MEMORANDUM AND ORDER
Petitioner, convicted, following a trial by jury, in the Supreme Court of the State of New York, New York County, in October 1981, of attempted murder in the first degree, assault in the first degree, and criminal possession of stolen property in the third degree, and sentenced, as a predicate felony offender, to twenty-five years to life and concurrent lesser terms, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
In a decision dated April 16, 1981, Justice Burton B. Roberts denied petitioner's pretrial motion for a severance based upon statements inculpating petitioner made by his codefendant Jose Saldana ("Saldana") to a third party witness. The trial court concluded that "the various statements made both by Saldana and this defendant . . . are so consistent and intertwined as to fit easily into the exception to Bruton [v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968)] articulated in People v. Berzups [, 49 N.Y.2d 417, 402 N.E.2d 1155, 426 N.Y.S.2d 253 (N.Y. 1980)]." People v. Latine, slip op. at 3 (N.Y. Sup. Ct. Apr. 16, 1981).
At the joint trial of petitioner and Saldana (who did not testify), the latter's statement inculpating petitioner was admitted. On January 29, 1987, the Appellate Division agreed with petitioner's assigned counsel "that there were no nonfrivolous points which could be raised" on appeal. People v. Latine, 126 A.D.2d 496, 510 N.Y.S.2d 996, 996 (N.Y. App. Div. 1st Dep't 1987). On February 8, 1988, the Court of Appeals granted petitioner's newly appointed counsel's application for leave to appeal. People v. Latine, 521 N.E.2d 1085, 1085 (N.Y. 1988). On June 2, 1988, the Court of Appeals reversed the order of the Appellate Division which had affirmed petitioner's conviction, and remanded the case to the Appellate Division "for a de novo consideration of the defendant's appeal. That court erred in holding that there were no non-frivolous points which could be raised on the appeal." People v. Latine, 72 N.Y.2d 823, 526 N.E.2d 38, 38, 530 N.Y.S.2d 547 (N.Y. 1988).
On June 13, 1989, the Appellate Division affirmed petitioner's conviction, holding that, although "the admission, at a joint trial, of a nontestifying co-defendant's confession implicating the defendant is a violation of the defendant's constitutional right to confront the witnesses against him irrespective of whether the confessions are interlocking or not," People v. Latine, 151 A.D.2d 279, 542 N.Y.S.2d 554, 555 (N.Y. App. Div. 1st Dep't 1989) (citing Cruz v. New York, 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714 (1987)), nevertheless, under a harmless error analysis, petitioner's conviction should be affirmed because there was overwhelming evidence of his guilt independent of his co-defendant's inculpatory statements. Latine, 542 N.Y.S.2d at 557. Leave to appeal was denied by the Court of Appeals on August 14, 1989. People v. Latine, 545 N.E.2d 884, 884 (N.Y. 1989). Petitioner filed the instant petition on July 2, 1991. In the petition, petitioner argues again that his constitutional rights pursuant to the Confrontation Clause of the Sixth Amendment to the Constitution were violated by the admission at trial of statements made by his non-testifying codefendant which directly incriminated him. For the reasons that appear below, the writ is granted.
Petitioner's conviction arises from a series of alleged incidents which led to the shooting of Police Sergeant Patrick Pellicano. In the early morning of July 3, 1979, a gypsy taxicab was allegedly struck from the rear by a stolen blue Chevrolet Malibu (the "Malibu") while crossing the 181st Street Bridge into the Bronx. (Trial Tr. at 741-42.) The Malibu was allegedly occupied by four men. (Id. at 605.) The driver of the taxicab, Locksley Green ("Green"), radioed his dispatcher for assistance. (Id. at 742.) Shortly thereafter, another gypsy taxicab driven by Horace Neufville ("Neufville"), the manager of the car service which employed Green, arrived at the scene of the collision. (Id. at 782.) Green asked the driver of the Malibu for his license and registration. (Id. at 745.) The driver responded that he had none. As a result, Neufville said to Green "why don't you radio in and have them send the police over." (Id. at 783.)
The driver of the Malibu returned to the car and drove away. "When I started to approach my car, you know, he got in his car and he started driving off." (Id. at 784.) The two taxicabs pursued the fleeing Malibu. (Id.) "They continued down and then when they got about to 170th Street, they make a left there, someone, you know, jumped out the car." (Id.) "As soon as I got up to in front of the building, I heard a shot, I ducked, I heard another shot, I kept going." (Id. at 749.)
Police Officers Joseph Monteleone ("Officer Monteleone") and Patrick Pellicano ("Officer Pellicano") received a radio alarm describing the collision and subsequent shooting; the transmission contained the Malibu's license number. (Id. at 566.)
