(5) Summations and Verdict
Logan's counsel conceded that Logan had a gun that night, but argued that he did not fire it. Tr. at 774. Logan's counsel argued that Logan did not shoot the gun and, furthermore, that the videotaped confession was not voluntary. Tr. at 756-773. Co-defendant Williams' attorney urged the jury to conclude that his client was not present at the shooting. Tr. at 805.
Petitioner's counsel submitted to the jury that all those who claimed to have seen petitioner at the scene were admitted liars. Tr. at 793-94. His only mention of the videotape was acknowledging that it was shown. Id. at 781. Then, he stated that petitioner was at the scene, but was not the shooter. Id. at 788. Petitioner's presence at the scene, with a group of other boys, was not enough to convict him. Id. at 795.
The prosecutor relied heavily upon Logan's statement to establish petitioner's guilt. To refute petitioner's testimony that he was being shot at by the victim's gang, the prosecutor argued that his testimony was inconsistent with the videotape -- it was an "outright lie." Tr. at 822. The prosecutor continued: "Priest [defendant Logan], in his video statement, never says they shot at him." Id. Further, relying on Logan's statement that "I had my gun out, but I didn't shoot. I got two guns from Black at a party,"
the prosecutor urges the jury to believe that the petitioner was the shooter. Tr. at 848. The prosecutor reiterated another few times Logan's statement that everyone involved had guns; that another guy was shooting -- not Logan. Tr. at 852, 854, 856, 859. He also argued that Priest never stated in his video -- they shot at us which the prosecutor maintained he would have said, if true. In this way, the prosecutor tried to emphasize that petitioner is a liar. Id. at 822.
During the jury's deliberations, the videotape of Logan's statement was played twice upon the jury's request. Id. at 936, 939. Petitioner and Logan were acquitted of the murder charges, but convicted of the lesser included charge of manslaughter in the first degree on September 4, 1991. Tr. at 1104-05. They received the maximum sentence which is a minimum of eight and one-third years and a maximum of twenty-five years incarceration. Tr. of Sent. of Earl Logan, 9/23/91, at 8. Co-defendant Williams was found not guilty.
Petitioner requests habeas corpus relief on the basis of ineffective assistance of counsel in failing to obtain either a severance or the exclusion of Logan's statement and the failure to object to the prosecutor's improper use of Logan's confession both when cross-examining petitioner and when arguing in summation. In order to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that: (1) his attorney's performance fell below an "objective standard of reasonableness," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the [trial] would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); Kieser v. New York, 56 F.3d 16, 18 (2d Cir. 1995); Cuevas v. Henderson, 801 F.2d 586, 589 (2d Cir. 1986), cert. denied, 480 U.S. 908, 94 L. Ed. 2d 524, 107 S. Ct. 1354 (1987). Not only must counsel's performance be so deficient to demonstrate s/he was not functioning as counsel, but also that counsel's deficient performance deprived the defendant of a fair trial. 466 U.S. at 687. There is a strong presumption that counsel's conduct fell within the wide range of reasonable assistance and that under the circumstances, counsel's actions were sound trial strategy. Cuevas v. Henderson, 801 F.2d at 589-90.
Defense counsel argued for and obtained a redaction of co-defendant Logan's statement rather than severing the cases. Petitioner maintains that a move to sever by defense counsel was required by Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). Bruton created a federal constitutional right to confrontation which applies to state trials. Roberts v. Russell, 392 U.S. 293, 294, 20 L. Ed. 2d 1100, 88 S. Ct. 1921 (1968). The New York Court of Appeals has similarly held: "As the fundamental right embodied in the Confrontation Clause is the right to cross-examine one's adverse witness, it is nothing short of a denial of due process to rely on a jury's presumed ability to disregard a codefendant's confession implicating another defendant when the jury is determining the latter defendant's guilt or innocence." People v. Eastman, 85 N.Y.2d 265, 274, 624 N.Y.S.2d 83, 648 N.E.2d 459 (1995) (citations omitted). Further, that court explained: "The court's review of a constitutional error is based on the entire record, and involves a determination of the 'probable impact of the codefendant's admission on the minds of an average jury'." Id. at 276 (citations omitted).
To protect a defendant's right to confrontation, the prosecutor can: (1) not offer the co-defendant's statement into evidence; (2) request separate trials; or, (3) redact the statement to eliminate any inculpatory reference to the defendant. See Richardson v. Marsh, 481 U.S. 200, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987). The New York Court of Appeals in People v. Payne, 35 N.Y.2d 22, 27, 358 N.Y.S.2d 701, 315 N.E.2d 762 (1974), discussed the difficulty of a jury at a joint trial dealing with a confession by one defendant which should be disregarded when considering the other defendants:
This poses a special problem for the jury and an obvious threat to the defendant's right to a fair trial. . . . the jury must perform the delicate task of sorting out the evidence which applies to each of them, but not necessarily the others. The defendant then runs the risk that, despite the court's instructions on this point, the jury may inadvertently, perhaps willfully, follow the natural inclination to consider all the evidence taken at a single trial as evidence against all of the defendants collectively.