DEARIE, District Judge.
Carlos Evans, serving a fifteen-year sentence on his 2002 convictions for burglary,
The focus of the petition is the admission at petitioner's trial of an unsworn, highly detailed seven-page hearsay narrative, penned by the state's key trial witness, containing the most damaging evidence and nearly the entirety of the state's case. Admitted for its substance without a limiting instruction, the document was touted by the prosecutor during summation and furnished to the jurors, upon their request, at the outset of deliberations. Petitioner claims that the document's effect, as well as the state's objective in offering it, was essentially to supplant the witness's poor performance on the stand, and to nullify his primary defense, which consisted of a compelling impeachment of that testimony. He argues that he was denied due process because his conviction rests principally on this hearsay rather than the trial testimony.
The state appellate court held that the trial court's decision to admit the hearsay document was error in three distinct ways and not reconcilable with any extant evidentiary theory, but the appellate court nonetheless rejected petitioner's claim that the ensuing unfairness was of constitutional magnitude. Under the unique circumstances and considerations addressed below, however, I conclude that the state appellate court unreasonably applied controlling Supreme Court holdings, which have long embodied the principle that the fundamental fairness guarantee of the Due Process Clause prohibits the state from obtaning a criminal conviction in the manner in which the State secured petitioner's. As this Memorandum explains, the record reveals manifest trial error of enormously prejudicial consequences, indeed a very thwarting of the trial as a trial. Mindful of the strict limits of my jurisdiction under AEDPA, I am compelled to conclude that the state appellate court's rejection of the due process claim on these facts was not merely error but objectively unreasonable, and I accordingly grant the petition.
I begin, as did the state at petitioner's trial, with the in-court testimony of the witness who authored the hearsay document whose admission ultimately transformed the proceedings. That witness is Aisha Walker.
Walker lived in a condominium complex in the Canarsie section of Brooklyn; Jimmy Omitogun lived in the same complex, in an apartment only a few doors away. The two units were similarly configured duplexes, each with an upper-story window leading out to the same roof.
Walker first met Omitogun during the summer of 2001. At that time, Walker was employed part-time as a dancer at Sweet Cherry, an adult club in Sunset Park. At Omitogun's request, Walker agreed to perform private dance shows, for a fee, in Omitogun's apartment. She visited him several times for this purpose and had occasion to admire his possessions.
On August 15, 2001, while Walker was at home socializing with a group that included petitioner, Hudson Merzier (a co-defendant), Anthony Foster (the other co-defendant) and one of Walker's Sweet Cherry co-workers, Foster suddenly remarked to the group that he was going to rob
Walker, Merzier and petitioner spent most of the next day (August 16, 2001) shopping together. While on her way home, at around 9:30 p.m., Walker received a phone call from Omitogun, who asked her to round up girls from the club to dance for him and his friends. Walker told Omitogun that she had to start work in half an hour but would come by after her shift. Walker was in the company of petitioner and Merzier when she received this call; she shared the contents of the conversation with them, but petitioner did not react. Later, however, when Walker, Merzier and petitioner were back in Walker's apartment, petitioner said that he was planning to rob Omitogun that night and asked Walker what time she thought Omitogun would be home. Walker then left for the Sweet Cherry, while petitioner remained in Walker's apartment.
Shortly after she arrived at the Sweet Cherry, Walker telephoned Omitogun to ask whether he was going to pay for the other dancers he wanted her to bring.
While Walker was heading home from the club between midnight and 1:00 a.m., she received a telephone call from Omitogun; he told her that he had just been robbed, and then he "put somebody else on the phone" who, in Walker's words, "threatened" her. The voice said "he's not stupid" and that he "wants his money back along with his things." Merzier and Walker then phoned each other several times; Merzier told Walker that he could not leave her apartment because the area was surrounded by police cars and helicopters, while Walker told Merzier she had been threatened and was heading to the nearest police precinct.
The prosecution also elicited from Walker, during direct, that she had previously made three statements to the police that were inconsistent with her trial testimony. As to the first of the three, Walker testified that shortly after receiving the call from Omitogun telling her that he had been robbed, Walker went to the police station, where she asked Officer Hecht if she "could be escorted home because [she] was being threatened." T. 72. Walker decided to go to the police station both because she was afraid of "being busted"
Approximately an hour later, after spending time at her cousin's house around the corner from the police station, Walker returned to the precinct and made a statement to Detective Ahern, and sometime after that, having again left and again returned to the precinct, she told "something else" to Detective Rivera. T. 75-77. Walker "basically told [Rivera] that [she] had nothing to do with it, that [she] didn't leave anybody in [her] apartment. And that was basically it ... [that she] didn't have anything to do with it." T. 76. Walker also told Detective Rivera that petitioner and Foster "had discussed robbing" Omitogun.
The prosecution concluded the subject of Walker's prior statements by eliciting from her the fact that she also prepared a written statement:
The prosecution also asked Walker on direct, briefly, about only one feature of the written statement's contents:
Finally, the prosecution brought out that Walker was herself eventually implicated in the crime and that, nearly a year after she gave her cluster of false statements to the police, indicted for her role. Only a week before trial she formally entered a cooperation agreement, pursuant to which she testified against petitioner and Merzier in exchange for a five-year probationary sentence. (Foster, the ringleader, absconded before trial, and Merzier was acquitted of all charges).
On cross-examination, the defense probed the substance of the several prior inconsistent statements that Walker had referred to on direct. The examination exposed that Walker had lied at will, flagrantly and even sensationally, throughout her several conversations with the police in the hours following the crime. Asked to elaborate upon her conversation with Officer Hecht, Walker stated that she had told Hecht that the reason she was threatened was that someone was robbed and had accused her (wrongly, according to her) of having been involved in it:
Walker also admitted that she "made a conscious decision to go back to the precinct an hour later and tell [ ] another false story," this time to Detective Ahern. In speaking with Ahern, Walker "basically lied and said [she] had nothing to do with it" and "ha[d] no knowledge of who robbed [Omitogun]." T. 98. She also said that she "didn't leave anybody in her apartment" or give anyone permission to be there. T. 98-99. Walker eventually accompanied the police to her home and stood by as Merzier, Foster and petitioner were arrested for burglarizing her unit, while she denied that she even knew who they were. T. 100-102. Later, back at the precinct, Walker swore out a complaint to the same effect. T. 103. Walker agreed that throughout that episode she would "say and do whatever suit[ed her] interest at the moment," and that she did so "deliberately and consciously." T. 100, 101.
On the subject of Walker's next statement, the testimony was as follows:
The cross-examination also addressed Walker's decision to enter into a cooperation agreement (T. 107-111, 142-43), casting it as not as the source a new motive to fabricate but as yet another instance of Walker's general proclivity to lie to serve her own interests. The pertinent portions of the examinations are as follows:
The cross also covered the particulars of Walker's in-court account of the crime's planning and commission (T. 112-142), but did not inquire about the content of her written statement.
