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Norcott Corby v. Dale Artus and Eric T. Schneiderman

October 10, 2012


Appeal from a judgment of the United States District Court for the Southern District of New York (Laura T. Swain, Judge) granting a writ of habeas corpus to petitioner-appellee.

The opinion of the court was delivered by: John M. Walker, Jr., Circuit Judge:


Norcott Corby v. Dale Artus, et ano

Argued: April 24, 2012

Before : WINTER, WALKER and CABRANES, Circuit Judges.

The district court held that the New York Court of Appeals erred in concluding that the state trial court permissibly barred cross-examination of the main prosecution witness on the issue of whether she had accused petitioner-appellee of the crimes in question only after being told that petitioner-appellee had accused her. On appeal, respondents- appellants, New York authorities, argue that petitioner-appellee's Confrontation Clause rights were not violated and that even if they were, any violation was harmless. We agree that no Confrontation

Clause violation occurred and therefore REVERSE the judgment of the 2 district court.

15 Respondents-appellants are the Superintendent of New York's 16 Clinton Correctional Facility and the Attorney General of the State 17 of New York (together, the "State"). The State appeals from a 18 judgment of the United States District Court for the Southern 19 District of New York (Laura T. Swain, Judge) granting a writ of 20 habeas corpus to petitioner-appellee Norcott Corby, a New York 21 state inmate by virtue of his New York state convictions for 22 second-degree murder and first-degree robbery. The district court 23 determined that the state trial court violated Corby's 24 Confrontation Clause rights when it prohibited him from cross- 25 examining the prosecution's principal witness about whether she had 26 accused Corby of the crimes at issue only after being told that 27 Corby had accused her. The district court held that the New York 28 Court of Appeals misapplied U.S. Supreme Court precedent in 29 upholding the trial court's ruling and that this error was not 30 harmless.

1 On appeal, the State contends that Corby's Confrontation Clause 2 rights were not violated at his trial and that even if they were, 3 any violation was harmless. We agree with the State that no 4 Confrontation Clause violation occurred and therefore REVERSE the 5 judgment of the district court.


7 The factual and procedural history of this case is set forth 8 in the prior opinions of the district court and state courts. See 9 Corby v. Artus, 783 F. Supp. 2d 547, 550-53 (S.D.N.Y. 2011); People 10 v. Corby, 6 N.Y.3d 231, 232-34 (2005); People v. Norcott, 15 A.D.3d 11 14, 15-18 (1st Dep't 2004). For present purposes, it suffices to 12 summarize the background for this appeal as follows:

I. Factual Background

14 Corby was tried and convicted by a jury in New York Supreme 15 Court for second-degree (felony) murder and first-degree robbery, 16 see N.Y. Penal Law §§ 125.25(3), 160.15(2), in connection with the 17 death of Yousef Mohammed. Mohammed was a drug dealer from San 18 Francisco who had traveled to New York City to sell heroin to 19 Corby. He was killed in the apartment of Xanderia Burnett, who was 20 the prosecution's principal witness against Corby, and the only 21 witness who testified directly about the events surrounding 22 Mohammed's death.

Burnett testified as follows: She agreed to let Corby -- who 24 previously had dated her mother and whom she had not seen in years 25 -- use her Upper Manhattan apartment to conduct his drug deal with 3 1 Mohammed in exchange for $1500. On the night of the deal, she saw 2 Corby and two of his associates go into a back room in her 3 apartment, presumably where Mohammed was waiting. When they 4 emerged, Burnett saw Mohammed lying on a bed, dead, with his hands 5 tied behind his back and blood pouring out of his head. At Corby's 6 instruction, Burnett helped Corby and his associates steal drugs 7 from Mohammed's hotel room, remove Mohammed's body from her 8 apartment and clean up the blood. After the murder, Corby 9 continued to stay at Burnett's apartment for several months. He 10 threatened to kill her and her family if she reported him.

11 Approximately a week after the murder, New York police 12 officers discovered Mohammed's body in a gutter. They found 13 Burnett's contact information in Mohammed's hotel room and 14 Detective John Bourges, who was in charge of investigating 15 Mohammed's death, visited Burnett's apartment. Burnett, who 16 testified that Corby threatened to kill her son if she spoke to 17 Bourges about the murder, claimed to know nothing about it. 18 In April 1996, Corby was sentenced to prison on an unrelated 19 parole violation. Burnett testified that the following January, 20 after she learned that Corby was being released, she moved with her 21 family to Philadelphia because she still feared him. She admitted 22 to having stolen money that Corby left behind in her apartment.

23 In April 1998, following his release from prison, Corby met 24 with Agent Robert Hom of the DEA, seeking to become a paid 25 informant. He also sought the DEA's help in tracking down Burnett, 4 1 who, he explained, had stolen from him. Hom refused the offer and 2 suggested that Corby report the theft to local authorities, which 3 Corby declined to do. About a week later, Corby returned and 4 provided Hom with specific information about certain drug-related 5 crimes. In particular, he told Hom that he had distributed heroin 6 for Yousef Mohammed and that Burnett "might have been involved" in 7 Mohammed's death. Corby claimed that he had been in Burnett's 8 apartment with Burnett, Mohammed and another, that he left to visit 9 his parole officer, and that Mohammed was dead when he returned.

