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LYONS v. JOHNSON

January 10, 1996

JOHN LYONS, Petitioner, against SALLY B. JOHNSON, Superintendent, Orleans Correctional Facility, Respondent.


The opinion of the court was delivered by: WOOD

 WOOD, D.J.

 John Lyons brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for attempted murder in the second degree, N.Y. Penal Law §§ 110.00, 125.25(a)) following a jury trial in New York State Supreme Court, Bronx County. *fn1" Based on this conviction, Lyons is currently serving an indeterminate sentence, imposed on April 16, 1990, of from eight and one third to twenty-five years of imprisonment. *fn2"

 On appeal, New York's Appellate Division, First Department, affirmed Lyons's conviction. People v. Lyons, 180 A.D.2d 440, 579 N.Y.S.2d 664 (1992). The New York Court of Appeals denied Lyons leave to pursue a further appeal. Lyons now petitions this court for a writ of habeas corpus, arguing that his Sixth Amendment right to a fair trial was violated because the trial court erroneously denied him the right to introduce relevant, exculpatory evidence.

 I initially referred this case, for a Report and Recommendation, to Magistrate Judge James C. Francis IV, who recommended that I find that the trial court erred, but deem that error harmless. I agree with the Magistrate Judge's finding of trial error. However, I do not find the error to have been harmless, when viewed in the context of the record as a whole. As a consequence, I grant the writ.

 I. Background

 The undisputed facts of the case are these: On January 2, 1989, in the Bronx, a dispute arose in the midst of a crowd of people, which included both the petitioner, John Lyons, and another man, Kevin Moore. Lyons and Moore are both young, African-American men who were wearing black leather jackets that day. A third man, Jose Quiles, approached the crowd. Moore spoke to Lyons. Lyons entered Moore's family's residence and, a few minutes later, emerged carrying a gun. Members of the crowd began to run. Three shots were fired; two of them struck Quiles.

 Lyons's defense at trial, when he took the stand and testified, was that Moore, not he, had shot Quiles. A defense witness, Pantojas, corroborated Lyons's testimony by testifying that (1) Moore was the shooter; (2) Moore wore gold "fronts" (temporary, decorative caps) on his teeth; and (3) no one else on the scene wore gold fronts. However, three prosecution witnesses -- Ferrera, Poole, and Quiles -- testified, to the contrary, that (1) Lyons was the shooter; (2) Lyons wore four gold fronts on his teeth; and (3) no one else on the scene wore gold fronts.

 Unlike all of the other witnesses in the case, Lyons himself testified that both he and Moore wore gold fronts on the day of the crime. Moreover, in a voir dire conducted out of the presence of the jury, Moore, who was wearing gold fronts at the time of trial, corroborated Lyons's testimony by stating that the gold fronts he, Moore, was wearing that day were the same ones he, Moore, had worn on the day of the crime. However, Moore stated that he would assert his Fifth Amendment privilege against self-incrimination rather than repeat this testimony before a jury. *fn3"

 The trial court indicated that it would uphold Moore's invocation of his Fifth Amendment privilege at trial. Defense counsel then requested that Moore be compelled to testify at trial, that Moore be directed to take the stand to assert his Fifth Amendment privilege, or that Moore be marked as an exhibit, entered into evidence, and displayed, with his gold fronts, to the jury. The court refused all of these requests.

 II. Analysis

 The trial court both should have admitted Moore's voir dire testimony at trial and should have permitted defense counsel to exhibit Moore, wearing the gold fronts, to the jury, as I will explain below. *fn5"

 A. The Court's Decision Not to Compel Moore to Testify, Not to Compel Moore to Take the Stand, And Not to Allow Moore's Voir Dire Testimony to Be Admitted At Trial

 Lyons's habeas counsel contends that, by answering some questions during the voir dire, Moore waived his privilege against answering the same questions at trial. However, during the voir dire, Moore stated several times that he would claim his Fifth Amendment privilege if asked to testify at trial. Moreover, Moore's willingness to answer questions on voir dire which he adamantly refused to answer at trial suggests that he did not understand that he might waive his Fifth Amendment privilege as to his trial testimony by his answers on voir dire. Thus, like Magistrate Judge Francis, I conclude that Moore did not, during the voir dire, knowingly waive his right to assert his Fifth Amendment privilege at trial.