The prosecution conducted a brief redirect of Walker, but did not address the statement that Walker wrote for Detective Rivera.
Through the testimony of the three victims and of the police officers who participated in the investigation, including a fingerprint analyst and a footwear print specialist, the prosecution established the following:
Just after midnight, on August 17, 2001, Jimmy Omitogun was at home in his condominium with his two friends, Oladipupo Wilson and Olawale Osinowo, when two men, armed and wearing bandanas over their faces, entered through the terrace. The intruders forced the victims to the floor, face-down, and tied their hands and legs with telephone cord. One searched the apartment while the other watched over and roughed up the victims. Osinowo would eventually experience some vision impairment and require twelve facial stitches.
Responding to a 911 call from Omitogun's girlfriend, who had been on the telephone with Omitogun and had overheard part of the events, Officer Miceli interrupted the break-in. The intruders fled up the apartment's internal stairway and disappeared, while Omitogun unbound himself and fled in the other direction, through the terrace and down to the street. Directed by Osinowo to the roof, Miceli found watches, $5,000 inside a Citibank envelope and a loose $100 bill, but no burglars. He also observed footprints in the roof's moisture that suggested movement to and from Omitogun's and the neighboring apartment. A search of that unit disclosed only its resident, asleep, with no relevant knowledge. Outside the building, Miceli spoke with Omitogun, who reported that the assailants took his collection of watches (worth, he said, over $150,000) and $90,000 in cash.
After petitioner, Merzier and Foster were removed, Walker's apartment was left unsecured, although police believe Walker remained.
Two hours later, at around 8:00 a.m., the police returned and searched Walker's apartment. The police found two 9 mm semiautomatics stashed under Walker's refrigerator, along with bandanas, gloves, and two baseball caps resembling those that the victims said the assailants had worn; a briefcase hidden in Walker's stove; and a backpack with the stolen items stowed away in a closet.
None of the victims could make an identification, each having testified only that petitioner bore the same general build as one of the intruders. Fingerprints were lifted from Omitogun's living room and loft window but none matched petitioner's, and blood was found on some of the items discovered in Walker's apartment but not analyzed. Foot impressions were lifted from certain surfaces around the crime scene and tested but the results were inconclusive. Trace evidence expert Robert Schmidt testified that some of the impressions were too distorted for comparison with those of the Timberland boots that petitioner, Merzier and Foster were wearing, and other impressions were not properly preserved. Nevertheless, Schmidt compared the impressions to the design, shape and size of the "stars and bars" pattern of the petitioner's and Merzier's boots, and opined that petitioner's right boot "could have produced" one of the impressions. According to Schmidt, any other shoe with a similar pattern could have made the impression, and all Timberland boots, in addition to a "great deal" of the footwear Schmidt had studied over the years, also had the "stars and bars" pattern. Schmidt also conceded that every article of footwear contains "random identifying characteristics" unique to that shoe or boot, but none of the unique features of petitioner's boots was found on the tested impressions.
The police testimony also revealed yet another episode of deceit by Walker that was not brought out during her examination. According to Officer Miceli, Walker made a complaint to him similar to the one she made to Hecht; i.e., she complained that she was threatened but did not disclose that she knew anything about the robbery giving rise to the threat.
Near the close of its case, the state sought to introduce, through Detective Rivera, the statement that Walker wrote at the police precinct—i.e., her writing up of what she had just told Rivera orally (and thus the last of the many Walker statements catalogued in this discussion).
The distinctive nature of the document essentially speaks for itself and so I have included a copy as an addendum to this Memorandum. Written in Walker's hand and bearing her dated but unsworn signature, the statement is a remarkable seven-pages in length. One might reasonably characterize the writing as diary-like in the raw effusiveness of its voice, the specificity of its detail, and its overall comprehensiveness. The narrative generally tracks many of the same events referenced in Walker's testimony, such as the shopping trip, the telephone call from Omitogun asking Walker to dance for his friends, and the sequence of telephone calls during and after the robbery, but in doing so the written narrative also tells a larger, more contextualized, and far more coherent story than Walker told on the stand.
At the same time, at the level of their actual contents, the written statement and Walker's testimony also differ materially from each other. The most glaring difference, of course, is that Walker wrote the narrative while denying involvement in the burglary, and the entirety of the account it furnishes rests on and advances that premise, while her testimony as a cooperator rests on the opposite premise, viz., her admission of culpability.
The written statement also furnishes several highly incriminating details that were not part of Walker's in-court account. For example, in her testimony, Walker made reference to a meeting at which the robbery was initially planned, and she identified Foster as the person who, during that meeting, first hatched the idea of committing the crime; in her written statement, however, Walker describes an earlier conversation between Merzier and petitioner in which petitioner himself expresses a desire to rob Omitogun. Similarly, in her testimony, Walker refers to phone calls she received from Merzier, immediately after the robbery, during which he tells her that he is hiding in the apartment because police have surrounded the area; in her statement, however, Walker attributes one of these incriminating phone calls to petitioner.
The state's offer of this extraordinary document spawned a lengthy and heated colloquy that saw the prosecution team straddle several alternative theories. See T. at 821-836. Initially, the state made the surprising claim that Walker's written statement—in its unredacted entirety— was a prior consistent statement that it was entitled to offer as rehabilitation in the face of Walker's impeachment by the defense. In asserting the document's consistency with Walker's testimony,
The thrust of the defense position was that the prosecution was "try[ing] to somehow bolster [its] own witness with [a] prior statement," and that the offer "was like taking prior Grand Jury testimony and introducing it into evidence now." T. 824.
In the course of the colloquy, the state eventually conceded that "[t]here are many consistencies, as well as numerous inconsistencies," between Walker's testimony and the statement (T. 823-23), but then took the position that the hearsay document should be admitted because it was both consistent and in consistent with Walker's impeached testimony. See T. 826-28. Inexplicably, the prosecution even asserted that the actual content of the document was not relevant to admissibility:
Although cross-examination exposed Walker to have been willing to lie at will, the prosecution argued that "the crux of [the defense] cross examination was [that Walker] recently fabricated another story," because "[s]he plead guilty and now has a reason to lie," and that her prior statement was therefore admissible to rehabilitate her. T. 831-32.
The defense reiterated its position that "[t]his is classic improper bolstering of a witness that is completely prejudicial to the defendant. There is no rule that allows this under any theory. This attempts to prove the ultimate issues in this case through improper bolstering. It is clearly a violation of [petitioner's] [c]onstitutional [r]ights." T. 832. Counsel further accused the prosecution of having "planned this," and the trial court agreed (telling counsel, "you are right,") but nevertheless ruled that, "to the extent that this witness's testimony at trial has been attacked as a recent fabrication, I'll allow this to go in as a prior consistent statement. That's the exception to the rule against bolstering." T. 832.
