The opinion of the court was delivered by: Gerard E. Lynch, Circuit Judge:
Argued: September 8, 2010
Before: LIVINGSTON and LYNCH, Circuit Judges, and SESSIONS, District Judge.*fn1
Petitioner-appellant Ellis Wood appeals from a judgment of the United States District Court for the Eastern District of New York (Charles P. Sifton, J.) denying his petition for a writ of habeas corpus. On appeal, Wood argues that the state trial court erred in admitting a videotaped statement he made while in police custody. We conclude that the statement was erroneously admitted in violation of Wood's Fifth and Fourteenth Amendment right to counsel, and that this error had a substantial and injurious effect on the jury's verdict. Therefore, we REVERSE the judgment of the district court and REMAND with instructions to grant the writ.
Judge Livingston dissents in a separate opinion.
A New York jury convicted petitioner-appellant Ellis Wood ("Wood") of Murder in the First Degree for hiring Rasheen Harry ("Harry") to kill Carlisle Hall ("Hall"). A videotaped statement Wood made while in police custody played a central role at trial. On appeal to the New York Supreme Court, Appellate Division, Wood argued that he had made the statement after invoking his right to counsel and, therefore, that its admission at trial violated his Fifth and Fourteenth Amendment rights under Edwards v. Arizona, 451 U.S. 477 (1981).*fn2 The Appellate Division agreed that the statement's admission was erroneous, but found that error harmless. People v. Wood, 835 N.Y.S.2d 414, 415 (2d Dep't 2007). The United States District Court for the Eastern District of New York (Sifton, J.) denied Wood's habeas petition on the same grounds. Wood v. Ercole, No. 08-CV-4850, 2009 WL 1652179, at *12 (E.D.N.Y. June 10, 2009). We must now decide whether the statement's admission violated Wood's right to counsel, and, if so, whether that error had a substantial and injurious effect on the jury's verdict.
I. Investigation and Arrest
On June 2, 2001, Harry entered Ah Wee travel agency in Brooklyn, New York, walked directly up to its owner, Carlisle Hall, and killed him by firing two shots into his chest. A few weeks later, Nisha Bernard ("Bernard"), Wood's ex-girlfriend and Hall's former employee, told police investigators that Wood had hired Harry to commit the crime. Based on that tip, Detective Charles Arnao ("Arnao") took both Wood and Harry into custody.
Wood spent the night of August 24 inside the 71st precinct. At a line-up held the following afternoon, a witness identified Wood as the man he saw arguing with Hall ten days before the murder. Arnao then took Wood to an interrogation room, where Wood, after waiving his rights, provided an account of his activities on the day Hall was murdered. Arnao transcribed Wood's statement and both men signed the document. After signing, Arnao asked Wood if he would "go on video." Wood initially agreed, but then responded: "I think I should get a lawyer." Arnao immediately said "ok," stopped inquiring into Hall's murder, handed Wood a telephone, and left the room. When Arnao returned, he heard the tail-end of Wood's conversation, which he believed "sounded more like a friend than a business" call. Arnao then arranged for video equipment to be brought into the interrogation room. Shortly thereafter, Assistant District Attorney Mark Pagliuco arrived with a video technician, read Wood his rights, and, in Arnao's presence, recorded a brief interrogation.
On videotape, Wood disavowed any responsibility for the murder, but admitted to arriving at the scene in his green Lexus and recalled hearing two gunshots while purchasing "weed" nearby. Wood also spoke of a conversation he had with Harry and a third individual, "Damion,"*fn3 moments before the shooting in which he identified Hall as "the dude that [Bernard] had a problem with," and watched as Harry walked off towards Hall's location. Wood further admitted to giving Harry small amounts of money and marijuana in the days following Hall's murder.
The statement also provided a potential motive for the murder. On the videotape, Wood explained that Hall previously had "filed a complaint against [Bernard]" based on her participation in a fraudulent credit card scheme being run out of the travel agency. Harry, in his own videotaped statement, asserted that Wood, too, was involved in the fraud. Investigators believed that Wood had Hall killed in order to prevent Hall from pursuing fraud charges against him. Based on this evidence, Wood was indicted for Hall's murder.
