(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 defense by suggesting that the prosecution's witnesses might have confused the two men, based on their both having worn gold fronts on the day of the shooting.
In summary, then, the court's decision to forbid the exhibition of Moore was a clearly erroneous decision to exclude highly relevant evidence.
C. Harmless Error
The state urges this court to find that the trial court's decision to exclude all evidence of Moore's gold fronts -- either by display of Moore or inclusion of Moore's voir dire testimony -- was, if error, harmless error falling short of the standard necessary for the "great writ" of habeas corpus to issue.
Harmlessness review is applicable here, because the error that occurred below was trial error that
'occurred during the presentation of the case to the jury,' and is amenable to harmless-error analysis because it 'may . . . be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial],'
Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 1717, 123 L. Ed. 2d 353 (1993) (citing Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 1249, 113 L. Ed. 2d 302 (1991)).
1. Whether The Applicable Standard Depends on Prior State Court Review
Before considering whether the error was harmless, I must first determine the proper "harmless error" standard to be applied on federal habeas review of a state conviction where, as here, the state appellate court failed to find error, and thus never applied the Chapman harmless error standard. See Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (unless prosecution shows that error "was harmless beyond a reasonable doubt," habeas will issue).
The Second Circuit Court of Appeals has not directly considered this issue. The other federal circuit courts that have considered the question are divided with respect to the applicable standard, and with respect to the related question of the proper interpretation of the Supreme Court's plurality opinion in Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993).
I note, as an initial matter, that the history of the habeas petition at issue in Brecht was very different from the history of the petition at issue here. In Brecht, as Chief Justice Rehnquist's plurality opinion twice emphasized, by the time the habeas petition reached the Supreme Court, two state appellate courts had applied harmless error review to petitioner's conviction, and two federal courts had done so as well.
113 S. Ct. at 1716, 1721. Brecht held that, in these circumstances, the Supreme Court was not compelled to apply Chapman's demanding standard for the fourth time, but rather could apply the more deferential Kotteakos standard in reviewing petitioner's conviction on habeas. Brecht, 113 S. Ct. at 1721-22 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946)). This case, where no court has ever applied Chapman review,
is leagues away from Brecht itself. The Brecht petitioner had three bites at the Chapman apple; this petitioner has not yet had one.
The Eighth Circuit has held that, in a situation like this one, the federal court should do what the state court failed to do, and apply the demanding standard set out in Chapman. Orndorff v. Lockhart, 998 F.2d 1426, 1429-30 (8th Cir. 1993), cert. denied, 114 S. Ct. 1631 (1994). In contrast, the Fourth, Seventh and Eleventh Circuits have held that Brecht requires a federal court in this position to apply the more deferential Kotteakos standard, pursuant to which the court determines whether the error "'had substantial and injurious effect or influence in determining the jury's verdict.'" See Smith v. Dixon, 14 F.3d 956, 979-80 (4th Cir. 1994) (citations omitted),
cert. denied, 130 L. Ed. 2d 72, 115 S. Ct. 129 (1994); Tyson v. Trigg, 50 F.3d 436, 446-47 (7th Cir. 1995); Horsley v. Alabama, 45 F.3d 1486, 1492 & n.11 (11th Cir. 1995).
Writing for the Seventh Circuit, Judge Posner argued that the Brecht Court must have considered, and meant to reach, cases where, as here, there was no state court Chapman review, for, he says, such cases are the norm:
Ordinarily . . . the state court will not have found any error and therefore will have had no occasion to apply any standard of harmless error. Brecht itself was a fluke in this regard; the state court had considered the issue of harmless error and applied the Chapman standard.