Opinion
02-CV-1324 (JG)
November 18, 2002
Victoria B. Eiger, Dershowitz, Eiger Adelson, P.C., New York, NY, Attorneys for the Petitioner.
Richard A. Brown, District Attorney, Queens County, Donna Aldea, Assistant District Attorney, Kew Gardens, NY, Attorney for the Respondent.
MEMORANDUM AND ORDER
Petitioner Gurdip Singh seeks a writ of habeas corpus challenging his murder conviction in state court on the grounds that the trial court's admission of medical testimony by a doctor who did not conduct the victim's autopsy violated his rights under the Confrontation Clause of the Sixth Amendment. For the reasons set forth below, the petition is denied.
BACKGROUND
On October 13, 1991, Mahanvir Singh and some friends were leaving a party when Mahanvir was stopped by Lakhvir Singh. Lakhvir demanded to speak with Mahanvir, but Mahanvir refused. Lakhvir pushed him and told petitioner, who was standing nearby, to go to the van and bring the pistol. Lakhvir and Mahanvir began to fight, and petitioner ran to a blue van parked across the street, retrieved a gun, and ran back toward the gathering crowd.
When petitioner returned with the gun, he approached Mahanvir, whom Lakhvir was now holding on the ground. Petitioner first fired the gun into the air (the bullet went through a second-floor window, into a room where some of the guests were still enjoying the party), but Lakhvir told him to shoot and kill Mahanvir. Petitioner pointed the gun directly at Mahanvir and shot him at close range, hitting Mahanvir in the back of his right thigh. One of Mahanvir' s friends then grabbed petitioner, but petitioner was able to slip away before the police arrived. Mahanvir was taken to the hospital, where he died a few days later.
Several people saw petitioner shoot Mahanvir, but the police could not immediately find him. Then, almost six years later, in March of 1997, one of the witnesses saw petitioner in a video of a mutual friend's wedding. On May, 16, 1997, that witness accompanied a detective with the Brooklyn North Homicide Squad on a stake out of petitioner's work, and after the witness identified petitioner, the police arrested him.
Petitioner was originally charged with two counts of murder in the second degree (one count of intentional murder and one of depraved indifference murder), criminal possession of a weapon in the third degree, and criminal possession of a weapon in the fourth degree. The weapons charges were dismissed before trial. In May 1998, petitioner was tried by a jury in New York State Supreme Court, Queens County.
At trial, the prosecution had to prove, among other things, that the gunshot caused Mahanvir's death. To do so, the government called as a witness Dr. Jacqueline Lee of the New York City Medical Examiner's Office. The defense objected to Dr. Lee's testimony because Dr. Lee had not performed Mahanvir's autopsy — it had been conducted by Dr. Josette Montas — but the trial court allowed the testimony. Based on her review of Mahanvir's medical records, Dr. Lee testified that the gunshot caused Mahanvir's death. Dr. Lee stated that the bullet entered Mahanvir' s right thigh and passed through his thigh bone, causing the bone to fracture. The bullet then continued up through his hip bone, passed through one loop of his small intestine, and lodged in the fat around his right kidney. Although surgery repaired Mahanvir's fractured thigh, the wound to his intestine caused stool to spill into the cavity left by the bullet, and an infection developed. This infection entered Mahanvir's bloodstream, spread throughout his body, and killed him. See Tr. 746-55.
At the conclusion of his trial, the jury found petitioner guilty of depraved indifference murder. On October 15, 1998, the judge sentenced him to 22 years to life in prison.
In December 1999, petitioner filed an appeal in the New York Supreme Court, Appellate Division, Second Department, raising a total of nine claims, including that the trial court violated his federal Confrontation Clause rights by allowing Dr. Lee to testify regarding the victim's cause of death when she had not performed the autopsy and the doctor who had performed it did not testify at trial. On October 2, 2000, the Appellate Division affirmed petitioner's judgment of conviction. People v. Singh, 714 N.Y.S.2d 104 (2d Dep't 2000). The court specifically rejected two of petitioner's claims, finding that there was sufficient evidence to show depraved indifference and that the admission of prior witness identifications, though erroneous, was harmless. Id. at 105. The court ruled that petitioner's other remaining claims, including the Confrontation Clause claim raised here, were "either unpreserved for appellate review or without merit." Id.
