Opinion
No. 05 Civ. 2870 (SAS).
January 20, 2006
Laura Lieberman Cohen, Esq., The Legal Aid Society, New York, NY, For Petitioner.
Alyson J. Gill, Luke Martland, Attorney General of the State of New York, New York, NY, For Respondents.
OPINION AND ORDER
I. INTRODUCTION
Robert Johnson, an inmate at the Sing Sing Correctional Facility, brings this petition for a writ of habeas corpus pursuant to section 2254 of Title 28 of the United States Code. Petitioner asserts the following claim: the state court's determination that the erroneous admission of the complainant's hospital statement was harmless error was an objectively unreasonable application of established Supreme Court precedent, specifically Chapman v. California. For the reasons discussed below, Johnson's petition is denied.
386 U.S. 18 (1967).
II. BACKGROUND
A. Pre-Trial Proceedings
New York County Indictment 868/2000 charged petitioner with attempted murder in the second degree, assault in the first degree (intent to cause serious physical injury with a dangerous instrument), assault in the first degree (intent to disfigure), and resisting arrest. These charges stemmed from the stabbing of Val Grey ("complainant"), a homeless man, in the eye with an ice pick on the evening of February 5, 2000. There were no witnesses to the stabbing but two police officers observed complainant and petitioner grappling shortly before complainant shouted that he had been stabbed. Complainant gave a statement to the police one hour after the incident. The police were unable to locate complainant before trial. Prior to trial, the prosecutor moved to introduce complainant's statements, including those made during the confrontation and at the hospital, under the excited utterance exception. The court granted the prosecutor's motion, holding that complainant's statements were admissible as excited utterances.
See Respondent's Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus ("Resp. Mem.") at 2-3.
See id. at 2.
See id. See also Feb. 2002 Brief for Appellant ("Pet. Brief") at 2.
See id.
See Petitioner's Memorandum of Law and Appendix in Support of Petition for a Writ of Habeas Corpus ("Pet. Mem.") at 2-3.
See id. at 3.
See Pet. Brief at 5.
B. Summary of the Evidence at Trial
The People offered the following evidence. On February 5, 2000, petitioner was loitering at the southwest staircase of a subway station. Two police officers ordered petitioner to leave the station, and petitioner complied with their request. A few minutes after petitioner left the station, a glass bottle was thrown down the northwest staircase of the station. The officers did not see who threw the bottle, nor did they see anyone running away from the station. Approximately one minute later, a steel garbage can rolled down the southwest staircase. The officers found petitioner and complainant in a struggle twenty yards from the station. They saw petitioner with an ice pick in his right hand, which he was holding at a 45 degree angle, and complainant's left hand was pinning petitioner's right arm against the wall. The ice pick was below waist level. The officer saw blood on the pick and blood on the pavement where the two men were standing. Petitioner was not injured, but complainant was bleeding from his left eye. Complainant looked in the officers' direction, and then screamed "he stabbed me." Petitioner was the only person within fifteen to twenty feet of complainant. The officers ordered petitioner to drop the ice pick, and petitioner initially refused but complied after a second request. Petitioner resisted when the police tried to arrest him.
See id. at 8.
See Resp. Mem. at 3.
See id.
See Pet. Mem. at 8.
See id.
See id.
See id.
See Resp. Mem. at 4.
See id.
See Pet. Mem. at 8.
See Resp. Mem. at 4.
See id.
See Pet. Mem. at 8.
The officers followed complainant to a nearby laundromat. Complainant continued to state that he had been stabbed, but could not state how or what weapon had been used. An ambulance took complainant to a hospital, and while traveling in the ambulance complainant repeated that he had been stabbed and was concerned that he had lost his eye. At the hospital, complainant provided the following statement to the police:
See Resp. Mem. at 5.
See Pet. Mem. at 8.
See Resp. Mem. at 5.
[H]e [the complainant] was traveling down the stairway, at the subway station, and he saw a steel garbage can come rolling down the stairs next to him. He informed me that he was under the impression that the garbage can was intended to hit him. He then went back up the stairs to confront whoever threw the garbage can down the stairs. He did not see who threw it. [He stated he was informed by passers by that [petitioner] had thrown the can done [sic] the stairs.] [Petitioner] was standing approximately fifteen or so yards away. Approximately. [Complainant] then went and confronted [petitioner]. A struggle ensued. Which resulted in [complainant] being stabbed. [Complainant] did not say what he was stabbed with.
The double hearsay contained in the bracketed portion of the statement was not admitted at trial. See People v. Johnson, 1 N.Y. 3d 302, 304 (2003).
