MARK ORLANDO, Petitioner-Appellant, v. NASSAU COUNTY DISTRICT ATTORNEY‘S OFFICE, Respondent-Appellee.
No. 17-2390
United States Court of Appeals For the Second Circuit
August Term, 2017 Argued: May 30, 2018 Decided: February 11, 2019
Before: JACOBS and DRONEY, Circuit Judges, and SHEA, District Judge.*
Appeal from the United States District Court for the Eastern District of New York. No. 11-cv-3992 — Edward R. Korman, Judge.
Judge SHEA dissents in a separate opinion.
JANE SIMKIN SMITH, Millbrook, NY, for Petitioner-Appellant.
SARAH S. RABINOWITZ, ASSISTANT DISTRICT ATTORNEY (Tammy J. Smiley, Assistant District Attorney, on the brief), for Madeline Singas, Nassau County District Attorney, Mineola, New York, for Respondent-Appellee.
DRONEY, Circuit Judge:
On Friday night, December 3, 2004, at approximately 8:45 p.m., in response to a 911 call, police officers from the Long Beach, New York, police department found the body of Bobby Calabrese.3
Calabrese was lying face down next to his Infiniti automobile, which was still running. He had been shot in the back of his head at close
The following Thursday, Nassau County police detectives interviewed Mark Orlando and Herva Jeannot, who were together the night of Calabrese‘s homicide. The detectives believed that Orlando and Jeannot had been with Calabrese that night. Orlando and Jeannot were questioned in separate rooms at the police station. Jeannot confessed to shooting Calabrese, stating that Orlando hired Jeannot to murder Calabrese to avoid paying a gambling debt to Calabrese. During his questioning, Orlando gave two different statements to the police but denied being involved in the murder.
Orlando and Jeannot were charged with murder for their roles in Calabrese‘s death and, in August 2005, a jury in the New York Supreme Court for Nassau County convicted Mark Orlando of murder in the second degree. The trial court had severed Orlando and Jeannot‘s trials to avoid a Sixth Amendment Confrontation
ORLANDO‘S TRIAL
I. Evidence Before the Jury of Jeannot‘s Statement
The state‘s theory at trial was that Orlando paid Jeannot to murder Calabrese to extinguish a $17,000 gambling debt Orlando owed to Calabrese and that Orlando assisted Jeannot in the murder. The prosecution argued that Orlando lured Calabrese to the remote
During his police interrogation, Orlando gave two statements to Nassau County Police Detectives. Detectives McHugh and McGinn jointly interviewed Orlando when he gave his first statement, and Detective McHugh testified to this statement at Orlando‘s trial. According to McHugh, Orlando first stated that he and Jeannot were good friends and coworkers at Professional Credit Services, a Long
Orlando‘s winning streak with Calabrese ended, and Orlando lost $17,800 over the course of two weeks. At that point, Orlando stopped betting with Calabrese. But Orlando still owed Calabrese $17,000, and he arranged to pay Calabrese on December 3.
In that first statement to the Nassau County detectives, Orlando indicated that he and Jeannot went together in Orlando‘s wife‘s car to pay Calabrese, did so, and otherwise had an uneventful evening. After Orlando paid Calabrese the $17,000, he and Jeannot made several stops: at a Suzuki car dealership to pick up a check, at an ATM, and at Orlando‘s friend‘s house to look at some new construction. Orlando then dropped off Jeannot at Jeannot‘s home, around 10:30 p.m.
Before Detective McGinn had begun testifying at Orlando‘s trial (and out of the presence of the jury), counsel for Orlando had objected, on hearsay and Confrontation Clause grounds, to the admission of McGinn‘s anticipated testimony recounting Jeannot‘s statement as to Orlando‘s involvement in the murder. The trial court denied the objection, ruling that “this information that the People are intending to offer in their direct case is not being offered for the truth of the contents of the statement but rather to give a clear picture to the
After Orlando‘s objection was denied, the prosecution asked Detective McGinn about “the circumstances under which [McGinn] resumed speaking with” Orlando. T. 620.6 McGinn testified that he had learned from Detective McHugh that Jeannot was making inculpatory statements about the murder. “I knew Detective McHugh was in talking to Mr. Herva Jeannot,” McGinn testified. Id. “I believe,” he told the jury, “that Herva Jeannot was relaying some of the events that really took place that night [of the murder].” Id.
