United States District Court, Southern District of New York
February 8, 1990
TIMOTHY REDDY, PETITIONER,
PHILLIP COOMBE, SUPERINTENDENT, OF EASTERN CORRECTIONAL FACILITY AND ROBERT ABRAMS, ATTORNEY GENERAL OF THE STATE OF NEW YORK, RESPONDENTS.
The opinion of the court was delivered by: Stanton, District Judge.
OPINION AND ORDER
The Court of Appeals reversed this court's decision granting
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*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
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
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
which he states should be applied retroactively to his 1979
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
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?
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 No, we didn't talk about it. This other guy
just came out of his apartment.
Q Did you ever walk along the streets looking for
somebody who might have a lot of money, that
would be easy to take that from?
A You mean last night?
According to Reddy's statement, after Christenson had been
in Enau's apartment for about ten minutes the door opened, and
Reddy saw Enau attempting to push Christenson out of the
apartment and close the door. Christenson was caught in the
door. Reddy pushed the door open, punched Enau, and wrestled
him to the ground. Enau got up, grabbed a large knife, and
moved toward Christenson, who was holding a gun. She told Enau
to stop, but he continued moving in her direction. Reddy then
"grabbed Enau around the neck and . . . threw him on the
floor." As Enau was getting up, Christenson shot him in the
face, killing him. Reddy then left the building, and
Christenson soon followed.
Reddy denied taking anything from Enau's apartment.
B. The events according to Christenson's statements
Christenson made three different statements: the first an
oral statement given to Detective Virgilio Dalsass, which he
transcribed and had her sign, and the second and third in
response to questioning by ADA Smith. All three statements
were read to the jury.
Christenson gave the first statement in the early morning of
April 5, 1978. This statement did not incriminate Reddy. She
stated that Reddy was at the Blarney Stone, but that she left
the bar alone. She allegedly met Enau on West 48th Street, and
went with him to the grocery store, and then his apartment.
Once in the apartment, Christenson placed her open pocketbook
on the sink counter. When Enau saw a gun in her pocketbook, he
grabbed a knife and walked towards her. She shot him.
Christenson made her second statement later that morning.
This statement incriminated Reddy in the attempted robbery.
She explained that Reddy had accompanied her to the building,
and that the plan was to "[g]et some money." The ADA asked
"Did you have any idea from whom you were going to get the
money?" Christenson responded "No, that's why Timmy and I got
together because we weren't sure, we didn't know who."
In this second statement, Christenson said she met Enau
while on the way to John's apartment with Reddy. Enau
propositioned her, but she declined. She and Reddy then went
to John's building. Christenson went up to John's apartment
while Reddy stayed in the lobby. Coming down from John's
apartment, she met Enau. He again propositioned her, and she
accepted. Reddy saw her go into Enau's apartment. As in her
first statement, Christenson claimed that Enau came toward her
with a knife after he saw the gun in her pocketbook. This time
she said that after she shot Enau, Reddy came into the
apartment. He panicked, and ran out of the apartment.
Christenson said that Reddy might have stolen Enau's wallet:
I didn't take the wallet. Then somebody else said
the wallet is gone, okay. Maybe Timmy's got it
but I didn't take his money.
I know he couldn't have taken the wallet, unless
I just didn't see it.
Christenson made her third statement in the evening of April
5, 1978, after being arrested and told of the substance of
ADA We have given you other information which was
supplied to us by Timothy Reddy, is that correct?
Cheryl Timothy Reddy, yes.
ADA Having listened to what we had to say,
Cheryl, is there anything that you want to add or
change about when Timmy came into the room
— of the man who got shot.
Christenson then changed her story with respect to the
timing of Reddy's struggle with Enau:
I went to the store, with the man. I don't know
if the man had money or not. I know he had enough
to pay for what he bought. And we went up to the
house and that's when Timmy came in. That is
right, that is when Timmy came in, you know,
seriously that's when Timmy came in.
ADA Timmy came in the apartment or the building?
