Orlando v. Nassau Cnty. Dist. Attorney's Office
915 F.3d 113
| 2d Cir. | 2019Background
- On Dec. 3, 2004 Bobby Calabrese was found shot; Herva Jeannot later confessed to shooting him and implicated Mark Orlando as having paid him. Jeannot and Orlando were tried separately; both were convicted (Orlando convicted of 2nd-degree murder, sentenced 25-to-life).
- At Orlando's trial a detective (McGinn) testified that he told Orlando that Jeannot had confessed and said Orlando paid him; McGinn also vouched that Jeannot was "relaying the truth." The trial court gave limiting instructions that the jury should consider that testimony only to explain why Orlando changed his statements.
- Orlando argued on direct appeal and in federal habeas that admission of McGinn's recounting of Jeannot’s inculpation violated his Sixth Amendment Confrontation Clause right because Jeannot did not testify and was not subject to cross-examination.
- New York Appellate Division affirmed, relying on Tennessee v. Street and the limiting instruction; New York Court of Appeals denied leave. District court denied habeas relief; Second Circuit granted a certificate and heard the appeal.
- The Second Circuit majority held that admitting McGinn’s testimony recounting Jeannot’s explicit inculpation of Orlando violated Bruton and that the Appellate Division unreasonably applied Bruton and Street; the error was not harmless under Brecht so habeas relief was ordered unless retrial promptly pursued.
Issues
| Issue | Orlando's Argument | State's Argument | Held |
|---|---|---|---|
| Whether admission of a non‑testifying accomplice's out‑of‑court, inculpatory statement (recounted by a detective) violated the Confrontation Clause | Admission violated the Sixth Amendment because Jeannot’s testimonial confession expressly inculpated Orlando and Jeannot did not testify | Statement was non‑hearsay (offered to explain why Orlando changed his story) and limiting instructions (and Street) make admission permissible | Court: Violation of Confrontation Clause under Bruton; Appellate Division unreasonably applied Bruton/Street |
| Whether the detective’s additional vouching for the accomplice’s statement compounded the Confrontation Clause error | Vouching made juror compliance with limiting instruction even less likely; increased prejudice | Prosecutor’s use and jury instructions limited risk; focus was explanatory | Court: Vouching increased Bruton‑type prejudice and undermined limiting instruction effectiveness |
| Whether Tennessee v. Street justified admission here (non‑hearsay use to rebut or provide context) | Even if offered for context, Street does not allow admission when statement expressly inculpates the defendant and prosecutor exploited it | Street permits non‑hearsay admission where necessary for truth‑seeking and adequate limiting instructions exist | Court: Street was inappropriately extended by state courts here; Street does not cover these facts given the vouching and prosecution’s use |
| Whether any Confrontation Clause error was harmless | Error was not harmless because other evidence of murder‑for‑hire was weak and Jeannot’s statement was central to the prosecution’s theory | Evidence (motive, presence at scene, bills, forensic/cell/video evidence) was strong enough to sustain verdict | Court: Error not harmless under Brecht; grave doubt that verdict unaffected; ordered habeas relief unless retried |
Key Cases Cited
- Bruton v. United States, 391 U.S. 123 (1968) (admission of non‑testifying codefendant’s confession that expressly incriminates defendant violates Confrontation Clause in joint trials)
- Richardson v. Marsh, 481 U.S. 200 (1987) (limiting instructions generally sufficient to avoid Confrontation Clause problems except in Bruton’s narrow circumstances)
- Tennessee v. Street, 471 U.S. 409 (1985) (permitting non‑hearsay use of accomplice’s confession to rebut defendant’s account where necessary for truth‑seeking and limiting instructions are given)
- Crawford v. Washington, 541 U.S. 36 (2004) (testimonial out‑of‑court statements implicate Confrontation Clause; Clause does not bar non‑hearsay uses)
- Davis v. Washington, 547 U.S. 813 (2006) (defines testimonial statements in police interrogation context)
- Brecht v. Abrahamson, 507 U.S. 619 (1993) (habeas harmless‑error standard: conviction must be reversed unless error was harmless beyond a reasonable doubt under Brecht/O'Neal standard)
- Harrington v. Richter, 562 U.S. 86 (2011) (AEDPA standard: state court adjudication must be unreasonable application of clearly established federal law for §2254 relief)