Opinion
No. 03 Civ. 4959 (DC).
August 20, 2004
ROBERT J. BOYLE, Esq., New York, New York, Attorney for Petitioner.
ELIOT SPITZER, ESQ., Attorney General of the State of New York, Luke Martland, Esq., Darian B. Taylor, Esq., Assistant Attorneys General New York, New York, Attorney for Respondent.
OPINION
Petitioner John Francis brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his July 27, 1998 convictions in the Supreme Court of New York, New York County, for burglary in first degree, robbery in the first degree, and robbery in the second degree. Petitioner contests his convictions on three grounds: (1) he was denied equal protection of the law when the prosecutor challenged the only two African-American males in the jury panel and offered purportedly pretextual reasons for the challenges; (2) he was denied his Sixth Amendment right to confront witnesses against him when the trial court admitted the grand jury testimony of a non-testifying witness at trial; and (3) he was denied his rights to due process of law and to confront witnesses when the trial court relied on hearsay to determine that the witness was unavailable. For the reasons set forth below, the petition is denied.
BACKGROUND
A. Facts
The following facts were adduced at petitioner's Sirois hearing, voir dire, and trial. 1. The Robbery
A Sirois hearing is held to determine whether a criminal defendant's misconduct has induced a witness's refusal to testify at trial or caused the witness's disappearance or demise. Under New York law, if the trial court finds that the prosecution has proved the defendant's misconduct with clear and convincing evidence, the defendant will be deemed to have waived his rights under the Confrontation Clause and the witness's Grand Jury testimony may be admitted as direct evidence at trial. Holtzman v. Hellenbrand, 460 N.Y.S.2d 591, 597 (2d Dep't 1983).
As discussed in further detail below, the complainant, Layton, did not testify at trial as she was declared "unavailable" by the trial court. Her testimony here is based on her grand jury testimony, which was read into the record at trial by the prosecutor.
At approximately noon on March 25, 1997, Jayce Layton entered a residential building, located at 520 East 79th Street, to view an apartment available for rent. (Tr. Vol. 5 at 523). As she was unable to locate the specific apartment she went outside to verify the address. As she re-entered, petitioner followed her inside the building. (Id. at 525). Layton asked petitioner where the staircase was located and petitioner instructed her to walk to the back of the building. (Id.).
As Layton started to walk away, petitioner stated, "Give me all your money, bitch," and punched her in the head. (Id.). Layton fell to the ground and handed petitioner her bag while laying on the ground. Petitioner then kicked Layton in the face three or four times with his boot. (Id. at 526-27). He started to leave but then returned, kicked Layton several times in the eye, stated that he would "murder [Layton] if [she told] anybody" what happened, and then exited the building. (Id.). Layton subsequently walked across the street and entered an apartment building, where she received assistance from a doorman. (Id. at 530).
2. The Arrest
At around 12:20 p.m., officers Joseph Prendergast and Thomas Shalley were on patrol in the vicinity of 80th Street and First Avenue when Prendergast observed a black male, between the age of twenty-five and thirty years old, carrying a beige overcoat who appeared "nervous." (Tr. Vol. 4 at 279-80). As Prendergast alerted Shalley to follow the man, they received a radio report of a robbery at 520 East 79th Street. (Id. at 281-82).
The officers arrived at the location of the crime and were directed to the building across the street where Layton was waiting. Layton informed Prendergast that she had been robbed by a clean-shaven black man in his twenties. (Id. at 282-83). Prendergast broadcast the description and then re-broadcast it after Layton informed him that the perpetrator wore a beige or brown overcoat. After Prendergast realized that Layton's description matched that of the man he had seen a few minutes earlier, he made a third broadcast, based on his own recollection. (Id. at 283-84, 330-31).
Sergeant Lawrence Viggiano and Officers Samborksi and Vitale heard the broadcasts and searched the vicinity north of 79th Street. (Id. at 359, 387-88, 412, 442). Unsuccessful in their search, they decided to check the subway station at 86th Street and Lexington Avenue. Viggiano and Vitale entered the station to search the uptown platform while Samborski parked the car. (Id. at 361, 389-90, 413). Samborski spotted a man who matched the broadcast description as he was walking to the station but let the man pass him. He then radioed in for a re-broadcast of the description and realized that the man was the person described. (Id. at 362-63, 390-92).
Shortly after Samborkski's sighting, Viggiano observed the man leap over the uptown bound turnstile. He saw a black pocketbook fall from a brown overcoat that the man was holding. The man picked up the pocketbook and ran towards the stairwell. (Id. at 415-17). Viggiano identified himself as a police officer and ordered the man to stop, but the man continued to run. (Id. 418-20).
Police Officer Christopher Schmidt, who was in the station for an unrelated matter, observed a man running "full speed" with a black purse and overcoat tucked under his arms. (Id. at 467). He identified himself as a police officer, and grabbed the man. A struggle ensued and was ongoing when Viggiano and Vitale arrived at the scene. (Id. at 419-20, 365-66, 468-69). Samborski then arrived and was instructed to use pepper-spray to subdue the man, who was still fighting with the officers. The man — who turned out to be petitioner — was then handcuffed. (Id. at 420-22, 363, 366-68, 469-70).
3. The Identification
Viggiano retrieved the overcoat and black pocketbook from the ground, which contained fifty dollars and Layton's identification. (Id. at 368-69, 421-22, 473).
After receiving a broadcast from Viggiano that a robbery suspect had been detained, Prendergast took Layton to the scene of the arrest. (Id. at 286-87). Layton was transported in an ambulance and when she saw petitioner from the window, she "jumped back[,] . . . was startled" and screamed, "That's him, that's him!" (Id. at 288-90, 368-69, 423-24, 450-51, 457-58). Prendergast also recognized petitioner as the "nervous" man he had seen earlier on the street. (Id. at 287; Tr. Vol. 5 at 517-18).
At the precinct, petitioner identified himself as John Francis, although petitioner's real name is Alphonso Lester. Petitioner signed a written statement admitting that he had been high on crack cocaine the day of the incident, had snatched the purse so that he could obtain more drugs, and had "pushed" Layton because she would not let go of the purse. (Tr. Vol. 4 at 311-14). Prendergast then asked petitioner several questions, which petitioner answered. Prendergast wrote the answers on the bottom of the paper. Petitioner read over the revised statement and requested that some wording changes be made. After the changes were made, petitioner read over the statement again and then signed it. (Id. at 314-16).
At trial, petitioner admitted that he provided a false name and birth date to the officers. Although he had used other aliases in the past, he stated that he was not trying to conceal the fact that he was on parole. Instead, he stated that he had been mistreated in the past by the police and believed that he would be treated even more poorly if he supplied his true name. (Tr. Vol. 5 at 580-87).
B. Petitioner's Version of the Facts
Petitioner testified at trial. His testimony contradicts that of the prosecution's witnesses almost entirely. Petitioner denied that he committed the robbery. His trial testimony was as follows:
On the day of the incident petitioner was on medical leave from his job and was on parole for a 1989 conviction for armed robbery. (Tr. Vol. 5 at 560-61). Petitioner's wife called petitioner that day to arrange a lunch meeting at 12:30, at a restaurant located at 85th Street and Second Avenue. (Id. at 534-37, 561).