McGinn then testified that he re-entered Orlando‘s interview room. Id. “I went back in and I told Mr. Orlando that Detective McHugh was over there talking to Herva [Jeannot] and he was probably giving us . . . other facts that happened that night, the truth
According to McGinn‘s testimony, Orlando responded, “[y]ou don‘t understand,” and McGinn left the interview room. T. 620. McGinn testified that he returned a few minutes later. According to McGinn, “[a]gain, I explained to Mr. Orlando that Herva Jeannot was, in fact, giving up . . . what we felt were truer versions of the events of Bobby Calabrese‘s murder. That we had a videotape of the spot the meeting took place. That the meeting did not take place where [Orlando] originally told us it had taken place. I told [Orlando] that Herva Jeannot had given up where the gun was and that the defendant should . . .[,] if he wants his version of the story told[,] . . . tell us the truth at this point.” T. 621.
Orlando initially responded, again, “you don‘t understand,” but eventually stated, without elaboration, that he was afraid (of Jeannot) for his family. T. 621-23. McGinn testified that he again left
At this point, the trial court gave the jury a limiting instruction. The trial court stated, “Ladies and gentlemen, you have been permitted to hear testimony about remarks made to the defendant by Detective McGinn about statements allegedly made by Herva Jeannot. You‘re to consider this testimony only when considering the circumstances under which the defendant himself may have made statements and for no other purposes.” T. 624.
The trial court then instructed the jury “to completely disregard any statement allegedly made by Herva Jeannot when considering evidence against the defendant. . . . You are not to concern yourself
McGinn then resumed testifying. He testified that, after learning of Jeannot‘s statement implicating Orlando in the murder, Orlando changed his account of the evening‘s events. Orlando stated that when he and Jeannot met Calabrese that night, Orlando paid Calabrese and then Jeannot unexpectedly shot Calabrese, taking the cash.8 T. 676-82. According to Orlando, he and Jeannot then drove away, and Jeannot threatened to harm Orlando‘s (pregnant) wife if
II. The Prosecution‘s Summation
The prosecution argued in its summation to the jury that Orlando had paid Jeannot to murder Calabrese. The prosecution also specifically called to the jury‘s attention that “Detective McGinn leaves [Orlando‘s interrogation room], comes back a little later, . . . [and] Detective McGinn finally says, look, [Jeannot‘s] giving it up. [Jeannot‘s] telling us everything. . . . He‘s telling us he did the shooting and you paid him.” T. 894-95.
The prosecution again returned to its “murder-for-hire” theory later in its closing argument, stating that “[Orlando] wasn‘t upset by watching Bobby die. That was what was supposed to happen. That is what he paid [Jeannot] to do, to do his dirty work for him. Couldn‘t do it himself.” T. 885. The prosecution suggested that Orlando paid
III. Verdict and Sentence
The jury found Orlando guilty of murder in the second degree. Orlando was sentenced to an indeterminate term of 25 years to life in prison on August 18, 2005. He is currently serving his sentence. Jeannot was also convicted of the murder in a separate trial.
STATE COURT APPELLATE PROCEEDINGS
Orlando appealed his conviction to the New York Supreme Court, Appellate Division. People v. Orlando, 61 A.D.3d 1001 (N.Y. App. Div. 2d Dep‘t 2009). Orlando contended that Detective McGinn‘s testimony as to Jeannot‘s statement was inadmissible hearsay and also violated Orlando‘s right to confront witnesses through cross examination, as guaranteed by the Sixth Amendment of the United States Constitution and incorporated against the states by the Fourteenth Amendment. Appellant‘s Br. at 70-77, People v. Orlando,
The Appellate Division rejected Orlando‘s argument in a single sentence, stating: “The [trial] court properly instructed the jury that the testimony was admitted for the limited purpose of explaining the detective‘s actions and their effect on the defendant, and not for the truth of the codefendant‘s statement.” Id. (quoting People v. Ewell, 12 A.D.3d 616, 617 (N.Y. App. Div. 2d Dep‘t 2004)) (internal quotation marks omitted).9 The Appellate Division also cited Tennessee v. Street, 471 U.S. 409 (1985), for its conclusion that the trial court did not err in admitting Jeannot‘s statement through Detective McGinn. Id.
