Corby v. Artus, No. 11-1650 (2d Cir. 2012)
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Respondents, New York authorities, appealed from the district court's grant of a writ of habeas corpus to petitioner. 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 of the crimes in question only after being told that petitioner had accused her. On appeal, respondents argued that petitioner's Confrontation Clause rights were not violated and that even if they were, any violation was harmless. The court agreed that no Confrontation Clause violation occurred and therefore reversed the judgment.
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11-1650-pr Norcott Corby v. Dale Artus, et ano 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term 2011 4 (Argued: April 24, 2012 Decided: October 10, 2012) 5 6 Docket No. 11-1650 --------------------------------------------------------x 7 NORCOTT CORBY, 8 Petitioner-Appellee, 9 10 -- v. -DALE ARTUS and ERIC T. SCHNEIDERMAN,1 11 Respondents-Appellants. 12 --------------------------------------------------------x 13 B e f o r e : 14 WINTER, WALKER and CABRANES, Circuit Judges. Appeal from a judgment of the United States District Court for 15 the Southern District of New York (Laura T. Swain, Judge) granting 16 a writ of habeas corpus to petitioner-appellee. 17 held that the New York Court of Appeals erred in concluding that 18 the state trial court permissibly barred cross-examination of the 19 main prosecution witness on the issue of whether she had accused 20 petitioner-appellee of the crimes in question only after being told 21 that petitioner-appellee had accused her. 22 appellants, New York authorities, argue that petitioner-appellee s 23 Confrontation Clause rights were not violated and that even if they 24 were, any violation was harmless. The district court On appeal, respondents- We agree that no Confrontation 1 The Clerk of the Court is directed to amend the official caption as set forth above to reflect the substitution of the current New York Attorney General. See Fed. R. App. P. 43(c)(2). 1 1 Clause violation occurred and therefore REVERSE the judgment of the 2 district court. 3 4 5 6 7 8 9 10 11 12 13 14 15 KAREN SCHLOSSBERG, Assistant District Attorney (Alan Gadlin, Assistant District Attorney, on the brief), for Cyrus Vance, Jr., District Attorney, New York County, NY, for Respondents-Appellants. ALAN S. AXELROD, Legal Aid Society, New York, NY, for PetitionerAppellee. JOHN M. WALKER, JR., Circuit Judge: 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 ). 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. 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. 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. The State appeals from a The district court The district court held that the New York 2 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. 4 Confrontation Clause violation occurred and therefore REVERSE the 5 judgment of the district court. 6 We agree with the State that no BACKGROUND 7 The factual and procedural history of this case is set forth 8 in the prior opinions of the district court and state courts. 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). 12 summarize the background for this appeal as follows: 13 I. 14 See For present purposes, it suffices to Factual Background 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. 18 Francisco who had traveled to New York City to sell heroin to 19 Corby. 20 the prosecution s principal witness against Corby, and the only 21 witness who testified directly about the events surrounding 22 Mohammed s death. 23 Mohammed was a drug dealer from San He was killed in the apartment of Xanderia Burnett, who was 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. 2 Corby and two of his associates go into a back room in her 3 apartment, presumably where Mohammed was waiting. 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. 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. 9 continued to stay at Burnett s apartment for several months. 10 11 On the night of the deal, she saw When they At Corby s After the murder, Corby He threatened to kill her and her family if she reported him. Approximately a week after the murder, New York police 12 officers discovered Mohammed s body in a gutter. 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. 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 They found Burnett, who In April 1996, Corby was sentenced to prison on an unrelated 19 parole violation. 20 after she learned that Corby was being released, she moved with her 21 family to Philadelphia because she still feared him. 22 to having stolen money that Corby left behind in her apartment. 23 Burnett testified that the following January, She admitted 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. 2 suggested that Corby report the theft to local authorities, which 3 Corby declined to do. 4 provided Hom with specific information about certain drug-related 5 crimes. 6 for Yousef Mohammed and that Burnett might have been involved in 7 Mohammed s death. 8 apartment with Burnett, Mohammed and another, that he left to visit 9 his parole officer, and that Mohammed was dead when he returned. Hom refused the offer and About a week later, Corby returned and In particular, he told Hom that he had distributed heroin Corby claimed that he had been in Burnett s 10 While Corby admitted to helping dispose of Mohammed s body, he 11 claimed not to have been involved in the murder itself. 12 relayed this conversation to Detective Bourges. Hom 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. 16 photograph of Mohammed. 17 spoken with Corby and that Corby had accused Burnett of murdering 18 Mohammed. 19 met with DEA Agent Hom, not Bourges, and Corby had only said that 20 Burnett might have been involved in Mohammed s murder. 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. Burnett claimed not to recognize a Bourges then told Burnett that he had This statement was incorrect for two reasons: Corby had But, There, for the first time, Burnett 5 1 implicated Corby in Mohammed s death. 