Petitioner arrived at the subway station at 86th Street and Lexington Avenue around 12:15 p.m. and called his wife. She informed him that she was running late and so he decided to purchase a cup of coffee and walk to a jewelry store on 82nd Street and Lexington Avenue. (Id. at 562, 587-88, 615-17). As he stood in front of the store, petitioner observed a man wearing a "tannish" jacket wrap a black object in a bag and place it inside a trash can. After the man left, petitioner, who thought the object might be a holster, removed the bag from the garbage. He discovered a woman's purse inside the bag that contained approximately fifty dollars in cash. (Id. at 563-65, 588-92, 617-19).
Petitioner, in "two minds about what to do," decided to wait for his wife. He walked to the 86th Street subway station, placed his coat and the purse inside the plastic bag and entered the station. (Id. at 564-66, 600-02). As petitioner was waiting on the platform for his wife to arrive, a police officer, later identified as Samborski, tried to tackle petitioner to the ground. (Id. at 567, 602-03). Although he had not committed any crime, petitioner did not want to be arrested because he was on parole. (Id.). He thus ran and tried to jump the turnstiles but was knocked to the ground by Schmidt and was then subdued by three or four other officers. Although he did not struggle with the officers but only informed them about the true perpetrator, he was pepper-sprayed. Petitioner was then handcuffed and taken outside. (Id. at 568-69, 605-07). As an ambulance pulled up, petitioner heard Prendergast announce, "That's him, that's him." (Id. at 569, 607-08).
While en route to the precinct, petitioner told Viggiano and Samborski that another man had committed the robbery. Viggiano told petitioner that he was a "dumb nigger." (Id. at 569-70). After arriving at the precinct, petitioner's face was slapped against a door. He was taken to a back room, instructed to strip, and when he refused to do so he was slapped again. He was grabbed by the neck and kneed in the testicles by the officers. (Id. at 570-73, 609). Petitioner refused to make a statement and was consequently threatened with pepper-spray and electric shocks. He then agreed to make a statement. (Id. at 573-75).
Prendergast threatened to send petitioner back to the other officers when petitioner attempted to explain his observations of the man in the tan jacket. (Id. at 577, 630). He told petitioner that he would help petitioner make a statement "in a way that would help" petitioner. Prendergast told petitioner that he would be treated more leniently if he stated that he had a drug problem. He then dictated a statement for petitioner to write. (Id. at 576-77, 628-36). After petitioner had finished writing, Prendergast wrote down several questions which he answered himself below the questions. He did not give petitioner a chance to change any part of the statement. (Id. at 576-77, 637-40). C. Proceedings in the State Court 1. The Sirois Hearing a. The Facts
Prior to trial, the prosecution moved to have Layton declared an unavailable witness so that her grand jury testimony could be introduced at trial as direct evidence. On June 4, 1998, the court conducted a Sirois hearing.
Assistant District Attorney Peter Tilem, to whom the case had been initially assigned, testified that at the grand jury proceeding on March 27, 1997, which was held two days after the robbery, Layton appeared to be "nervous, but very cooperative." Although frightened by what had happened, she nonetheless agreed to testify in the grand jury proceeding and did so. During the next two weeks Tilem remained in contact with Layton, who remained nervous. (Sirois Hrg. Tr. ("Hrg. Tr.") at 17-19).
On April 15, 1997, petitioner was arraigned on the indictment and was remanded into custody at Rikers Island (Id. at 19-20). On April 19, 1997, Layton contacted Tilem and informed him that she had just received a phone call from a man who claimed to be the "Angel of Death" or the "Angel of Mercy." Tilem was unable to recall the exact words that Layton had used. The caller warned Layton that if she proceeded with the case, then she would be killed. (Id. at 21-22). Tilem notified the police. (Id. at 23).
The next day, a detective from Layton's neighborhood precinct informed Tilem that Layton had been so frightened that she had checked herself into Beth Israel Medical Center. (Id. at 24). Tilem was permitted to testify about the detective's statements over petitioner's hearsay objection. (Id. at 25).
In response to petitioner's hearsay objection, the trial court ruled that hearsay, even double hearsay, was admissible for the limited purpose of the Sirois hearing "to the extent that it was being offered for the truth of the complainant being frightened." (Hrg. Tr. at 25).
Tilem then subpoenaed Layton's phone records and discovered that Layton had received a call several minutes before she called Tilem on April 19, 1997. The call was made on Rikers Island from a trunk line, a line not freely available to inmates. The specific phone used to make the call could not be located. (Id. at 24-27).
Layton checked out of the hospital on May 5, 1997 and informed Tilem that she did not wish to testify as she believed that she would be killed if she did so. The court permitted Tilem to testify about Layton's statements over petitioner's continued hearsay objections. (Id. at 28-29). On May 13, 1997, Layton informed Tilem that she had received another phone call. The caller had identified himself as petitioner's parole officer and asked Layton to drop the charges as petitioner should not have to spend twenty-five years in prison. Tilem found that the call had been placed from an inmate phone, by an inmate whose numbers corresponded to someone other than petitioner's. (Id. at 29-31). Layton was "very frightened" after having received a second phone call and "persisted in her refusal to testify" as she thought she would be killed if she did. (Id. at 32).
Soon after, Layton relocated and communicated with Tilem through a friend. (Id. at 33). The friend informed Tilem that Layton was not "physically able to come in and testify." Tilem was permitted to testify as to these statements over petitioner's objection. (Id. at 34).
During the month of May, similar calls had been made to Sarah Bachman, the complainant in petitioner's pending robbery case in Kings County. Detective Victor Magnani testified that Bachman had received several calls from people who had threatened her life or tried to convince her to drop the charges against petitioner. (Id. at 54-63). One of the calls that had been made corresponded to the same book and case numbers that had been used to call Layton from Rikers Island Another call corresponded to petitioner's assigned numbers on Rikers Island (Id. at 81-86).
Several months later, in September, 1997, Layton's psychiatrist, Dr. Elizabeth Khuri, faxed Tilem a letter stating that Layton was not "mentally or physically able to testify." (Id. at 34, 39, 48). Petitioner objected to Tilem's proffering of Khuri's diagnosis, but the court overruled the objection. (Id. at 38-39). Tilem informed Layton that the letter was essentially useless as a means of excusing her from testifying and that he would try to make Layton comfortable when she testified. Dr. Khuri agreed to help persuade Layton to testify. (Id. at 39, 50).
In October, the case was transferred to prosecutor Allison Turkel. Turkel made two appointments to meet with Layton, which were soon cancelled by Layton's friend, on Layton's behalf. (Id. at 103). The proceedings in the case were then delayed as petitioner chose to first handle his case pending in Kings County. In December, Turkel scheduled two more meetings with Layton that were again cancelled by her friend, although Turkel conveyed how important it was for her to meet with Layton. (Id. at 104-05).