 Moore was therefore unavailable to testify at trial, due to a claim of privilege. As a consequence, his voir dire testimony could have been admitted at trial, under two clearly established New York hearsay exceptions, which apply where the declarant is unavailable, for (1) third-party declarations against penal interest, and (2) testimony given in a prior proceeding.

 New York's Smith case contains one of the most recent pronouncements by New York courts on the hearsay exception for third-party declarations against penal interest. People v. Smith 195 A.D.2d 112, 606 N.Y.S.2d 656 (1st Dep't 1994). In Smith, the defendant's brother had confessed to two people that he had committed the crime charged, but he asserted his Fifth Amendment privilege against testifying about these confessions at trial. 606 N.Y.S.2d at 659-60. The New York appellate court held that the trial court should have admitted the brother's confession under the hearsay exception for third party declarations against penal interest. Id. at 662.

 The Smith court listed the factors that, under New York law, qualify a third-party declaration against penal interest for admission under a hearsay exception:

 
First, the declarant must be unavailable as a witness at trial; second, when the statement was made the declarant must be aware that it was adverse to his penal interest; third, the declarant must have competent knowledge of the facts underlying the statement; and, fourth, and most important, supporting circumstances independent of the statement itself must be present to attest to its trustworthiness and reliability.

 Id. at 662 (citation omitted); cf. Fed.R.Evid. 804(a).

 All these factors are satisfied here. First, Moore was unavailable at trial due to his proper assertion of his Fifth Amendment privilege. Second, Moore was aware that his voir dire statements concerning the gold fronts were adverse to his penal interest, for he refused to repeat them at trial, on the ground that they might incriminate him. (Indeed, the state asserts -- in arguing that Moore's voir dire statements did not waive his Fifth Amendment privilege -- that Moore's voir dire statements provided a necessary basis for the assertion of his Fifth Amendment right at trial). Third, Moore obviously had a basis for knowing whether he had worn the gold fronts on the day of the crime. Fourth, several circumstances attested to Moore's statements' reliability: (1) Moore wore the gold fronts during the voir dire, which established, at least, that Moore possessed a pair of custom-made gold fronts; (2) Lyons and Pantojas testified that Moore wore the gold fronts on the day of the crime; and (3) Moore's statements were made in court, before a judge, immediately after consultation with a lawyer, and were subjected to cross-examination by the same prosecutor who was prosecuting Lyons.

 This last circumstance, that the statements were made in court, is especially significant. This special guarantee of reliability was not present in the Smith case. There, in contrast, the hearsay statements at issue were made prior to trial and out of court, to private parties. Id. at 661. Yet the Smith court still held the hearsay statements at issue there to be admissible.

 2. The Hearsay Exception for Statements Made at a Prior Judicial Proceeding

 Because Moore's voir dire statements were made in court, another, independent New York hearsay exception also applies here: the exception for testimony given by an unavailable witness at a prior proceeding, where that testimony is accompanied by indicia of reliability such as prior cross-examination. See, e.g., People v. Phan, 150 Misc. 2d 435, 568 N.Y.S.2d 498 (Kings Cty. 1990) (grand jury testimony of unavailable witness admissible, under hearsay exception, to exculpate defendant at trial); People v. Muccia, 139 A.D.2d 838, 527 N.Y.S.2d 620 (3d Dep't 1988) (testimony of co-defendant at an earlier trial admissible, under hearsay exception, to inculpate defendant at trial); People v. Okafor, 130 Misc. 2d 536, 495 N.Y.S.2d 895 (Bronx Co. 1985) (prior family court testimony of murder victim admissible, under hearsay exception, to inculpate murder defendant at trial).

