The opinion of the court was delivered by: Dearie, Judge.
Carlos Evans, serving a fifteen-year sentence on his 2002 convictions for burglary, assault and criminal possession of a weapon, petitions for a writ of habeas corpus pursuant to Title 28 U.S.C. § 2254, as amended by the Antiterrorism and Death Penalty Act of 1996, Pub. L. No. 104-132, § 104, 110 Stat. 1214 ("AEDPA").
The focus of the petition is the admission at petitioner's trial of an unsworn, highly detailed seven-page hearsay narrative, penned by the state's key trial witness, containing the most damaging evidence and nearly the entirety of the state's case. Admitted for its substance without a limiting instruction, the document was touted by the prosecutor during summation and furnished to the jurors, upon their request, at the outset of deliberations. Petitioner claims that the document's effect, as well as the state's objective in offering it, was essentially to supplant the witness's poor performance on the stand, and to nullify his primary defense, which consisted of a compelling impeachment of that testimony. He argues that he was denied due process because his conviction rests principally on this hearsay rather than the trial testimony.
The state appellate court held that the trial court's decision to admit the hearsay document was error in three distinct ways and not reconcilable with any extant evidentiary theory, but the appellate court nonetheless rejected petitioner's claim that the ensuing unfairness was of constitutional magnitude. Under the unique circumstances and considerations addressed below, however, I conclude that the state appellate court unreasonably applied controlling Supreme Court holdings, which have long embodied the principle that the fundamental fairness guarantee of the Due Process Clause prohibits the state from obtaining a criminal conviction in the manner in which the State secured petitioner's. As this Memorandum explains, the record reveals manifest trial error of enormously prejudicial consequences, indeed a very thwarting of the trial as a trial. Mindful of the strict limits of my jurisdiction under AEDPA, I am compelled to conclude that the state appellate court's rejection of the due process claim on these facts was not merely error but objectively unreasonable, and I accordingly grant the petition.
Testimony of Aisha Walker
I begin, as did the state at petitioner's trial, with the in-court testimony of the witness who authored the hearsay document whose admission ultimately transformed the proceedings. That witness is Aisha Walker.*fn1
Walker lived in a condominium complex in the Canarsie section of Brooklyn; Jimmy Omitogun lived in the same complex, in an apartment only a few doors away. The two units were similarly configured duplexes, each with an upper-story window leading out to the same roof.
Walker first met Omitogun during the summer of 2001. At that time, Walker was employed part-time as a dancer at Sweet Cherry, an adult club in Sunset Park. At Omitogun's request, Walker agreed to perform private dance shows, for a fee, in Omitogun's apartment. She visited him several times for this purpose and had occasion to admire his possessions.
On August 15, 2001, while Walker was at home socializing with a group that included petitioner, Hudson Merzier (a co-defendant), Anthony Foster (the other co-defendant) and one of Walker's Sweet Cherry co-workers, Foster suddenly remarked to the group that he was going to rob Omitogun.*fn2 Foster then went to the roof to look through the skylight into Omitogun's apartment and commented upon its resemblance to Walker's. He eventually enlisted Walker, Merzier, and petitioner to assist him with his plan to rob Omitogun. Walker agreed to "[a]llow them to use [her] apartment" while petitioner "was basically just going to follow" Foster. Merzier initially did not want to participate, but eventually agreed to stay in Walker's apartment and serve as lookout, and also to drive a getaway vehicle. Foster, however, was "the ringleader" and "[e]verything was his idea." Walker, Merzier and petitioner never discussed weapons, but Foster said he had a gun and would use it if necessary.
Walker, Merzier and petitioner spent most of the next day (August 16, 2001) shopping together. While on her way home, at around 9:30 p.m., Walker received a phone call from Omitogun, who asked her to round up girls from the club to dance for him and his friends. Walker told Omitogun that she had to start work in half an hour but would come by after her shift. Walker was in the company of petitioner and Merzier when she received this call; she shared the contents of the conversation with them, but petitioner did not react. Later, however, when Walker, Merzier and petitioner were back in Walker's apartment, petitioner said that he was planning to rob Omitogun that night and asked Walker what time she thought Omitogun would be home. Walker then left for the Sweet Cherry, while petitioner remained in Walker's apartment.
Shortly after she arrived at the Sweet Cherry, Walker telephoned Omitogun to ask whether he was going to pay for the other dancers he wanted her to bring.*fn3 About an hour later, while she was still at the Sweet Cherry, Walker phoned Merzier, who reported that he was in her (i.e., Walker's) apartment, and that Foster and petitioner were in Omitogun's apartment "robbing him."
While Walker was heading home from the club between midnight and 1:00 a.m., she received a telephone call from Omitogun; he told her that he had just been robbed, and then he "put somebody else on the phone" who, in Walker's words, "threatened" her. The voice said "he's not stupid" and that he "wants his money back along with his things." Merzier and Walker then phoned each other several times; Merzier told Walker that he could not leave her apartment because the area was surrounded by police cars and helicopters, while Walker told Merzier she had been threatened and was heading to the nearest police precinct.