See Pet. Mem. at 5.
Dr. Maxim Koslow, the treating neurosurgeon, testified that complainant had alcohol on his breath when he entered the hospital. Complainant sustained blood clots on his brain resulting from a hard object piercing his eye and penetrating his brain. Dr. Koslow testified that he regarded these injuries as consistent with being stabbed with an ice pick. After complainant entered the hospital, his cognitive abilities began to deteriorate. He received several months of treatment in a rehabilitation program. Complainant remained at the hospital until early June 2000, when he left without being discharged. Thereafter, the police were unable to locate complainant. Petitioner called no witnesses and offered no evidence at the trial.
See id. at 10.
See Resp. Mem. at 6.
See Pet. Mem. at 10.
See Resp. Mem. at 6.
See id. at 7.
See Pet. Mem. at 11.
See Resp. Mem. at 8.
See id.
C. Jury Deliberations and Verdict
The jurors deliberated for a short period after the court gave them instructions, and then adjourned for the evening. The next day, the jury asked the court to repeat its instructions on the elements of the charges, "intent to disfigure," and the definition of serious physical injury. Late in the day, the jury indicated that it had deadlocked on one count. The court gave the jury an Allen charge. The jury then requested a rereading of Dr. Koslow's testimony, and testimony about the wound to complainant's eye.
See Pet. Brief at 13.
See id.
See id.
See id. (citing Allen v. United States, 164 U.S. 492 (1896)).
See id.
The jury convicted petitioner of assault in the first degree (intent to cause serious physical injury with a dangerous instrument) and resisting arrest, and acquitted him of attempted murder in the second degree and assault in the first degree (intent to disfigure). Petitioner was sentenced to concurrent prison terms of twenty years for assault, and one year for resisting arrest.
See Pet. Mem. at 13.
See Resp. Mem. at 8.
D. Direct Appeal
On November 14, 2002, the Appellate Division, First Department, affirmed petitioner's conviction. The court held that all of complainant's statements were properly admitted as excited utterances. On January 6, 2003, the Court of Appeals granted petitioner's application for leave to appeal. At trial, petitioner had objected to the admission of all of complainant's statements, based on his right to confront witnesses and to a fair trial. On appeal, petitioner did not challenge complainant's statements at the scene, in the laundromat, or in the ambulance. Petitioner argued only that it was error to admit complainant's hospital statement to the officer.
See id. at 9.
See id.
See Pet. Brief at 14.
See Resp. Mem. at 8.
See id. at 8-9.
See id. at 9.
On December 22, 2003, the Court of Appeals affirmed petitioner's conviction in a 6-1 decision. Although the court held that complainant's hospital statement was not an excited utterance, it found that the error was harmless beyond a reasonable doubt. The court based its conclusion on its determination that the evidence of petitioner's guilt was overwhelming, even without complainant's hospital statement. Judge George Bundy Smith dissented, and held that the erroneous admission of the complainant's hospital statement was not harmless beyond a reasonable doubt.
See Johnson, 1 N.Y.3d at 308-09.
See id. at 308.
See id.
See id. at 309-14 (Bundy Smith, J., dissenting).
III. LEGAL STANDARD
A. Statutory Provisions
This petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The AEDPA provides that a federal court can grant a writ of habeas corpus to a state prisoner only if the state court's denial of relief "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) (2005).
As explained by the Supreme Court in Williams v. Taylor, a state court decision is "contrary to" clearly established federal law if: (1) the state court reaches a different result than that mandated by the Supreme Court when presented with facts that are "materially indistinguishable from a relevant Supreme Court precedent;" or (2) the state court "applies a rule that contradicts the governing law" set forth in Supreme Court cases. The "unreasonable application" provision of section 2254(d)(1) permits a federal habeas court to grant the writ
529 U.S. 362, 404-05 (2000).
if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of petitioner's case. In other words, a federal court may grant relief when a state court has misapplied a governing legal principle to a set of facts different from those of the case in which the principle was announced. In order for a federal court to find a state court's application of our precedent unreasonable, the state court's decision must have been more than incorrect or erroneous. The state court's application must have been objectively unreasonable.
Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (quotation marks and citations omitted).
