Opinion
02 Civ. 1183 (HB)(FM).
June 2, 2003
REPORT AND RECOMMENDATION TO THE HONORABLE HAROLD BAER, JR.
I. Introduction
In this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, pro se petitioner Tito Kello ("Kello") challenges his conviction on one count each of Manslaughter in the First Degree, Criminal Use of a Firearm in the First Degree, and Criminal Possession of a Weapon in the Second Degree, following a trial in Supreme Court, Bronx County, before Justice Phylis Skloot Bamberger and a jury. (Pet. ¶¶ 1, 5, 7). On April 27, 1995, Justice Bamberger sentenced Kello to concurrent prison terms constituting an aggregate indeterminate sentence of twelve and one-half to twenty-five years. (Id. ¶¶ 3-4).
Kello's petition raises two grounds for relief. First, he contends that his Sixth Amendment right to confront witnesses and Fourteenth Amendment right to a fair trial were violated because the trial court admitted several anonymous "911" calls which were not properly redacted. (Id. ¶ 13 (Attach.) at 1, 3). Second, he asserts that the trial court erred by refusing to grant him a mistrial after the prosecutor, in the course of seeking to refresh his girlfriend's recollection, improperly revealed to the jury that Kello previously had confessed his guilt to her. (Id. at 1-2, 4).
For the reasons that follow, Kello's petition should be denied on jurisdictional grounds. Additionally, pursuant to 28 U.S.C. § 2253(c)(2), Kello should be denied a certificate of appealability because he has failed to make a substantial showing of the denial of a constitutional right.
II. Background
A. Trial
1. People's Case
The People's proof at trial established that on August 12, 1993, at approximately 4:30 a.m., Richard "Danny" Monroe ("Monroe") was walking to his apartment at 240 East 175th Street with a man known to him as "Mark." (See Affidavit of Raffaelina Gianfrancesco, Esq., sworn to on May 30, 2002 ("Gianfrancesco Aff."), Ex. 1 ("Def's Br.") at 5). At the corner of 175th Street and Monroe Avenue, they encountered Lakesha Bryant ("Bryant"), a man named "Scooter," and Kello, who also was known as "Brooklyn." (Id.; Gianfrancesco Aff. Ex. 2 ("Resp't's Br.") at 4). Fifteen or twenty minutes later, as Darrien Frazier ("Frazier") approached the corner, Kello remarked, "[I] have beef with that kid that [is] coming up the block [and I am] going to take care, to take steps to his business." (Id.). Although Kello had nothing in his hands initially as Frazier approached, by the time Frazier reached the corner, Kello was holding a black automatic assault rifle. (Def.'s Br. at 6; Resp't's Br. at 4).
The Respondent produced to the Court only pages 626-645, 814-830, and 879-1178 of the trial transcript and has represented that the People's diligent efforts to locate the remaining portions were unsuccessful. (See Gianfrancesco Aff. ¶ 4). Since Kello's petition is subject to dismissal on jurisdictional grounds, the need to rely on the briefs submitted as part of Kello's direct appeal, rather than the trial transcript, does not appear to prejudice Kello in any respect. See Jamison v. Berbary, 2002 WL 1000283, at *1 n. 1 (S.D.N.Y. May 15, 2002).
Kello shot Frazier several times. (Id.). Thereafter, as Frazier began to stumble, Monroe heard something drop. (Def.'s Br. at 6; Resp't's Br. at 5). After observing that it was a handgun, Monroe picked it up and put in his waistband. (Id.). Monroe, Mark, Scooter, and Kello then went to the roof of a building located at 240 East 175th Street, while Bryant entered her apartment there. (Def.'s Br. at 6-7; Resp't's Br. at 5). Once on the roof, Monroe asked Kello why he shot Frazier. (Def.'s Br. at 7; Resp't's Br. at 5). Kello repeated his earlier statement that he "had a beef with the kid." (Id.). Monroe also showed Kello the gun that he had retrieved from the street. (Id.). A few minutes later, everyone left the roof. (Def.'s Br. at 7).
At approximately 5:40 a.m., Sergeant James Corrigan ("Sergeant Corrigan") and his partner, Police Officer Richard Lam, responded to a radio call stating that a man had been shot. (Def.'s Br. at 3; Resp't's Br. at 6). Upon their arrival, they found Frazier lying face down in a pool of blood. (Id.). Two spent nine millimeter shells subsequently were discovered near his body. (Id.).