SECTION 2254 PROCEEDING IN THE DISTRICT COURT
Orlando, proceeding pro se, filed a petition for a writ of habeas corpus pursuant to
The district court identified the following testimony by McGinn as at issue in the Confrontation Clause analysis:
I left the [interrogation] room at about 6:50 [AM]. I went back into the room at about ten minutes to eight. About 7:50 in the morning. And I told [Orlando] at this point that Herva Jeannot was, in fact, talking to the other detectives. He had given a statement and he had implicated himself in the murder. He said that he was the murderer, but that Mark Orlando had paid him to do it.
Orlando v. Nassau Cty. Dist. Atty‘s Office, 246 F. Supp. 3d 569, 572-73 (E.D.N.Y. 2017).12
Relying principally on Tennessee v. Street, 471 U.S. 409 (1985), and United States v. Logan, 419 F.3d 172 (2d Cir. 2005), the district court rejected Orlando‘s Confrontation Clause argument. Orlando, 246 F. Supp. 3d at 571-76. The district court reasoned that Jeannot‘s statement was not offered against Orlando for its truth but only “provided context for explaining why Orlando altered his [original]
The district court issued a certificate of appealability as to Orlando‘s Confrontation Clause argument. Id. at 578. Orlando then timely filed a notice of appeal.
DISCUSSION
Orlando argues that: (1) without his ability to cross-examine Jeannot, McGinn‘s testimony recounting Jeannot‘s statement violated Orlando‘s Confrontation Clause right; (2) the Appellate Division‘s ruling to the contrary was “objectively unreasonable;” and (3) the erroneous admission of the testimony was not harmless. We agree. Accordingly, we reverse the district court‘s denial of Orlando‘s petition.
Under
A petition for a writ of habeas corpus “shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim . . . 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.”
II. The Confrontation Clause Violation
The
Out-of-court statements may have a proper purpose other than being considered for their truth. The Supreme Court and this Circuit have acknowledged that a trial court‘s instruction to a jury to consider only for a limited, nonhearsay purpose the non-testifying witness‘s out-of-court statement “is generally sufficient to eliminate . . . Confrontation Clause concern[s].” Jass, 569 F.3d at 55 (citing Richardson v. Marsh, 481 U.S. 200, 206 (1987)). That is because “[t]he law ‘almost invariabl[y] assum[es]’ that jurors follow such limiting instructions.” Id. (quoting Richardson, 481 U.S. at 206).
The Supreme Court reversed Bruton‘s conviction, holding that because his codefendant was not subject to cross examination and “because of the substantial risk that the jury, despite instructions to
The Court further explained that “[n]ot only are [alleged accomplices‘] incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice . . . does not testify and cannot be tested by cross-examination.” Id. at 136.
As a result, when a non-testifying witness‘s confession “expressly” implicates the defendant, “the risk that the jury will not, or cannot, follow instructions [to limit its consideration of the
Although the non-testifying witness in Bruton was a codefendant in a joint trial, Bruton applies equally to the testimonial and incriminating statements of non-testifying accomplices tried separately. See Crawford, 541 U.S. at 57, 69 (stating that testimonial statements admitted without the opportunity to cross-examine the declarant violate the Confrontation Clause and referring to Bruton as barring “accomplice confessions where the defendant had no opportunity to cross-examine”); Tennessee v. Street, 471 U.S. 409, 411, 414–15 (1985) (recognizing that if the jury had been asked to infer that
Here, the Appellate Division correctly acknowledged that, absent cross-examination of Jeannot, admission of his facially incriminating statement risked violating the Confrontation Clause, as was recognized in Bruton.13 People v. Orlando, 61 A.D.3d at 1002.
However, the Appellate Division reasoned that the jury would use this evidence only to “explain the detective‘s actions and their effect” on Orlando—that effect presumably being the reason why Orlando changed his account of the events of the night of the murder. Id.
