute "due diligence" and "the temporary nature of [witness'] absence was insufficient reason to permit the reading of her pretrial testimony. Where the proof shows that a witness is temporarily absent from the State, and in the ordinary course of events such absence will be ended by return, the predicate for the reproduction of his or her testimony at the trial is insufficient. Mere absence, such as a business or pleasure trip of a temporary nature, has been held insufficient to justify the reading of such prior testimony at the trial.") (citations omitted); see also, e.g., Allen v. Senkowski, 178 F. Supp.2d 318, 322 (E.D.N.Y. 2001) (Weinstein, D.J.) (denying habeas petition brought on the ground that the trial court excluded prior testimony of alibi witnesses who were sick at time of trial; while the state court's "reasoning seems thin," no constitutional violation found).
Compare, e.g., Phan v. Greiner, 165 F. Supp.2d 385, 398-402 (E.D.N.Y. 2001) (habeas granted where defense alibi witness' prior testimony excluded; witness unavailable where defense investigator found witness' mother as source of his location and also subpoenaed her, but she ignored the subpoena, and case against defendant was based on a single eyewitness); Battle v. Scully, 92 Civ. 8949, 1994 WL 38986 at *34 (S.D.N.Y. Feb. 9, 1994) (Mukasey, D.J.) (prosecution exercised due diligence and witness was therefore unavailable where despite "extensive police efforts" witness could not be found); Rosario v. Kuhlman, 658 F. Supp. 1408, 1412-15 (S.D.N.Y. 1987) (habeas granted where defense witness' prior testimony excluded, despite pretrial motion showing extensive defense efforts to find witness including having the trial court issue a material witness arrest warrant), aff'd, 839 F.2d 918 (2d Cir. 1988); Gonzalez v. Scully, 578 F. Supp. 1063, 1066-72 (S.D.N.Y.) (witness was unavailable where witness moved out of state and despite efforts of police in several jurisdictions, could not be found), aff'd, 738 F.2d 418 (2d Cir. 1984); People v. Robinson, 89 N.Y.2d 648, 651-54, 657 N.Y.S.2d 575, 577-79 (1997) (trial court's failure to admit prior testimony of defendant's exculpatory witness constituted reversible error necessitating new trial where there is no dispute that witness' testimony is material and where witness fled the state before trial and refused to retum despite court order); People v. Arroyo, 54 N.Y.2d 567, 571-74, 446 N.Y.S.2d 910, 913-15 (1982) (witness unavailability established where the prosecution made several attempts to find witness including securing a material witness order and attempting unsuccessfully to serve a subpoena; prosecution had complied with N.Y. C.P.L. § 670.10, which "reflect[s] the spirit of the underlying constitutional prescriptions" requiring that a witness "cannot with due diligence be found" before being declared unavailable and admitting prior testimony); People v. Hernandez, 259 A.D.2d 763, 763, 688 N.Y.S.2d 170, 171 (2d Dep't) (witness unavailable where he escaped from police custody and remained a fugitive), appeal denied, 93 N.Y.2d 971, 695 N.Y.S.2d 57 (1999); People v. Thomas, 219 A.D.2d 549, 549-50, 632 N.Y.S.2d 1, 2 (1st Dep't) (unavailability of two witnesses who testified at defendant's first trial was established where they moved to "unknown addresses in foreign countries, and, accordingly . . . prior testimony was properly received into evidence."), appeal denied, 87 N.Y.2d 851, 638 N.Y.S.2d 610 (1995);People v. Crayton, 209 A.D.2d 790, 791, 618 N.Y.S.2d 470, 471 (3rd Dep't 1994) (witness unavailable where she left jurisdiction "without leaving a forwarding address with anyone, including her grown children."); People v. Legrande, 176 A.D.2d 351, 352, 574 N.Y.S.2d 780, 782 (2d Dep't 1991) ("the trial court improvidently exercised its discretion in failing to receive into evidence the prior testimony of an alibi witness" where "defendant appeared to do everything within his power to keep the [trial] court apprised of the whereabouts of the witness and to secure the presence of the witness in court at a future date.").
The issue is somewhat close. I cannot say that if I were the trial judge, I would have made the same ruling as he (and the First Department) did. But the AEDPA requires deference to the state courts, and this Court cannot say that the state court's rulings on Smith's availability were not only erroneous but an unreasonable application of Supreme Court precedent.
Moreover, even assuming that the state court determination as to Smith's availability was both erroneous and an unreasonable application, habeas relief "would issue only where [the] petitioner can show that the error deprived [him] of a fundamentally fair trial." Rosario v. Kuhlman, 839 F.2d at 925. The omission of Smith's testimony, therefore, "'must be evaluated in the context of the entire record.'" Rosario v. Kuhlman, 839 F.2d at 926 (quoting United States v. Agurs, 427 U.S. at 112, 96 S.Ct. at 2402).