In January, 1998, Layton contacted Turkel and informed her that she was "terribly frightened" and "too scared to testify." (Id. at 106). On January 23, 1998, Turkel met with Layton, who was accompanied by her friend. As Layton informed Turkel that she was too scared to testify, "her whole body started to shake." (Id. at 108). Turkel explained that court officers and police escorts would be present. Layton recounted the details of the robbery and the phone calls to Turkel and stated that "she was sure, after receiving the telephone calls that [petitioner] would either hurt . . . or kill her." (Id. at 109). She stated that she had cooperated as much as possible by testifying before the grand jury but that she could do no more after having received the calls. Indeed, after the first threatening call, she was so frightened that she checked herself into the hospital as she thought she might "hurt herself or have a breakdown." (Id. at 110-11). Turkel emphasized how important is was for Layton to testify and at the end of the meeting Layton stated that she would meet with Turkel again after Turkel had spoken with Dr. Khuri. (Id. at 113-14).
Soon after, Turkel contacted Dr. Khuri. At the hearing, over hearsay objections, Turkel was permitted to recount their conversations. Dr. Khuri informed Turkel that Layton had been "very upset" and "nervous" after the robbery but that the ensuing phone calls had "essentially put [her] over the deep end" and had "scared [her] to death." (Id. at 115-16). She further informed Turkel that Layton truly believed that she would be killed if she testified. (Id. at 116).
Petitioner specifically objected to Turkel's testimony of Dr. Khuri's professional opinion regarding the effect that testifying at trial would have on Layton. (Id.). The court, however, permitted Turkel to recount Dr. Khuri's opinion that compelling Layton to testify would have a negative impact on Layton's health. To Dr. Khuri, just the thought of testifying, even hypothetically, was "an overwhelming concept" to Layton. Despite her opinion, Dr. Khuri agreed to keep trying to convince Layton to testify on the ground that the experience could be "cathartic." (Id. at 116-17, 128-29).
In overruling petitioner's hearsay objection, the court stated that the hearsay was admissible but that "the weight [was] another matter." (Hrg. Tr. at 117).
Turkel contacted Layton after ruling out the possibility of Layton wearing a disguise at trial. When she informed Layton that such an option would not be available but that Dr. Khuri had agreed to accompany Layton in court, Layton became extremely upset, began to cry, and stated that she was "scared to death." (Id. at 118). She informed Turkel that she wanted to testify, but could not do so, as she "truly believed that she would be murdered" if she did. In subsequent conversations with Turkel, Layton restated her fear of being murdered if she testified. (Id. at 119-22).
In March 1998, Turkel received a facsimile from Dr. Khuri that explained the details of Layton's medical history and the effects of the robbery and subsequent phone calls upon her. The information was entered into evidence and the medical records were submitted to the court for in camera inspection. (Id. 124-26).
In her letter, Dr. Khuri stated that she had known Layton for more than twenty-five years and that Layton had suffered throughout her life with Generalized Anxiety Disorder and Panic Disorder with Agoraphobia, and more recently with Chronic Depression. Dr. Khuri further stated that Layton had been psychologically and physically injured by the attack, that the alleged threats contributed to her fear of testifying, that she suffered from Post-Traumatic Stress Syndrome, and that it would take her several more months to recover. (Pet. Mem. at 7).
On June 2, 1998, the day before the scheduled start of the trial, Detective Schmidt served Layton with a subpoena. Schmidt informed Layton that she would have to come to court on June 3, 1998, to which Layton responded, "I'll think about it." (Id. at 95-96, 126). Schmidt noticed that Layton appeared "very nervous" and was "trembling." Turkel left messages for Layton at her residence and her friend's workplace after the subpoena was served, but was unable to communicate with Layton. Turkel stated that she had not attempted to serve Layton with a subpoena prior to June 2, 1998. Layton did not appear in court on June 3, 1998 or on the date of the hearing, June 4, 1998. (Id. at 90-93, 127-28, 133).
b. Hearing Court's Decision
On June 5, 1998, in an oral decision, the court granted the prosecution's motion to declare Layton an unavailable witness. (Id. at 192-93). The court found that the prosecution had established that Layton had been cooperative with respect to testifying until she received the threatening phone calls. It thus held that the evidence made it "entirely clear that [petitioner] . . . caused threats to be made to the victim [that] she would be killed if she testified." (Id. at 183-85). The court specifically found that the first phone call constituted a specific threat to kill Layton and that the second call, although not a direct threat, was reasonably perceived by Layton to be a threat. (Id. at 185-87).
Petitioner argued that the prosecution failed to meet its burden of establishing Layton's unavailability as its evidence consisted entirely of hearsay. The court rejected this claim, holding that the testimony of the hearing witnesses was "reliable" hearsay, although "not the same type of hearsay as the report by a victim of threats that must necessarily be relied upon at these kinds of hearings." (Id. at 189). The court specifically found that, despite the hearsay, or even double hearsay nature of the testimony, there was sufficient evidence from Layton's medical records and Turkel's first-hand account of Layton's demeanor and behavior to support the determination of Layton's unavailability. (Id. at 189-90).
In addition, the court held that it could "issue a material witness order" and have Layton brought before the court, but that such an order was not a "prerequisite to a finding that [petitioner had] procured the witness's unavailability to testify at the trial." Moreover, in this case, such an order would "seriously compound the damage already done by" petitioner. (Id. at 181-93).
Finally, the court held that because petitioner had "forfeited his constitutional right to confront" her, Layton's grand jury testimony was admissible at trial. (Id. at 191-93).
c. Petitioner's Motion to Reconsider
Petitioner filed a motion to reconsider the court's ruling. Petitioner argued that Layton was not an unavailable witness because the court: (1) failed to issue a material witness order before making its ruling; (2) impermissibly relied on hearsay testimony instead of Dr. Khuri's in-court expert testimony; and (3) failed to find that petitioner had intentionally waived his confrontation rights. (Id. at 212).
The court denied petitioner's motion, finding Layton unavailable. The court re-iterated that "a material witness order was not necessary to a finding of unavailability." (Id. at 215). The court clarified that its determination was based on: (1) petitioner's threatening phone calls to Layton, made "for the purpose of intimidating her so that she would not be available" to testify; (2) the fact that Layton was cooperative before the phone calls but "terrified of participating in the case thereafter"; (3) the face to face observations of Layton made by Tilem and Turkel, which evidenced her terror in testifying because of the threats; (4) the medical records that were not hearsay and that confirmed that Layton's hospitalization was a result of the initial threat; and (5) Layton's refusal to appear in response to both the June 2, 1998 subpoena and the so ordered subpoena issued after that date. (Id. at 213-15).
The court found that even if the out-of-court statements of Dr. Khuri had not been admitted, the evidence was "more than sufficient to support" a finding of unavailability. (Id. at 215). The court also clarified that it was not making "any kind of finding" that Layton's refusal to testify was due to a medical or psychiatric condition and that there was "no evidence whatsoever that she [was] psychotic." (Id. at 216).
2. Voir Dire
On June 15, 1998, the court commenced voir dire. During the first round, the court asked each prospective juror some background questions. One prospective juror, Barnes, an African-American man, informed the court that he had been assaulted "a long time ago" by a police officer during an arrest for disorderly conduct, which was eventually dismissed. Barnes further stated that although he did not "feel too great about the event," he had "steady contacts with the police and judged them on an individual basis." Barnes affirmed that he did not have any "predisposed or bad feelings" towards the police. (Voir Dire Tr. at 40, 48-49).
