The opinion of the court was delivered by: Hellerstein, District Judge.
On July 8, 1981, Carlos Figueroa, the Petitioner, and two others were
convicted after trial in the Supreme Court, Bronx County, of holding up a
gasoline station and the killing of its owner. Petitioner, however, was
not identified by witnesses as having taken part in the robbery or
homicide, and no physical evidence linked him to the crime. The
sufficiency of the real and testimonial evidence was questionable.
Petitioner made three statements that placed him at the scene of the
crime, but he denied active and willing participation in either the
robbery or the shooting. The jury was able to convict him because the
redacted confessions of a non-testifying co-defendant necessarily implied
Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476
(1968), established the Constitutional principle that it is improper to
prove one person's guilt by introducing into evidence, an out-of-court
confession of a co-defendant. The prejudicial effect is so great, the
Supreme Court held, that a jury cannot be expected to heed a cautionary
and limiting instruction. That effect was produced in this case. And as
this case shows, an ineffectively
redacted confession created the very prejudice that Bruton sought to
The conviction in this case is nineteen years old, and Respondent
raises both a statute of limitations and a laches defense. But the
statute of limitations issue has been resolved against Respondent's
position*fn1, and the laches defense suffers from a failure to show
specific prejudice by virtue of the delay. Thus, my duty is to apply the
United States Constitution to this case regardless of how long ago the
conviction occurred. State court convictions and considerations of
federalism must be respected, see, e.g., Daye v. Attorney General of the
State of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), but there
cannot be compromise to the Constitutional requirement of a fair trial,
see, e.g., Klein v. Harris, 667 F.2d 274, 292 (2d Cir. 1981) (Kaufman,
I hold, therefore, pursuant to 28 U.S.C. § 2254, that a writ of
habeas corpus should issue, that the defenses of limitations and laches
do not apply, and that state remedies have been exhausted. Petitioner was
convicted on the confessions of a non-testifying co-defendant, for the
failed redactions of those confessions pointed inexorably to Petitioner's
participation in the felony murder. Without those confessions, it is
doubtful that the jury would have convicted Petitioner. The Sixth
Amendment to the United States Constitution, guaranteeing fair trial and
confrontation of witnesses, was violated and Petitioner's conviction must
therefore be vacated.
On or about December 9, 1980, Hector Rivera, Raymond Bermudez, and
Petitioner, Carlos Figueroa, were indicted, and in June 1981 the three
were tried and convicted of felony murder. On August 19, 1981, Petitioner
was sentenced to a term of 25 years to life imprisonment. See Petition
for a Writ of Habeas Corpus, April 11, 1997, ¶¶ 2-3 ("Petition"). The
facts, as the prosecutor told the jury in his opening statement, were as
In the early morning hours of October 3, 1980, a red Vega, driven by
co-defendant Bermudez, and occupied by Petitioner, co-defendant Rivera
and a fourth man, Tony Colon, drove into a Shell gas station on Bruckner
Boulevard in the Bronx.*fn2 An unidentified number of men got out, and
went inside the gas station office to ask for change for a cigarette
machine. Other customers were in the office, along with Louis Martinez,
the night manager, and Gilbert Ortiz, a gas station attendant, and the
men returned to their car.
A short time later, the red Vega returned for gas. Three men armed with
pistols exited the car, charged into the office, struck the attendant
Ortiz on the head, and took cash from the register. The perpetrators
searched for a safe, threatened Martinez and Ortiz with their lives, and
eventually found a safe. At that point, co-defendant Rivera drove a
second car, a tan 1972 Oldsmobile, into one of the gas station bays, and
two of the perpetrators dragged the safe to the car while another guarded
Martinez and Ortiz at gunpoint. Another person, a witness to the event,
Bernard O'Hara, on his way home from a baseball game, pulled into the
station to ask for directions, was confronted by one of the
perpetrators, and was forced into a rear locker room. The perpetrators
then broke into O'Hara's car and found a .22 caliber pistol under his
The owner of the gas station, William Hendricks, drove by, came into
the office, and was struck by a perpetrator on the back of his head. As
he fell, he reached for a .38 caliber pistol in his ankle holster, but
one of the perpetrators shot him first. Hendricks, however, managed to
fire his gun and struck Martinez in the hand.