A. Jeannot Was an Out-of-Court Witness
The state argues in its brief that “[n]either McGinn nor McHugh ever testified that Jeannot actually made the statements at issue,” Respondent‘s Br. at 29–30; in other words, that Jeannot was not an out-of-court “witness” within the meaning of the Confrontation Clause, see Davis, 547 U.S. at 821–22. And so, the state
The state is incorrect; of course the prosecution led the jury to believe that Jeannot had actually made the statement McGinn recounted. McGinn testified that, “I knew Detective McHugh was in talking to Mr. Herva Jeannot,” and that, “I believe that Herva Jeannot was relaying some of the events that really took place that night.” T. 620. The prosecution never disavowed that Jeannot had made the statement, and it even recounted the statement in its summation. And that very statement was the reason for the Bruton severance in the first place. Thus, Jeannot was indeed an out-of-court “witness” subject to the cross-examination requirements of the Confrontation Clause.15
B. The Admission of Jeannot‘s Statement Was Clearly Barred by Bruton
With the jury having heard this expressly incriminating statement from Jeannot, the only reasonable conclusion was that the Confrontation Clause was violated under Bruton. The risk that the jury would consider Jeannot‘s statement for its truth was simply too great to allow the jury to hear it, absent cross-examination of Jeannot. Indeed, “the overwhelming probability” of jurors’ inability to “thrust out of mind” express “testimony that ‘the defendant helped me commit the crime’ . . . is the foundation of Bruton.” Richardson, 481 U.S. at 208 (emphasis added); see also Bruton, 391 U.S. at 129 (“The Government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds.”) (internal quotation marks and citation omitted) (overruling
The Confrontation Clause violation here is even clearer than in Bruton. Detective McGinn did not merely recount Jeannot‘s confession implicating Orlando; he also vouched for its veracity. McGinn testified, “I believe that Herva Jeannot was relaying some of the events that really took place that night . . . the truth as to what happened that night,” T. 620 (emphasis added), and “I explained to Mr. Orlando that Herva Jeannot was, in fact, giving up . . . what we felt were truer versions of the events of Bobby Calabrese‘s murder.”16 T. 621 (emphasis added). That testimony by McGinn made it even less likely than in Bruton that the jury would have obeyed the trial court‘s limiting instruction. See, e.g., 64” court=“2d Cir.” date=“1995“>United States v. Forrester, 60 F.3d 52, 63–64 (2d Cir. 1995) (discussing the prejudicial impact of government agents vouching for witnesses).
Likewise, the prosecution‘s summation further undermined any possible effectiveness of the limiting instruction when it reminded the jury of its murder-for-hire theory three times and specifically called to its attention McGinn‘s testimony that he told Orlando, “[Jeannot‘s] telling us everything . . . . He‘s telling us he did the shooting and you paid him.” T. 895. But, as discussed below with regard to the harmless error analysis, the evidence—other than Jeannot‘s statement—that Orlando had hired Jeannot to murder Calabrese, was weak. Thus, the likelihood that the jury credited Jeannot‘s statement was higher even than in Bruton, where the Supreme Court did not suggest that the prosecution had undermined the limiting instruction.17
In opposing Orlando‘s petition, the state relies primarily on the Supreme Court‘s decision in Tennessee v. Street, 471 U.S. 409 (1985). In Street, the defendant, Street, was tried for murder separately from his alleged accomplice, Peele. Id. at 411. Street had confessed during an interview with police to participating in a burglary and the murder with Peele. Id.
In its case-in-chief, the state introduced Street‘s confession. Id. Street then took the stand during his defense case, and he testified that the police had coerced his confession and that he had not been involved in the murder. Id. Street claimed that the police had shown him Peele‘s confession during his interview and forced Street to give the same account as Peele. Id.
The trial court then permitted the state to introduce in its rebuttal case Peele‘s confession through the testimony of Sheriff
The Supreme Court affirmed Street‘s murder conviction. Id. at 417. According to the Court, “[t]he nonhearsay aspect of Peele‘s confession—not to prove what happened at the murder scene but to prove what happened when respondent confessed—raises no Confrontation Clause concerns. The Clause‘s fundamental role in protecting the right of cross-examination . . . was [thus] satisfied by
The Court in Street went on to acknowledge that its conclusion depended on the “crucial assumption” that the jurors followed the trial court‘s limiting instructions. Id. at 415. There, as in Bruton, Street‘s accomplice had expressly implicated him in the crime. But unlike in Bruton, Street had placed the state in the position of not being able to effectively challenge Street‘s testimony that his confession was coerced. And “the State‘s most important piece of substantive evidence was [Street‘s] confession.” Id. The only
Thus, the Court in Street found, unlike in Bruton, that there were “no alternatives [but allowing admission of the accomplice‘s confession] that would have both assured the integrity of the trial‘s truth-seeking function and eliminated the risk of the jury‘s improper use of evidence.” Id.