 In determining whether this hearsay exception applies here, I must determine whether a voir dire examination counts as a "prior proceeding" for the purposes of the hearsay rule. I hold that it does. Cf. United States v. MacCloskey, 682 F.2d 468, 477-79 (4th Cir. 1982) (citing Fed.R.Evid. 804(b)(1)) (in federal system, voir dire in the same trial counts as "prior proceeding" for purposes of the hearsay exception for prior testimony, so that exculpatory voir dire testimony of witness who invokes the Fifth Amendment is admissible under the exception).

 Thus, I hold that the trial court should have accepted Moore's voir dire testimony as admissible at trial under the hearsay exceptions both for third-party statements against penal interest, and for testimony at a prior proceeding. In so holding, I note that counsel did not specifically request that the court accept the voir dire testimony as trial evidence. He requested, instead, that Moore either (1) be compelled to testify, (2) be compelled to take the stand and claim his Fifth Amendment privilege, or (3) be marked as an exhibit and displayed to the jury. Given that Moore's testimony was admissible under two independent, well-established New York hearsay exceptions, these multiple requests to the court should have been sufficient to apprise the court of counsel's desire to submit Moore's voir dire testimony to the jury at trial.

 Moreover, had the court properly allowed Moore to be exhibited at trial wearing his gold fronts, then the question would naturally have arisen what jury instruction concerning the gold fronts should accompany the display of Moore. The prosecution likely would have sought a cautionary instruction, to the effect that Moore's wearing the fronts at trial did not mean that he wore them the day of the crime; the defense, in response, would likely have sought to introduce Moore's testimony on voir dire that the fronts were his own, and that they were the fronts he had worn on the day of the crime. The issue of what instruction should accompany the display would, then, have naturally and directly raised the issue, before the trial court, of the admissibility of Moore's voir dire testimony at trial.

 Thus, although counsel omitted to request specifically that Moore's voir dire testimony be admitted at trial, I hold that the court's failure to admit Moore's voir dire testimony at trial was in error.

 B. The Court's Ruling Excluding a Display of Moore as an Exhibit

 At the time of trial, a New York court had explicitly approved the practice of submitting persons into evidence in cases of mistaken identity, such as this one. People v. Diaz, 111 Misc. 2d 1083, 445 N.Y.S.2d 888 (Sup. Ct. N.Y. Co. 1981). During trial, defense counsel brought the Diaz decision, complete with a citation, to the judge's attention, but the judge refused to allow Moore's person to be entered into evidence as an exhibit. Magistrate Judge Francis concluded, and I agree, that this ruling was clearly erroneous.

 Lyons's and Pantojas's testimony that Moore, not Lyons, was the shooter provided a foundation for Moore to be introduced as an exhibit. This testimony helped to establish Lyons's misidentification defense, and implied that the prosecution witnesses either were lying or had misidentified Lyons as the shooter. The exhibit of Moore would have been highly relevant, because it could have substantiated Lyons's misidentification defense. See Laureano v. Harris, 500 F. Supp. 668, 672 (S.D.N.Y. 1980) (where defense is based on mistaken identity, evidence tending to prove that contention is highly relevant).

 If Moore in fact bore a facial and/or bodily resemblance to Lyons, the exhibition of Moore's person could have supported Lyons's misidentification defense, by demonstrating that the prosecution's identification witnesses might have mistaken Lyons for Moore. Display of Moore to the jury would also have served to demonstrate directly Moore's actual height and weight, which were disputed issues relevant to Lyons's misidentification defense. One prosecution witness maintained that the men were of significantly different weights and heights, whereas the defense witness, Pantojas, testified that there was no appreciable difference between the two men's statures.

 Moreover, display of Moore wearing the gold fronts would have had further relevance, especially in combination with the admission of Moore's voir dire testimony. Together, the display of Moore wearing the gold fronts and the voir dire testimony would have served to undermine the testimony of the three prosecution witnesses who said that Moore had not been wearing gold fronts on the day of the crime. At the same time, this evidence would have bolstered Lyons's contrary testimony, that Moore had been wearing gold fronts on the day of the crime. Finally, this evidence would have increased the plausibility of Lyons's misidentification ...


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