Despite the limited grounds for admission and the prosecution's concession that the document was partly inconsistent with Walker's testimony, there was no redaction of any of the inconsistent portions, nor was any limiting instruction requested or given either upon admission or at
Predictably, the prosecution capitalized on this windfall during summation, when it referenced the document repeatedly, cleverly picking and choosing between the hearsay document and Walker's in-court testimony in arguing its case to the jury. See, e.g., T. 1048 ("Not only is it in the testimony ... it's in the statement which is in evidence by Aisha"); T. 1068 ("This goes right back to Aisha's testimony. Her statement that they took and gave ... It's in her statement, she explains to you ... It's in there. Read it"); T.1069 ("These are details. How can she make these details up. In her statement, she describes the mind set ... They had to wait it out. It's in her statement"). Reaching a sort of crescendo, the prosecution told the jury:
The prosecution treated as substantive evidence portions of the written statement that address facts that Walker did not speak of in her live testimony. For example, to explain the presence of a boot print found on the terrace of Omitogun's neighbor's apartment, the prosecution relied on a detail found only in the written statement—specifically, that Merzier told Walker that petitioner and Foster, in carrying out the burglary, had initially entered the wrong apartment. The prosecutor expressly directed the jury to this detail in the written statement and emphasized its importance: "[n]ow I'm not going to stand here and read her entire statement, but I'll going [sic] to ask you to read this statement. There is a key point." T. 1053.
In response to the jurors' request early in their deliberations, Walker's written statement was sent into the jury room. Again, no limiting instruction was issued.
The Appellate Division was plainly troubled by the trial court's decision to admit Walker's statement, and in a cogent, factual analysis, concluded that no available theory could justify the ruling. People v. Evans, 16 A.D.3d 517, 518-19, 792 N.Y.S.2d 112 (2d Dep't), lv. app. denied, 4 N.Y.3d 886, 798 N.Y.S.2d 731, 831 N.E.2d 976 (2005). The unanimous panel specifically rejected each of the prosecution's three theories for admission (one raised for the first time on appeal). First, without deciding whether Walker's testimony was challenged on cross-examination merely as a recent fabrication or on the broader grounds urged by the defense, the Appellate Division concluded that, even assuming it was challenged only as a recent fabrication, admission of the document as a prior consistent statement was error because the document was "not made at a time when [Walker] had no motive to lie." Evans, 16 A.D.3d at 518, 792 N.Y.S.2d 112. The document could not be used as rehabilitation,
Second, the Appellate Division rejected the prosecution's theory that the defense had "opened the door" merely by eliciting from Walker the fact that, in addition to the three versions she admitted making, she had also given another statement. Id. The Appellate Division specifically found that "[o]n cross-examination, [petitioner] carefully avoided any questions aimed at the content of the statement Walker gave to Detective Rivera." Id. at 519, 792 N.Y.S.2d 112.
Finally, the Appellate Division found that, "the statement was not consistent but, as the trial prosecutor proclaimed, it contained numerous inconsistencies," and that "[as] such, it was error to permit the prosecutors to impeach their own witness." Id. at 518, 792 N.Y.S.2d 112 (emphasis added).
The Appellate Division concluded, however, that the error "does not require reversal because there is no reasonable probability that [petitioner] would have been acquitted had the error not occurred." Id. at 519, 792 N.Y.S.2d 112. The state appellate panel concluded that "[t]he evidence, other than Walker's testimony, was overwhelming in establishing [petitioner's] culpability while, incidentally, confirming Walker's testimony implicating him." Id.
Habeas relief is available only if a petitioner's conviction was obtained "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Under AEDPA, the writ may not be granted "with respect to any claim that was adjudicated on the merits" in state court unless the state court adjudication "resulted in a decision that was contrary to, or 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), or "resulted in a decision that 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)(2).
In the fifteen years since AEDPA's enactment, in the course of construing the meaning of the pivotal statutory phrases "clearly established Federal law" and "an unreasonable application," the Supreme Court has been emphatic about the fact that AEDPA was intended to curtail the granting of habeas relief. See generally Renico v. Lett, ___ U.S. ___, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010); Thaler v. Haynes, ___ U.S. ___, 130 S.Ct. 1171, 175 L.Ed.2d 1003 (2010); Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Indeed, only last year in Renico, Chief Justice Roberts (for the majority), while recognizing that "[t]he dissent [there] correctly points out that AEDPA itself never uses the term `deference,'" explains that "[the Court's] cases have done so over and
The Supreme Court has held that "`clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision," Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (emphasis added), and that "a legal principle is `clearly established' within the meaning of [Section 2254] only when it is embodied in a holding of [the Supreme] Court," Thaler, ___ U.S. at ___, 130 S.Ct. at 1173, "as opposed to the dicta" of the Court's decisions, Taylor, 529 U.S. at 412, 120 S.Ct. 1495, or the holdings of federal appellate courts. Carey, 549 U.S. at 74, 127 S.Ct. 649. See also Ryan v. Miller, 303 F.3d 231, 248 (2d Cir.2002) ("In determining whether a right is clearly established under federal law as determined by the Supreme Court, we note that although the Supreme Court must have acknowledged the right, it need not have considered the exact incarnation of that right or approved the specific theory in order for the underlying right to be clearly established").
"A state court decision is `contrary to' clearly established federal law `if the state court applies a rule different from the governing law set forth in' the Supreme Court's cases or `decides a case differently than' the Supreme Court has `on a set of materially indistinguishable facts.'" Richardson v. Sup't of Mid-Orange Correctional Facility, 621 F.3d 196, 202 (2d Cir.2010) (quoting Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002)), cert. denied, ___ U.S. ___, 131 S.Ct. 1019, 178 L.Ed.2d 844 (2011). "A state court decision is `an unreasonable application of' clearly established federal law `if the state court correctly identifies the governing legal principle from [the Supreme Court's] decisions but unreasonably applies it to the facts of the particular case.'" Richardson, 621 F.3d at 202 (quoting Bell, 535 U.S. at 694, 122 S.Ct. 1843). "Unreasonable application" jurisprudence of course allows for the factual uniqueness of each case; as the Supreme Court has explained, "Section 2254(d)(1) permits a federal court to grant habeas relief based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer, 538 U.S. at 76, 123 S.Ct. 1166. Accord Rivera v. Cuomo, 649 F.3d 132, 136-37 (2d Cir.2011) ("A state court decision involves an unreasonable application of federal law if it correctly identifies the governing legal principle but unreasonably applies or unreasonably refuses to extend that principle to the facts of a particular case") (internal quotations and citations omitted).