At approximately 7:15 a.m., Sergeant Corrigan received a radio transmission advising him of a "911" call which indicated that the killer was at the scene and wearing green shorts. (Id.). Sergeant Corrigan stopped Marlon McKay, the only man who appeared to match this description. (Id.). McKay was released after Sergeant Corrigan received a second transmission, based on another "911" call, which indicated that the police had apprehended the wrong person. (Def.'s Br. at 4; Resp't's Br. at 6).
Around the same time, Kello went to 240 East 175th Street to visit his girlfriend, Michelle Patrick ("Patrick"). (Def.'s Br. at 11; Resp't's Br. at 7). After he told Patrick that "he was leaving, he was going away," (id.), the two walked outside her building, where they had a brief conversation before Kello left. (Resp't's Br. at 7).
Some time after 8:20 a.m., Detective Donald Odierno ("Detective Odierno") interviewed Patrick in her apartment. (Def.'s Br. at 4, 12; Resp't's Br. at 7). Later that day, Detective Odierno prepared a statement at the police precinct, which he permitted Patrick to read and then read aloud to her. (Def.'s Br. at 4; Resp't's Br. at 7). Both Patrick and the detective then signed the statement. (Id.).
Several days later, Monroe was arrested for possession of a weapon. (Def.'s Br. at 4, 7; Resp't's Br. at 5 n. 4). Following that arrest, both Monroe and Bryant were interviewed by Detective Odierno. (Def.'s Br. at 4). Monroe told Detective Odierno that the gun he was carrying was the one that Frazier had dropped in the street after the shooting. ( Id.). Ballistics tests established that the shells found at the scene of the crime were not fired from this weapon. (Def.'s Br. at 7; Resp't's Br. at 6).
Kello was arrested on August 17, 1993, five days after the murder. (Def.'s Br. at 8).
2. Defense Case
Kello did not call any witnesses.
B. Alleged Errors
1. "911" Tapes
At trial, the prosecution introduced into evidence three telephone calls excerpted from a "911" communications tape made on the morning of the murder: Call Numbers Two, Seven, and Eight. (Tr. 626, 641-42). After Justice Bamberger reviewed the tape of those calls, she marked up a transcript to reflect proposed redactions. (Id. at 814-15). The court then heard argument concerning any further redactions the defense wished to make. (Id. at 815).
Kello's counsel sought to redact from Call Number Two, which was placed at 7:28 a.m., a line which read: "Someone got murdered just on about 4:30, 5 o'clock this morning." (Id. at 817; see Gianfrancesco Aff. Ex. 5 (Def.'s Br. to Ct. of Appeals) ("Def.'s Br. II") at A5). Counsel argued that this statement was not a present sense impression. (Tr. 817-18). The prosecutor conceded that this statement was not "technically" a present sense impression, but argued that the caller's remaining observations were, and that this hearsay statement was necessary to put those observations in context. (Id. at 818-19). After initially denying the defense's request, the trial court later agreed to redact this statement. (Id. at 820).
Defense counsel also objected to a portion of Call Number Two in which the caller exclaimed, "I know what building he's in now. Because he walked past the body. That's when I first called." (Id. at 820-21; Def.'s Br. II at A7). The trial court denied this application, notwithstanding the fact that the prior call to which reference was made had been placed eleven minutes earlier. (Tr. 821). The court reasoned that the period of time elapsing between the calls was sufficiently brief for the statement to qualify as a present sense impression. ( Id.).
Call Number Seven, placed at 7:11 a.m., contained the following statement: "Oh, yeah. Um[,] I'm the one . . ., um[.] There was a murder here, um, about 4:30 or 5 o'clock this morning. The police is downstairs and the guy that did it is standing outside." (Id. at 821-22; Def.'s Br. II at A8). Defense counsel sought to exclude the second sentence on the ground that the caller was referring to a murder committed two hours earlier and, hence, could not have been conveying a present sense impression. (Tr. 822). After the prosecutor countered that the third sentence made it clear that the caller was describing a present observation, the trial court denied the defense's application. (Id.).
The defense also sought to redact from Call Number Seven a statement which indicated that Kello's girlfriend was wearing a "green scarf." The defense argued that the caller had not directly perceived this information, but rather had obtained it from her mother. (Id. at 823; Def.'s Br. II at A10). The trial court redacted the word "green," but not the word "scarf" because the caller's prior statements showed that she herself had observed the scarf, even if she could not recall the color. (Tr. 823).