Between 4:30 and 4:45 A.M., the police officers, driving in a marked police car, observed the Malibu. (Id. at 1895.) They "immediately called for a back up unit on the radio and we followed this particular car that was previously wanted on this alarm" (id. at 1888) until it stopped on 148th Street between Seventh and Eighth Avenues in Manhattan. As they approached the stopped Malibu, an individual allegedly "sprang up in the car and at that point there was a blast in the car, a blast and at the same time the glass from one of the right-hand windows exploded out and in the same instant Sergeant Pellicano's face exploded. He was bleeding immediately, there was a splattering." (Id. at 577.) Both officers returned fire. Jamal Thomas ("Thomas"), identified as the driver of the Malibu by Officer Monteleone (id. at 691), got out of the Malibu and ran, empty-handed, east on 148th Street. (Id. at 577.) As a result of the shooting, Officer Pellicano lost his right eye, and his vision in his left eye was permanently impaired. (Id. 1907-09.)
Later that day, police investigators recovered a considerable amount of physical evidence, including, inter alia, guns, ballistics evidence, clothing, and fingerprints, from the crime scene. (Id. at 887-89, 891 & 1116-17.) Shortly after the shooting, on July 7, 1979, police officers located and arrested Arkil Shakur ("Shakur"), who was allegedly wounded during the shooting, by following a trail of blood. "At 21 Macombs Place, someone spotted a figure down, secreted below the basement, at which time two emergency servicemen, myself and two detectives, went down and apprehended Arkil Shakur." (Id. at 1327.)
Petitioner was arrested on August 7, 1979. Saldana was arrested in February 1980. On May 16, 1980, petitioner and Saldana were indicted. Petitioner and Saldana proceeded to trial on June 26, 1981. After a four week trial, the jury convicted both petitioner and Saldana as charged.
At trial, testimony was presented that petitioner's fingerprints were found on the exterior of the Malibu, that petitioner had told several individuals that he had shot Officer Pellicano, and that Saldana had told a witness that he had forced petitioner to shoot Officer Pellicano.
A prerequisite to federal habeas corpus review of a state court conviction is that a petitioner exhaust all available state remedies with respect to each claim he or she presents in his or her petition. Rose v. Lundy, 455 U.S. 509, 510, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982); 28 U.S.C. § 2254 (b), (c) (1988). Respondent does not dispute that petitioner has exhausted his state court remedies.
At issue, then, is petitioner's contention that the admission of Saldana's statement inculpating him violated his Sixth Amendment rights. In opposition, respondent argues that "the admission in evidence of Saldana's statement comported with the requirements of the Confrontation Clause. Thus, no error of federal constitutional dimension occurred regarding the statement's admission. In any event, the admission of the statement was harmless." (Resp't Mem. at 30.)
The Sixth Amendment to the Constitution provides, in pertinent part, that "in all criminal prosecutions, the accused shall the enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. "The right of cross-examination is included in the right of an accused in a criminal case to confront witnesses against him." Pointer v. Texas, 380 U.S. 400, 404, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965). That right of an accused to cross-examine witnesses against him or her is a major reason underlying the Confrontation Clause. Id. at 406-07.
In Bruton v. United States, the Supreme Court addressed the issue of the admission, at a joint trial, of a confession by one defendant inculpating the other.
There are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. . . . Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the 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, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed.
391 U.S. at 135-36 (citations and footnotes omitted). The Bruton Court did not squarely address the Confrontation Clause's interaction with hearsay rules, although it did briefly discuss hearsay in its decision.
In United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296, 300 (2d Cir. 1968), cert. denied, 397 U.S. 942, 25 L. Ed. 2d 123, 90 S. Ct. 956 (1970), the Second Circuit distinguished between a Bruton situation in which a defendant who did not confess was tried jointly with a codefendant who did confess and a situation in which both defendants confessed and the confessions interlocked. The Second Circuit found no Confrontation Clause problem in the latter situation. "In our case Catanzaro himself confessed and his confession interlocks with and supports the confession of McChesney." Id.; see also People v. Berzups, 49 N.Y.2d 417, 402 N.E.2d 1155, 1158-59, 426 N.Y.S.2d 253 (N.Y. 1980) ("a codefendant's confession need not violate the spirit of the Bruton rule when the implicated defendant himself has made a confession close enough to the one offered against him to make the probability of prejudice so 'negligible' that in the end 'the result would need to be the same'. . . The justification for this exception is that separate confessions, without being mirror images of one another may yet be so duplicative in their description of the crucial facts that the one of the nontestifying codefendant may be of no measurable consequence in the face of the overwhelming and largely uncontroverted evidence contained in the interlocking confession of the defendant himself") (citations omitted). The plurality of four Justices in Parker v. Randolph, 442 U.S. 62, 60 L. Ed. 2d 713, 99 S. Ct. 2132 (1979), found no Confrontation Clause violation when the defendant had confessed because the defendant's "case has already been devastated by his own extrajudicial confession of guilt." Id. at 75 n.7. As discussed earlier, petitioner's motion for severance was denied based on this interlocking confession exception to Bruton.
In Cruz v. New York, 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714 (1987), the Supreme Court examined this interlocking confession exception to Bruton.
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.