"Unreasonable application" analysis appears to allow some room for consideration of non-Supreme Court law. For example, Judge (now Justice) Sotomayor, writing for the Second Circuit in Serrano v. Fischer, 412 F.3d 292 (2d Cir.2005), cert. denied, 546 U.S. 1182, 126 S.Ct. 1357, 164 L.Ed.2d 68 (2006), explained that "nothing in AEDPA authorizes th[e] Court to ignore its own precedents in determining what constitutes a `[ ]reasonable application of Supreme Court law under § 2254(d)(1)." 412 F.3d at 299 n. 3. Judge Sotomayor further explained that "even non-binding case law may be instructive in determining what constitutes a reasonable application of the law under § 2254(d)(1)" and that "[n]othing
Additionally, the Supreme Court has made emphatically clear that "unreasonable application" is not synonymous with error: "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold." Schiro v. Landrigan, 550 U.S. 465, 473, (2007). Cf. Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir.2001) (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") (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000)), cert. denied, 535 U.S. 1064, 122 S.Ct. 1933, 152 L.Ed.2d 839 (2002).
As the Supreme Court recently emphasized,
Renico, ___ U.S. at ___, 130 S.Ct. at 1862 (all internal citations omitted).
Nevertheless, the Supreme Court has made clear that AEDPA did not dilute the writ's role as guardian of fairness. As the Court explained, "[o]ver the years, the federal habeas corpus statute has been repeatedly amended, but the scope of that jurisdictional grant remains the same," and, critically, even post-AEDPA, "errors that undermine confidence in the fundamental fairness of the state adjudication certainly justify the issuance of the federal writ." Williams, 529 U.S. at 375, 120 S.Ct. 1495 (emphasis added).
The question before me, then, is statutory as much as it is constitutional: has petitioner satisfied AEDPA?
Petitioner's claim is that the cumulative effect of the trial court's admission of Walker's hearsay statement under the unique facts and circumstances just described denied him the fundamentally fair trial guaranteed by the due process clause. There is no dispute that the state appellate court denied this claim "on the merits" for purposes of 2254.
The due process guarantee of trial fairness is a bedrock legal principle, undoubted and elementary, whose existence would seem to be self-evident. See, e.g., Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) ("The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment"). The principle is also clearly established Federal law for purposes of Section 2254, as numerous Supreme Court holdings pre-dating the state appellate decision in petitioner's case "embod[y]" the "legal principle," Thaler, 130 S.Ct. at 1173, in the context of due process challenges to the admission or exclusion of trial evidence. For example, in Lisbena v. California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166 (1941), where the Court concluded that the evidence whose admission was challenged did not establish a deprivation of due process, the Court embodied in its holding the principle that "[t]he aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence whether true or false," and that "[a]s applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice." Id. at 236, 62 S.Ct. 280. The Court further announced that, "[i]n order to declare a denial of [due process] we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial." Id. In Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), where the Court ultimately rejected a due process challenge to the admission at trial, under Texas's recidivism statute, of evidence of a defendant's prior criminal acts, the Court began its legal discussion by reaffirming that "[c]ases in this Court have long proceeded on the premise that the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial." Id. at 563-64, 87 S.Ct. 648. In Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668,
The Supreme Court has also specifically held, in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), that the cumulative effect of evidentiary trial errors under the unique facts and circumstances of a particular case can deprive a criminal defendant of the due process guarantee of a fair trial. The Court there "conclude[d] that the exclusion of [certain] critical evidence, coupled with the State's refusal to permit [the petitioner] to cross-examine [another witness], denied him a trial in accord with traditional and fundamental standards of due process." Id. Noting that it was "establish[ing] no new principles of constitutional law," the Court explained that it "h[e]ld quite simply that under the facts and circumstances of th[at] case the rulings of the trial court deprived Chambers of a fair trial." Id. at 302-303, 93 S.Ct. 1038. See also Montana v. Egelhoff, 518 U.S. 37, 52-53, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (explaining that "Chambers was an exercise in highly case-specific error correction," and that "the holding of Chambers—if one can be discerned from such a fact-intensive case—is ... that erroneous evidentiary rulings can, in combination, rise to the level of a due process violation").
In addition, under Chambers, "[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," 410 U.S. at 294, 93 S.Ct. 1038, and so a due process violation occurs when trial error renders a criminal defense "far less persuasive than it might [otherwise] have been." Id. See also California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) ("Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense."); Crane v. Kentucky, 476 U.S. 683, 689, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) ("Whether rooted directly
The Supreme Court test for whether evidentiary error rises to the level of a due process violation, despite being unavoidably tautological,
Thus, while the habeas court necessarily engages with the state law question as a component of the broader due process inquiry, the Supreme Court's cases make clear that the state law and due process inquiries are independent. In Estelle, for example, after stating, "We thus turn to the question whether the admission of the evidence violated McGuire's federal constitutional rights," 502 U.S. at 68, 112 S.Ct. 475, the Court began by considering whether the challenged evidence was admissible under California law. Id. at 68-70, 112 S.Ct. 475. The Court's affirmative answer to that question was dispositive of the due process inquiry in that case; there could be no violation of due process if there was not evidentiary error in the first place. Id. at 70, 112 S.Ct. 475.
In Chambers, by contrast, the Court engaged with the state evidentiary principles in a different manner. The case involved, in part, Mississippi's common-law voucher rule, which prohibited a party from impeaching his own witness. At trial, Chambers had called as a witness (because the state did not) an individual named McDonald who had made and later repudiated a written confession to the murder Chambers was charged with committing. Applying the voucher rule, the trial court denied Chambers' request to treat McDonald as adverse and cross-examine him. The Supreme Court did not find any violation of the state law, but concluded, instead, that the state rule itself was fundamentally unfair as applied in petitioner's trial because it impaired his ability to put on his defense. 410 U.S. at 295-98, 93 S.Ct. 1038. Chambers also challenged the trial court's refusal, on hearsay grounds, to allow him to call three witnesses who would have testified that McDonald had confessed to them. Citing a wide array of federal, state and scholarly authorities, the Supreme Court engaged in a plenary evidentiary analysis, concluded that the trial court committed evidentiary error, and found that error to be (in part) fundamentally unfair because of the importance of the excluded testimony to Chambers' defense. 410 U.S. at 298-302, 93 S.Ct. 1038.
The questions of evidentiary and due process error are virtually inseparable in this case. As my ensuing review of the relevant authorities makes clear, the features of evidence law involved on this petition embody elemental common-law concepts, not confined to New York's or any one jurisdiction's boundaries, that are considered fundamental to the basic functioning of a trial.
As the trial record and the Appellate Division's analysis show, the "single" ruling of the trial court was in fact a serious transgression of several distinct evidentiary precepts—including the so-called "pre-motive" requirement for the admission of
As the Supreme Court in Chambers recognized, "perhaps no rule of evidence has been more respected or more frequently applied in jury trials than that applicable to the exclusion of hearsay." 410 U.S. at 302, 93 S.Ct. 1038. "The hearsay rule," the Court explained, "has long been recognized and respected by virtually every State" and "is based on experience and grounded in the notion that untrustworthy evidence should not be presented to the triers of fact." Id. at 298, 93 S.Ct. 1038. "Out-of-court statements," the Court understood, "are traditionally excluded because they lack the conventional indicia of reliability: they are usually not made under oath or other circumstances that impress the speaker with the solemnity of his statements; the declarant's word is not subject to cross-examination; and he is not available in order that his demeanor and credibility may be assessed by the jury." Id.