Notably, in its conclusion, the Court in Street also took care to emphasize that the “prosecutor‘s questions and closing argument” had done nothing to distract the jury from the accomplice confession‘s “distinctive and limited purpose.” Id. at 417. It was only “in this
This case is very different from Street. The prosecution argued that Jeannot‘s statement merely showed “context” for why Orlando changed his statement. But Jeannot‘s statement went far beyond any limited value in showing why Orlando changed his account of what happened that night. The prosecution elicited testimony from Detective McGinn that Jeannot had actually made the incriminating statement, and McGinn vouched for Jeannot‘s account. In its summation, the prosecution also repeated Jeannot‘s statement, and pressed its murder-for-hire theory.
Moreover, the prosecution‘s need for the purported “context” was of little importance as compared to the need in Street. Orlando‘s changing his account of the homicide was no different than many investigations when suspects make a series of statements; absent the substance of Jeannot‘s statement, the jury still could have learned that
To extend Street to the situation presented here would eviscerate the core protection of Bruton. To allow admission of Jeannot‘s statement through McGinn would permit the admission of inculpatory statements of non-testifying codefendants whenever the defendant changed his initial statement to investigators after investigators told the defendant of an accomplice‘s incriminating
* * *
III. The Error Was Not Harmless
As Orlando and the state agree, the improper admission of evidence in violation of the Confrontation Clause is subject to review for harmless error. Hendrix v. Smith, 639 F.2d 113, 115 (2d Cir. 1981) (citing Chapman v. California, 386 U.S. 18 (1967); Schneble v. Florida, 405 U.S. 427 (1972)). When a state court makes a harmless error
An error was harmless unless it resulted in “actual prejudice,” Davis v. Ayala, 135 S. Ct. 2187, 2197 (2015) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)), meaning that a court has “grave doubt about whether” the error “had ‘substantial and injurious effect or influence in determining the jury‘s verdict.‘” Id. at 2198 (quoting O‘Neal v. McAninch, 513 U.S. 432, 436 (1995)). This “Brecht standard”
We have little doubt that the improperly admitted testimony as to Jeannot‘s statement had such a powerful effect on the jury. The prosecution‘s theory was that Orlando was guilty of murder for acting as Jeannot‘s accomplice by paying Jeannot to shoot Calabrese and helping Jeannot to do so. The trial judge instructed the jury that, to convict Orlando, the prosecution had to prove that Orlando acted in concert with Jeannot. The state argues that, even absent admission of Jeannot‘s confession through McGinn‘s testimony, the evidence of Orlando‘s guilt was “nothing short of overwhelming.” Respondent‘s Br. at 47.
In support, the state contends that Orlando‘s $17,000 gambling debt to Calabrese was compelling evidence of motive; that the hundred-dollar bills found in the homes of both Orlando and Jeannot after the murder were evidence of the murder-for-hire transaction;
A. Evidence of Motive
Although it was undisputed that Orlando owed Calabrese $17,000, the evidence showed that Orlando had won $27,000 in the month prior. Accordingly, he had net winnings of $10,000 over a six-week period. Moreover, the evidence showed that Orlando had $2,700 in cash in his residence after the murder (and after he purportedly paid Jeannot to commit the murder). And so, the evidence that Orlando lacked the funds to pay Calabrese was slight.21
B. Evidence of a Murder-for-Hire Transaction
Similarly, the discovery of a small number of one-hundred-dollar bills in the homes of both Orlando and Jeannot after the murder was not particularly probative of a murder-for-hire transaction. The state asserts that the hundred-dollar bill design with “the large picture of Ben Franklin” was “then new” and, thus so rare as to mean
In addition, only $500 in bills was found in Jeannot‘s home. It is entirely unclear why Jeannot would accept only $500 to commit a murder, particularly given that Jeannot undisputedly knew Orlando owed Calabrese many times that amount. The prosecution suggested that the $500 found in Jeannot‘s home may have been only a small portion of the murder-for-hire payment. But the prosecution
C. Forensic Evidence
We turn next to the expert testimony of two other Nassau County detectives and Nassau County Deputy Chief Medical Examiner DeMartino regarding the bullet holes in Calabrese‘s sweatshirt. The state argues that forensic evidence clearly established that, just before Jeannot fired the first shot, Orlando pulled Calabrese‘s sweatshirt over Calabrese‘s head to help Jeannot shoot him.23
We disagree that this evidence was persuasive of Orlando helping Jeannot shoot Calabrese. First, the location of the bullet holes did not clearly establish that Calabrese‘s sweatshirt had been pulled up over his head at the time the first shot was fired. That is the
By contrast, the forensic evidence was clearer that at the time the second and third shots were fired into the back of Calabrese‘s head, his sweatshirt was pulled up over his head. There were holes in the back of Calabrese‘s sweatshirt that matched up with the bullet wounds in the back of his head. But, it is not disputed that at the time the second and third shots were fired, Calabrese was already lying, face-down, on the ground from the effect of the first shot. Maybe Orlando pulled the sweatshirt over Calabrese‘s head after the first shot; maybe it was Jeannot who pulled up the sweatshirt at this point to avoid blood splatter; or maybe the sweatshirt came upward as Calabrese fell to the ground and struggled after the first shot. In any event, the only obvious conclusions from the sweatshirt and autopsy evidence were that Calabrese was first shot by Jeannot from behind,
The state introduced no other forensic evidence pointing to Orlando, such as DNA, fingerprints, or blood in his car or on his clothing. In sum, the forensic evidence to support the prosecution‘s accomplice theory was insubstantial.
