The opinion of the court was delivered by: John G. Koeltl, District Judge
This is a petition for habeas corpus pursuant to 28 U.S.C. § 2254, brought by Edmund Ko, who was convicted of Murder in the Second Degree in violation of New York Penal Law § 125.25(1), following a jury trial held in New York State Supreme Court, New York County. Judgment was entered on October 16, 2000. The petitioner is currently serving a sentence of twenty-five years to life in the Elmira Correctional Facility. The respondents are John Burge, the Warden of the Elmira Correctional Facility, and Lucien J. Le Claire, Jr., the Acting Commissioner of the New York State Department of Correctional Services.
The petitioner challenges his conviction on three grounds. First, he asserts that he was denied his Sixth Amendment right to confront the witnesses against him when the prosecutor introduced the victim's out-of-court statement made to her friend on the telephone the night of the murder that the petitioner had just arrived at her apartment. Second, the petitioner claims he was denied his Sixth Amendment right under the Confrontation Clause when the State introduced a statement made by the petitioner's then-current girlfriend, Claudia Seong, to Detective Robert Mooney that a pair of bloody pants recovered from the victim's apartment belonged to the petitioner. Finally, the petitioner contends that he was denied his Sixth Amendment confrontation right and his right to present a defense by the prosecutor's refusal to grant immunity to Seong.
The evidence at trial was sufficient for the jury to find the following. On March 20, 1998, Lynda Hong, a third year student at Columbia Law School, was discovered in her home by her boyfriend, Christopher Lee, murdered. Lee had entered the apartment by using a credit card to open the door because he had been unable to get in touch with Hong for several days. He found her face down in a pool of dried blood, wearing the clothes that she had worn when he last saw her at dinner on March 18, 1998. Her apartment was in a state of disarray and there were blood spatters on the bed, floor and window. (Tr. at 2523-30.) After speaking with Lee, the police learned that the petitioner, a former boyfriend of Hong, and the petitioner's girlfriend Claudia Seong had previously attacked another one of the petitioner's former girlfriends, Diane Kim. (Tr. at 5132.) The police interviewed the petitioner and Seong that evening. (Tr. at 4870.) At the precinct, the petitioner and Seong were questioned separately. (Tr. at 4895.) The petitioner claimed that he had not had contact with Hong for over a year. (Tr. at 4902.) When confronted with pictures of a bloody shirt and sweatpants removed from the crime scene, Seong began crying and said that the sweatpants were the petitioner's and that the shirt was hers but the petitioner often wore it. Seong was then taken to see the actual clothes and repeated her statements. (Tr. at 4912-16.)
The petitioner was placed under arrest that evening. After an investigation, he was charged with one count of Murder in the Second Degree. (Tr. at 4919, 5193.)
At the trial, the prosecution produced evidence that Lynda Hong and the petitioner were romantically involved while students at Cornell University. They began dating when she was a senior and he was a sophomore, and were very serious and had discussed marriage. (Tr. at 308, 756, 782-83, 5246.) Their relationship ended in the fall of 1996. They remained friendly and continued to call each other in 1997, although by the summer of 1997 most of their contact had ceased. (Tr. at 784-85.)
In the spring of 1997, the petitioner began dating a woman named Diane Kim. The petitioner's relationship with Diane Kim lasted only about two months. (Tr. at 3285-87.)
Later in the spring of 1997, the petitioner became involved with a woman named Claudia Seong. (Tr. at 406.) The petitioner and Seong spoke frequently on the telephone and he kept a picture of her on his work computer and used her name as his screen saver and e-mail password. (Tr. at 4396-97.) The petitioner worked at Macy's when he first began seeing Seong. Although the petitioner's performance at work was regular from July through September, it became sporatic in October, and in November he ceased working at Macy's altogether. (Tr. at 4400, 4404.) Around the same time, the petitioner moved into Seong's three bedroom apartment in New Jersey. Seong's young daughter and a tenant, "Steve" Young Sam Kim, shared the apartment. Seong had frequent temper tantrums and accused the petitioner of having slept with too many women. (Tr. at 2263, 2280, 2282.)
Although Lynda Hong and the petitioner had basically ceased all contact, the petitioner called her that spring to tell her that he was involved with someone who "knew what it was like to be jealous." (Tr. at 803, 806.) The petitioner also called Diane Kim and told her that he had a new girlfriend and was contacting his prior girlfriends in order to sever ties. He asked Kim to act as if she did not know him if they should see each other on the street. (Tr. at 3294-96.)