Bermudez returned to the office, saw Hendricks lying on the floor, and
grabbed Hendricks' .38 caliber gun. The perpetrators fled; Martinez ran
to stop a car for help; and O'Hara emerged from the rear locker room to
find Hendricks lying on the ground, dead.
Based on pre-trial statements made by each co-defendant, and
indications that none would be a witness at trial, Figueroa, Rivera and
Bermudez, relying on Bruton, moved for separate trials. (Tr. 2-6). On
June 15, 1981, the Court held a hearing. (Tr. 1-15). Petitioner Figueroa
argued that he was entitled to a separate trial because his statements
showed only his presence at the scene, and not that he participated in
either the robbery or the shooting. (Tr. 10). The People opposed, arguing
that each defendant "confessed to substantially the same thing." (Tr.
12). The Court denied the severance motions, ruling that redactions of
the statements would prevent the statements of each from implicating any
other defendant. (Tr. 14-15).
C. The People's Case in Chief
The People presented three eyewitnesses to the robbery and murder, the
policemen who arrived at the scene, and redacted statements from two
defendants. I discuss each category of proof below.
The prosecution first called the three witnesses who were present at
the Bruckner Boulevard gas station during the robbery: O'Hara, who drove
into the gas station to ask for directions, and Ortiz and Martinez who
worked at the station. None could identify Figueroa as having been
involved in the incident. (Tr. 107, 138-40, 149-50, 162, 168, 170,
174-75, 202, 360, 371 & 374-75). O'Hara testified that he saw two people
(Tr. 149-50); Ortiz testified that he saw two or three people (Tr. 158 &
166-67), but also that he saw three or four (Tr. 177-78); and Martinez
gave conflicting testimony on whether four or five people were involved
(Tr. 215, 288, 305, 362-63 & 374-75). To add to the confusion, in the
course of questioning Martinez, Rivera's attorney and the People
intimated that four people were involved. (Tr. 363, 374-75).
The three police officers who arrived at the scene after the crime and
who arrested the defendants were also unable to inculpate Figueroa.
Police officer Joseph Monteleone, who arrested Bermudez on October 16,
1980, two weeks after the incident, found him in the front passenger seat
of a tan Chevrolet that fit the description of the second robbery car.
Police officer Monteleone recovered a .38 caliber handgun from the car,
(Tr. 405-09), and an empty holster for the .38, both fitting the
description of the weapon taken by the robbers from William Hendricks,
the owner of the gas station who was shot and killed. (Tr. 414, 416-18).
Petitioner was not with Bermudez on the night Bermudez was arrested.
(Tr. 429-30). Police officer James Dungan, who assisted officer
Monteleone in arresting Bermudez, testified to the same effect. (Tr.
434-39). Upon objection by Figueroa, the Court admitted the .38 caliber
handgun and the holster recovered from Bermudez against Bermudez only and
gave a limiting instruction to the jury. (Tr. 452-53). The third police
officer, John Corcoran, arrived at the gas station soon after the robbery
and shooting took place, and gave general testimony concerning the scene
of the crime, also without inculpating Petitioner. (Tr. 482-83).
The People also called a ballistics expert and a forensic pathologist
to testify about the bullet that was extracted from William Hendricks,
and that the cause of death was a gunshot wound to the chest. (Tr.
734-39, 870-76, 880 & 882). However, the bullet, a .22 caliber, was too
deformed to enable the ballistics expert to determine the specific weapon
from which it had been fired. (Tr. 740-41). Finally, the prosecution
called William Hendricks' wife to identify
him and his .38 caliber revolver. 614-15).
2. The Defendants' Statements
The Court, after having denied defendants' motions for separate
trials, redacted the statements by replacing the names of the
co-defendants with non-specific phrases like "one a guy," "the other guy"
or "another guy." (Tr. 510-23). Unfortunately, however, the context of
the references, and the manner of use during trial, made it clear that
Petitioner's name was the name that had been redacted; thus, the very
purpose of the redaction was compromised.
a. Rivera's First Statement
The first statement the People introduced into evidence was given by
Rivera to the detective in charge of the investigation, John Farrell.