D. Orlando‘s Choice of a Meeting Location
The evidence that Orlando chose a discreet meeting location to pay his debt to Calabrese was also only minimally probative of his guilt. Orlando told investigators that he and Calabrese had arranged to meet on December 3 in Island Park, and that he called Calabrese shortly beforehand to change the meeting to a more secluded place because there were several people within sight of the planned meeting location.
E. Evidence of an Attempt to Create an Alibi
The prosecution also contended that the jury could have construed Orlando‘s several stops after the murder as evidence of an attempt to manufacture a false alibi. Orlando explained the stops as an attempt to be seen with Jeannot, so that Jeannot could not blame the murder on Orlando. But, a jury could instead have reasonably inferred that, given Jeannot‘s purported threat to Orlando to maintain his silence, Orlando‘s behavior after the murder was consistent with an attempt to put Jeannot at ease that Orlando would not report Jeannot‘s role in the murder.
Lastly, we acknowledge that the prosecution needed only to convict Orlando of murder and not to prove specifically its murder-for-hire theory. In that regard, the state emphasizes, for example, the evidence that Orlando was present at the murder scene. In addition, Orlando‘s coworker Barbara Diamant testified that Orlando told her the morning after the homicide that Calabrese had been shot in the back of the head three times, before this became public information. However, that Orlando was present for the murder was not disputed by him in his second statement or at trial, and as discussed above, the evidence that Orlando assisted the murder in some way was made substantially stronger by Jeannot‘s incriminating confession.
* * *
In sum, considered both in isolation and cumulatively, the properly admitted evidence of Orlando‘s guilt leaves us with “grave doubt” about whether the trial court‘s error substantially and
CONCLUSION
For the foregoing reasons, we REVERSE the district court‘s denial of Orlando‘s petition, and REMAND the case to the district court with instructions to issue a writ of habeas corpus to Orlando on the sixtieth calendar day after the issuance of our mandate unless the District Attorney of Nassau County has, by that time, taken concrete and substantial steps to expeditiously retry Orlando. The mandate shall issue forthwith.
I respectfully dissent. Federal habeas relief is available under
I
The majority‘s recounting of the record is thorough, but I offer two clarifications to explain my views.