On November 18, 1997, upon returning home from work at 2:30 a.m., Diane Kim received a phone call from the petitioner who stated that he had to see her immediately. (Tr. at 3305.) The petitioner convinced her to meet him by telling her that he was bringing other women along. About fifteen minutes later, the petitioner, Claudia Seong, and her sister, Young Joo Seong, picked Kim up in front of her complex. They drove in silence until they reached a dark street closed off by a barricade. They exited the car and the group attacked Kim and left Kim on the ground bleeding. Kim walked home and contacted the police and an ambulance. She received stitches on her face, scalp and thigh and ultimately underwent laser surgery to remove the scars.
She had no further contact with the petitioner. (Tr. at 3312, 3315-29, 3337, 3339-42.)
On the night of March 18, 1998, Jae Young Shin, a friend of the petitioner's, went to Seong's apartment and told her that he had seen Lynda Hong in Manhattan and he had spoken to her about Edmund and his new girlfriend. (Tr. at 4985, 4998.) Shin reported that Hong said that Edmund appeared to have taken up with prostitutes after breaking up with her. (Tr. at 4985, 4997, 4998.) Seong became furious and told the petitioner that it was his fault that people thought of her as a prostitute, and slapped him in the face. (Tr. at 4985, 5000, 5003.)
On March 18, 1998 Lynda Hong worked the entire day at her job at a law firm. (Tr. at 1138-39, 1141-42.) She joined her boyfriend, Christopher Lee, for dinner at a restaurant around 9:00 p.m. (Tr. at 738, 2501.) Dinner ended at about 9:45 p.m. and Lee told Hong to call him when she reached her apartment and that he would come spend the night with her if she wanted. (Tr. at 2514-16, 2560-61.) After a brief stop at her friend Young Lee's apartment around 10:00 p.m., Hong told Young Lee that she was tired and was going home to sleep. (Tr. at 760-62, 776.)
That same evening, Edmund Ko was having dinner in Seong's New Jersey apartment with Seong, Young Sam Kim and Seong's daughter. (Tr. at 2301-02.) Seong's friend Sorhan Lee called around 9:30 p.m. and they spent about fifty minutes on the telephone. (Tr. at 409-412, 428; 855-57.) While Seong was on the telephone, the petitioner, dressed in dark black pants, a knee-length black coat, a dark cap with "Parsons" on it and a pair of black ankle books, left the building. (Tr. 2303-05, 2310, 2413.) The petitioner then came back to the apartment and went into the bedroom, where he remained for about fifteen minutes before he left the apartment again carrying a brown bag with something inside that appeared to be eight inches to a foot in length. (Tr. at 2307-09.)
About 10:31 p.m. Hong called Celine Oh. While they were speaking, Hong received a call on the other line, which billing records show was made from the payphone on the corner of 114th Street and Amsterdam Avenue in Manhattan at 10:46 p.m. (Tr. at 862.) When Hong returned to the line with Oh, she sounded excited and nervous as she told Oh, "Oh my God, its Ed, he's coming over." Oh asked whether Hong meant her ex-boyfriend, and Hong said yes. (Tr. at 318-20, 325.) Oh said that it had been a long time and Hong agreed and said that she thought he was coming over because his girlfriend had kicked him out and he needed to talk. (Tr. at 320-21.) Oh and Hong spoke for about five more minutes, at which time Oh heard a door lock being disengaged and knob turning. (Tr. at 322-23, 330.) Hong told her "It's Ed, I've got to go." (Tr. 322, 331-33.) Oh asked Hong to call her back to tell her what had happened. (Tr. at 322.) Hong never returned Oh's phone call. (Tr. at 323.)
Christopher Lee called Hong at about 11:30 that evening and got her answering machine. He left a message on it that he was going to sleep. (Tr. at 2518, 2567, 2570.) Hong never returned his call. (Tr. at 2520.)
The petitioner returned to Seong's apartment about two hours later. He was wearing the same dark coat. He went directly to Seong's room without stopping to speak with Steve, who then went to sleep and did not see the petitioner again for the rest of the night. (Tr. at 2312-15.) According to Steve, Seong did not leave the apartment during the entire two hour period that the petitioner was away. (Tr. at 2315.) Sometime the next afternoon, Seong told Steve that she had thrown the petitioner's shoes away the night before because she thought he had too many pairs. (Tr. at 2317-19.) That evening, Steve noticed that the petitioner was wearing a pair of Steve's shoes. (Tr. at 2317.)
The prosecution's theory was that Ko killed Hong to satisfy Seong. At trial, the State introduced evidence that Hong's time of death was estimated to be between 10:49 p.m. and 11:32 p.m. on March 18, 2007. (Tr. at 2759-62.) Further, there was a connection based on fiber analysis between Hong's apartment and Seong's car (Tr. at 3857-58, 3893-96.) The State also introduced evidence that a bloody footprint impression on a booklet removed from the crime scene was consistent with the petitioner's left foot, and not with Seong's. (Tr. at 4023, 4041-43, 4069, 4081, 4103, 4108, 4109.)