It is precisely because of their suspect reliability that the corroborative use of out-of-court statements—i.e., to rehabilitate impeached in-court testimony—is, although permitted, subject to especially strict regulation. As the New York Court of Appeals has explained:
People v. McClean, 69 N.Y.2d 426, 428, 515 N.Y.S.2d 428, 508 N.E.2d 140 (1987) (internal citations omitted).
Leading commentators express the rationale of the rule similarly. See generally Barker, Robert A. and Alexander, Vincent C., New York Practice Series—Evidence in New York State and Federal Courts (Oct.2008), 5 N.Y. Prac., Evidence § 6:41 (Prior Consistent Statements). As these authorities explain, "[i]f the witness is charged with giving false testimony as the result of corrupting influences or a recently-developed motive, ... proof that the witness said the same thing before any such factors came into play naturally tends
The same general rule is followed in federal courts through Federal Rule of Evidence 801(d)(1). The text of the rule provides, in pertinent part, that the prior out-of-court statement of a trial witness is admissible if the statement is "consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." Fed.R.Evid. 801(d)(1). The Supreme Court has explained that this rule "embodies the common law pre-motive requirement" that was "the prevailing ... rule for more than a century before the adoption of the Federal Rules of Evidence." Tome v. United States, 513 U.S. 150, 156, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995). Thus, the Court in Tome held that, like the common law rule, FRE 801(d)(1) similarly "permits the introduction of a declarant's consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charged recent fabrication or improper influence or motive." Id. at 167, 115 S.Ct. 696 (emphasis added). The Court further explained:
Id. at 157-58, 115 S.Ct. 696 (internal citations omitted).
In short, the pre-motive requirement ensures that the rehabilitation is tailored to the nature of the impeachment. See, e.g., E. Cleary, McCormick on Evidence § 49, p. 105 (2d ed. 1972) ("When the attack takes the form of impeachment of character, by showing misconduct, convictions or
Notably, the Supreme Court reversed the aggravated sexual assault conviction of Matthew Tome because of the erroneous introduction at Tome's trial of prior consistent statements that did not satisfy the pre-motive requirement. The facts and result are instructive. The alleged victim, age 6 ½ at the time of trial, did not prove to be the strongest of witnesses for the prosecution. On direct, she testified in a series of one- and two-word responses to leading prosecution questions, and when cross-examined about the allegations, "was reluctant at many points to answer." Tome, 513 U.S. at 153, 115 S.Ct. 696. The trial judge "expressed his concerns with [her] examination," noting that "there were lapses of as much as 40-55 seconds between some questions and the answers" and that the child eventually "seemed to be losing concentration." Id. at 153-54, 115 S.Ct. 696. The defense sought to establish that the allegations against the defendant, the victim's father, were concocted to deprive him of custody. In rebuttal, the government called six different witnesses, including the child's babysitter, mother, social worker and pediatricians, who each testified to statements the victim had made to them implicating Tome; in allowing the out-of-court statements, the trial court accepted the government's assertion that the statements rebutted the implicit charge that the child's testimony was motivated by a desire to live with her mother and so were admissible under FRE 801(d)(1).
The government did not dispute that the out-of-court statements were made "after [the victim's] alleged motive to fabricate arose," id. at 155, 115 S.Ct. 696 (its position was that the rule did not require as much), and so the Court readily concluded that the "conditions of admissibility [for the out of court victim statements] were not established." Id. at 167, 115 S.Ct. 696. But, the Court also reversed Tome's conviction because of the erroneous evidentiary ruling. The Court explained its concern, "especially in criminal cases," that by improperly allowing the "introduction of prior statements as substantive evidence to rebut every implicit charge that a witness' in-court testimony results from recent fabrication or improper influence or motive, the whole emphasis of the trial could shift to the out-of-court statements, not the in-court ones." Id. at 165, 115 S.Ct. 696. The Court also believed that "[Tome's] case illustrates the point." Id. As the Court explained, the result of the erroneous evidentiary ruling was that, "the Government was permitted to present a parade of sympathetic and credible witnesses who did no more than recount [the alleged victim's] detailed out-of-court statements to them." Id.
The Second Circuit, both before and after Tome, has likewise enforced the pre-motive requirement and reversed criminal convictions obtained through the introduction of purportedly "consistent" out-of-court statements, admitted for their substance,
On the evidentiary question, the Second Circuit, citing Tome, squarely held that FRE 801(d)(1)(B) "includes a fundamental temporal requirement: [t]he statement must have been made before the declarant developed an alleged motive to fabricate." Al-Moayad, 545 F.3d at 167 (internal quotation and alteration omitted). The Court then concluded that,"[i]f the district court admitted Al-Anssi's notes for their substance as prior consistent statements, it erred in doing so," because "Al-Anssi created the notes after a significant motive to fabricate arose, namely the large amount of money he expected and was paid to furnish information to the FBI." Id. (emphasis added).
As for the unfairness caused by the evidentiary error, the Court engaged in a sweeping analysis that interweaves due process and harmless error law, citing, inter alia, Chambers and Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), where the Supreme Court found that that "the cumulative effect of the potentially damaging circumstances of th[e] case violated the due process guarantee of fundamental fairness," Id. at 487 n. 15, 98 S.Ct. 1930, as well as Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), which announced the now familiar standard applied in federal appeals to determine whether trial error warrants reversal. Under Kotteakos, an error is deemed harmless unless it "had [a] substantial and injurious effect or influence in determining the jury's verdict." Id. at 776, 66 S.Ct. 1239. Kotteakos further instructs that "if one cannot say, with fair assurance, ... that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected." Id. at 765, 66 S.Ct. 1239.
The Al-Moayad Court concluded:
Id. at 172 (internal quotations and citations omitted). The Court further concluded that this "serious error," in combination with other evidentiary errors, "deprived [the] defendants of a fair trial," and "denied [them] due process of law." Id. at 172, 178. Recognizing the "probative force" that the other admitted evidence "may have had," the Court emphasized that the wrongly admitted notes nevertheless "[went] to the heart of the case," "buttressed Al-Anssi's testimony on key points that were unquestionably central to the charge," and "were of considerable significance in relation to everything else the jury considered." Id. at 170-71 (internal quotation and citations omitted). Finally, the Court understood, as the Supreme Court had explained in Chambers, that fundamental fairness concerns are implicated when the defendants' defense is impaired: because "[i]mpeaching Al-Anssi's credibility was important to the defendants' entrapment defense," id. at 154, the Court appreciated the specific unfairness that lay in "the fact that [the notes] buttressed the testimony of a witness whose credibility had otherwise been severely damaged," and concluded that "the notes cannot be viewed as simply cumulative of [the witness's] testimony" precisely because it was the damaged credibility "[that] the government attempted to remedy by introducing the notes." Id. at 169, 171. The Court thus concluded that "the district court's error in admitting the notes was not harmless as to predisposition and therefore the entrapment defense, and constitutes an additional ground for vacating the defendants' convictions." Id. at 171.