At the end of the first round, the prosecutor exercised six peremptory challenges, including one as to Barnes. The defense exercised seven challenges. (Id. at 64-67).
During the second round, another prospective juror, Phillips, also an African-American man, did not answer questions regarding prior experiences in the criminal justice system. Philips did answer the court's specific inquires about his personal background. (Id. at 88). The prosecutor then posed some general questions to the panel to which Phillips did not reply. When Phillips was then specifically asked about his ability to fairly assess the credibility of police officers, he answered "no." (Id. at 92). Phillips did not respond to defense counsel's questions about whether panelists who had previously been crime victims could retain their objectivity and whether the panelists in general would be able to disregard a defendant's prior crimes as proof of his propensity to commit crimes. (Id. at 96-104).
At the end of the second round, the prosecutor exercised four peremptory challenges, including one as to Phillips. Defense counsel made one for cause and two peremptory challenges. (Id. at 106-10).
Defense counsel then made a Batson challenge, arguing that the prosecutor's exercise of peremptory challenges against the only two African American males on the first two panels, Barnes and Phillips, created a discriminatory "pattern of excusing black males." (Id. at 111). Counsel further noted that neither Barnes nor Phillips had said anything that would make them unsuitable jurors. (Id. at 110-11).
The prosecutor responded that there had not been "very many African American males to choose from" and that the mere fact that they had been peremptorily challenged "does not establish a pattern." She noted that African American females had been selected to serve. (Id. at 111).
The prosecutor then provided explanations for her challenges before the court ruled on whether a prima facie case of discrimination had been established. She stated that she had challenged Barnes because he had been assaulted and mistreated by the police, although he had stated that he interacted with police officers on a daily basis and was able to remain impartial despite his previous experiences. (Id. at 111-12). She stated that she had challenged Phillips because he demonstrated a "sort of general malaise and a lack of response to questions in general," which prevented her from gaining "a good sense of who he was or what his beliefs were." She noted that she had exercised peremptory challenges on other panel members as well for the same reason. Defense counsel did not respond or object to the proffered explanations. (Id. at 112-13).
The court ruled that the prosecutor had offered a "strong race neutral" reason for challenging Barnes, given his previous experiences with the police. (Id. at 113). The court accepted the proffered explanation for challenging Phillips as race neutral as well, although the explanation was "not as clear, because [Phillips] had very little to say about almost anything." The court then denied the defense's Batson motion. (Id.).
3. Petitioner's Conviction
Petitioner proceeded to trial. As noted above, he testified in his own defense. On June 22, 1998, the jury found him guilty of burglary in the first degree, robbery in the first degree, and robbery in the second degree. (Tr. Vol. 5 at 826). On July 9, 1998, petitioner was adjudicated a predicate violent felony offender at a predicate felony hearing and was sentenced to three concurrent terms of twenty-five years to life imprisonment on July 27, 1998. (Predicate Felony Hrg. Tr. at 14-16; Sentencing Tr. at 26).
4. Petitioner's Appeals
Petitioner appealed his convictions to the Appellate Division, First Department. His appointed counsel raised four claims for review: (1) petitioner was denied equal protection of the law, under Batson v. Kentucky, 476 U.S. 79 (1986), when the prosecutor struck the only African American males on the panel for reasons that were clearly pretextual; (2) petitioner's due process right to a fair trial was denied when the prosecutor improperly cross-examined petitioner with portions of his pre-trial hearing testimony; (3) the prosecution presented insufficient evidence to convict petitioner of first degree burglary; and (4) petitioner's sentence, which was enhanced because of his status as a persistent violent felony offender, violated his rights under Apprendi v. New Jersey, 530 U.S. 466 (2000). (Br. for Appellant at 2, Francis (No. 4766)).
Petitioner then filed a pro se supplemental brief, raising the following issues: (1) petitioner's Confrontation Clause rights were violated when the non-testifying complaining witness "was not properly found to be `unavailable'" by the trial court; (2) petitioner was denied his right to confront "the psychotherapist and other witnesses" at the Sirois hearing; (3) "expert testimony was required [at the Sirois hearing] given [the complainant's] psychiatric history to determine several issues relating to [her] mental history [and] state;" (4) the trial court impermissibly admitted "excessive hearsay" at theSirois hearing; and (5) petitioner's speedy trial motion was erroneously denied. (Pro se Supplemental Appellant Br. at 2,Francis (No. 4766)).
On October 30, 2001, the Appellate Division unanimously affirmed petitioner's conviction and sentence. People v. Francis, 731 N.Y.S.2d 706, 707 (1st Dep't 2001). The court held that petitioner's Batson claim was unpreserved, as the defense "did not contest the race-neutral explanation offered by the prosecutor for the peremptory challenge at issue" and it declined to review the claim in the interest of justice. Id. at 707. The court ruled alternatively that if it were to review the issue, it "would find that the record supports the court's determination that the explanation was not pretextual. The record is clear that the prosecutor's explanation was based in large part upon the demeanor of one prospective juror and the bias of another, factors which the trial court has the unique opportunity to observe." Id. at 707-08.
As to petitioner's insufficiency of the evidence claim, the court found that the record did not support petitioner's "suggestion that the victim may have permitted [petitioner] to enter the building" and that "unlawful entry was clearly established." Id. at 708.
Next, the court addressed petitioner's claim that his right to confront witnesses was denied because the complaining witness was not properly found to be "unavailable." It held that the trial court's decision to admit the witness's grand jury testimony at trial in lieu of her live testimony was appropriate. Petitioner had intimidated witnesses "through telephone calls from Rikers' Island" and therefore his "own conduct resulted in his forfeiting the right of confrontation." Id.
The court then held that the prosecutor's cross-examination of petitioner "generally constituted proper impeachment based on prior inconsistent testimony or matters to which [petitioner] had opened the door." It further held that petitioner's sentencing claim was unpreserved and without merit. Finally, the court stated that it had "considered and rejected [petitioner's remaining] claims, including those contained in his pro se supplemental brief." Id.
On November 26, 2001, petitioner sought leave to appeal to the New York Court of Appeals. In his application, he raised the same points that he raised to the Appellate Division, including those contained in his pro se supplemental brief. On April 3, 2002, the Court of Appeals denied leave to appeal. People v. Francis, 744 N.Y.S.2d 766 (2002).
C. The Instant Action
On July 2, 2003, petitioner timely filed the instant petition for habeas relief pursuant to 28 U.S.C. § 2254, arguing that: (1) he was denied equal protection of the law, pursuant to Batson, when the prosecutor peremptorily challenged the only two African American males in the jury panel for reasons that were "clearly" pretextual; (2) he was denied his right to confront witnesses against him when the trial court improperly admitted the grand jury testimony of the complainant, a non-testifying witness; and (3) he was denied due process of law and his right to confront witnesses against him when the trial court impermissibly relied on hearsay to determine that the complainant was an unavailable witness. (Pet. at 18). For the reasons set forth below, the petition is denied.