On November 15, 2000, petitioner sought leave to appeal to the New York Court of Appeals, asking the court to review all of the claims he had raised before the Appellate Division. That request was denied on April 9, 2001. People v. Singh, 96 N.Y.2d 806 (2001).
On February 27, 2002, petitioner filed this petition for a writ of habeas corpus, which is based solely on his Confrontation Clause claim.
DISCUSSION
A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to habeas petitions filed after its enactment, has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Both parties agree that the Appellate Division's disposition of petitioner's Confrontation Clause claim as either unpreserved for appellate review or lacking in merit constitutes, for the purposes of federal habeas review, a decision on the merits. Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 810-11 (2d Cir. 2000).
Under the AEDPA standard, the reviewing court may grant habeas relief in such circumstances only if 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." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001). A decision is "contrary to" clearly established federal law as determined by the Supreme Court if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "Under the latter standard, `a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.'" Gilchrist, 260 F.3d at 93 (quoting Williams, 529 U.S. at 411). Interpreting Williams, the Second Circuit has added that although "[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." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision or has even discussed the claim at all. As the Second Circuit stated in Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001):
[f]or 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.
B. Petitioner's Claim
Petitioner claims that his Sixth Amendment Confrontation Clause rights were violated when the trial court allowed Dr. Lee to testify about the findings in Dr. Montas's report because: (1) Dr. Lee testified about facts not in evidence that were based on out-of-court hearsay statements; (2) the government failed to show that Dr. Montas was unavailable to testify; and (3) petitioner was foreclosed from contesting the conclusion that Mahanvir died of the gunshot wound rather than medical malpractice.
Petitioner appropriately points out that under Federal Rule of Evidence 703, an expert may base her opinion on specialized knowledge and facts or data not admissible in evidence so long as they are reasonably relied upon by experts in the field. At the time of petitioner's trial in 1998, Federal Rule of Evidence 703 read as follows:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinion or inferences upon the subject, the facts or data need not be admissible in evidence.
Dr. Lee, the Acting Deputy Chief of the Queens Division of the Office of the Medical Examiner, was qualified as an expert and testified that, based on information in Mahanvir' s medical file, including Dr. Montas's autopsy report and notes, and x-rays, that the gunshot caused Mahanvir's death. Tr. 750-55.
Petitioner does not contend that the information that Dr. Lee used in drawing her conclusion is not of a type reasonably relied upon by pathologists in forming opinions about the cause of a victim's death. However, he argues that Dr. Lee's testimony about the observations and conclusions of Dr. Montas violated the Confrontation Clause because it was hearsay evidence that does not fall within a firmly-rooted exception to the hearsay rule or bear any particularized guarantees of trustworthiness. See Ohio v. Roberts, 448 U.S. 56, 66 (1980). The Second Circuit has held, however, that "reported observations in [autopsy] reports bear sufficient indicia of reliability to satisfy the demands of the Confrontation Clause." United States v. Rosa, 11 F.3d 315, 333 (2d Cir. 1993), cert. denied, 511 U.S. 1042 (1994). Petitioner seeks to distinguish Rosa because here the government did not introduce the autopsy report into evidence and because Dr. Lee also relied on other evidence in Mahanvir's medical file when she concluded that his death was caused by the gunshot. However, if the report itself could have been admitted, it follows that Dr. Lee could properly testify about its contents. The other information in Mahanvir's medical file, like the autopsy report, is the type of information that is reasonably relied upon by medical professionals such as Dr. Lee and likewise bear significant indicia of reliability.
If there was something in the report that helped petitioner, he was free to offer it into evidence himself at trial, or to elicit it on cross-examination of Dr. Lee. Indeed, defense counsel at trial chose the later course, eliciting from Dr. Lee the blood alcohol content of the victim and the absence of gunpowder residue on the body. Tr. 764-65.