(Tr. 524-28). Before the statement was introduced, the Court instructed
the jury that the statement was being offered against Rivera only, and
that the statement should not be considered against Bermudez or
Petitioner. (Tr. 528-29). The Court noted that Rivera's statement
referred to other people and that the jury should not attempt to
speculate who were those other people: "It's not your concern whether or
not [Rivera] was talking about the other persons involved in this trial.
. . ." (Tr. 529). The Court then gave the following additional
Now, one other thing. Normally when a statement the
officer testifies from his memory as to the
statement. I am making an exception here and the
officer will be permitted to read the statement. The
reason I have done that is because what I have just
mentioned to you a few moments ago, relating to other
persons, and he is being permitted to testify only to
the statement made by Rivera, without regard to other
persons, even though the expression "other guy" or
"other persons" will be used, and that's the only
reason the detective will be permitted to read his
Detective Farrell then read Rivera's statement to the jury. The
statement began with Rivera's admission that he and his co-defendants
intended to commit the robbery: "We were driving around and decided to
stick up the gas station." (Tr. 530). Continuing, Rivera admitted that he
was driving a stolen 1972 brown Oldsmobile, (Tr. 530), and that "one guy"
had a 9 millimeter handgun and "another guy" had the .22 caliber revolver
stolen from O'Hara's car. (Tr. 530). Rivera claimed not to have had a
gun. (Tr. 530). Rivera was standing at the driver's side of his car,
while "one guy and Tony were taking the safe out of the office. . . ."
At this point, the Court interrupted Detective Farrell's reading, and
instructed the jury why "Tony" had not been replaced by "a guy."
Let me stop you there, Officer. You heard the officer
use the word "Tony." Tony is not one of the defendants
in this case, that's the reason his name is being
used. All right.
(Tr. 531). Detective Farrell clarified that "Tony" referred to "Tony
Colon." (Tr, 531).
Rivera's statement then described the shooting of Hendricks, how Rivera
and Colon fled in Rivera's car, while "[o]ne guy and another guy" fled in
the red Vega, (Tr. 532), and that "one of the guys" took Mr. Hendricks's
gun. (Tr. 533). Rivera stated that "[m]e, two others and Tony" committed
the robbery (Tr. 533), that while he was waiting near his car, "[o]ne guy
was in the office with the other two guys [and that] the other two guys
were getting the safe" (Tr. 533); and that one guy shot Mr. Hendricks
with the .22 caliber revolver found in O'Hara's car. (Tr. 533).
Later, during Detective Farrell's redirect by the prosecutor, the
following exchange took place:
Question: Did [Rivera], during the course of the
statement, give you names of specific perpetrators?
The Court: Don't answer that question Officer.
Mr. Marshall: I reserve an application.
The Court: That question is not to be asked again or
anything similar to it, sir.
After Detective Farrell's testimony, Bermudez moved for a mistrial,
arguing that the Court's previous instruction to the jury regarding use
of Colon's name and the prosecutor's question prejudiced Bermudez's
The district attorney's question to the police
officer, although it wasn't answered, as to whether or
not the defendant Rivera named specifically the other
people who were allegedly with him at this time, taken
together, your Honor, with your previous instruction
to the jury, while the detective was reading the
statement concerning why Tony's name remains in
because he is not a defendant in this case, I think
the two taken together, your Honor, will require any
juror who was paying attention and hear, to come to
the conclusion that this defendant, my client's name
was named, was in the statement, and is no longer in
the statement because he is a defendant in this case,
whereas Tony Colon is not a defendant in this case,
and that's why his name still appears in the
(Tr. 556-57). Petitioner joined the motion, arguing that "the inference
to the jury is such that it becomes a jigsaw puzzle, just by a mental
deduction they can then come to a conclusion that the names that are not
mentioned are the names of the defendants." (Tr. 558). The Court denied
the motions, but addressed only the point about the prosecutor's
question, not the Court's prior instruction to the jury:
When that question was asked the Court immediately
told the witness not to answer it and admonished the
assistant district attorney and directed that no such
question or similar question be asked. I believe the
correction was prompt, on the scene, so to speak, and
no prejudice resulted. Motion for a mistrial denied.