Prior to trial, defense counsel moved to suppress the line-up identification and both statements. He argued that the government unreasonably delayed Wood's arraignment in order to question him "without the presence of counsel" in violation of the New York State Constitution and the Sixth Amendment. However, defense counsel failed to argue that the videotaped statement's admission at trial would violate Wood's Fifth and Fourteenth Amendment rights under Edwards. See Wood, 835 N.Y.S.2d at 414.
On November 13, 2002, the trial court issued an order suppressing Wood's written statement after concluding that the nearly thirty-hour delay between Wood's arrest and the time he was first read his rights, combined with his informal agreement with Arnao to "speak like men" if he was picked out of the line-up, made this statement "involuntary." Nevertheless, the court admitted Wood's videotaped statement after concluding that the video interrogation was sufficiently attenuated from Arnao's unconstitutional conduct to "purge any taint."*fn4 The trial court also suppressed the eye-witness identification for the independent reason that "highly suggestive comments" by Arnao indicated the "definite presence" in the line-up of the person the witness had seen arguing with Hall before the murder.
During the brief trial, Harry and Bernard testified to Wood's role in the murder; a few other witnesses detailed Hall's injuries and Harry's actions inside the travel agency. In addition, the government played Wood's videotaped statement, which largely confirmed Harry's version of events leading up to the shooting. The only real question before the jury was whether Wood hired Harry to kill Hall or Harry simply took it upon himself to do so. As a result, the prosecution's case rested on Harry's and Bernard's credibility.
A. Testimony of Rasheen Harry
According to Harry, Wood approached him on the morning of June 2 and asked if he "want[ed] to make some money." Wood explained that "some man had raped [Bernard]," and implied that he sought revenge. Harry, twenty-five years old and fresh out of prison, was interested.
The pair traveled together in Wood's white Lexus, presumably to find the man in question. While stopped to change vehicles, Wood told Harry that he wanted him "to kill somebody." Harry agreed, and they drove together towards the travel agency in Wood's green Lexus. Soon after arriving, Wood saw Hall walk by on his way to work and Wood identified him to Harry as "the man that raped [Bernard]." Wood then got out of the car to "go buy some weed" and gave Harry twenty dollars to purchase something to eat.
Upon Wood's return, Harry entered the travel agency and shot Hall twice in the chest. He then passed the gun off to Damion, who was waiting "by the train," and left the scene. Three days later, Harry called Wood asking for money. Wood told Harry to go to a local store owned by Juanchi Hildago ("Hildago"). There, Hildago lent Harry ten dollars. This represented half of the twenty dollars Harry received between the shooting and his arrest. Though Harry claimed Wood had initially offered him $500 for the murder, Harry testified that the subject was never again discussed and payment was never made. In fact, Harry testified that "it wasn't like [Wood] really owed [him the $500]."
Defense counsel's cross examination focused squarely on Harry's credibility. It targeted his lengthy criminal history, his multiple conflicting accounts of the crime, and his incentive to implicate others to obtain leniency.
B. Testimony of Nisha Bernard
The prosecution called Bernard as its final witness. Bernard explained that she and Wood often argued. Bernard's mother sparked a particularly intense fight a few weeks after Hall's death by calling Wood "a murderer." In the heat of that argument, Wood told Bernard that "he could get the same person that killed [Hall] to do the same thing to [her]." Approximately two weeks later Wood shared details of Hall's murder with Bernard and admitted to orchestrating the killing.
Bernard also testified to witnessing a phone call that Wood received from Harry, after which Wood explained that the caller was Hall's killer and that he was asking for money. Bernard then accompanied Wood to Hildago's store, where Wood gave Harry a small amount of cash. Soon after, Bernard contacted the officers investigating the credit card scam and informed them of Wood's role in the murder.
On cross examination, defense counsel noted Bernard's involvement in the credit card scheme and continued contact with Wood even after his arrest, implying that Bernard testified to prevent further charges from being brought against her, even though she never believed Wood was involved in the murder. Bernard also admitted to feeling anger towards Wood. Defense counsel implied that this, and the couple's frequent quarrels, gave her reason to implicate Wood in Hall's murder.
C. Closing Arguments and the Jury's Verdict
Wood's defense was that Harry took it upon himself to kill Hall and then fingered Wood in an attempt to secure leniency. However, the admission of Wood's videotaped statement forced defense counsel to affirm that the events it depicted were for the most part "the way it was." This severely strained the argument that Harry acted independently of Wood and complicated efforts to undermine Harry's credibility, because Wood's own statement placed him at the scene, mere moments before the shooting, and acknowledged that he identified Hall to Harry at that time and place as someone Bernard "had [a] beef with." Nevertheless, defense counsel's summation attempted to discredit the government's key witnesses and paint Harry as a senseless killer.
