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February 8, 1990


The opinion of the court was delivered by: Stanton, District Judge.


The Court of Appeals reversed this court's decision granting Timothy Reddy's petition for the writ of habeas corpus on the ground that the evidence was insufficient to support his state court conviction for felony murder. Reddy v. Coombe, 846 F.2d 866 (2d Cir. 1988). In its opinion, familiarity with which is assumed, the court remanded "for consideration of whether application of Bruton principles requires that Reddy be granted a new trial." Id. at 870.

On remand, Reddy claims that his Sixth Amendment rights were violated when extrajudicial statements given by his codefendant, who did not take the stand, were admitted into evidence at their joint trial. For the reasons stated below, the petition is granted.


Petitioner and Cheryl Christenson were arrested for the murder of Ivan Zapata Enau on April 4, 1978. Because the homicide was allegedly committed in the course of an attempted robbery, the defendants were charged with second degree, or felony, murder under New York Penal Law (N.Y.P.L) § 125.25[3]*fn1 (McKinney's 1987). Christenson made three extrajudicial statements concerning her involvement in the crime, and Reddy made one extrajudicial statement concerning his involvement in the crime.

Reddy made a pre-trial motion for severance under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), because the State intended to introduce Christenson's statements which would inculpate him.*fn2 The court denied the motion, stating:

Reddy and his co-defendant have each made almost

  identical confessions detailing their acts and
  implicating each other. Under such circumstances,
  the Court of Appeals has held that the "logic" of
  Bruton is inapplicable (People v. McNeil, 24 N.Y.2d
  550 [301 N.Y.S.2d 503, 249 N.E.2d 383]).*fn3
  Moreover, until there has been a determination as
  to whether both confessions are admissible at
  trial, the motion for a severance is denied. The
  motion may be renewed after such a determination if
  there has been an order granting suppression of one

Reddy then moved to suppress his statement on the grounds that it was coerced and obtained through deception, resulted from an illegal arrest, and was taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The court denied Reddy's suppression motion, finding that his statement was voluntarily made, the police had probable cause to arrest him, and he had knowingly and intelligently waived his Miranda rights. Christenson's pre-trial motion to suppress her statements was also denied. Accordingly, the two were tried together in New York State Supreme Court.

The trial took place in 1979. The State introduced both defendants' statements. The jury was instructed to consider each statement only against the defendant who had made it.*fn4 Reddy did not have the opportunity to attack Christenson's statements by cross examination because she did not testify.*fn5 After the jury retired to deliberate, it asked to hear Christenson's and Reddy's statements. A few hours later, it again requested and heard Christenson's second and third statements. The jury ultimately convicted both Reddy and Christenson. They were both sentenced to indeterminate prison terms of 18 years to life.*fn6

Reddy filed this habeas corpus petition claiming that his statement should have been suppressed because it was the product of an illegal arrest, and that the evidence of his intent to rob Enau was insufficient to sustain his conviction.*fn7 This court agreed with the latter claim, and granted his petition. Reddy v. Coombe, 85 Civ. 0572 (S.D.N Y May 1, 1987). The Court of Appeals reversed, holding "[w]e view Reddy's own description of the events of April 4, taken in the light most favorable to the State, as sufficient to support the inference that he intended to assist in robbing Enau." Reddy, 846 F.2d at 869. The Court of Appeals remanded for determination of whether Reddy's rights under the confrontation clause of the Sixth Amendment*fn8 were violated by the admission of Christenson's statements at their trial.

On remand, Reddy claims that the admission of Christenson's statements violated his Sixth Amendment rights under Bruton and Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979),*fn9 because their statements did not interlock with respect to their intent to rob Enau.*fn10 He also claims his Sixth Amendment rights were violated under Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), which he states should be applied retroactively to his 1979 trial.*fn11


Petitioner's Sixth Amendment rights were not violated under Bruton and Parker. A review of both petitioner's and Christenson's statements shows that they differed in three respects with regard to their intent to rob Enau. Nonetheless, the statements were sufficiently interlocking to support their admission under Bruton and Parker.

However, Cruz applies retroactively to Reddy's collateral attack on his conviction. Under Cruz, the admission of Christenson's statements violated Reddy's Sixth Amendment rights. Because the error was not harmless, Reddy's petition is granted.


A.  The events according to Reddy's statement

Reddy gave his statement in response to questioning by Assistant District Attorney ("ADA") Carol Remer-Smith on April 5, 1978, the transcript of which was read to the jury.

According to Reddy:

On the afternoon of April 4, 1978, Christenson called Reddy and asked him to meet her at the Blarney Stone, a bar located on Eighth Avenue between 48th and 49th Streets in Manhattan. When petitioner arrived at the Blarney Stone, Christenson told him "that we were going to go down to rip off this guy John," a man Christenson had been dating. The defendants left the bar to meet Donald Webb, a friend of Christenson's, who provided them with a gun. The plan of action was for Christenson "to go in [first] because she knows him. She was going to ask to let me use the bathroom then we were going to come out and scare him. Then tie him up, take the money."

When the defendants arrived at John's apartment building, located at 531 West 48th Street, Christenson rang John's buzzer, but there was no answer. The two then proceeded to John's apartment, which was on the fifth floor, and knocked on his door, but again there was no answer.

While on their way down, the defendants saw Enau coming out of his second-floor apartment. Christenson (who had previously lived in the building) approached Enau and spoke briefly with him. Without communicating with Reddy, Christenson accompanied Enau out of the building and to a corner grocery store. Reddy followed them, waiting in the middle of the block while they were in the store. Christenson and Enau left the store, and returned to Enau's apartment. Reddy again followed, waiting first on the stoop of the building, and then near the stairs on the second floor landing.

The ADA asked Reddy if he knew what Christenson was intending to do with Enau:

  Q Did you have any idea what Cheryl intended to
  do with this Hispanic man when she went into his
  apartment after they came from the deli?

A No, not really.

Q Did you think she was going to turn a trick?

A She probably would have tried.

Q Do you think she was going to rip him off?

A Probably.

Reddy denied that he and Christenson had talked about robbing anyone other than John, the intended first victim:

  Q When you talked about ripping off John did you
  talk about if you couldn't find him maybe seeing
  if there was another mark?

A You mean last ...

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