Later, Detective Farrell was recalled, and the prosecutor sought to
mark for identification a written copy of Rivera's statement. (Tr. 640).
The Court, in the jury's hearing, commented, "I believe you have it, I
have a photocopy of it, mine is an unredacted copy." (Tr. 641). Rivera's
and Bermudez's attorneys moved for a mistrial, but the Court denied the
motion, commenting, "I told them yesterday certain changes were made in
the statement by me to eliminate what I considered material that
shouldn't be in there. They were told that yesterday." (Tr. 644).
Petitioner's attorney pressed and argued that "[t]he Court cannot ever
tell the jury that any changes have been made" to a confession, (Tr.
644). The Judge replied, "[t]hat was told to them yesterday" and "[t]he
jury knew about this all along." (Tr, 645).
b. Rivera's Second Statement
The People introduced a second statement made by Rivera, in the form of
his testimony before the grand jury. The prosecutor again argued against
redaction, urging that Bruton did not apply "when one defendant makes a
statement which another defendant also makes, where they each refer to
the other." (Tr. 561). The Court again rejected the argument, reasoning
that "[i]t is more than that. It is more than just referring to the
is where the statements are substantially the same." (Tr. 561). The
prosecutor pressed further, and argued that the statements were
"duplicative in their description of crucial facts." (Tr. 562).
Petitioner countered and urged that his several statements, although
admitting his presence at the scene of the robbery, did not amount to an
admission that he was a participant in the robbery, whereas Rivera's
statements clearly inculpated him. (Tr. 561, 562-3). The Court ordered
that Rivera's grand jury testimony could be redacted to avoid prejudice,
and could then be read to the jury. (Tr. 563).
Thus, the jury heard from Rivera's out of court grand jury testimony,
that "the guy" in his car and "the other two guys" from the second car
robbed the gas station and ordered Rivera to be a lookout, (Tr. 767), and
that Rivera wanted nothing to do with the robbery but was forced at gun
point to serve as a lookout (Tr. 767-68). Rivera admitted to driving
around in a brown and white '72 Oldsmobile with his girlfriend in the
early morning hours, and that after dropping off his girlfriend and
getting "a joint or something," he met "with three guys" (or "these
guys," the transcript is unclear). (Tr. 769-772). Rivera, continuing
somewhat inconsistently, stated that he saw "[o]ne guy and another guy
named Tony Colon," and that "one of the guys" suggested that they drive
around. (Tr. 772-73). Rivera and "one guy" then followed the red Vega and
Colon to the gas station. (Tr. 773). Rivera claimed that the guy in his
car did not have any weapons, and that one guy told Rivera to wait while
Colon and the two other guys got out of the car and walked into the gas
station (Tr. 778). Rivera then stated that a guy called him into the
station, that he saw the two attendants sitting in chairs, and that one
guy, who had a nine millimeter pistol, told Rivera to serve as a
lookout. (Tr. 778). Colon, Rivera said, did not have a gun and, apart
from the nine millimeter, he saw no other guns. (Tr. 778).
According to his statement, Rivera was outside the station office, near
the gas pumps, and "the other guys" were inside. (Tr. 779). After about
ten minutes, "one of the guys" told Rivera that they were going to put a
safe in Rivera's car and to drive his car into one of the gas station
bays. (Tr. 781-82). William Hendricks, the gas station owner, then pulled
into the station, (Tr. 783), and Rivera saw "a guy" hit Hendricks in the
head with a gun and saw "one guy" shoot Hendricks. (Tr. 784). Rivera also
saw Hendricks reach for his gun and fire a shot. (Tr. 784). After the
shooting, "one guy" ran outside and told Rivera to "get out of here."
(Tr. 785). Rivera and Colon then drove off together. Rivera dropped off
Colon, and drove home. (Tr. 785-86).
The next day, one of the guys got in contact with Rivera and told
Rivera that "another guy" had placed a box with a shotgun inside Rivera's
car. (Tr. 786). The shotgun belonged "to the other guy." (Tr. 786).
Rivera testified that he did not know the box was in the car, but that
during the preceding evening he saw one of the guys with a box. (Tr.