The prosecution also elicited from Walker, during direct, that she had previously made three statements to the police that were inconsistent with her trial testimony. As to the first of the three, Walker testified that shortly after receiving the call from Omitogun telling her that he had been robbed, Walker went to the police station, where she asked Officer Hecht if she "could be escorted home because [she] was being threatened." T. 72. Walker decided to go to the police station both because she was afraid of "being busted" and because she "was threatened."
T. 72. When complaining to Hecht of the threat, Walker did not mention anything about the events that had occurred in Omitogun's apartment, nor did she say who had threatened her. T. 72-74. Because all of Hecht's officers were occupied with a homicide investigation (coincidentally, on the block where Walker lived), he told Walker to go somewhere else for a while and return at a later time. T. 73.
Approximately an hour later, after spending time at her cousin's house around the corner from the police station, Walker returned to the precinct and made a statement to Detective Ahern, and sometime after that, having again left and again returned to the precinct, she told "something else" to Detective Rivera. T. 75-77. Walker "basically told [Rivera] that [she] had nothing to do with it, that [she] didn't leave anybody in [her] apartment. And that was basically it . . . [that she] didn't have anything to do with it." T. 76. Walker also told Detective Rivera that petitioner and Foster "had discussed robbing" Omitogun.
The prosecution concluded the subject of Walker's prior statements by eliciting from her the fact that she also prepared a written statement:
Q. Now, you mentioned that you spoke to Detective [ ] Rivera, is that correct?
Q. Did you write out your statement?
The prosecution also asked Walker on direct, briefly, about only one feature of the written statement's contents:
Q. Now, you are saying that you don't remember mentioning [co-defendant Merzier] in your statement? (Defense objection)
The Court: You tell us what you said?
A. I said basically I just said [Merzier] was present.
Q. You said he was present?
Q. So, you did mention [Merzier's] name in your written statement, correct? (Defense objection)
The Court: Sustained, asked and answered. (T. 77).
Finally, the prosecution brought out that Walker was herself eventually implicated in the crime and that, nearly a year after she gave her cluster of false statements to the police, indicted for her role. Only a week before trial she formally entered a cooperation agreement, pursuant to which she testified against petitioner and Merzier in exchange for a five-year probationary sentence. (Foster, the ringleader, absconded before trial, and Merzier was acquitted of all charges).
On cross-examination, the defense probed the substance of the several prior inconsistent statements that Walker had referred to on direct. The examination exposed that Walker had lied at will, flagrantly and even sensationally, throughout her several conversations with the police in the hours following the crime. Asked to elaborate upon her conversation with Officer Hecht, Walker stated that she had told Hecht that the reason she was threatened was that someone was robbed and had accused her (wrongly, according to her) of having been involved in it:
Q. So, a woman comes to a police precinct, speaks to a police officer, tells them they have been threaten[ed], doesn't take your name, doesn't ask who threaten[ed] you and tells you come back some later time, that's your testimony?
A. Yes, it is. (T. 92-93).
Walker further admitted that she "did lie" (T. 93):
Q. So you told the officer at that time whatever it was that suited your own best interest according to you at that moment, isn't that true?
A. You can say that. (T. 93)
Walker also admitted that she "made a conscious decision to go back to the precinct an hour later and tell [ ] another false story," this time to Detective Ahern. In speaking with Ahern, Walker "basically lied and said [she] had nothing to do with it" and "ha[d] no knowledge of who robbed [Omitogun]." T. 98. She also said that she "didn't leave anybody in her apartment" or give anyone permission to be there. T. 98-99. Walker eventually accompanied the police to her home and stood by as Merzier, Foster and petitioner were arrested for burglarizing her unit, while she denied that she even knew who they were. T. 100-102. Later, back at the precinct, Walker swore out a complaint to the same effect. T. 103. Walker agreed that throughout that episode she would "say and do whatever suit[ed her] interest at the moment," and that she did so "deliberately and consciously." T. 100, 101.
On the subject of Walker's next statement, the testimony was as follows:
Q. Now, this is all before you change your story again at about maybe some point later that day. Do you remember you spoke again to another officer? Now, this is the third officer by the name of Rivera? Do you remember that?
Q. And you gave a completely different version from version one and version two, isn't that correct?
Q. And you did that because at that moment, that statement suited your interest, isn't that correct?
A. (Objection interposed and overruled). Yes.
Q. Whether it was partially true or totally untrue or police leading . . . it was irrelevant to you. The only thing that that was relevant was suiting your own interest?
A. Right. It was more out of fear, but.
Q. Well, you made a conscious decision. No one force[d] you to make a statement to the police again later on that day after you had already made two prior statements. No once force[d] you to make it, right?
A. (Objection interposed and overruled.) Nobody force[d] me to make a statement. . . .
Q. So you made a conscious decision on your own to again lie to the police, right?
Q. And when you made this long statement to the police, which was not true, you didn't say anything at all about you being involved in this in any way, is that correct?
Q. And that of course suited your own interest, right?
The cross-examination also addressed Walker's decision to enter into a cooperation agreement (T. 107-111, 142-43), casting it as not as the source a new motive to fabricate but as yet another instance of Walker's general proclivity to lie to serve her own interests. The pertinent portions of the examinations are as follows:
By counsel for petitioner:
Q. So basically now what you are doing on the stand is you're avoiding five years imprisonment by telling another version of the story different from the three ...