DISCUSSION
A. Standard of Review
The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") provides the applicable standard of review. See 28 U.S.C. § 2254. AEDPA provides that a habeas petition may not be granted unless the state court's adjudication of the claim on the merits "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d) (1); see also Williams v. Taylor, 529 U.S. 362 (2000).
A state court adjudicates a petitioner's claims "on the merits" when it disposes of the claim on the merits and reduces its disposition to judgment. Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002) (citing Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)). In addition, the Second Circuit has held that the state court "need not mention the argument raised or cite relevant case law in order for its ruling to constitute an `adjudication on the merits.'" Brown, 283 F.3d at 498 (quotingAparicio v. Artuz, 269 F.3d 78, 93-94 (2d Cir. 2001)).
A decision is contrary to clearly established federal law when a state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or the state court decides a case differently than the Supreme Court had on a set of materially indistinguishable facts. See Williams, 529 U.S. at 406. A state court's decision involves an unreasonable application of clearly established federal law when the state court identifies the governing legal principle from Supreme Court decisions, but unreasonably, not merely incorrectly, applies that principle to the facts of the prisoner's case. Id., 529 U.S. at 411.
AEDPA also specifies the applicable standard for federal review of state factual findings: a petitioner must demonstrate that a decision 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 habeas proceedings, a "determination of a factual issue made by a state court shall be presumed to be correct." 28 U.S.C. § 2254(e) (1). Additionally, it is the petitioner's burden to rebut the presumption of correctness "by clear and convincing evidence." Id.
With these standards in mind, I address each of petitioner's claims in turn.
B. The Batson Claim
Petitioner asserts as his first ground for habeas relief that his equal protection rights were violated when the prosecutor exercised peremptory challenges against the only two African-American males on the jury panel and provided allegedly pretextual reasons for doing so. See Batson v. Kentucky, 476 U.S. 79 (1986). Petitioner has procedurally defaulted this claim and it is thus barred from habeas review by this court. Even assuming that the default is excused, his first claim is rejected on the merits as well.
1. Procedural Default
The Supreme Court has held that even when a petitioner presents a colorable constitutional claim, federal habeas review is barred if a petitioner "defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule . . . unless the [petitioner] can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice."Coleman v. Thompson, 501 U.S. 722, 750 (1991); Fama v. Commissioner of Correctional Services, 235 F.3d 804, 809 (2d Cir. 2000). Procedural default bars habeas review, however, only when "the last state court rendering a judgment on the federal claim clearly and expressly states that its judgment is based on a state procedural bar." Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108 (1997) (quotingHarris v. Reed, 489 U.S. 255, 263 (1989)).
In such an instance, the federal habeas court must "determine whether the state court judgment rests on . . . an independent and adequate ground." Glenn, 98 F.3d at 724 (quoting Coleman, 501 U.S. at 736)). Because it is difficult to determine whether the state law bar is an independent basis for the decision, the court's reliance on state law must be "clear from the face of the opinion." Fama, 235 F.3d at 809 (quoting Coleman, 501 U.S. at 732). A procedural bar is adequate only if it is "firmly established and regularly followed" by the state. Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348 (1984)). Procedural default thus precludes habeas review only if the procedural rule is "supported by a fair or substantial basis in state law." Harris v. Artuz, No. 99 Civ. 11229, 2001 U.S. Dist. LEXIS 5196, at *15 (S.D.N.Y. April 30, 2001) (quoting Garcia v. Lewis, 188 F.3d 71, 78 (2d Cir. 1999)). Additionally, a procedural rule may foreclose habeas review as an independent and adequate ground despite an appellate court's alternative holding on the merits of the federal claim.See Glenn, 98 F.3d at 724-725; Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990); Harris, 489 U.S. at 264 n. 10.
Regardless of a petitioner's default, a federal habeas court may review the merits of the claim if he "can show `cause' for the default and `prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a `fundamental miscarriage of justice.'" Harris, 489 U.S. at 262 (internal citations omitted); see also Murray v. Carrier, 477 U.S. 478, 493-94 (1986); Wainwright v. Sykes, 433 U.S. 72, 72 (1977); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). Cause exists if "the prisoner can show that some objective factor external to the defense impeded counsel's effort to comply with the State's procedural rule." Murray, 477 U.S. at 488. Prejudice exists if "`there is a reasonable probability' that the result of the trial would have been different" absent the complained of constitutional violation. Strickler v. Greene, 527 U.S. 263, 289 (1999). A showing of both cause and prejudice is necessary to overcome procedural default, and prejudice alone, without cause, will not permit habeas review. Murray, 477 U.S. at 494; Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985).
A fundamental miscarriage of justice occurs only in extraordinary cases, such as when "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496. To show actual innocence, a petitioner must present "new reliable evidence that was not presented at trial and `show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.'" Lucidore v. New York State Div. of Parole, 209 F.3d 107, 114 (2d Cir. 2000) (quoting Schlup v. Delo, 513 U.S. 298, 327-28). Allegations of actual innocence have been summarily rejected, given the rarity of such evidence. Calderon v. Thompson, 523 U.S. 538, 559 (1998).
Here, in rejecting petitioner's Batson claim, the Appellate Division expressly relied on New York's codified contemporaneous objection rule. The court found that because petitioner "did not contest the race-neutral explanation offered by the prosecutor for the peremptory challenge at issue, [his] claim . . . [was] unpreserved and [the court declined] to review it in the interest of justice." Francis, 731 N.Y.S.2d at 707. The court further stated that "were [it] to review this claim, [it] would find that the record supports the court's determination that the explanation was not pretextual." Id.
New York's contemporaneous objection rule, codified in N.Y.C.P.L. § 470.05, establishes that an issue is preserved for appeal as a matter of law only when the appellant objected on that ground during the trial. Glenn, 98 F.3d at 724 n. 2; N.Y.C.P.L. § 470.05 (2). The Second Circuit has consistently held that the application of New York's contemporaneous objection rule constitutes an adequate and independent state ground that procedurally bars federal habeas review. Garcia, 188 F.3d at 79; See also Jones v. Duncan, No. 00 Civ. 3307, 2001 U.S. Dist. LEXIS 3740, at *21 (S.D.N.Y. April 2, 2001).
Furthermore, New York courts have consistently applied the rule in numerous decisions to bar Batson claims raised on appeal where a party questioning the peremptory challenge fails to make a specific objection to the trial court. Morales v. Artuz, No. 98 Civ. 16405, 2000 U.S. Dist. LEXIS 16405, at *22 (S.D.N.Y. Nov. 20, 2000), aff'd, 281 F.3d 55 (2d Cir. 2002). A moving party must therefore state that the proffered race neutral explanations are pretextual for his Batson claim to be preserved. See Rodriguez v. Schriver, No. 99 Civ. 8660, 2003 U.S. Dist. LEXIS 20285, at *36 (S.D.N.Y. Nov. 10, 2003). On June 15, 1998, when voir dire in petitioner's case was conducted, this rule had a fair and substantial basis in New York law. See People v. Rivera, 640 N.Y.S.2d 483 (1st Dep't 1996) (defendant's failure to make objection that prosecutor's reasons were pretextual renders the claims "unpreserved for appellate review"); People v. Allen, 86 N.Y.2d 101, 111 (1995) (failure of defendant to raise issue that prosecutor's reasons were pretextual duringBatson colloquy bars claim from review); People v. Cruz, 606 N.Y.S.2d 291, 292 (2d Dep't 1994) (Batson issue not preserved for appellate review where, when prosecutor provided explanation for peremptory challenges, "defense counsel did not indicate any dissatisfaction with the explanation . . . [and] at no time prior to the swearing-in of the jury did the defense counsel object to the court's rulings.").