Cheryl Yeah because I was going into the
apartment with the man and I guess the man tried
to force or jump on me and Timmy got him in a
ADA Before you got in, before you got in the
As you got —
Cheryl No, as we went in, as I went in Timmy
jumped through the door and got the man on the
other side of the room and that's when the man
grabbed the knife. Timmy backed off and I grabbed
the gun out of my pocketbook and that's when it
toppled it over with my identification.
She also reiterated that she and Timmy did not have a
specific target in mind:
ADA That afternoon did you and Timmy talk about
uh ripping off somebody getting, getting money
Cheryl Oh yes, we always said things like that.
ADA Did you talk about it that afternoon?
Cheryl Most likely. Most likely, because we
always talked about it.
ADA Did you talk about er —
Cheryl Not that we did it, but we always talked
ADA Did you talk about getting money from John?
Cheryl Um, yeah, but it was only a fantasy
because you know John doesn't keep that money in
the house always.
ADA Did you, did you talk about er finding
somebody else when you couldn't find John?
Cheryl Finding somebody else?
ADA Yeah, to get money from.
Cheryl No, but it wasn't a [inaudible] thing
because it wasn't something that neither [sic]
one of us expected. Seriously, neither one of us
expected er to jump on any one particular person
ADA . . . All right now, then you told Don (Webb)
that you were going "to get someone."
Cheryl Uh, huh.
ADA What did you mean by, by those words?
Cheryl In other words that I was going to take
somebody off, with somebody that's all. I didn't
even know who . . .
C. Comparison of Reddy's and Christenson's statements
Comparing these statements, it is apparent that they
interlocked in several key respects. As the Court of Appeals
stated in its 1983 dismissal of Christenson's habeas corpus
petition, "Both recount their meeting in the bar, their
journey to John's apartment, their sighting of Enau, her
ascent to his apartment and the hasty departure after the
shooting." Christenson v. Headley, No. 82-2289, slip op. at 3
(2d Cir. Feb. 18, 1983), cert. denied, 464 U.S. 835
, 104 S.Ct.
120, 78 L.Ed.2d 119 (1983).*fn13
The statements did differ in three respects with regard to
their intent to rob Enau: (1) Christenson stated that Reddy
might have taken Enau's wallet, while Reddy
denied taking anything from Enau's apartment; (2) Christenson
stated that Reddy fought Enau as she entered Enau's apartment,
while Reddy claimed that he did not come to her defense and
enter Enau's apartment until about ten minutes later, after
Enau attempted to push Christenson out the door; and (3)
Christenson stated that they did not have a specific victim in
mind, while Reddy maintained that the plan was to rob John.
The admission of Christenson's statements, however, did not
violate Reddy's rights under Bruton. The limiting instruction
given by the trial court "will avoid a Bruton confrontation
issue unless the admitted evidence is 'clearly inculpatory' as
to the complaining co-defendant and is 'vitally important to
the government's case.'" United States v. Rubio, 709 F.2d 146,
155 (2d Cir. 1983), quoting United States v. Wingate,
520 F.2d 309, 313 (2d Cir. 1975), cert. denied, 423 U.S. 1074, 96 S.Ct.
858, 47 L.Ed.2d 84 (1976), quoting in turn United States v.