First, Orlando‘s trial counsel did not object to all of Detective McGinn‘s testimony about the interview with Jeannot. Indeed, he used a portion of it to bolster Orlando‘s explanation that he changed his story and told the truth once his fear of Jeannot had lifted after he learned that Jeannot had confessed. The issue involved in this appeal first arose when
“[I]f we‘re talking perhaps about one of the last statements that Mr. Jeannot had made regarding . . . giving it up or giving up the entire thing, opposed to that Mr. Jeannot had shot Mr. Calabrese, obviously I have no opposition to that. However, it‘s a matter of how much of that statement is going to be permitted . . . . But, I think in regard to what is being said and being [pared] down, I have no
T. 165–66. In other words, defense counsel did not object to the portion of McGinn‘s statement that Jeannot said he shot Calabrese but did object to the portion that Jeannot said Orlando paid him to do it.2 That was a sensible trial strategy, because the former portion supported Orlando‘s second version of events and his explanation that he lied initially out of fear of Jeannot and came clean once he learned that Jeannot had confessed. Defense counsel harped on this latter theme in both his opening statement and closing argument. T. 205 (“It‘s not until Herva Jeannot tells the detective that Herva Jeannot himself had shot Mr. Calabrese, that Mark then felt at ease that now they‘re not going to come after Mark.“); T. 851 (“And there is no question Mark met with Detective McHugh, and he lied about certain things to Detective McHugh. No question, not disputing that. And you heard from Detective McGinn, what happened, we will go over
Second, the trial judge‘s ruling admitted only the statements by McGinn identified by the prosecutor in the pretrial hearing, i.e., that “I confronted [Orlando], I told him that [Jeannot‘s] giving it up and he‘s telling us he did the shooting and he‘s telling us you made him.” T. 164–67. The ruling did not permit McGinn to give the vouching testimony stressed by the majority, i.e., that “I believe that Herva Jeannot was relaying some of the events that really took place that night.” T. 620. That testimony was problematic, but not primarily because it violated the Confrontation Clause; it was inadmissible on multiple grounds – lack of personal knowledge (McGinn was not in the room with Jeannot), opinion by a lay witness (“I believe . . . .“), and vouching for another‘s statement (regardless of its content). Despite these obvious flaws, however, defense counsel did not object to it, move to strike it, seek a mistrial, or ask for an instruction that the jury disregard it – perhaps because it also vouched for the portion of Jeannot‘s alleged statement that defense counsel would use
II
Orlando contends that the Appellate Division unreasonably applied Bruton and Street when it held that admitting the detective‘s statement that “[Jeannot] said that he was the murderer but that Mark Orlando had paid him to do it” did not violate the Confrontation Clause.4 Whether that is so
Proper Purpose
The non-hearsay purpose here was similar to the one that prevailed in Street: to shed light on the credibility of Orlando‘s second statement to the police. See Street, 471 U.S. at 415 (“Had the prosecutor been denied the
That sequence fit both the State‘s account that Orlando changed his tune only when told he was being accused and Orlando‘s account that he did so because Jeannot‘s confession meant he was no longer a threat. But without the piece of McGinn‘s testimony that he told Orlando Jeannot was implicating him, Orlando‘s explanation for his change of story would have been a good deal stronger and the overall credibility of his second statement would have been enhanced. And Orlando‘s defense hinged on the credibility of that statement. In his closing argument, defense counsel focused on convincing the jury that Orlando‘s second statement was truthful and that his first had been a lie born of his fear of Jeannot. T. 845 (“[E]verything that Mark Orlando had told Detective Cereghino is corroborated by the sixty or so exhibits introduced into evidence. Everything here supports what Mark had said.“); id. (“Herva . . .
To be sure, the trial judge could have excluded all testimony about confronting Orlando with the Jeannot interview - leaving both sides with no explanation about why Orlando changed his story - but no one asked him to do so. And no one asked the Appellate Division to decide whether
The majority points out that Orlando did not take the stand at his trial. Thus, unlike in Street, the State was not forced to rebut a defendant‘s testimony. But the Court‘s opinion in Street does not suggest that its sanction of non-hearsay use of an accomplice‘s statement turned on the defendant‘s election to testify in that case. Nor does it suggest that the government may use such a statement to attack the credibility of a defendant‘s statements only when the defendant offers them.6 It was not
Risk of Misuse by Jury
While Bruton held that courts cannot expect juries to follow limiting instructions when, in a joint trial, they hear a co-defendant‘s statement implicating a defendant, the Supreme Court has treated that holding as a “narrow exception” to the “almost invariable assumption of the law that jurors follow their instructions.” Richardson v. Marsh, 481 U.S. 200, 207 (1987). Further, the exception applies “when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial.” Id. (emphasis added). Street made the same point more generally, stating that “[t]he assumption that jurors are able to follow the court‘s instructions fully applies when rights guaranteed by the Confrontation Clause are at issue.” Street, 471 U.S. at 415 n.6.