In the instant case, defense counsel did not argue that the prosecutor's reasons for exercising peremptory challenges were pretextual at any time during voir dire. After the prosecution provided explanations for exercising challenges against Barnes and Phillips in response to the Batson motion, defense counsel did not challenge the explanations or make any further objections. (Voir Dire Tr. at 111-12). The trial court subsequently ruled that the prosecutor had offered race neutral reasons for the challenges and denied the Batson claim. (Id. at 113, 170-75).
Accordingly, the Appellate Division found that petitioner's failure to argue that the proffered reasons were pretextual rendered his claim unpreserved for appellate review, pursuant to N.Y.C.P.L § 470.05. Francis, 731 N.Y.S.2d at 707. The court clearly and expressly relied on a state procedural ground in making its decision. Furthermore, its decision that petitioner's claim was unpreserved constituted an independent and adequate state ground even though the court made an alternative ruling on the merits of the claim. Habeas review of petitioner's Batson claim is therefore barred. 2. The Merits
Even assuming petitioner's Batson claim is not procedurally barred, the claim must be rejected on the merits.
a. Applicable Law
The Supreme Court in Batson held that the Equal Protection Clause forbids a party from exercising peremptory challenges to remove potential jurors solely on the basis of race. Id. at 89. The Supreme Court has since extended the application of this holding to other suspect categories. See, e.g., J.E.B v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (gender); Hernandez, 500 U.S. at 371 (ethnic origin). The Batson court established a three-step burden-shifting framework to evaluate whether a peremptory challenge is race-based: First, the moving party must make a prima facie case of racial discrimination. Second, the non-moving party must proffer race-neutral explanations for exercising a challenge. Once such race neutral reasons are provided, the issue of whether a prima facie case has been made is moot. Hernandez, 500 U.S. at 359. Finally, the trial court must determine whether the moving party met his burden of proving that purposeful discrimination motivated the challenge. Batson, 476 U.S. at 96-98; United States v. Thomas, 320 F.3d 315, 316 (2d Cir. 2003).
The first step of the analysis requires the moving party to show that the circumstances surrounding the challenge raise an inference that a member of the jury panel was struck because of his or her race. Batson, 476 U.S. at 96-97; Purkett v. Elem, 514 U.S. 765, 767 (1995). At step two, the non-moving party's burden is extremely low: Although a race-neutral explanation must be given, it does not have to be persuasive or even plausible, but merely facially valid. Furthermore, unless the proffered reason is inherently discriminatory, it will be deemed race neutral. Id. at 767-68; Harris v. Kuhlmann, 346 F.3d 330, 343 (2d Cir. 2003). The third step requires the trial judge to determine whether, as a matter of law, the moving party has proved purposeful discrimination, based on the facts and circumstances. Purkett, 514 U.S. at 767; United States v. Alvarado, 923 F.2d 253, 256 (2d Cir. 1991). A finding of discriminatory intent turns, in large part, on the evaluation of the demeanor and credibility of the party whose challenge is being questioned. Batson, 476 U.S. at 98. Such an evaluation is "peculiar to the trial judge's province" and the trial court's finding is thus afforded great deference by a reviewing court.Hernandez, 500 U.S. at 365 (citing Wainright v. Witt, 469 U.S. 412, 428 (1985)).
b. Application
The Appellate Division made a determination based on the merits of petitioner's claim when it stated that "the record supports the [trial] court's determination that the explanation was not pretextual. The record is clear that the prosecutor's explanation was based in large part upon the demeanor of one prospective juror and the bias of another, factors which the trial court has the unique opportunity to observe." Francis, 731 N.Y.S.2d at 707-08. Accordingly, this Court may grant habeas relief only if the adjudication was "contrary to or involved an unreasonable application of clearly established Federal law . . . 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); Williams, 529 U.S. at 404-05.
Additionally, in the context of a petition made pursuant to 28 U.S.C. § 2254, "the state court's determination of whether [a party's] use of a peremptory challenge was motivated by discriminatory intent, is a factual finding and is, therefore, entitled to a presumption of correctness." The petitioner must rebut this presumption with clear and convincing evidence.Purkett, 514 U.S. at 767; Bryant v. Speckard, 131 F.3d 1076, 1077 (2d Cir. 1997). This deference is particularly vital in determining discriminatory intent, as a trial court's finding turns largely on the credibility and demeanor of the attorney exercising the challenge, "the evaluation of which lies peculiarly within a trial judge's province." Hernandez, 500 U.S. at 365; Jordan v. Lafevre, 293 F.3d 587, 593 (2d Cir. 2002).
Here, after defense counsel made his Batson challenge, based on the exercise of peremptory strikes as to Barnes and Phillips, the prosecutor responded that there were not "very many African American males to choose from" and that "African American females had been selected." (Voir Dire Tr. at 110-11). She then immediately proffered explanations for the strikes: she stated that she had challenged Barnes because of his previous experience of abuse and mistreatment by the police. With respect to Phillips, she stated that he had been challenged because he displayed a "sort of general malaise and lack of response to questions in general" that prevented her from gaining a "good sense of who he was or what his beliefs were." (Id. at 111-13).
The court ruled that the prosecutor had given a "strong race neutral response" in challenging Barnes, due to his past experience with the police. It further ruled that the reason for challenging Phillips was also "race neutral" although "not as clear, because [Phillips] had very little to say about anything." (Id. at 113).
The state court's decision was neither contrary to nor an unreasonable application of Batson. The prosecutor's explanation for striking Barnes, his arrest experience that involved assault and mistreatment by police officers, is clearly race neutral. The Second Circuit, in applying the principles ofBatson, has held that negative experience with law enforcement constitutes a race neutral reason for exercising a peremptory challenge. See Jordan, 293 F.3d at 594. Although less concrete, the prosecutor's explanation for removing Phillips was also race neutral. Because the explanation need not be persuasive or even plausible, but merely "facially valid," the prosecutor's reason for striking Phillips was race neutral: there is no inherent discrimination in exercising peremptory challenges based on a perceived "malaise" or "lack of response." Indeed, courts in the Second Circuit have found that demeanor and a "feeling" that a juror is "not overly forthcoming" in answering questions satisfy the race neutrality requirement of Batson. See Moore v. Walker, No. 99-2754, 2000 U.S. App. LEXIS 29574, at *5 (2d Cir. Nov. 16, 2000) (demeanor as acceptable race neutral base for peremptory challenge); Sutton v. Berbary, 2003 U.S. Dist. LEXIS 18265, at *3-4 (S.D.N.Y. Oct. 14, 2003) (court found prosecutor's explanation that he had "gut reaction" based on juror who was "not overly cooperative" and "not overly forthcoming" in responding to questions to be race neutral).