Catalano, 491 F.2d 268, 273 (2d Cir.), cert. denied,
419 U.S. 825, 95 S.Ct. 42, 42 L.Ed.2d 48 (1974).
Christenson's statement that Reddy might have taken the
wallet was mere speculation. Thus, it was not clearly
inculpatory of Reddy, nor could it have been vitally important
to the State's case.*fn14
Reddy argues that Christenson's statement that he struggled
with Enau as she entered Enau's apartment damaged his defense
because it describes "a time sequence more readily supporting
an inference of an attempted robbery" than his version, which
he claims supports an inference that he acted in defense of
Christenson. (Memo in support, p. 14). Standing alone that
argument would have considerable force, but here the
significance of the time Reddy entered the apartment is
greatly diminished by the fact that both defendants'
statements agreed that (whenever it was) Reddy entered at the
time Enau was forcing Christenson. She stated that Reddy
entered the apartment when "the man tried to force or jump on
me and Timmy got him in a headlock." Thus, her statement is
consistent on the significant point, which is that it supports
the inference that Reddy acted to defend her. Accordingly, the
time-sequence discrepancy did not materially harm Reddy's
Reddy claims that Christenson's statement that they did not
have a specific victim in mind supported the State's argument
at trial that he intended to rob Enau. As the Court of Appeals
The implication of this statement was that Reddy
and Christenson meant to rob any plausible
victim. While this is entirely consistent with
Reddy's belief that Christenson probably meant to
rob Enau when he fortuitously appeared on the
scene, and with Reddy's actions that appeared to
be in support of the robbery attempt,
Christenson's statement was more explicit with
respect to an essential element of the offense
charged than any evidence the State presented
against Reddy. Reddy, 846 F.2d at 870.
However, Reddy, at one point in his statement, also implied
that he shifted to Enau his intent to commit a robbery:
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 No, we didn't talk about it. This other guy
just came out of his apartment.
Moreover, Reddy stated that he thought Christenson would
"[p]robably" try to rob Enau.
Because Reddy's statement implied that he intended to rob
Enau, the statements were sufficiently interlocking under
Bruton and Parker to support their admission.
In United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2d
Cir. 1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32
L.Ed.2d 134 (1972), Duff was convicted of first degree
attempted robbery, first degree attempted grand larceny, and
two counts of second degree assault for his participation in
attempted robbery of a liquor store. Duff signed a statement
in which he admitted to riding in a car with his codefendants
to the liquor store, but claimed that "'he walked the other
way,' away from the liquor store, while [two of his
codefendants] attempted to rob it." Id. at 1010. "Two
detectives testified to oral statements made by Duff to the
effect that he had agreed to participate in the robbery and
that he acted as a 'look-out,' standing 'a door or two away'
from the liquor store." Ibid. Two codefendants stated that Duff
"walked toward the liquor store, and returned to the car after
the attempt had been 'perpetrated." Ibid. The Court of Appeals
rejected Duff's claim that the admission of his codefendants'
statements violated his rights under Bruton.
The statements were similar to Duff's own
confessions, written and oral, which placed him
at the scene with a fair implication of knowing
participation . . . In the light of Duff's
undisputed presence at the scene, Ferguson's and
Hill's statements were not a "vitally important
part of the prosecution's case" against him. See
Frazier v. Cupp, 394 U.S. 731, 735, 89 S.Ct. 1420
, 22 L.Ed.2d 684 (1969); United States ex
rel. Nelson v. Follette, 430 F.2d 1055 (2d Cir.
1970). A limiting instruction as that given here
may be "adequate to protect appellant's
constitutional rights" notwithstanding Bruton. See
United States ex rel. Nelson v. Follette, supra,
430 F.2d at 1059; United States v. Cusumano,
429 F.2d 378, 381 (2d Cir.), cert. denied, Testa v.
United States, 400 U.S. 830, 91 S.Ct. 61, 27
L.Ed.2d 61 (1970).
Since Reddy's own statement "placed him at the scene with a
fair implication of knowing participation" ibid., Christenson's
statement was not a "vitally important part of the
prosecution's case" against him. Ibid.
Thus, the admission of Christenson's statements was not
error under Bruton and Parker.
However, the rule in Parker was changed by Cruz. Under Cruz,
the admission of Christenson's statement was error. The only
remaining question therefore, is whether Cruz applies
retroactively to Reddy's petition. In other words, does Cruz
apply to cases, such as this one, where the judgment is final,
i.e., the conviction has been rendered, the availability of
appeals exhausted, and the time for petitioning for certiorari
elapsed,*fn15 and the defendant seeks collaterally to
challenge his conviction by a writ of habeas corpus?
Before answering that question it is helpful to turn first
to the Cruz decision.
