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Darryl Whitley v. Robert Ercole

June 7, 2011


The opinion of the court was delivered by: Debra Ann Livingston, Circuit Judge:


Whitley v. Ercole

(Argued: December 2, 2010 )

Before: RAGGI, LIVINGSTON, and CHIN, Circuit Judges.

Petitioner-appellee Darryl Whitley ("Whitley") commenced this action in the United States District Court for the Southern District of New York (Alvin K. Hellerstein, Judge) seeking a writ of habeas corpus to overturn his conviction in New York State court on one count of murder. Petitioner, whose first trial on these charges resulted in a hung jury, principally challenges admission at his second trial of the transcript of testimony offered by a State witness at the first without informing the jury that the witness had, since the first trial, "recanted." The district court granted the petition, finding Sixth and Fourteenth Amendment error in the trial court's admission of the transcript without disclosing to the jury the ostensible recantation. Because we conclude that theclaim was not properly raised and preserved before the trial court and was thus procedurally defaulted under New York state law, we reverse the judgment of the district court and remand for further proceedings not inconsistent with this opinion.


On November 2, 1981, a young doctor and soon-to-be-father was shot and killed in a petty street robbery gone awry outside of Columbia Presbyterian Hospital in the Washington Heights neighborhood of Manhattan. The ensuing investigation led New York City police to petitionerappellee Darryl Whitley, who was arrested and tried on one count of felony murder in the second degree. Whitley's first trial resulted in a hung jury. At his second trial, the State presented, inter alia, three witnesses who took the stand and testified that Whitley had admitted his involvement in the murder. On this record, a properly instructed state court jury returned a verdict of guilty on the sole count of the indictment. On direct appeal, New York's Appellate Division affirmed the conviction, People v. Whitley, 14 A.D.3d 403 (1st Dep't 2005), and the New York Court of Appeals denied leave to appeal, People v. Whitley, 4 N.Y.3d 892 (2005).

Whitley then filed the instant action in the Southern District of New York (Alvin K. Hellerstein, Judge), seeking a writ of habeas corpus relieving him from the state court judgment of conviction. See 28 U.S.C. § 2254.*fn2 His petition principally challenges the admission, at his second trial, of the transcript of testimony offered by a State witness at his first trial after that witness, Glenn Richardson, invoked his Fifth Amendment right against self-incrimination and refused to participate in the second proceeding. Whitley, who contends that Richardson "recanted" his testimony from the first trial, argues that admission of the transcript at the second trial, without mention of the ostensible "recantation," violated his clearly established federal rights. Despite the fact that New York State's Appellate Division rejected the very same claim on direct appeal on the ground that Whitley had failed properly to raise and preserve it before the trial court, the district court declined to deem the claim procedurally defaulted and instead proceeded to address its merits. The court found that even though no request was ever made by Whitley's trial counsel to admit the alleged "recantation," the trial court's failure to ensure that the jury heard of it at the second trial rendered this trial "unfair," thereby violating his Sixth and Fourteenth Amendment rights.

Because the Appellate Division correctly determined that Whitley failed to lodge a contemporaneous objection before the trial court and thus to preserve the federal claim for appellate review as required by well-established state law, see N.Y. Crim. Proc. Law § 470.05(2), we conclude that its decision affirming the conviction rests on a state law ground independent of the federal claim and adequate to support the judgment. Accordingly, federal habeas review of Whitley's claim is foreclosed. We thus reverse the judgment of the district court.


On November 2, 1981, Dr. John Chase Wood was returning to work a night shift at Columbia Presbyterian Hospital after visiting his pregnant wife at home when he was set upon by two young men seeking prescription drugs and blank prescription forms. When Dr. Wood was unable to produce either, the men began to accost him, searching his person for anything of value. The young doctor resisted and, in the ensuing scuffle, one of the assailants produced a .22 caliber handgun and fired two shots, one of which pierced the victim's chest. Dr. Wood died shortly thereafter at the same hospital at which he had worked until that night.