The original transcript furnished to the trial judge indicated that the conversation with the "911" operator was as follows:
Caller: Yes. He's with his girlfriend right now. She has a scarf on her head. (To someone) What color's, um, Michelle's scarf, Ma?
(Someone): Green.
Caller: Her scarf is green.
(Def.'s Br. II at A10).
After the trial court's redactions, this portion of the transcript omitted any reference to the color of the scarf and simply read as follows:
Caller: Yes. He's with girl right now. She has a scarf on her head.
(Id. at A23).
The trial court denied a similar request to redact the word "green" from the text of the third call because it found that the caller had, by that time, "obviously, looked out of the window again" and seen the green scarf. (Tr. 823-24).
Finally, defense counsel sought to redact from Call Number Eight, placed at 7:19 a.m., the following text: "And they got the wrong guy right now. The guy that they have right now has green and black strip[ed] shorts and the guy that they're supposed to be getting has on plain green shorts. You have the wrong one." (Id. at 824; Def.'s Br. II at A12). The court denied this request. (Tr. 828).
With respect to the People's "911" evidence, the prosecutor argued in summation as follows:
Ladies and gentlemen, you also have to look at the other evidence that I will speak about collectively. I'm going to do that because it all kind of relates to each other. The 911 calls, the testimony of Michelle Patrick, and the testimony of Detective Odierno. You heard in court a series of edited, anonymous 911 class and if you listen carefully to those calls, you will see that they were made between 7 a.m. and 7:30 in the morning on August 12, 1993. What do you get from those calls? You hear that they're calling about the homicide that took place on the comer of Monroe and 175th Street. They're calling to turn the person in that did the homicide. They're calling because the detectives and the police have stopped the wrong person. They tell you that the right person is with his girlfriend, and they're going into 240 East 175th Street.
(Id. at 1038-39). The prosecution noted further that Patrick had testified that Kello was with her at 240 East 175th Street at the time that an anonymous caller was claiming that the person responsible for Frazier's death was inside the building. (Id. at 1040).
2. Impeachment of Patrick
During her direct examination, Patrick testified that Kello came to her apartment at 240 East 175th Street at approximately 7:15 a.m. on the morning of the murder, at which time he told her that he was going away. (Def.'s Br. at 11; Resp't's Br. at 10). When Patrick was asked if Kello said anything else, she responded, "Maybe he did tell me, but I don't remember what he did say." (Id.). The prosecutor then showed Patrick her signed statement and asked whether she remembered what she had told the police about her conversation with Kello. (Def.'s Br. at 12; Resp't's Br. at 10). Patrick insisted that she could not remember what she had said and was unable to read the document because it was "in script." (Id.). The prosecutor then began to inquire whether "Tito Kello told you that he shot and killed." (Id.). After defense counsel interrupted this question with an objection, the trial court directed that the inquiry be conducted (at least at the outset) through direct questions. (Id.) ("Well, start the other way please. . . .").
The prosecutor then questioned Patrick as follows:
Q. Did you tell the police that he told you anything other than he was going away?
A. I don't remember.
Q. Did you tell the police that he told you —
A. I was scared. I never been locked up before, so I just told them anything they wanted to hear so they [w]ould leave me alone.
Q. So, you thought they wanted to hear that Brooklyn told you he shot and killed this person?
[DEFENSE COUNSEL]: Objection to the form.
A. I just told them anything so they could just stop coming to my house, bothering me.
Q. Miss Patrick, are you telling this jury, in order to get the police to stop coming to your house you told them that your boyfriend shot and killed somebody?
A. I told them anything.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
Q. So, you just told them anything so they would leave you alone?
A. Yeah.
Q. You told them your boyfriend —
A. I was scared, I was scared.
Q. So, because you were afraid you told them your boyfriend shot and killed somebody? Is that what your telling of this story is?
A. Detectives never came to my house before questioning me.
. . .
Q. So, Miss Patrick, are you telling this jury what you told the police Brooklyn shot and killed somebody just to get them to leave you alone?
A. Maybe I did. Maybe I did, maybe I didn't.
Q. Well, which is it? Did you or didn't you?
A. I don't know.
(Def.'s Br. at 12-13; Resp't's Br. at 11) (emphasis added).
After Patrick conceded that she had signed the statement, but claimed that she neither read it nor had it read to her before she signed, (Def.'s Br. at 13), the prosecutor continued her inquiry:
Q. So, did you just put your signature on a piece of paper without knowing what it was?
A. I never understood what was wrote down on the paper.
Q. You didn't understand where it said that Tito shot and killed somebody?
A. I never understood it.
(Id. at 14) (emphasis added).