D. The Cruz decision
In Cruz two brothers, Eulogio and Benjamin Cruz, each
confessed to a murder. Their confessions were introduced at
their joint trial, and the trial court instructed the jury that
Benjamin's confession was not to be used against Eulogio. The
jury convicted both defendants. The New York Court of Appeals,
following the reasoning of the plurality opinion in Parker,
affirmed the conviction because the brothers' confessions
interlocked. People v. Cruz, 66 N.Y.2d 61, 495 N.Y.S.2d 14,
485 N.E.2d 221 (1985). The Supreme Court reversed, declining to
follow the reasoning of the plurality opinion in Parker.
While "devastating" practical effect was one of
the factors that Bruton considered in assessing
whether the Confrontation Clause might sometimes
require departure from the general rule that jury
instructions suffice to exclude improper testimony,
391 U.S., at 136, 88 S.Ct., at 1628, it did not
suggest that the existence of such an effect should
be assessed on a case-by-case basis. Rather, that
factor was one of the justifications for excepting
from the general rule the entire category of
codefendant confessions that implicate the
the crime. It is impossible to imagine why there
should be excluded from that category, as
generally not "devastating," codefendant
confessions that "interlock" with the defendant's
own confession. "[T]he infinite variability of
inculpatory statements (whether made by
defendants or codefendants), and of their likely
effect on juries, makes [the assumption that an
interlocking confession will preclude
devastation] untenable." Parker, 442 U.S., at 84,
99 S.Ct. at 2145 (STEVENS, J., dissenting).
Cruz, 481 U.S. at 191, 107 S.Ct. at 1718 (brackets
The Court continued:
In fact, it seems to us that "interlocking" bears
a positively inverse relationship to devastation.
A codefendant's confession will be relatively
harmless if the incriminating story it tells is
different from that which the defendant himself
is alleged to have told, but enormously damaging
if it confirms, in all essential respects, the
defendant's alleged confession. It might be
otherwise if the defendant were standing by his
confession, in which case it could be said that the
codefendant's confession does no more than support
the defendant's very own case. But in the real
world of criminal litigation, the defendant is
seeking to avoid his confession — on the ground
that it was not accurately reported, or that it was
not really true when made . . . In such
circumstances a codefendant's confession that
corroborates the defendant's confession
significantly harms the defendant's case, whereas
one that is positively incompatible gives credence
to the defendant's assertion that his own alleged
confession was nonexistent or false.
Id. at 191-92, 107 S.Ct. at 1718 (emphasis in
Thus, the Court held that
where a nontestifying codefendant's confession
incriminating the defendant is not directly
admissible against the defendant, see Lee v.
Illinois [476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d
514), supra*fn16, the Confrontation Clause bars
its admission at their joint trial, even if the
jury is instructed not to consider it against the
defendant, and even if the defendant's own
confession is admitted against him.
Id. at 193, 107 S.Ct. at 1719.
E. Does Cruz apply retroactively?
The tangled history of Supreme Court decisions regarding
retroactive application of new rulings to convictions which
are challenged by habeas, but were final when the new rulings
were announced, is well summarized in People v. Graham,
140 Misc.2d 417, 531 N.Y.S.2d 172, 173-177 (Sup.Ct.N.Y. 1988)
(holding Cruz applies retroactively to a final conviction).
In short, such application to final convictions appears to
be disfavored as a general matter, see Teague v. Lane, ___ U.S.
___, 109 S.Ct. 1060, 1072-75, 103 L.Ed.2d 334 (1989)
(plurality), but allowed where it had "a fundamental impact on
the integrity of factfinding[.]" Allen v. Hardy, 478 U.S. 255,
259, 106 S.Ct. 2878, 2881, 92 L.Ed.2d 199 (1986). See also
Stovall v. Denno, 388 U.S. 293, 298, 87 S.Ct. 1967, 1970, 18
L.Ed.2d 1199 (1967) ("We have . . . retroactively applied rules
of criminal procedure fashioned to correct serious flaws in the
fact-finding process at trial.")*fn17
Such was the case with Bruton. A violation of the defendant's
right to confrontation goes "to the basis of fair hearing and
trial", Roberts v. Russell, 392 U.S. 293, 294, 88 S.Ct. 1921,
1922, 20 L.Ed.2d 1100 (1968), quoting Linkletter v. Walker,
381 U.S. 618, 639, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601 (1965), and
the constitutional error "presents a serious risk that the
issue of guilt or innocence may not have been reliably
determined." Id. at 295, 88 S.Ct. at 1922. Accordingly, Bruton
was applied retroactively to cases on collateral review. Ibid.