Petitioner also complains that not only was Dr. Lee able to testify based on the evidence contained in Mahanvir's medical file, but also that the factual medical findings contained in his file — the fracture of his hip, the path of bullet and where it lodged, the nature of the surgery performed, the injury to Mahanvir's intestines, and the resulting infection — were inappropriately introduced into evidence by her testimony. At the outset, it is not clear that those facts (as opposed to Dr. Lee's conclusions) were relevant to petitioner's defense. In any event, federal courts took conflicting approaches whether, under the 1998 version of Federal Rule of Evidence 703, the underlying facts that an expert relied upon in reaching her conclusion were admissible into evidence even if those facts would have normally been excluded on hearsay grounds. Compare United States v. Rollins, 862 F.2d 1282 (7th Cir. 1988) (allowing admission of hearsay with expert opinion) with United States v. 0.59 Acres of Land, 109 F.3d 1493 (9th Cir. 1997) (rejecting admission of hearsay with expert opinion unless limiting instruction). Against this permissive backdrop, I cannot conclude that the trial court's admission of these underlying facts from the victim's medical records was erroneous. At the very least, the state court's rejection of petitioner's Confrontation Clause claim cannot be characterized as "an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d).
The Advisory Committee Note to Rule 703 as it was proposed in 1972 specifically approves the admission of a doctor's expert testimony in reliance on the reports and opinions of other doctors and hospital records, and it notes that those forms of evidence would generally be admissible on their own right:
[A] physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes.
In Rosa, 11 F.3d at 333 (internal quotations omitted), the Second Circuit likewise noted that:
reported observations in [autopsy] reports bear sufficient indicia of reliability to satisfy the demands of the Confrontation Clause [and] have particularized guarantees of trustworthiness by virtue of (1) the routine and repetitive circumstances under which such reports are made, (2) the fact that the reports are made contemporaneously with the autopsy itself, (3) the existence of statutorily regularized procedures and established medical standards according to which autopsies must be performed and reports prepared, and (4) the fact that autopsies are carried out in a laboratory environment by trained individuals with specialized qualifications.
In 2000, Rule 703 was amended to clarify that "the facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect." Fed.R.Evid. 703.
Petitioner next contends that his Confrontation Clause rights were violated because the trial court did not require the government to show that Dr. Montas was unavailable to testify. But the Second Circuit has held that "[t]he confrontation clause is not necessarily violated by the prosecutor's failure to produce a hearsay declarant for cross-examination at trial where the `utility of trial confrontation' would be `remote' and of little value to either the jury or the defendant." Reardon v. Manson, 806 F.2d 39, 41 (2d Cir. 1986) (quoting Roberts, 448 U.S. at 65 n. 7).Reardon reversed habeas relief that had been granted because the state's supervising toxicologist gave testimony in a narcotics case that was based on tests of other chemists, and the government had failed to show that those chemists were unavailable to testify. Id. The Second Circuit stated that the individual chemists were not likely to have an independent recollection of the tests they performed and would probably rely on their own notes, so they would not be useful witnesses. Furthermore, the supervising toxicologist was well qualified to interpret their notes and could easily be cross-examined on general testing procedures and their accuracy and reliability. Id. Finally, the court noted, "it has become settled" that the guarantees of the Confrontation Clause are "satisfied where the defendant himself had the opportunity to call the declarant as a witness." Id. at 42.
Similarly, Dr. Lee, a supervising pathologist, testified in 1998 about the notes and autopsy report that Dr. Montas's had made almost seven years earlier. Dr. Montas most likely would not have remembered Mahanvir's autopsy and would have based her testimony on her own notes. Dr. Lee was fully capable of interpreting those notes and Dr. Montas's report, as well as the other information in Mahanvir's medical file. Here too, the defense could have readily cross-examined Dr. Lee about the accuracy and reliability of the information contained in the autopsy reports, her reliance on those reports, and her own lack of personal observations.
Reardon also speaks directly to petitioner's claim that the prosecution's failure to call Dr. Montas prevented him from contesting Dr. Lee's conclusion that Mahanvir died from the gunshot as opposed to medical malpractice. In Reardon, the Second Circuit noted that the defense could have just as easily (and perhaps more profitably) cross-examined the supervising toxicologist about the accuracy and reliability of the chemists' tests. Id. at 41. Here, petitioner's able defense counsel at trial could have done the same with regard to Dr. Lee's conclusions based on the medical records compiled by another, but he did not.
CONCLUSION
Because the trial court did not err in applying federal law, the petition is denied. Because petitioner has not made a "substantial showing" on any of his claims, I decline to issue a certificate of appealability. 28 U.S.C. § 2253(c)(2). The Clerk is directed to close the case.