than petitioner's admission that he was aware that Latif usually carried a weapon.
B. Accomplice Liability
Petitioner's statements describing his behavior at the pharmacy did not clearly implicate him in criminal activity as an accomplice. Though he responded affirmatively during the interrogation to suggestions by A.D.A. Guzman that, in standing by the window and by looking outside, he was acting as a "lookout," he ultimately disowned that characterization of his role in the crime. A fair reading of petitioner's statement is that it merely confirmed that Latif ordered him to stand by the door and not let anyone in. There is no evidence in the record that he obeyed such an order.
In addition, petitioner's statement suggested that, rather than assist in the perpetration of the crime, he searched for an excuse to leave the crime scene. Though petitioner warned the others that he had observed police cars in the vicinity, he clarified that he did this in order to dissuade Latif from continuing with his "harm," and claimed that actually there were not any police cars nearby. This description of petitioner's behavior is not consistent with the mental state of a person intending to facilitate the commission of a crime. See People v. Hudson, 95 A.D.2d 688, 463 N.Y.S.2d 799 (1st Dept. 1983) (reversing conviction of defendant accused of being lookout during robbery since "there is no firm evidence that defendant 'intentionally aided in some manner in the commission of' this crime") (citing People v. Valerio, 64 A.D.2d 516, 406 N.Y.S.2d 481 (1st Dept. 1978)). Under New York law, "mere 'knowledge of what's going on' or 'participating' with robbers by 'taking them away from the scene' of their criminal activity is insufficient to establish criminal liability by one person for the conduct of another. More is necessary. In such circumstances, for the defendant to be responsible under criminal law it must be established that the defendant intentionally aided in some manner in the commission of the robbery 'with the mental culpability required for the commission (of that crime)' (Penal Law, § 20.00)." Valerio, 406 N.Y.S.2d at 483. Petitioner's statement does not evidence such mental culpability.
Rodriguez's statement, in contrast, drew a different picture of petitioner's activities during the crime. According to Rodriguez, petitioner was a "lookout" during the crime: "Milton came back in and he said there were DTs [detectives] around the corner, something like that in a beige car." Upon receiving this information, Latif was spurred to "do it quicker." Thus, unlike petitioner's account of his role in the events at the pharmacy, Rodriguez's account clearly portrayed petitioner as an accomplice who facilitated the commission of the crime. Rodriguez's statements provided a significantly stronger (though inadmissible) evidentiary foundation on which to find that petitioner had taken steps to facilitate, aid, or abet the crime. Coupled with Rodriguez's earlier statements regarding the petitioner's agreement to commit the crime ("they were down" with the plan), Rodriguez's statements established the elements needed to convict petitioner of felony murder.
The facts of this case are similar to those in Holland v. Scully, 797 F.2d 57 (2d Cir. 1986). There, the Second Circuit reversed the district court's denial of a writ of habeas corpus to Holland, the petitioner, who was convicted of felony murder in a trial with two co-defendants. Statements from all three defendants were admitted at the trial and contained many similarities in their factual descriptions. But while Holland admitted knowing that his co-defendants had planned a robbery, "Holland denied any participation in the robbery, [although] he did admit that he had some additional involvement after the fact." Id. at 60. His co-defendants, however, expressly implicated him in both the planning and the robbery. In his summation, the prosecutor encouraged the jury to consider all of the statements as a group against all of the defendants. Id. at 62. Based on these errors,
the court found that "Holland's trial was infected by a serious Bruton violation." Id. at 66. The court found it significant that "nowhere in his confession did Holland ever admit that he induced his co-defendants to commit--or even that he participated in the planning of--the crime." Therefore, the court concluded that "It is not at all clear . . . whether the jury would have inferred from Holland's statements the mental culpability necessary to convict him of aiding and abetting under N.Y.P.L. § 20.00, which in turn established his personal liability for the offense that he allegedly solicited--felony murder." Id.
A similar analysis, though of course one applying the more stringent Brecht standard of review, is warranted here. The record, stripped of Rodriguez's damaging statements, is devoid of any evidence that Cotto knew that a robbery was about to occur, much less that he had agreed to participate in it. Instead, petitioner stated that he "had no idea what Latif was talking about" and interpreted Latif's statement that he planned to "crack Doc's neck" as a joke. Nor does petitioner's statement by itself establish that he participated in the commission of an attempted robbery.
While petitioner assented to Guzman's suggestion that he was a "lookout," the statement in context suggests that petitioner was concerned with leaving the scene rather than assisting in the crime. In short, despite Guzman's repeated efforts to get petitioner to admit to being a "lookout" during the crime, petitioner never actually adopted that characterization of his behavior, and ultimately rejected that description, saying: "I didn't even call that a lookout." A1974, at 34-35. Though petitioner answered in the affirmative at points in his statement to the leading questions of the interrogating A.D.A., the court believes that a fair reading leads to the conclusion that petitioner's statement exculpates him. Specifically, it represents that petitioner had no foreknowledge of the crime, and that once he perceived that a crime was in fact being committed, he not only sought to escape participation in it, but attempted to discourage his cohorts from continuing with its commission.
C. Prosecutor's summation
Not only did admission of Rodriguez's statements at trial presumably undermine the credibility of petitioner's statements in the eyes of the jury, but the damage to petitioner's case was magnified by the manner in which the prosecutor used Rodriguez's statements against petitioner. The prosecutor's summation focused extensively on the supposedly identical admissions of Cotto and Rodriguez, and attributed statements made by Rodriguez to Cotto. For instance, the prosecutor stated that Cotto and Rodriguez said that:
Yeah, we did know. We were at Kareem's house, and yes, we knew there was going to be a robbery, and yes, we know that Latif carries a gun, and yes, we agreed to the robbery and to cracking Doc's neck. Yes, we were there, we were down, we agreed, we went there, but it was only a joke. All this is a joke.