Petitioner contends that the prosecutor's explanation for striking Phillips was pretextual because she did not challenge other prospective jurors who were equally as silent as Phillips. (Br. for Appellant at 39-40, Francis (No. 4766)). The record shows otherwise.
Petitioner relies on the brief submitted on his direct appeal for his Batson claim. Petitioner's memorandum in support of his habeas petition addresses only his second and third grounds for relief.
First, contrary to petitioner's assertion, the record supports the prosecutor's claim that she challenged "other people" for the same reason, a demonstrated "malaise," that she challenged Phillips. (Voir Dire Tr. at 112). Although she posed more questions to prospective jurors Forbes (id. at 90-91) and Plack (id. at 91) than to Phillips in the second round, like Phillips, both prospective jurors gave limited responses only to questions that were asked directly to them.
Second, even assuming that no challenges were made to jurors who were "equally as silent" but not African American, the explanation is not necessarily evidence of intentional discrimination. Although the "force of a prosecutor's explanation for challenging a minority member . . . is obviously weakened . . . by evidence that non-minority members to whom the same explanation applies were not challenged," the explanation cannot automatically be rejected. Instead, the court's determination is based on the totality of the facts and circumstances. Alvarado, 923 F.2d at 256.
Here, the prosecutor stated that other jurors were challenged for the same reason that she had challenged Phillips, an assertion the defense did not dispute at the time. (Voir Dire Tr. at 112). In addition, African American women were selected, which the defense also did not dispute. (Id. at 111). Although not dispositive, this fact does provide some evidence that she did not possess an intent to discriminate against African Americans when she challenged Phillips. Sutton, 2003 U.S. Dist. LEXIS 18265 at *3-4.
Petitioner has thus failed to provide clear and convincing evidence that the trial court erred in finding that the prosecutor exercised challenges for race neutral reasons. He has also failed to demonstrate that the denial of his Batson challenge involved an unreasonable application of Supreme Court law or the facts of his case. Accordingly, petitioner's first claim is rejected as it is both procedurally barred and without merit.
B. Admission of Grand Jury Testimony
Petitioner asserts as his second ground for habeas relief that the trial court impermissibly admitted the grand jury testimony of complainant, a non-testifying witness, and thereby deprived him of his Sixth Amendment right to confront witnesses.
The Confrontation Clause of the Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. A defendant's confrontation right is a "fundamental right essential to a fair trial in a criminal prosecution" and secures for a defendant the opportunity of cross-examination. United States v. Dhinsa, 243 F.3d 635, 651 (2d Cir. 2001) (citing Pointer v. Texas, 380 U.S. 400, 404 (1965)). The Confrontation Clause is generally violated, therefore, when "hearsay evidence [is] admitted as substantive evidence against the defendant with no opportunity to cross-examine the hearsay declarant at trial, or when an out-of-court statement of an unavailable witness does not bear adequate indications of trustworthiness." Latorres v. Walker, 216 F. Supp. 2d 157, 165 (S.D.N.Y. 2000) (citing Kentucky v. Stincer, 482 U.S. 730, 737 (1987)).
Despite its constitutional significance, the right of confrontation is not absolute. Indeed, the Supreme Court has held that a defendant's intentional misconduct may, under limited circumstances, result in a waiver of his rights under the Confrontation Clause. Illinois v. Allen, 397 U.S. 337, 343 (1970). Under such circumstances, a witness's out-of-court statements may be admitted at trial in lieu of his or her live testimony without violating a defendant's right of confrontation.Oge v. Greiner, No. 02-CV-1199, 2003 U.S. Dist. LEXIS 22578, at *11 (E.D.N.Y. Sept. 17, 2003) (citing Brookhart v. Janis, 384 U.S. 1, 4 (1966)). The waiver by misconduct rule prevents a defendant from asserting his confrontation rights to reap the benefits of his own misconduct by precluding former testimony from being admitted against him. United States v. Mastrangelo, 693 F.2d 269, 272-73 (2d Cir. 1982); Dhinsa, 243 F.3d at 652.
The Supreme Court in Crawford v. Washington held that the Sixth Amendment prohibits the admission of out-of-court testimonial statements made by unavailable declarants where there is no opportunity for prior cross-examination. Crawford v. Washington, 124 S.Ct. 1354, 1370 (2004); United States v. McClain, No. 02-1093, 2004 U.S. App. LEXIS 15528, at *6-7 (2d Cir. July 28, 2004). Crawford is not implicated here, however, as petitioner has waived his Confrontation Clause rights by his own misconduct.
In 1997, the waiver by misconduct doctrine was codified by Federal Rule of Evidence 804(b) (6) as an exception to the hearsay rules. Rule 804(b) (6) allows hearsay statements to be admitted against a party "that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." Under such circumstances, that party is deemed to have forfeited the right to object to the admission of the declarant's prior statements. Fed.R.Evid. 804 (b) (6).
Although it is clear that a defendant may waive his right to confront witnesses, the Supreme Court has yet to establish the boundaries of the waiver rule. Consequently, there is dispute among the circuits as to what test should be used to determine whether a defendant has waived his rights. Cotto v. Herbert, 331 F.3d 217, 231, 234 (2d Cir. 2003) (citing Fed.R.Evid. 804 (b) (6) advisory committee's note to 1997 Amend.). The Second Circuit applies the "waiver by misconduct" rule in cases where a defendant has wrongfully procured a witness's silence by chicanery, threats, or actual violence or murder. Mastrangelo, 693 F.2d at 272-73. See also Dhinsa, 243 F.3d at 652.
Under New York law, before a witness's grand jury by clear and convincing evidence at a Sirois hearing that the defendant's own misconduct procured a witness's unavailability. Cotto, 331 F.3d at 235 (citing People v. Geraci, 85 N.Y.2d 359, 363 n. 1 (1995)). The standard in the Second Circuit is less stringent: the government need only prove by a preponderance of the evidence that a defendant was responsible for a witness's unavailability.Id. at 235 (citing Mastrangelo, 693 F.2d at 272). See also Skinner v. Duncan, No. 01 Civ. 6656, 2003 U.S. Dist. LEXIS 10102, at *114 (S.D.N.Y. June 17, 2003). Therefore, a court's "finding of admissibility after a Sirois hearing applying [New York's] higher standard[,] . . . if correct, would also satisfy the constitutional standard." Latorres, 216 F. Supp. 2d at 166.
The right of confrontation may only be waived by a defendant's intentional misconduct, given the essentiality of cross-examination to a defendant's fair trial. The evidence presented must thus demonstrate a causal link between such misconduct and the witness's refusal to testify. Oge, 2003 U.S. Dist. LEXIS 22578, at *11. Circumstantial evidence, however, "including a defendant's motive and opportunity to prevent a witness from testifying, may suffice to meet the [clear and convincing] standard, so long as the inference of a defendant's involvement in procuring a witness's unavailability is clear."Id. at *11 (citing Geraci, 85 N.Y.2d at 368). See also Geraci v. Senkowski, 23 F. Supp. 2d 246, 258 (E.D.N.Y. 1998) (judges may "use their common sense in drawing inferences" to make their determination at Sirois hearing).