The First Department addressed this issue and held that "upon our review of the entire trial, we conclude that there was no reasonable probability that this witness's testimony would have affected the verdict." People v. Christie, 278 A.D.2d 37, 38, 717 N.Y.S.2d 523, 523 (1st Dep't 2000), appeal denied, 96 N.Y.2d 798, 726 N.Y.2d 376 (2001). Applying the AEDPA deferential standard of review, this Court must decide whether the First Department's finding that the excluded evidence would not have affected the verdict was an unreasonable application of Supreme Court precedent. (See pages 31-36 above.)
The materiality issue also is a close one. The Court agrees with Christie (Dkt. No. 3: Christie Br. at 38-39) that Smith was arguably the "most credible" defense witness because she did not have any prior criminal convictions. (See page 28 above.) At trial, Christie's guilt was established by the testimony of the arresting officer and other police officers who testified they saw Christie shoot the gun at the concert. (See pages 2-8 above.) In addition, the arresting officer testified that he heard Christie make spontaneous, incriminating, post-arrest statements. (See pages 7-8 above.) As counsel for both sides acknowledged in their summations, the case was based exclusively on the credibility of the witnesses. (See pages 24-27 above.) It is troubling on the issue of credibility that the jury at the first trial, with the benefit of Smith's testimony, could not reach a unanimous verdict. (See page 1 above.) On the other hand, Smith's recorded testimony — as opposed to her live testimony at which the jury could better determine credibility — is repetitive of the four other friend-eyewitnesses, essentially that the witness was there and Christie did not possess or shoot a gun. Having a fifth person say that, even one without a record, especially via a transcript reading, adds little to the defense case.
This Court is limited by the AEDPA in determining whether the state court unreasonably applied Supreme Court law, i.e., whether it was unreasonable for the First Department to find no prejudice resulted from the exclusion of Smith's testimony. (See page 30 above.) The Court finds that, applying the deferential AEDPA review standard, the state court's materiality decision was not an unreasonable application of Supreme Court precedent. See, e.g., Allen v. Senkowski, 178 F. Supp.2d at 322-23 (no habeas relief because of state court's exclusion of prior grand jury testimony of missing alibi witness, where "[t]he trial judges had technically sound reasons for denying petitioner's motion to introduce the [prior] testimony of the missing alibi witness. It was cumulative [and] came too late . . . [W]hile the issue is troublesome, there appears to have been no constitutional violation."); Ringstaff v. Mintzes, 539 F. Supp. 1124, 1126-30 (E.D. Mich. 1982) ("Even assuming error in the trial court's refusal to read the transcript testimony of [unavailable witness], that error was harmless. . . . [T]he question therefore becomes whether the admission of [the witness'] testimony would have led to a different verdict. After full review of the transcript of the petitioners' trial, this court is convinced that [witness'] testimony was completely neutral in effect and could not reasonably have led to a different verdict."); Ayala v. Leonardo, 20 F.3d 83, 87-94 (2d Cir.) (even though state court erroneously admitted certain adverse testimony in violation of state evidentiary law, and in violation of petitioner's constitutional rights, habeas relief was not warranted because the admission constituted harmless error), cert. denied, 513 U.S. 888, 115 S.Ct. 232 (1994); Panaro v. Kelly, 32 F. Supp.2d 105, 108 (W.D.N.Y. 1998) (even if exclusion of defense witness' testimony was erroneous, no habeas relief is warranted where "petitioner has not shown how the error influenced the jury's verdict, or how the testimony would have creted a reasonable doubt that did not otherwise exist."); compare, e.g., Rosario v. Kuhlman, 839 F.2d at 920, 926-27 (granting habeas relief where the excluded testimony would have directly contradicted the "sole identification evidence against petitioner" and "was to be [petitioner]'sonly witness" — "[w]hen the defense made a final effort, at the end of the prosecution's case, to introduce [the witness's testimony] and was precluded from doing so, it rested without introducing any evidence.") (emphasis added); Phan v. Greiner, 165 F. Supp.2d at 398 (granting habeas relief where the excluded testimony would have contradicted the sole prosecution eyewitness).
Accordingly, Christie's claim that it was unreasonable for the state court to find Smith was not unavailable and excluding her prior testimony should be denied.
CONCLUSION
For the reasons set forth above, Christie's petition for a writ of habeas corpus should be denied. Because the issue is not free of doubt (particularly in light of the hung jury at Christie's first trial with Smith's testimony), I recommend that a certificate of appealability issue. See, e.g., Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04 (2000) (certificate of appealability should issue where "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further"); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir.) (certificate of appealability should issue "if the issues involved in a petition are debatable among jurists of reason, could be resolved in a different manner, or are adequate to deserve encouragement to proceed further"), cert. denied, 531 U.S. 873, 121 S.Ct. 175 (2000).
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636 (b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Michael B. Mukasey, 500 Pearl Street, Room 2240, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Mukasey. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989);Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).