To be sure, applying Street properly involves more than just admitting any statement by an accomplice and instructing the jury not to consider it for its truth. Specifically, the Court‘s analysis in Street suggests that, in deciding whether to uphold the admission of an accomplice‘s out-of-court statement for a non-hearsay purpose under the Confrontation Clause, courts should consider (1) the adequacy of the instructions; (2) the manner in which the out-of-court statement was used at trial, 471 U.S. at 416; and (3) whether there were “alternatives that would have both assured the integrity of the trial‘s truth-seeking function and eliminated the risk of the jury‘s improper use of evidence,” id. at 415. I consider these factors below.7
1. Limiting Instructions
Both when McGinn‘s testimony was admitted and in the final charge, the trial judge instructed the jury as follows:
Ladies and gentlemen, you have been permitted to hear testimony about remarks made to the defendant by Detective McGinn about statements allegedly made by Herva Jeannot. You‘re to consider this testimony only when considering the circumstances under which the defendant himself may have made statements and for no other purposes. You are to completely disregard any statement allegedly made by Herva Jeannot when considering evidence against the defendant.
Any statement allegedly made by Herva Jeannot is not evidence against the defendant and may never be considered as evidence against the defendant. You are not to concern yourself with whether Herva Jeannot did or did not make any
statements to the police, and if he did, what those statements may have been or whether or not they were true. I direct you in this regard and I will direct you again in my closing instructions to you.
T. 624; id. at 930-31.8
I do not agree that this instruction was “decidedly unclear.” Maj. Op. at n.16. On its face, it directs the jurors to disregard for any purpose any statement by Jeannot himself, but lets them consider how Orlando reacted when McGinn told him that Jeannot had made a statement implicating him. I do not to see how the instruction could have been made much clearer, and, apparently, neither did Orlando‘s counsel. His trial counsel did not object to the instruction, and his appellate counsel did not challenge it before the Appellate division. T. 136. Federal courts of appeal have found vaguer, less detailed instructions to be reasonable applications of Street. See Furr, 440 F.3d at 39 n.3 (holding that the state trial court‘s limiting instruction was adequate under Street even though it had not explicitly instructed the jury that it could not consider the “truth” of the statement); Lee, 892 F.2d at 1321, 1325-26 (upholding the denial of a
The majority contends that McGinn‘s vouching statement made the instruction unclear, but as noted, that statement was not a product of the trial court‘s ruling and there was no objection to it or request for an instruction that the jury ignore it. Even so, the trial judge‘s repeated admonition that the jury was not to consider whether Jeannot made any statement or whether it was true addressed McGinn‘s improper vouching for Jeannot, which was limited to a single sentence, i.e., “I believe that
Nor do I agree that the prosecutor undermined the trial judge‘s limiting instructions in his closing argument. Maj. Op. at 31. The prosecutor‘s only reference to McGinn‘s testimony about Jeannot‘s
2. Use of the Statement at Trial
While he made only one reference to Jeannot‘s reported statement in his closing argument, the prosecutor made multiple references to Orlando‘s paying Jeannot, and I agree with the majority that the evidence supporting those references was weak - the presence of similar hundred-dollar bills in both Orlando‘s and Jeannot‘s homes. That circumstance makes this case harder than Street, because it raises the possibility that the
As the majority notes, however, the state did not have to prove that Orlando paid Jeannot to kill Calabrese. What it had to prove was that Orlando aided and abetted the killing, and payment was not an element of that crime. In addition, there was evidence other than payment from which the jury could have found aiding and abetting - Orlando‘s soliciting Calabrese to meet in an isolated area, driving Jeannot to and from the scene, and stopping his car to enable Jeannot to take a final shot at Calabrese and discard the gun and ammunition, among others. Determining whether Orlando paid Jeannot was not a necessary part of the jury‘s task.
Further, the prosecutor‘s references to payment in closing argument were brief, and his central theme was to emphasize the incriminating parts of Orlando‘s second statement together with the implausibility of the part
Finally, while I cannot say that there was no risk of juror misuse of Jeannot‘s reported statement in light of the weaknesses in the State‘s evidence of payment, Street suggests that the existence of such a risk is not dispositive. Rather, the risk of misuse must be weighed against the risk of excluding critical evidence from the jury‘s consideration. Street, 471 U.S. at 415 (“[T]here were no alternatives that would have both assured the integrity of the trial‘s truth-seeking function and eliminated the risk of the jury‘s improper use of evidence.“).9 Here, the Appellate Division weighed
For these reasons, I would affirm the judgment of the district court denying the writ.