Thereafter, Justice Bamberger excused the jury for the weekend. (Id.). The judge then read Patrick's statement aloud to her so that she could "think about whether [she] remember[ed] what [she] said to the police officers." (Id.). The pertinent portion of Patrick's statement was as follows:
[O]n August 12, 1993, at about 7:15 am, I was in my residence of 240 East 175th, apartment 112, when my uncle, Surhooker woke me up and told me that Brooklyn was at the front door.
I told my uncle to tell Brooklyn to come back later. About 15 minutes later I opened the door to my apartment and I saw Brooklyn in the hallway. We then left the building and we walked across the street. The police were in the street and the body of the dead person was still there.
I asked what happened and Brooklyn said, 'the dead guy was going to shoot me, shoot at me, but I shot him first.' 'Why did you shoot him,' and Brooklyn stated that he had a beef with this guy about two months ago.
He then said, 'I'm going to leave the area. Maybe I go out of town, but I will call you.'. . . .
(Resp't's Br. at 1-12) (emphasis added).
The next day, the trial court informed counsel that it believed that the questions directed to Patrick with regard to her prior statement had been improper. (Def.'s Br. at 14; Resp't's Br. at 12). The court offered to strike all of the objectionable portions of Patrick's direct testimony and to instruct the jury to disregard them, but gave defense counsel the weekend to confer with Kello regarding this option. (Def.'s Br. at 15; Resp't's Br. at 12).
When court convened the following Monday, defense counsel requested a mistrial. (Id.). The court denied this application, and again inquired whether the defense wished to strike Patrick's testimony. (Id.). Kello's counsel replied "that striking the testimony [would] serve no useful purpose" because of the severe prejudice that was likely to result from the prosecution's improper questions and the reasonable inferences therefrom, which would linger in the jury's mind. (Id.). On this basis, Kello's counsel refused to request that the testimony be stricken. (Resp't's Br. at 12).
When Patrick's direct examination continued, she again was asked whether her statement refreshed her recollection. (Id.). In response, Patrick requested that the statement be reread to her. (Resp't's Br. at 13). After the statement again was read to her outside the jury's presence, Patrick testified that it did not refresh her recollection. (Def.'s Br. at 15; Resp't's Br. at 13).
At the conclusion of Patrick's direct examination, the court gave the jury the following curative instruction to which the defense did not object:
Ladies and gentlemen, during the examination of this witness on Thursday, there were some unanswered questions with respect to other factors that might have been included in what is marked as People's Exhibit for Identification; and the witness 9 for Identification; and the witness said she didn't recall. . . . The questions concerning those other aspects of contents of the document are not to be considered by you as evidence because the information came out only in the questions and not in the answer; and you will recall that when I initially instructed you about questions and answers, I told you that it is the testimony that comes from the answers and not the questions; so that testimony is stricken I am sorry. Those questions and answers are stricken from the record, and they are not to be considered by you.
(Def.'s Br. at 16; Resp't's Br. at 13).
Thereafter, the defense did not cross-examine Patrick. (Resp't's Br. at 13).
B. Subsequent Procedural History
Kello appealed his conviction to the Appellate Division, First Department, raising the two grounds in his present habeas petition. (See Def.'s Br. at 19-3 1).
On December 16, 1999, the Appellate Division unanimously affirmed Kello's conviction. People v. Kello, 267 A.D.2d 123 (1st Dep't 1999). The court found that Kello's "generalized objections, followed later in the trial by an untimely mistrial motion," failed to preserve his claim that the prosecution had impermissibly impeached its own witness [Patrick] in violation of New York Criminal Procedure Law ("C.P.L.") § 60.35(1).Id. at 123-24. The Appellate Division also declined to review this claim in the interest of justice, but commented that, even if it had, it would have found that the trial court properly exercised its discretion in denying the mistrial motion. Id. at 124. As the court noted, the trial court "struck the offending testimony with suitable curative instructions, and, in light of the overwhelming evidence against defendant, any error was harmless." Id.
The Appellate Division also concluded that the trial court had properly exercised it discretion in admitting the "911" calls without further redaction. Id. It held that "the caller's reference[s] to [the] crime served merely to place the content of the calls in appropriate context, and since in all other respects the caller was describing events observed substantially contemporaneously with the observation of those events, the appropriately redacted tapes were properly admitted under the present sense impression exception to the hearsay rule." Id.