A trial court's finding that a witness's refusal to testify is based upon threats of harm caused by the defendant is a factual determination entitled to a presumption of correctness under 28 U.S.C. § 2254 (e) (1). Thus, it may be overturned on habeas review only if: (1) a petitioner presents clear and convincing evidence that the court erred in its determination or (2) it was based on an unreasonable application of the facts. See 28 U.S.C. § 2254 (e) (1); 28 U.S.C. § 2254 (d) (2); Skinner, 2003 U.S. Dist. LEXIS 10102, at *115; see also Cotto 331 F.3d at 233 (given the narrow scope of review under 2254(e) (1), habeas court cannot reverse state trial court's finding that petitioner caused the intimidation of the unavailable witness as an unreasonable determination of facts under 2254(d) (2)). Deference to a trial court's factual determination is particularly important when considering witness credibility. Skinner 2003 U.S. Dist. LEXIS 10102, at *115; see also Cotto, 331 F.3d at 232 (fact-findings of trial court entitled to presumption of correctness, a presumption that is especially important when reviewing an assessment of witness credibility); LaTorres, 216 F. Supp. 2d at 167 ("AEDPA gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.").
I conclude that petitioner waived his right of confrontation with respect to Layton's testimony through his threatening phone calls, which directly caused her refusal to testify at trial. Petitioner's second claim for relief is therefore rejected.
The trial court's decision that petitioner procured Layton's unavailability through his threatening phone calls was not an unreasonable application of federal law or an unreasonable determination of facts in light of the evidence presented. Rather, its determination was reasonable and based on a thorough set of factual findings.
First, the record indicates that Layton refused to testify only after having received threatening phone calls: The court heard testimony from Tilem and Schmidt, both of whom met with Layton just two days after the robbery for the grand jury proceeding. Both testified that although "nervous," Layton was "very cooperative" and was prepared to testify before the grand jury. Tilem maintained contact with Layton for several weeks after the proceeding and Layton did not suggest that she would be unable to further cooperate in subsequent proceedings. (Hrg. Tr. at 17-19, 88-89). In fact, it was not until after Layton received the first threatening phone call, which informed her that she would be killed if she testified, that she expressed any unwillingness to testify at trial. The day after she received the call, Layton checked herself into a hospital because she was so frightened. (Id. at 22-27). Although Tilem first learned of this through a detective, he then independently confirmed the information. After being released from the hospital, Tilem testified that Layton appeared "nervous" and "changed," and that she stated to him that she believed she would be killed if she testified. (Id. at 37-34, 54-63).
Second, the record shows that petitioner was responsible for the threatening calls: The first call was placed from Rikers Island, where petitioner was imprisoned at the time, although a specific caller could not be identified. (Id. at 25-27). Layton then received a second phone call from a man who claimed to be petitioner's parole officer and who urged her to refrain from testifying. (Id. at 30, 46). Tilem's investigations revealed that the call was placed by one of petitioner's fellow inmates on Rikers Island, who had placed a similar call to the complainant in petitioner's other pending robbery case. Detective Magnani testified that petitioner's own numbers corresponded to an additional call made to this complainant. Records that revealed the source of these calls were admitted as evidence. (Id. at 62-62, 81-86).
Finally, Layton's behavior after having received the calls indicates that the calls caused her to fear for her life and prevented her from testifying: After the second call, Layton relocated and only communicated with Turkel through her friend. She also cancelled several scheduled meetings with Turkel. (Id. at 103-08). Turkel testified that when she did actually meet with Layton in person, Layton trembled, cried, and told Turkel that she believed she would be killed if she testified. (Id. at 108-10). At the time she was served the subpoena, Layton informed Schmidt, who executed service, that she would "have to think about" testifying as she believed she would be killed. (Id. at 92-93). Ultimately, Layton did not respond to this subpoena. (Id. at 127-28). In addition, Turkel testified that, according to Dr. Khuri, the threats had impacted Layton to the extent that she would likely suffer a breakdown if she were to testify. (Id. at 121-22). Khuri's written report explaining Layton's medical history and current condition along with Layton's medical records were admitted as evidence at the hearing. (Id. at 170).
The objective evidence and inferences arising from the evidence supported the court's findings that (1) Layton only refused to testify after she received the phone calls; (2) petitioner "caused threats to be made" to Layton; and (3) Layton believed that she would be killed if she testified. The trial court's determination that the prosecution proved by clear and convincing evidence that petitioner's intentional conduct procured Layton's unavailability was therefore not unreasonable in light of the evidence presented.
Petitioner has thus failed to provide clear and convincing evidence that the trial court erred in admitting Layton's grand jury testimony at trial. He has also failed to demonstrate that the court's determination of Layton's unavailability involved an unreasonable application of federal law or the facts of his case. Accordingly, petitioner's second claim is rejected.
C. Admission of Hearsay During Sirois Hearing
Petitioner asserts as his third ground for habeas relief that he was denied his right to confront witnesses and to due process of law when the trial court impermissibly relied on hearsay during the Sirois hearing to make its finding of Layton's unavailability.
A trial court may constitutionally rely on hearsay evidence in making an initial determination of the admissibility of evidence, as in a Sirois hearing. Mastrangelo, 693 F.2d at 273. See also Geraci, 23 F. Supp. 2d at 257. Absent this reliance, witness intimidation would often not be provable. Geraci, 23 F. Supp. 2d at 257. Indeed, even evidence in the form of double hearsay may be permitted and does not necessarily render unreasonable a court's finding of unavailability. Oge, 2003 U.S. Dist. LEXIS 22578, at *13. Such hearsay that has multiple levels bears only on the weight of such evidence and not on the admissibility of the evidence at the Sirois hearing. Geraci, 23 F. Supp. 2d at 258.
I conclude that the trial court did not impermissibly rely on hearsay evidence in making its determination of unavailability. Even assuming, however, that it did, the record makes clear that there was sufficient evidence to find Layton unavailable even absent the admission of the hearsay. Petitioner's third claim for relief is therefore rejected.
Petitioner further argues that he was denied due process of law as the error in admitting the hearsay ultimately led to an adverse finding at trial. Because there was no error either in the trial court's admission of the hearsay or finding of unavailability, this argument is without merit. In any event, any error committed was harmless because of the overwhelming evidence of petitioner's guilt. Two different officers testified to petitioner running in the subway station with a pocketbook in hand Petitioner was arrested in possession of the pocketbook, which contained the identification of Layton. When Layton saw him at the scene, she spontaneously blurted out, "That's him, that's him!" Petitioner confessed to the crime and signed a statement admitting his guilt. Finally, petitioner's testimony at trial was patently unbelievable and was rejected by the jury.
Accordingly, petitioner's third claim for relief is rejected as well.
CONCLUSION
Petitioner has demonstrated no basis for relief under 28 U.S.C. § 2254. Accordingly, the instant habeas petition is dismissed. Because petitioner has not made a substantial showing of the denial of a constitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253 (1996) (as amended by the AEDPA). I certify pursuant to 28 U.S.C. § 1915(a) (3) that any appeal taken from this decision and order would not be taken in good faith:
The Clerk of the Court shall enter judgment accordingly and close this case.
SO ORDERED.