The prosecutor, in turn, began his summation by characterizing Wood's statement as an attempt "to explain away his presence at the crime scene." He noted that Wood knew both the victim and the shooter, but failed to contact the police after the killing. This demonstrated Wood's guilt, he argued, because "any citizen" would have come forward with such information. The prosecutor then focused squarely on the content of Wood's videotaped statement, arguing that it corroborated Harry's version of events up to the moment of the shooting and, therefore, bolstered the credibility of Harry's entire testimony. To reinforce that point, the prosecutor used details from Wood's statement -the color and make of his car, the number of shots fired, Wood's purchase of marijuana directly before the shooting - to confirm details from Harry's testimony. The prosecutor thus used the statement in an effort to make the jury more likely to credit Harry's version of the actual killing once the stories diverged.
The prosecutor also directly confronted Wood's theory of the case by rejecting the idea of a "senseless" murder. He insisted that Harry was "not some madman. . . . [He was] motivated in life by money." This led the prosecutor to further emphasize Wood's admission that he gave Harry cash and drugs shortly after the murder. He argued: "What possible explanation is there for that? Other than that [Harry] was somehow entitled to that money . . . . There is no other explanation for it."
On the third day of deliberations, the jury found Wood guilty of Murder in the First Degree, concluding that he had hired Harry to kill Hall. See N.Y. Penal Law § 125.27(1)(a)(vi).
Wood appealed his conviction to the Appellate Division of the New York Supreme Court, claiming that the admission of his videotaped statement violated his Fifth and Fourteenth Amendment right to counsel. Wood, 835 N.Y.S.2d at 414. The Appellate Division held that the admission of Wood's statement violated his constitutional rights, but concluded that the error was harmless. Id. at 414-15. Wood's application for leave to appeal to the New York Court of Appeals was denied. People v. Wood, 844 N.Y.S.2d 182 (2007).
On November 25, 2008, Wood petitioned for a writ of habeas corpus in the Eastern District of New York. See 28 U.S.C. § 2554. The district court agreed with Wood and the Appellate Division that Wood's statement "I think I should get a lawyer" was an "unequivocal" invocation of counsel and, therefore, that his videotaped statement should have been suppressed. Wood, 2009 WL 1652179, at *8. Nevertheless, like the state appellate court, it determined that the error "did not have a substantial and injurious effect or influence in determining the jury's verdict" and was therefore harmless. Id. at *12 (internal quotation marks omitted). This appeal followed.
A prisoner held "pursuant to the judgment of a State court" may petition the federal courts for a writ of habeas corpus "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).*fn5 This Court reviews de novo a district court's denial of a petition for habeas corpus. Zappulla v. New York, 391 F.3d 462, 466 (2d Cir. 2004); Lurie v. Wittner, 228 F.3d 113, 121 (2d Cir. 2000).
I. Constitutional Violation
We must first determine whether the state appellate court correctly concluded that admitting the videotaped statement violated Wood's right to counsel. Binding precedent is clear: once a suspect requests counsel, all interrogation must stop until an attorney is provided or the suspect reinitiates conversation. Davis v. United States, 512 U.S. 452, 458 (1994); see also Maryland v. Shatzer, 130 S. Ct. 1213, 1219 (2010); Edwards, 451 U.S. at 485-87; Miranda v. Arizona, 384 U.S. 436, 474 (1966). This important "prophylactic rule [is] designed to prevent police from badgering a defendant into waiving his . . . rights." Michigan v. Harvey, 494 U.S. 344, 350 (1990); see also Montejo v. Louisiana, 129 S. Ct. 2079, 2085 (2009); United States v. Quiroz, 13 F.3d 505, 510 (2d Cir. 1993).*fn6 Evidence collected in violation of a suspect's right to counsel is inadmissible as part of the prosecution's case-in-chief. See Miranda, 384 U.S. at 494; United States v. Morales, 788 F.2d 883, 885 (2d Cir. 1986).
There is no question that Wood's videotaped statement was taken after he stated, "I think I should get a lawyer." To invoke the right to counsel, however, a suspect must speak clearly enough "that a reasonable police officer in the circumstances would understand the ...