On June 20, 2000, the New York Court of Appeals granted Kello's application for leave to appeal. People v. Kello, 95 N.Y.2d 836 (2000). The brief that Kello subsequently filed sought to set aside his conviction only on the basis of the "911" calls. (See Def.'s Br. II). Kello contended that the admission of these calls without further redactions violated the hearsay rule as well as his constitutional rights. (Id. at 17-25).
On February 8, 2001, the Court of Appeals affirmed Kello's conviction.People v. Kello, 96 N.Y.2d 740 (2001). Citing People v. Brown, 80 N.Y.2d 729, 733 (1993), the court held that the admission of the "911" tapes under the present sense impression hearsay exception was erroneous because the declarant had "time for reflection." Id. at 743. The court nevertheless found that the introduction of the tapes was harmless error because the proof of Kello's guilt was overwhelming and there was no "significant probability" that he would have been acquitted had the evidence been excluded. Id. at 744. In arriving at this determination, the Court of Appeals expressly declined to consider Kello's allegations of constitutional error because his "failure to raise a Confrontation Clause objection precluded the trial court and prosecution from considering and, thus, avoiding any constitutional error." Id.
Kello's petition subsequently was timely received by the Pro Se Office of this Court on January 30, 2002. (See Pet. at 1).
III. Discussion
A. Procedural Default
Under settled Supreme Court precedent, a federal court may not consider an issue of federal law raised in a state prisoner's petition for a writ of habeas corpus if the state court's prior denial of that claim rests on an adequate and independent state ground. See, e.g. Harris v. Reed, 489 U.S. 255, 262 (1989); Wainwright v. Sykes, 433 U.S. 72, 81 (1977). A finding of procedural default qualifies as such an adequate and independent state ground, Harris, 489 U.S. at 262, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or . . . that failure to consider the claims will result in a fundamental miscarriage of justice." Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). Accord Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000).
To demonstrate cause, a petitioner must adduce "some objective factor external to the defense" which explains why he did not raise the claim previously. Murray v. Carrier, 477 U.S. 478, 488 (1986); Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991) (quoting Murray). Among the factors that rise to the level are: (1) interference by government officials making compliance impracticable; (2) situations in which the factual or legal basis for a claim was not reasonably known to counsel; and (3) situations in which the defendant establishes ineffective assistance of counsel. See Murray, 477 U.S. at 488; Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (quoting Murray). A showing of prejudice requires a petitioner to demonstrate that failure to raise the claim previously had a substantial injurious effect on his case such that he was denied fundamental fairness. Reyes v. New York, 1999 WL 1059961, at *2 (S.D.N.Y. Nov. 22, 1999). Finally, to establish a fundamental miscarriage of justice, a petitioner must demonstrate that he is "actually innocent."Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001).
Both of Kello's present claims were denied by the state courts on adequate and independent state procedural grounds. Turning first to the questioning of Patrick, the Appellate Division held that Kello's "generalized objections" and "untimely mistrial motion" failed to preserve his objection to the use of Patrick's prior statement for impeachment purposes. Kello, 267 A.D.2d at 123-24. It is settled law that such a failure to comply with New York's contemporaneous objection rule, C.P.L. § 470.05(2), constitutes an "adequate and independent" state procedural ground for the denial a habeas petitioner's claim. Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990); Taylor v. Harris, 640 F.2d 1, 2 (2d Cir. 1981). Accordingly, because Kello has established neither cause for his procedural default nor that he is actually innocent, this Court lacks jurisdiction to entertain his impeachment claim. This jurisdictional bar applies even though the Appellate Division ruled in the alternative, on the merits of the claim. See Glenn, 98 F.3d at 724;Velasquez, 898 F.2d at 9.
Kello's constitutional claims arising out of the admission of the "911" calls are also procedurally barred. In its decision, the Court of Appeals found that Kello's Sixth Amendment claim was not properly before the court because he "never based his trial objection to the 911 tapes on the Confrontation Clause." Kello, 96 N.Y.2d at 743. Rather, as the court observed, "the only issue raised before the trial court was the erroneous admission of the tapes under our State common-law hearsay rule." Id. (emphasis added). Accordingly, because Kello has not established cause for his default or that he is actually innocent, this Court lacks jurisdiction to consider the merits of Kello's constitutional claims regarding the tapes. See Peterson v. Scully, 896 F.2d 661, 663 (2d Cir. 1990) ("If a state appellate court refuses to review the merits of a . . . claim of constitutional error because of [a] failure to comply with . . . a 'contemporaneous objection' rule, a federal court generally may not consider the merits of the constitutional claim on habeas corpus review.") (citing Wainwright, 433 U.S. at 86-87).