B. Harmless Error Standard
The Supreme Court has held that "a constitutional error is harmless when `it appears `beyond a reasonable doubt' that the error complained of did not contribute to the verdict obtained.'" The Second Circuit, by "distilling" Supreme Court precedent, has articulated the following factors for determining whether the error was harmless: "(1) the overall strength of the prosecution's case; (2) the prosecutor's conduct with respect to the improperly admitted evidence; (3) the importance of the wrongly admitted testimony; and (4) whether such evidence was cumulative of other properly admitted evidence." Even if the quantum and nature of the remaining evidence was overwhelming, the error is not harmless if there exists a reasonable possibility that the error contributed to the conviction. The evidence is less likely to have constituted a substantial factor in determining the jury's verdict where it pertains to a tangential issue. Where the prosecution has emphasized the improperly admitted evidence, it is more likely to have influenced the jury's verdict.
Mitchell v. Esparza, 540 U.S. 12, 18 (2003) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). Accord Zappulla v. New York, 391 F.3d 462, 467 (2d Cir. 2004).
Zappulla, 391 F.3d at 468.
See Gutierrez v. McGinnis, 389 F.3d 300, 307-08 (2d Cir. 2004); People v. Crimmins, 36 N.Y.2d 230, 241 (1975).
See Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2000).
See id.
According to the Second Circuit, "when a state court explicitly conducts harmless error review of a constitutional error, a habeas court must evaluate whether the state unreasonably applied [ Chapman v. California]." In Chapman, the Supreme Court articulated that a constitutional error can only be found harmless if it appeared "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." The district court may not grant petitioner's habeas petition if the state court merely erred in its conclusion that the errors were harmless. Rather, habeas relief is appropriate only if the Court of Appeals "applied harmless-error review in an `objectively unreasonable' manner.'"
Gutierrez, 389 F.3d at 306. The court applied the constitutional standard of harmless error because the right to confront witnesses may be implicated when a hearsay statement is introduced at trial. See Johnson, 1 N.Y. 3d at 308 n. 5. Accord Crimmins, 36 N.Y.2d at 237.
386 U.S. 18, 24 (1967). Accord Mitchell, 540 U.S. at 17-18; Zappulla, 391 F.3d at 467.
See Mitchell, 540 U.S. at 18.
Id. (quoting Lockyer v. Andrade, 538 U.S. 63, 75-77 (2003)).
IV. DISCUSSION
The only issue raised here is whether the Court of Appeals unreasonably applied the harmless error analysis set forth in Chapman. Petitioner argues that the Appellate Division's determination that the admission of complainant's hospital statement constituted harmless error was objectively unreasonable as (1) the statement provided the only narrative of the occurrences at the time of the incident, (2) the prosecutor extensively used the statement in his closing arguments, (3) the jury had difficulty in reaching a verdict, and (4) the remaining evidence was scarce. Petitioner concedes that it was obvious that petitioner stabbed complainant, but contends that the hospital statement was significant in ascertaining intent in that it provided the only evidence of the circumstances surrounding the stabbing.
See Petitioner's Reply Memorandum of Law in Support of Petition for a Writ of Habeas Corpus ("Pet. Reply") at 5.
See id. at 3; see also Pet. Mem. at 24.
Petitioner's arguments fail because the Appellate Division applied the correct standard of harmless error review on direct appeal, and its conclusion that the erroneous admission of complainant's hospital statement was harmless was an objectively reasonable application of Chapman. Even without the hospital statement, there was overwhelming evidence of petitioner's guilt. Six witnesses testified at trial and were subject to cross-examination, including two police officers, the treating neurosurgeon, complainant's physical therapist, and an assistant district attorney and her trial preparation assistant. As petitioner concedes, the evidence presented demonstrated that petitioner stabbed the complainant in the eye with an ice pick. The medical evidence established that complainant was stabbed twice, which tends to negate the possibility that the injury was the result of an accident. The prosecutor referred to the hospital statement in his opening statement and relied upon it in his summation, but he argued that the statement was corroborated by other evidence, and he stressed several other important pieces of evidence during his summation.
See Johnson, 1 N.Y. 3d at 306 n. 5 (citing Chapman, 386 U.S. 18).
See id. at 306 n. 4.
See Pet. Reply at 3.
See Johnson, 1 N.Y. 3d at 308.
See Gutierrez, 389 F.3d at 308-09 (noting that the prosecutor highlighted the erroneously admitted evidence as only one of several important pieces of evidence that the prosecutor stressed during his lengthy summation as support for the reasonableness of the Appellate Division's harmless error determination).
In addition, the jury's deliberations lasted only one day. Although the jury initially reported a deadlock on one count, it ultimately reached a verdict after receiving an Allen charge. Moreover, there is no way to know on which count the jury had reported that it was deadlocked. In short, the length and extent of the jury deliberations do not support the conclusion that the prosecution's case was particularly weak.