10 While Corby admitted to helping dispose of Mohammed's body, he 11 claimed not to have been involved in the murder itself. Hom 12 relayed this conversation to Detective Bourges. 13 In July 1998 -- more than two years after Mohammed's murder -- 14 Bourges and another detective paid Burnett another visit, this time 15 at her Philadelphia residence. Burnett claimed not to recognize a 16 photograph of Mohammed. Bourges then told Burnett that he had 17 spoken with Corby and that Corby had accused Burnett of murdering 18 Mohammed. This statement was incorrect for two reasons: Corby had 19 met with DEA Agent Hom, not Bourges, and Corby had only said that 20 Burnett "might have been involved" in Mohammed's murder. But, 21 after hearing about Corby's alleged accusation, Burnett began 22 crying and accompanied the detectives to the local precinct, where 23 she was given Miranda warnings. There, for the first time, Burnett 5 1 implicated Corby in Mohammed's death. Corby was arrested several 2 months later.*fn2

While the foregoing account of Corby's April 1998 interview 4 with Hom and of Bourges's subsequent visit to Burnett's 5 Philadelphia residence was elicited at a pretrial hearing, not all 6 of this information was made explicit to the jury at Corby's trial. 7 Specifically, although the jury learned that Corby had spoken with 8 the DEA about Mohammed's murder, and that Bourges later discussed 9 that meeting with Burnett, the jury never was explicitly told that 10 Corby claimed that Burnett "might have been involved" in Mohammed's 11 murder or that Bourges later told Burnett (incorrectly) that Corby 12 had accused her of the crime.

II. Corby's Trial and the Cross-Examination at Issue 14 In November 1998, a New York grand jury indicted Corby for 15 second-degree murder and first-degree robbery in connection with 16 Mohammed's death. In March 2000, Corby was tried by a jury in New 17 York Supreme Court for these crimes, convicted on both counts and 18 sentenced to concurrent prison terms of 25 years to life and 12 1/2 19 to 25 years, which he is currently serving.

At trial, Corby's lawyer cross-examined Burnett -- the sole 21 testifying witness to the murder -- about her personal history, her 22 account of Mohammed's murder and her accusation of Corby. In 23 particular, counsel focused on Burnett's delayed implication of Corby in Mohammed's murder. Corby's lawyer confronted Burnett with her original claim to law enforcement that she knew nothing of Mohammed's murder. He elicited that Burnett did not accuse Corby 4 of this crime until after Bourges visited her in Philadelphia and 5 told her (incorrectly) that Bourges -- rather than Agent Hom -- had 6 met with Corby. And he established that, after Bourges told 7 Burnett about that meeting, Bourges took Burnett to the local 8 precinct and gave her Miranda warnings.

The trial court, however, sustained the prosecution's 10 objection when Corby's attorney began to inquire into what Bourges 11 had told Burnett about the substance of Corby's alleged meeting 12 with Bourges. The trial judge and counsel for both sides then 13 engaged in a lengthy colloquy over what Corby's lawyer hoped to 14 elicit from Burnett and why. Corby's lawyer explained that he 15 wanted the jury to learn that Bourges told Burnett that Corby had 16 accused her of murdering Mohammed and that it was only then that 17 Burnett accused Corby of the crime. The defense's theory was that 18 Burnett and another had murdered Mohammed, and that when Burnett 19 learned of Corby's accusation against her, she acquired a strong 20 motive to lie and shift the blame falsely to Corby. Counsel 21 explained that he wanted to craft the cross-examination question to 22 identify Corby as the source of the accusation against Burnett 23 because Burnett would have feared that the police would find such 24 an accusation credible, as it would have come from an "individual 25 who was there, and saw [Burnett] do it." Appendix ("A.") 104.

1 Later, however, Corby's attorney proposed a compromise in which he 2 would leave Corby's name out and ask Burnett only whether Bourges 3 had told her that someone -- without specifying who -- had accused 4 her of the murder.

5 The trial court agreed with the prosecution that the sought 6 cross-examination was improper. It noted that, up to that point in 7 the trial, it had given Corby's lawyer "every latitude" in cross- 8 examining Burnett. Id. at 110. And, while Corby had the right to 9 offer evidence that Burnett had killed Mohammed and that she 10 therefore had a motive to falsely accuse Corby, the issue was how 11 Corby could introduce such evidence. The judge concluded that the 12 line of questioning sought by Corby's attorney invited the jury to 13 speculate about whether Corby in fact had accused Burnett. The 14 trial court was worried that, by cross-examining Burnett as to what 15 Bourges said Corby had said, Corby's attorney was trying to 16 introduce to the jury through cross-examination (1) Corby's defense 17 that Burnett had killed Mohammed, and (2) Corby's statement 18 implicating her in the crime. The judge said he found this 19 troublesome because Corby's implication of Burnett was unreliable 20 (Corby had made it self-servingly while seeking the DEA's help in 21 tracking down Burnett) and Bourges told Burnett something different 22 from what Corby had told DEA Agent Hom. The trial court was 23 worried that introducing such an accusation this way was unduly 24 prejudicial to the government because the prosecution could not 8 1 cross-examine Corby, who was protected by the Fifth Amendment and 2 did not testify, as to the accusation's veracity.

3 The trial court ruled that, while Corby's lawyer could ask 4 Burnett whether Bourges had told her that he had spoken with Corby 5 about Mohammed's murder, counsel could not inquire into the 6 substance of what Bourges claimed Corby had said. It further 7 observed that if Corby wanted to introduce an accusation against 8 Burnett, he could take the stand himself and be subject to cross- 9 examination on the accusation. The trial court rejected Corby's 10 lawyer's compromise suggestion that he be allowed to ask Burnett 11 whether Bourges had said that some unidentified person had accused 12 Burnett of the murder. In the judge's view, counsel still was 13 trying to introduce an accusation that was made in unreliable and 14 self-serving circumstances without permitting cross-examination of 15 that accusation.

Following the trial court's ruling, Corby's lawyer continued 17 his cross-examination of Burnett, which included the following 18 exchange:

19 Q. What actually happened was, after Bourges confronted you with information, he then asked you to come with him to a police station; right?

A. I broke down in my ...

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