787). Although Rivera claimed to have been forced at gun point to serve
as a lookout by a man he described as a "drug addict" and "maniac,"
Rivera willingly drove to one guy's house the day after the shooting to
return the box with the shotgun inside. (Tr. 788).
c. Petitioner's First Statement
On November 15, 1980, Detective Farrell and his partner, Detective
Adalberto Riquelme, took the first of three statements from Petitioner.
(Tr. 616-19). Again, the prosecutor argued that Rivera's statements
interlocked with Petitioner's, (Tr. 579), and again the Court rejected
the argument and redacted Petitioner's statements (Tr. 579). And, as
before, the Court instructed the jury:
(Tr. 619). Counsel did not object. (Tr. 619).
Petitioner's first statement, a brief one, began with the admission
that "[w]e met at someone's house," left with "one guy," returned to
Petitioner's home, found that Petitioner's wife was not there, and "went
back to one of the guy's houses." (Tr. 619-20). Then, with Petitioner in
"another guy's car" and Colon "in the other guy's car," and one car
following the other, the two cars arrived at the gas station. (Tr. 620).
Petitioner stated that the others "decided to stick up the gas station,"
but Petitioner "told them [he] did not want any part of it." (Tr. 620).
Petitioner stated that he left "the guy's car" and walked across a nearby
bridge. (Tr. 620). After Colon and the two other guys finished robbing
the gas station, Petitioner stated that "one guy" picked him up. (Tr.
620). Two days later, Petitioner saw "two of the guys" and asked if
someone had been shot at the gas station. One of the guys responded, "I
don't know. I don't know." (Tr. 620).
d. Petitioner's Second Statement
Twenty minutes later, still in the police station, Petitioner gave a
second statement. (Tr. 624). Petitioner now stated that when he went with
the three guys to the gas station, he "knew they were going to stick it
up." (Tr. 624). Petitioner told his friends that he did not want to go
into the gas station, but "one guy" "told me to shut up." (Tr. 624-25).
"One guy and Tony" then went into the gas station's office and both of
them had guns. (Tr. 625). Petitioner withdrew from the scene and went,
not to a nearby bridge as he had claimed in his first statement, but to
the back of one of the bays in the gas station:
I went all the way into the back of the bay. I never
had a gun, I didn't shoot anyone. I was in the back
and I heard a shot so I ran and got into the car with
another guy. . . . I know I was there and was part of
it, but I did not shoot anyone and I never had a gun.
Man, I don't even know anything about guns, I never
had one in my life and you got to believe that. I
swear to God on my kid and I never shot anyone.
(Tr. 625). In answer to the detective's question, Petitioner answered
that "[t]here were four of us," including "Tony Colon," and that one of
the guys told him that Colon had fled to Puerto Rico. (Tr. 625, 627).
At the gas station, Petitioner saw that "[a] guy had a nine millimeter
and Tony had a big long gun, I think it was a 45." (Tr. 627). Petitioner
said that "[s]omeone hit [Hendricks] with the nine millimeter and
[Hendricks] fired a shot. I heard clapping like an automatic trigger
being pulled without one in the chamber," and a "kid" got hit in the
hand, and that he heard another shot, perhaps three shots in all. (Tr.
628-629). Petitioner got into a car and left with another guy. (Tr.
628-29). The detective asked Petitioner about the "sawed-off rifle," and
Petitioner said it "was in the other car." (Tr. 629).
e. Petitioner's Third Statement
Petitioner gave a third statement that night, to an Assistant District
Attorney. Petitioner stated that "me and two guys, and [Tony] Colon" went
to the station and bought some stuff. (Tr. 708). Petitioner was in "one
guy's car" and Colon was in the other car. (Tr. 708-09). Petitioner
stated that he was in the "back of the station," "back by the far end of
the corner." (Tr. 709). Someone came into the station, and Colon
"snatched" him and brought him to the back of the station. (Tr. 709).
Colon and "another guy" both had guns, and Petitioner, although not
seeing anyone get shot, heard two shots go off. (Tr. 709-10). Petitioner
then tried to further distance himself from the critical events:
(Tr. 710). Petitioner got into "another guy's car," and Colon and "the
other guy" got into ...