B. Exhaustion
Kello's claim arising out of the use of Patrick's prior statement is also unexhausted.
Pursuant to 28 U.S.C. § 2254(b)(1)(A) and (B), a habeas petition brought by a state prisoner may not be granted unless the petitioner has exhausted all of the remedies available to him through the state courts,or there is an absence of state corrective process available to the petitioner, or circumstances render that process ineffective to protect his rights. Here, Kello unquestionably had an effective process available to him through the state statutes governing appeals in criminal cases.See N.Y. C.P.L. § 450.10. Indeed, he filed such appeals. To satisfy the exhaustion requirement with respect to a particular federal claim, Kello therefore must show that he presented the substance of "the same federal constitutional claim that he now urges upon the federal courts to the highest court in the . . . state." Aparicio, 269 F.3d at 89-90 (internal citations and quotation marks omitted).
In his appeal to the New York Court of Appeals, Kello raised only his claim pertaining to the "911" calls. (See Def.'s Br. II). Accordingly, because he did not present his claim relating to the allegedly improper impeachment of Patrick, that claim is unexhausted. See Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). In Zarvela v. Artuz, 254 F.3d 374, 380 (2d Cir. 2001), the Second Circuit cautioned that when, as here, a petitioner presents a petition containing both exhausted and unexhausted claims the court should ordinarily dismiss the unexhausted claims, stay the exhausted claims, and permit the petitioner to amend his petition at a later date, provided that he proceeds expeditiously to pursue exhaustion in state court. In this case, however, this avenue is no longer available because Kello has already appealed his conviction to the Court of Appeals and is precluded from seeking collateral review of an issue — such as the use of Patrick's statement — which could have been raised as part of that appeal. See C.P.L. § 460.20; 22 N.Y.C.R.R. § 500.10(a). Accordingly, because the New York courts would treat Kello's claim pertaining to the prosecution's examination of Patrick as procedurally barred, the federal habeas court must deem it exhausted, but procedurally forfeited. Aparicio, 269 F.3d at 90 (citingColeman, 501 U.S. at 735 n. 1).
IV. Conclusion
For the foregoing reasons, this Court lacks jurisdiction to consider the claims raised in Kello's petition which should therefore be denied. Furthermore, because Kello has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.
Although any discussion of the substance of Kello's claims is obviously unnecessary, it bears mention that Kello's petition would likely prove to be meritless even if this Court had jurisdiction to consider his claims. First although the New York Court of Appeals held that the "911" tapes were erroneously admitted, such a violation of the Confrontation Clause may be deemed harmless, see Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986), if the error did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotingKotteakos v. United States, 328 U.S. 750, 776 (1946)). Here, two of Kello's friends — Bryant and Monroe — testified without contradiction that he was the person who killed Frazier. Their testimony was further corroborated by Patrick, who placed Kello near the murder scene and established his intention to flee. Finally, Kello failed to put on any case. In these circumstances, even if the admission of the tapes was error, it may have been harmless error.
Kello's claim that the prosecutor's questioning of Patrick violated constitutional norms rests on even shakier ground. Although New York law restricts a party's ability to impeach its own witness in a criminal proceeding, the federal rules are considerably more liberal. See Fed.R.Evid. 607 ("The credibility of a witness may be attacked by any party, including the party calling the witness."); United States v. Rosa, 11 F.3d 315, 336-37 (2d Cir. 1993) (holding that defendant was entitled to impeach his own witness pursuant to Fed R. Evid. 607). Indeed, the only applicable restriction in the federal courts is that a party "may not call a witness whose testimony it knows to be adverse for the sole purpose of impeaching him and thereby presenting evidence to the jury that would not otherwise by admissible." United States v. Eisen, 974 F.2d 246, 262 (2d Cir. 1992) (emphasis added). Since Patrick clearly provided other testimony important to the prosecution case, Kello would in all likelihood be unable to make this showing. Moreover, the trial judge struck the offending testimony and gave a curative instruction. Any error therefore may have been harmless since courts "normally presume that a jury will follow such an instruction to disregard inadmissible evidence inadvertently presented to it." Greer v. Miller, 483 U.S. 756, 766 n. 8, (1987).
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Harold Baer, Jr., at the United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Baer. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).