Naturally, where a decision does not announce a new rule,
but simply applies established case law to slightly different
facts, it applies retroactively. Yates v. Aiken, 484 U.S. 211,
216-17, 108 S.Ct. 534, 537-38, 98 L.Ed.2d 546 (1988).
Thus, whether Cruz is taken as doing "no more than reaffirm
[Bruton's] central proposition" and as being "indistinguishable
from Bruton with respect to those factors that the Court has
deemed relevant in this area" as it states, Cruz, 481 U.S. at
193, 107 S.Ct. at 1719, or as applying the confrontation clause
in a way which goes to the basis of a fair hearing and trial,
Roberts, 392 U.S. at 294, 88 S.Ct. at 1922, it must apply
Indeed, the Supreme Court has applied Cruz retroactively. In
U.S. ex rel. Sanders v. Lane, 835 F.2d 1204 (7th Cir. 1987)
petitioner challenged his conviction collaterally by habeas,
alleging that the state trial court improperly admitted into
evidence an incriminating statement of his codefendant at their
joint trial. The district court denied the petition, and the
Seventh Circuit affirmed. 779 F.2d 54 (7th Cir. 1985). On
application for a writ of certiorari, the Supreme Court vacated
the judgment and remanded the case "for further consideration
in light of Cruz v. New York". 481 U.S. 1026, 107 S.Ct. 1950,
95 L.Ed.2d 523 (1987).
Cruz has been applied retroactively, without discussion of
the point, to habeas petitions, see Thompson v. South Carolina,
672 F. Supp. 896 (D.S.C. 1987); U.S. ex rel. Hanrahan v.
Thieret, 695 F. Supp. 372 (N.D.Ill. 1988), although not to a
conviction forming the predicate for a second-felony sentence.
People v. Kuyal, 547 N.Y. So.2d 731 (App. Div. 1989).
Since Cruz applies retroactively, it must be determined
whether the admission of Christenson's statements was harmless
error. That Reddy's own statement was sufficient to sustain his
conviction is irrelevant to this determination. Anderson v.
Smith, 751 F.2d 96, 105 (2d Cir. 1984). "The test rather is
simply whether 'there is a reasonable possibility that the
improperly admitted evidence contributed to the conviction.'"
Id. at 105, quoting Schneble v. Florida, 405 U.S. 427, 432, 92
S.Ct. 1056, 1060, 31 L.Ed.2d 340 (1972). See also People v.
Hamlin, 71 N.Y.2d 750, 758-59, 530 N.Y.S.2d 74, 77,
525 N.E.2d 719, 722 (1988) (violation of Cruz is harmless error when there
is no reasonable possibility that the jury's assessment of the
defendant was affected by the codefendants' statements).
Although Christenson's statements were not clearly
inculpatory of Reddy, and were not a vitally important part of
the case against him, supra pp. 563-64, it cannot be said
beyond a reasonable doubt that they did not contribute to his
conviction. Her statements were re-heard by the jury twice
during its deliberations and were, as the Court of Appeals
stated, "more explicit . . . than any evidence the State
presented against Reddy." 846 F.2d at 870.
Christenson's and Reddy's statements were sufficiently
interlocking to support their admission under Bruton and
However, under Cruz, which applies retroactively to Reddy's
collateral attack on his conviction, the admission of
Christenson's statements violated Reddy's Sixth Amendment right
to confront witnesses against him. Because that error was not
harmless, Reddy's petition is granted.
The State is directed to release Reddy unless within ninety
days from the date of this order the State begins new trial
proceedings against him.