A significant pre-Tome case is United States v. Quinto, 582 F.2d 224 (1978), where the Second Circuit had likewise found that the improper admission of an impeached witness's prior consistent statement denied the defendant his right to a fair trial. The facts and reasoning are highly instructive. Michael Quinto acknowledged that he had failed to report certain income; in his trial for tax evasion, therefore, the government's proof was directed to the element of willful intent. The principal evidence was the testimony of IRS Special Agent James Wallwork, and the "crucial portion" of that testimony concerned Wallwork's interview of Quinto. Id. at 227. As summarized in the Circuit's opinion, Wallwork testified that, "after some abortive attempts to extricate himself from his obvious predicament," Quinto "blurted out: `Okay, I was trying to screw the government out of some cash if I could.'" Id.
After the defense conducted "a vigorous" cross-examination of Walker intended to show that the interview "had been more of an inquisition than an interview," id., the government on redirect offered a memorandum Wallwork had prepared following his interview with Quinto. The document "consist[ed] of eight single-spaced, typed pages" and "purported to describe exactly what had happened at Quinto's session with the agents," including Quinto's having stated that he had been trying to "`screw the government out of cash if (he) could.'" Id. at 229. The government argued that because there had
On the evidentiary question, the Second Circuit "h[e]ld that the memorandum should have been excluded regardless of whether it was offered for the truth of the matters asserted therein or merely for the more limited purpose of rehabilitating the in-court testimony of Agent Wallwork" because the pre-motive requirement was not satisfied. Id. More specifically, the Court found that "[t]he various improper motives the defense vigorously asserted the IRS agent might have had for lying on the witness stand [were] reducible essentially to a claim that, regardless of Quinto's actual guilt or innocence, throughout the entire investigation the government agents were ruthlessly seeking a conviction, presumably to enhance their own professional enhancement and aggrandizement," and that "the deeply rooted prejudice which Quinto claims was motivating the agents' actions existed both at the time the memorandum was compiled and at the time of Quinto's trial." Id. at 234.
The Second Circuit recognized that the defect lies in the fact that the purported rehabilitation was not tailored to the impeachment: as the Court explained, in deciding whether to believe Wallwork, "it cannot help us ... to know [merely] that [Wallwork] has asserted the same thing previously. If that were an argument, then the witness who has repeated his story to the greatest number of people would be the most credible." Id. at 235.
Turning to the question of trial unfairness, the Court in Quinto "d[id] not hesitate to decide" that the evidentiary error "necessitates reversal." Id. Applying the Kotteakos test, the Court concluded:
Id. at 235-36 (internal citations omitted).
In addition to tying its analysis to the Kotteakos harmless-error test, the Court in Quinto also framed its holding in due process terms. See id. at 226 ("Inasmuch as we agree with Quinto that the district court erred by admitting the memorandum as a prior consistent statement under Fed.R.Evid. 801(d)(1)(B) and that the court's erroneous admission of the document severely prejudiced Quinto's right to a fair trial, we reverse the judgment order of conviction and remand for a new trial on all counts of the indictment.").
In sum, Tome, Al-Moayad and Quinto illustrate that correct application of the pre-motive requirement prevents unconscionable prosecutorial windfalls and insurmountable defense disadvantages. In each of those cases, the performance of the state's key witness was significantly impeached (Al-Moayad, Quinto) or otherwise problematical (Tome), and the prosecution's attempted remedy, under the guise of rehabilitation, was to offer a hearsay version of the disappointing trial testimony that had so much more jury appeal than the in-court testimony—either because, as in Tome, a child's hesitant account was re-packaged in the far more coherent and authoritative voices of the adults in her life, or because, as in Al-Moayad and Quinto, seemingly speculative oral assertions were re-told in the far more authoritative and credible form of comprehensive documents—that what occurred on the stand was essentially supplanted by the improperly admitted hearsay. Whenever the prosecution knows it can replace poor trial testimony with a script or some other "better" prior account, it is essentially relieved of actually having to "try" that portion of its case.
Additionally, the erroneously admitted hearsay rendered the trials unfair because in each case the hearsay essentially nullified what had been the principal defense theory. See Chambers, 410 U.S. at 294, 93 S.Ct. 1038 ("[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," and that due process is denied when trial error renders the defense theory "far less persuasive" that it otherwise would have been). It is precisely for that reason that
Under the foregoing authorities, I readily conclude, as did the Appellate Division, that the trial court erred when it admitted Walker's narrative for its substance on the grounds announced, viz, "to the extent that [Walker's] testimony ... has been attacked as a recent fabrication, I'll allow this to go in as a prior consistent statement. That's the exception to the rule against bolstering." (T. 832).
First, the trial court mischaracterized the nature of the impeaching attack lodged against Walker's testimony. In admitting the hearsay narrative "to the extent that [Walker's] testimony ... has been attacked as a recent fabrication," the trial court failed to apprehend that Walker's testimony was attacked not only in that limited way, but was appropriately impeached on far more general and sweeping grounds. As the record makes plain, the driving force of the cross-examination was the magnitude of Walker's persistent, conscious and compunctionless fictionalizing to police.
Thus, because the basis of impeachment was Walker's general proclivity to lie, rehabilitation by prior consistent statement was not appropriate, particularly when, as here, the prior statement was itself not entirely true. See generally Barker & Alexander at § 6:41 ("[P]rior consistent statements are not particularly probative of credibility where impeachment of the witness is general in nature, such as [bias], bad character for truthfulness or prior inconsistent statement.") (collecting authorities).
Assuming further that the portion of the cross that addressed Walker's cooperation agreement could support a "recent-fabrication"-based analysis, the admitted document would still not satisfy the temporality precondition for admission: as the Appellate Division concluded, the statement was "not made at a time when [Walker] had no motive to lie." Evans, 16 A.D.3d at 518, 792 N.Y.S.2d 112. To the contrary, as the Appellate Division found, "Walker had a motive to falsify at the times she gave each of her statements to police officers, namely, to avoid complicity in the burglary and, hence, arrest, as well as at the time of trial." Id. The prior out-of-court statement, therefore, was as compromised and unreliable as the discredited trial testimony it was admitted to authenticate.
The error that occurred at petitioner's trial reflected a grave mishandling of the "pre-motive to fabricate" requirement. The fact that a statement is made when its declarant is known to have been possessed of a motive to fabricate taints but the statement's veracity but does not establish its actual falsity. But Walker's statement was, according to the state's own account, actually false, at least in part. To recap: the state elicited from Walker, on direct, the fact that she had previously given several statements to police about the events addressed in her testimony that were inconsistent with that testimony; the assertion that her trial testimony is to be believed necessarily asserts that the statements inconsistent with it were not entirely true. The state further elicited from Walker the fact that she wrote up one of these not-entirely-true prior inconsistent statements shortly after delivering it orally. By the state's and Walker's own characterization, therefore, the written narrative was actually untrue (at least in part) and not merely at risk of being so. Indeed, the document admitted for its corroborative value was, according to this same evidence, the written version of one of the very prior statements with which Walker was impeached.