The robbery and murder remained unsolved for over a decade while New York City detectives pursued various leads. The investigation ultimately led police to two men: Patrick Raynard McDowell and petitioner Whitley. Whitley was indicted on felony murder charges in March 1995 and was thereafter tried.*fn3

A. The Trials

1. Whitley's First Trial

Whitley's first trial took place in November-December 1997. The government's evidence consisted principally of the testimony of an eyewitness to the crime, Dorothy Howze, and three friends of Whitley's--Gregory Howard, Donald Caines, and Glenn Richardson. Howze testified to having seen two teenagers approach Dr. Wood on the night in question before an argument ensued and shots were fired. Howze, who was able to pick McDowell out of a photo array, further testified that, shortly after the gunfire, one of the "kids" said "something to the effect of . . . it wasn't necessary" to which the other replied "it just happened."

The State's other principal witnesses, Howard, Caines, and Richardson--all of whom were longtime friends of Whitley's with criminal records of their own--testified, in sum and substance, that Whitley had admitted his involvement in the crime in separate, private conversations with each of them. Howard, for example, testified to a conversation the two men had shortly after Howard was arrested and questioned "concerning [the] doctor that got killed." According to Howard's testimony, when he subsequently spoke with Whitley about the incident, Whitley stated: "It was me and [McDowell] that did the doctor." Caines similarly testified that, while incarcerated with Whitley in 1983, Whitley confessed to him that Whitley and McDowell "did the doctor."

Richardson, who testified pursuant to a cooperation agreement with federal authorities in connection with pending federal charges against him, testified that he, Whitley, and McDowell grew up together on the same block in Harlem. In the fall of 1981, McDowell asked Richardson for a gun and Richardson loaned him a .22 caliber handgun. According to Richardson, when he attempted to retrieve the gun shortly after he first heard about the murder of Wood, McDowell refused to return it because it was "dirty"--that is, it had been used in a crime. Richardson then attempted to confirm this with Whitley. According to Richardson's testimony, when asked about the gun, Whitley replied: "[D]id [you] hear about the doctor being killed on Riverside Drive[]?" When Richardson acknowledged that he had heard about "the doctor," Whitley "got silent" and then "in pig latin" said "he didn't have to do that." Prompted by the prosecutor, Richardson then added that "I think" Whitley also said that Whitley and McDowell were on Riverside Drive, looking for someone to rob, when the doctor "came along and [McDowell] shot him."

All four witnesses were subject to extensive cross-examination. With respect to Whitley's three acquaintances, defense counsel elicited that each had a lengthy criminal history of his own and that each received various benefits in return for his testimony. With respect to Richardson in particular, defense counsel also inquired into a letter Richardson had previously written to the judge presiding over the pending federal charges against him, alleging that he had been pressured by the New York City detectives investigating the Wood homicide who, according to Richardson, seemed "very eager" to solve this "high profile case with a lot of press." Richardson further conceded on cross that in his initial interview with Detective Gennaro Giorgio, the lead detective on the case, Richardson had attributed to McDowell--and not to Whitley--the specific statement that the two men had gone to Riverside Drive looking to rob someone and had ultimately shot the doctor.*fn4

On this record, a jury was unable to reach a verdict, and a mistrial was declared.

2. Richardson's "Recantation"

The State began preparing to retry Whitley in the fall of 2001. At that time, Richardson, who had since been released from prison and apparently no longer felt bound by the terms of his cooperation agreement, indicated that he did not intend to honor the State's subpoena for his testimony at the retrial. At a pretrial hearing held on November 26, 2001, New York Supreme Court Justice Budd Goodman explored the nature of Richardson's unwillingness to testify, asking him whether he recalled making his initial statement to Detective Giorgio on May 10, 1994. Richardson, who was represented by counsel, first stated that he remembered making the statement but that he "was not clear and conscious during that statement." Richardson was then placed under oath, at which point he claimed, first, not to remember making the statement, before taking the position that "I made it--I might have made the statement but I don't recall the whole content of the statement." After ...

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