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