Prior consistent statement jurisprudence of course presupposes the consistency of the prior statement with the impeached trial testimony or at least some redaction of the offered statement to the portions that are consistent. As the record here demonstrates, however, Walker's narrative, in its unredacted form, was in consistent with Walker's testimony in the material ways already discussed, and so was not even eligible for consideration as a prior consistent statement. A generally
As a threshold matter, this fact alone renders the trial court's decision to admit the writing as a prior consistent statement—without redaction or a qualifying instruction—even more suspect. It is also a clue to the state's real objective in offering the statement, namely, to replace rather merely to rehabilitate Walker's substantially impeached in-court performance. The fact also accounts for the state's continued advancement, on appeal and here, of the theory that it had the right to seek to correct its own witness's testimony through impeachment with a prior in consistent statement presenting the additional damaging details, discussed above, that are found only in the statement but not in the trial testimony.
The principles that allow a party to impeach its own witness plainly do not contemplate what occurred at petitioner's trial. See generally N.Y.Crim. Proc. Law § 60.35 ("When, upon examination by the party who called him, a witness in a criminal proceeding gives testimony upon a material issue of the case which tends to disprove the position of such party, such party may introduce evidence that such witness has previously made either a written statement signed by him or an oral statement under oath contradictory to such testimony."). Cf. Fed.R.Evid. 607 ("The credibility of a witness may be attacked by any party, including the party calling the witness."). But, the prosecution did not declare its purpose to be one of "impeachment," either to the court (when offering the document) or to the jurors (when urging them to rely on it in their deliberations), and so it is no surprise that there was not even an attempt to make the requisite showing under CPL § 60.35 that Walker gave testimony "upon a material issue" that "tend[ed] to disprove" the state's position.
As noted, the authorities discussed above, in delineating the applicable evidentiary principles, also explain the seriousness of the error that may arise when these principles are misapplied and the unfairness such errors may create. Little additional discussion, therefore, is required to elucidate the fundamental unfairness of petitioner's trial. Like the child in Tome, agent Al-Anssi in Al-Moayad and IRS Agent Wallwork in Quinto, Aisha Walker was the prosecution's critical witness. Indeed, Walker was the linchpin, for unless the jury believed her, the remaining evidence, all circumstantial, was innocuous.
The same is true of petitioner's trial. There is no dispute that much of what Walker testified to, if believed, was damaging, nor is there any dispute that, as the Appellate Division noted, much of what is in Walker's narrative "confirm[s] Walker's testimony implicating him." Evans, 16 A.D.3d at 519, 792 N.Y.S.2d 112. But lying precisely within the Appellate Division's observation is its misapprehension of the issue, i.e., that fundamental unfairness results when corroborating statements that should not have been admitted are nevertheless free, because they have been admitted, to work their illegitimate magic. The trial defense that rests upon impeachment is rendered a nullity, the near mortally wounded key witness—and, by extension, the precarious prosecutorial case—is resurrected and, through the alchemy of repetition and substitution, unreliable testimony plus unreliable hearsay somehow becomes, for jurors, virtually irrefutable truth.
As in the trials of Matthew Tome, Muhammed Al-Moayad and Michael Quinto, the erroneously admitted hearsay in petitioner's trial, because of its highly jury-friendly documentary nature, essentially stole the show; i.e., it so outshone the testimony it was purportedly rehabilitating that it essentially supplanted that testimony. Indeed, much of what the Second Circuit said of the wrongly admitted interview memorandum in Quinto applies with equal force to Walker's narrative. Although her statement is not, like IRS agent Wallwork's memorandum, an "official" document, it is nevertheless "impressive" in its comprehensiveness and diary-like effusiveness, and the "specificity with which [it] relates the entire course" of affairs makes it appear to be accurate "beyond reproach." Quinto, 582 F.2d at 235. I am convinced that "it would indeed be the unusual juror who would be unimpressed and uninfluenced" by Walker's narrative, id., and cannot avoid concluding, as in Quinto, that "[t]he jury [ ] had before it a neat condensation of the government's whole case against the defendant," and that "[t]he government's witnesses in effect accompanied the jury into the jury room." Id. at 236. In short, like Wallwork's memorandum in Quinto, Walker's statement "was all the jury really needed to see to conclude" that petitioner was guilty. Id. At the very least, it is clear that, like Al-Anssi's notes in Al-Moayad, Walker's statement "[went] to the heart of the case" and was "of considerable significance in relation to everything else the jury considered," notwithstanding the arguable "probative force" that some of the other evidence in the case "may have had." Al-Moayad, 545 F.3d at 170-71 (internal citations and citations omitted). See also Lozada-Rivera, 177 F.3d at 105 ("[a]lthough [erroneously admitted DEA agent's report] largely tracked [the agent's] own in-court testimony, it essentially provided the jury with an authoritative `condensation of the government's whole case'") (quoting Quinto, 582 F.2d at 236).
Additionally, I return to the fact that Walker's narrative was both consistent and inconsistent with her testimony in the ways already discussed,
For all the reasons discussed, I further conclude that, as in Tome, as well as in Al-Moayad and Quinto, the wrongly admitted hearsay caused the "whole emphasis of [petitioner's] trial [to] shift" from the in-court statements to those made elsewhere. Tome, 513 U.S. at 165, 115 S.Ct. 696. Indeed, although petitioner was convicted in the courtroom, the real trial occurred in the police precinct where Walker composed the unsworn account that furnished the narrative quality, precision, and detail that were simply beyond detection in the courtroom. A proceeding whose basic functioning is so thwarted cannot be considered the "trial" guaranteed by the Constitution. Cf. Strickland, 466 U.S. at 687, 104 S.Ct. 2052 (test for counsel's ineffectiveness requires showing, inter alia, that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment").
The Appellate Division's failure to recognize the manifestly prejudicial effects of the trial court's erroneous admission of Walker's statement, and its decision to allow a conviction to be secured through hearsay in the manner described in this Memorandum, is an objectively unreasonable application the due process principles "embodied," Thaler, 130 S.Ct. at 1173, in the Supreme Court holdings in Estelle, Lisenba, and Dowling. It was objectively unreasonable for the Appellate Division to fail to recognize, as the reviewed evidentiary authorities make clear and the decisions in Tome, Al-Moayad and Quinto powerfully illustrate, that the kind of evidentiary error that occurred in petitioner's trial is "extremely unfair," Dowling, 493 U.S. at 352, 110 S.Ct. 668, that it "infused the trial with unfairness," Estelle, 502 U.S. at 75, 112 S.Ct. 475, and "fatally infected" the proceedings. Lisenba, 314 U.S. at 236, 62 S.Ct. 280. The Appellate Division's decision is also an unreasonable application of Chambers: the state appellate court failed to apprehend that the cumulative nature of the errors embedded in the single evidentiary ruling and their cumulative effect rendered petitioner's trial unfair, 410 U.S.