Petitioner alleges that the Court of Appeals improperly shifted the burden of proof onto him by emphasizing his failure to request a justification defense. He contends that it was the People's burden to present evidence, and petitioner's failure to raise a justification charge did not demonstrate that the stabbing must have been intentional. Petitioner's argument is unavailing. The Appellate Division only noted that petitioner made it clear during the trial that he was not arguing self-defense, or justification, and therefore respondent had no burden of disproving that defense beyond a reasonable doubt.
See Pet. Mem. at 23.
See id. at 24.
See Johnson, 1 N.Y. 3d at 308.
Petitioner places heavy reliance on the dissenting opinion of Judge Smith, who found that various statements were unreliable. Judge Smith noted that complainant may have had a motive to lie because he sought a confrontation with whoever threw the garbage can down the stairs. Moreover, complainant's statements may have been made under the influence of alcohol because the hospital record showed that he had alcohol on his breath. While Judge Smith acknowledged that the remaining evidence leaves little doubt that defendant stabbed the complainant, he concluded that the People had failed to prove that he did so intentionally.
See id at 313 (Bundy Smith, J., dissenting).
See id.
See id. at 313-14.
See id. at 314.
The majority, on the other hand, concluded that because the victim was stabbed twice, it could not have been an accident. Relying on this opinion, respondents assert that the two stab wounds and petitioner's refusal to drop the ice pick the first time he was ordered to do so by the police provided overwhelming evidence that petitioner intended to cause serious physical injury to complainant. In light of the corroboration provided by complainant's admissible statements, the testimony of six live witnesses, and the medical evidence presented, it was not unreasonable for the Court of Appeals to conclude that the admission of the hospital statement was harmless error. Given the overall strength of the People's case, the state court's application of clearly established Supreme Court precedent governing harmless error review of Confrontation Clause errors was not objectively unreasonable.
See id. at 308.
See Resp. Mem. at 14-15.
See, e.g., Vachet v. West, No. 04 Civ. 3515, 2005 WL 740640, at *10 (E.D.N.Y. Mar. 24, 2005) (holding that admission of prejudicial out-of-court statement was harmless error, given mountain of evidence of defendant's guilt). already stated. See United States v. McClain, 377 F.3d 219, 222 (2d Cir. 2004) ( Crawford violations, like all Confrontation Clause violations preserved for appellate review, subject to harmless error analysis); Kamara v. United States, No. 04 Civ. 5340, 2005 WL 1490107, at *1 (S.D.N.Y. Jun. 22, 2005) (any error in admitting hearsay statement possibly covered by Crawford was harmless, in light of "ample evidence" of habeas petitioner's guilt).
The foregoing analysis applies despite the Supreme Court's recent decision barring the use of "testimonial" hearsay. See Crawford v. Washington, 541 U.S. 36 (2004). Petitioner is correct that Crawford, decided on March 8, 2004, applies to this case, as the conviction did not become final for retroactivity purposes until March 22, 2004. See Teague v. Lane, 489 U.S. 288, 295 (1989) ("final" means "a case where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed"); see also Sup. Ct. R. 13.1 (petition for a writ of certiorari to review a judgment of state's highest court must be filed within ninety days of that judgment).
Moreover, the hospital statement could be seen as the sort of "testimonial" hearsay barred by Crawford. See United States v. Stewart, ___ F.3d ___, No. 04-3953(L)-CR, 2006 WL 27583, at *11 (2d Cir. Jan. 6, 2006) (quotation and citation omitted) ( Crawford defines testimonial statements as involving "a declarant's knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings"); see also Mungo v. Duncan, 393 F.3d 327, 336 n. 9 (2d Cir. 2004) (noting that Crawford did not attempt to precisely define "testimonial hearsay," but asserting in dicta that "statement[s] . . . made in greater formality with a view to creating a record and proving charges" are "more likely" to fall within Crawford). But even assuming arguendo that the hospital statement was testimonial hearsay, its admission was harmless error for the reasons.
V. CONCLUSION
For the reasons set forth above, petitioner's petition for a writ of habeas corpus is denied. The Clerk of the Court is directed to close this case.
Finally, there is the question of whether to grant a certificate of appealability. For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." A "substantial showing" does not require a petitioner to demonstrate that he would prevail on the merits, but merely "`that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" In this case, reasonable jurists (namely, the majority and the dissenter on the New York Court of Appeals) already have differed on the proper resolution of this case. Moreover, not only was the hearsay statement not an excited utterance, but it might also have been inadmissible in light of Crawford. This evidentiary error presents an issue that "deserves encouragement to proceed further." For these reasons, the Court grants a certificate of appealability.
SO ORDERED.