The defense argued that Seong and Shin had committed the murder. The petitioner introduced evidence that Shin and the petitioner were friends at Cornell but had a falling out in May of 1997 that resulted in a physical confrontation, leaving the petitioner's eye black and blue and swollen shut. (Tr. at 5410-13, 5426-29.) The petitioner also introduced evidence that Lynda Hong believed that the petitioner had changed, and that Hong was fearful of Seong. (Tr. at 803, 805, 807.)
The petitioner appealed his conviction to the New York State Supreme Court, Appellate Division, First Department on April 22, 2002. (See Respondents' Appendix in Support of Answer Opposing Petition for a Writ of Habeas Corpus ("Respondents' App."), Ex. A.) His appeal alleged that the State had improperly introduced hearsay testimony of statements made by Hong to Celine Oh on the telephone, that he was denied his constitutional right to confront witnesses and present a defense by the State's refusal to grant immunity to Claudia Seong, that proof of the assault on the petitioner's former girlfriend was improperly admitted to establish motive because any probative value was outweighed by prejudice, and that the trial court's rulings precluding the introduction of certain statements made by Claudia Seong and Jae Young Shin violated the petitioner's constitutional right to present a defense.
The petitioner also claimed that the State had failed to establish the scientific acceptance of mitochondrial DNA.*fn1
In an opinion dated April 22, 2003, the Appellate Division unanimously affirmed the petitioner's conviction. People v. Ko, 757 N.Y.S.2d 561 (App. Div. 2003). The court ruled that Hong's statement to Oh, "It's Ed, I've got to go" was properly admitted under the present sense impression exception to the hearsay rule. Id. at 562.
The statement was a spontaneous description of events as they were unfolding and was corroborated by extensive circumstantial evidence. The court also held that evidence of the petitioner's prior attack on an ex-girlfriend was properly admitted to establish motive and that the probative nature of the evidence outweighed any prejudicial effect. Id. at 563. As for the State's refusal to grant immunity to Claudia Seong, the court found that there was no bad faith or abuse of prosecutorial discretion, and that the petitioner's inability to call Seong as a witness did not adversely affect his defense. Id. The court also found that the trial court correctly determined that mitochondrial DNA analysis has been found reliable by the relevant scientific community, and noted that many jurisdictions have accepted this type of DNA evidence. Id. Finally, the Appellate Division found that the other challenged evidentiary rulings were proper exercises of discretion and that the petitioner had not been deprived of his right to confront witnesses and present a defense. Id.
On May 28, 2003, the petitioner sought leave to appeal the Appellate Division's decision to the New York Court of Appeals. (See Resp.'s Ex. E.) Chief Judge Kaye denied the petitioner's application by order dated January 2, 2004. People v. Ko, 808 N.E.2d 366 (N.Y. 2004).
On March 22, 2004, the petitioner sought a writ of certiorari from the United States Supreme Court, asserting that the prosecutor's refusal to grant immunity to Claudia Seong amounted to a denial of the petitioner's constitutional right to present a defense, and asking the Court to delineate a standard by which a trial court could determine when to compel the prosecution to grant immunity to a defense witness. Also, in light of the Supreme Court's recent decision in Crawford v. Washington, 541 U.S. 36 (2004), the petitioner asked the Court to review the admissibility of Claudia Seong's statements to the detective as well as Lynda Hong's statements to Celine Oh. On June 14, 2004, the United States Supreme Court granted the writ of certiorari. The Court vacated the judgment and remanded the case to the Appellate Division for reconsideration in light of Crawford. Ko v. New York, 542 U.S. 901 (2004).
Following supplemental briefing by the petitioner and the State, the Appellate Division again affirmed the petitioner's conviction in an opinion dated February 3, 2005. People v. Ko, 789 N.Y.S.2d 43 (App. Div. 2005). The Court concluded that the petitioner preserved a Confrontation Clause argument with regard to the admissibility of Seong's statements to the police and that the statements were testimonial within the meaning of Crawford and were received for their truth. However, the court found no basis for reversal. Id. at 44-45. The Appellate Division found that the petitioner opened the door to the admission of Seong's entire statement by mentioning the issue of the clothing in the opening statement and in seeking leave in opposition to the State's motion in limine to introduce Seong's statement that the shirt found belonged to her. The court noted that the admission of only a portion of the statement would misrepresent Seong's statement and that the petitioner had thus made the ...