Authorities sensibly conclude that, because both harmless error and due process inquiries look at the overall effect of an error on the trial and verdict, analysis under either doctrine tends to subsume analysis under the other.
Nevertheless, in Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007), the Court "granted certiorari to decide . . . whether [which of two earlier decisions] provides the appropriate standard of review when constitutional error in a state-court trial is first recognized by a federal court," id. at 120, 127 S.Ct. 2321 (emphasis added), and "h[e]ld that in § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the `substantial and injurious effect' standard [of Brecht] whether or not the state appellate court recognized the error and reviewed it for harmlessness under the `harmless beyond a reasonable doubt' standard [of Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)]]." Id. at 121-22, 127 S.Ct. 2321.
On the facts of this petition, the harmless error and due process analysis are essentially the same, but to the extent that Fry so requires, I make here the separate finding, for the reasons already discussed, that the constitutional error that occurred at petitioner's trial had a "substantial and injurious effect or influence in determining the jury's verdict." Kotteakos, 328 U.S. at 776, 66 S.Ct. 1239. Indeed, for all the reasons set forth in this Memorandum, I "cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error," and so "it is impossible to conclude that substantial rights were not affected." Id. at 765, 66 S.Ct. 1239. See also O'Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (when a court is "in virtual equipoise as to the harmlessness of the error" under the Kotteakos standard, the court should "treat the error . . . as if it affected the verdict").
For all of the foregoing reasons, petitioner's application for a writ of habeas corpus is granted. Within ninety (90) days of the entry of judgment, respondent shall either retry petitioner or release him. The judgment shall be stayed upon the timely filing of a notice of appeal and any such stay shall remain in effect until all federal appellate proceedings are completed.
SO ORDERED.
Although a pre-AEDPA non-Supreme Court decision, Collins has come to define current habeas jurisprudence in the Circuit and this district, where it is routinely cited in decisions denying habeas relief as the standard for assessing whether evidentiary error rises to the level of due process violation. See, e.g., Hussain v. Woods, 2011 WL 1486555, at *10 (E.D.N.Y. Apr. 19, 2011) (NO. 08-CV-2375 CBA); Linton v. Bradt, 115 F.Supp.2d 574, 577-78 (E.D.N.Y.2011); Flores v. Ercole, 2010 WL 3951048, at *4 (E.D.N.Y. Oct. 7, 2010) (NO. 09-CV-602 DLI). The Circuit itself appears to have revisited the point only once, in an unreported memorandum decision, Smith v. Greiner, 117 Fed.Appx. 779 (2d Cir.2004). Affirming the district court's rejection of a habeas petitioner's due process challenge to the admission of evidence of his prior convictions, the Circuit wrote, "the standard for evaluating whether there has been a constitutional error resulting from an evidentiary error is whether such error was `so pervasive as to have denied [the defendant] a fundamentally fair trial,'" and that "[t]he Court evaluates whether `the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'" Id. at 781 (quoting Collins, 755 F.2d at 18, 19).
I have several reservations about relying on Collins in a decision awarding habeas relief. First, although it is clearly announcing a constitutional standard, Collins is not a Supreme Court holding and, therefore, not "clearly established" law under 2254(d) for purposes of granting habeas relief. (As also noted, although federal appellate decisions have a role in measuring whether Supreme Court law has been unreasonably applied, the holding in Collins purports to be announcing a constitutional standard, not applying one).
Second, it is not clear that Collins's extension of Agurs to cases involving the erroneous admission of evidence is compelled by the language of Agurs or its progeny. Agurs involved the prosecution's failure to disclose exculpatory evidence, and while the Court's discussion of the impact of that undisclosed evidence necessarily involved consideration of the impact of that evidence on the trial, the Court's holding is grounded in concerns with the prosecutorial duty to disclose. I quote liberally from Agurs to make the point:
Agurs, 427 U.S. at 111-113, 96 S.Ct. 2392 (internal citation and footnotes omitted)
When the Supreme Court revisited Agurs in Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), it reaffirmed that the Agurs "materiality" standard applies to Brady violations.
Third, there exist sound reasons why the tests for the wrongful exclusion and for the wrongful admission of evidence might not be identical; when exculpatory evidence is not disclosed and thus not admitted, the analysis, which asks what the effect of its disclosure or admission would have been, is necessarily hypothetical. When evidence is wrongly admitted, by contrast, there is an actual effect that can be assessed.
In any event, if Collins controlled this petition, the result would be the same: I would conclude, for the same reasons announced with respect to my discussion of Supreme Court law infra at pp. 200-04, that the state appellate court unreasonably applied the Collins/Agurs test.
Respondent, pointing to this same body of "other evidence," argues, as the Appellate Division concluded, that even without Walker's statement there was overwhelming and/or legally sufficient evidence of guilt. The argument is unpersuasive. Principally, as reviewed above, the due process materiality/prejudice inquiry is not a sufficiency of the evidence test, but instead focuses on the magnitude and effect of the error under review. Kyles, 514 U.S. at 434-35, 115 S.Ct. 1555. In any event, when focusing on the state of the evidence, respondent fails to appreciate that the proper question is not how much other evidence was there without Walker's statement, but rather, how much of a case was there without Walker. As the prosecution no doubt understood at the time it was offering the hearsay statement, without that statement, there was a serious risk that Walker's direct account would not be credited.
For the reasons delineated throughout this Memorandum, it would have been an unreasonable application of Collins/Agurs/Kyles for the Appellate Division to have concluded that Walker's statement was not "crucial, critical [and] highly significant" and that, by replacing Walker's in-court performance, it did not remove a reasonable doubt that would otherwise have existed.
Dey v. Scully, 952 F.Supp. 957, 974 (E.D.N.Y. 1997) (Block, J.). See also Spears v. Mullin, 343 F.3d 1215, 1229 n. 9 (10th Cir.2003), cert. denied, 541 U.S. 909, 124 S.Ct. 1615, 158 L.Ed.2d 255 (2004) (due process error obviates need for harmless error analysis); King v. Greiner, 2008 WL 4410109, at *58 (S.D.N.Y. Sept. 26, 2008) (Cote, J.) (same); Roman v. Filion, 04-CV-8022, 2005 WL 1383167 (S.D.N.Y. June 10, 2005) (same). Cf. Hill v. Lockhart, 28 F.3d 832, 839 (8th Cir.1994) ("[I]t is unnecessary to add a separate layer of harmless-error analysis to an evaluation of whether a petitioner in a habeas case has presented a constitutionally significant claim for ineffective assistance of counsel.").