2 months later.2 3 Corby was arrested several 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. 13 II. 14 Corby s Trial and the Cross-Examination at Issue 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. 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. 20 In March 2000, Corby was tried by a jury in New 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. 23 particular, counsel focused on Burnett s delayed implication of 2 In Bourges did not arrest Corby s associates because he ultimately was unable to locate them. 6 1 Corby in Mohammed s murder. 2 her original claim to law enforcement that she knew nothing of 3 Mohammed s murder. 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. 7 Burnett about that meeting, Bourges took Burnett to the local 8 precinct and gave her Miranda warnings. 9 Corby s lawyer confronted Burnett with He elicited that Burnett did not accuse Corby And he established that, after Bourges told 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. 13 engaged in a lengthy colloquy over what Corby s lawyer hoped to 14 elicit from Burnett and why. 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. 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. 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. The trial judge and counsel for both sides then Corby s lawyer explained that he 7 The defense s theory was that Counsel 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. 7 the trial, it had given Corby s lawyer every latitude in cross- 8 examining Burnett. 9 offer evidence that Burnett had killed Mohammed and that she Id. at 110. It noted that, up to that point in And, while Corby had the right to 10 therefore had a motive to falsely accuse Corby, the issue was how 11 Corby could introduce such evidence. 12 line of questioning sought by Corby s attorney invited the jury to 13 speculate about whether Corby in fact had accused Burnett. 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. 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. 23 worried that introducing such an accusation this way was unduly 24 prejudicial to the government because the prosecution could not The judge concluded that the The The judge said he found this 8 The trial court was 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. 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. It further 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. 13 trying to introduce an accusation that was made in unreliable and 14 self-serving circumstances without permitting cross-examination of 15 that accusation. 16 In the judge s view, counsel still was Following the trial court s ruling, Corby s lawyer continued 17 his cross-examination of Burnett, which included the following 18 exchange: 19 20 21 22 23 24 25 26 27 28 29 30 31 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 kitchen. Q. Yes. A. Right after that. Q. You began to cry? A. Then I went to the precinct. 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Q. Then you were asked to accompany the detective to the precinct; right? A. Yes. Q. In a police car? You went to the precinct; right? A. Yes. . . . Q. [The police detectives] sat you down, right? A. Yes. Q. They told you they wanted to talk to you; is that right? A. Yes. Q. And then they read you your Miranda rights; right? A. Yes. Q. They told you that anything you said could be used against you; right? A. Yes. Q. And that s the first time you told any police officer that Norcott Corby was involved in this case; right? A: Yes. 35 Id. at 137-39. 36 III. Procedural Background 37 38 Corby challenged his conviction, first through the New York state appellate courts and now through federal habeas review. 39 A. 40 Among Corby s points on direct appeal, he argued that the 41 Direct Appeal trial court had violated his Confrontation Clause rights under the 10 1 U.S. Constitution by precluding him from asking Burnett whether 2 Detective Bourges told her that Corby had accused her of Mohammed s 3 murder before she first implicated Corby. 4 In December 2004, the Appellate Division rejected Corby s 5 argument. 6 panel majority stated that a strong argument could be made that 7 the trial court properly exercised its discretion in excluding the 8 testimony, but that it was not necessary to decide the issue 9 because any error was harmless, given that Burnett s motive to lie People v. Norcott, 15 A.D.3d 14 (1st Dep t 2004). The 10 was abundantly clear to the jury. 11 however, would have overturned the conviction because, in its view, 12 Corby s right of cross-examination was eviscerated because the 13 trial court had prevented Corby from asking the key question of 14 what prompted Burnett to change her mind, i.e., to point the 15 finger at Corby after more than a year of not doing so. 16 (Andrias, J., dissenting). 17 probative of Burnett s motive to fabricate evidence against Corby 18 not only to divert attention from her admitted participation, but 19 also in revenge for [Corby] allegedly implicating her. 20 32. 21 Id. at 23. The dissent, Id. at 34 It opined that this question was Id. at In December 2005, the New York Court of Appeals affirmed the 22 decision of the Appellate Division. 23 (2005). 24 reached the question of whether the trial court had erred, and 25 determined that it had not. People v. Corby, 6 N.Y.3d 231 Unlike the state intermediate court, the Court of Appeals The Court of Appeals held that the 11 1 ruling was a proper exercise of the trial judge s discretion and 2 that Burnett s motive to lie and to implicate Corby was apparent 3 notwithstanding the challenged evidentiary ruling. 4 that [a]ny additional evidence of Burnett s bias or motive to lie 5 . . . would have been cumulative and of little probative value, 6 whereas Corby s requested cross-examination would have caused jury 7 speculation and confusion as to the truth of [the] purported 8 accusation. 9 concluded that the trial court s ruling was erroneous. Id. at 236. It reasoned In dissent, Judge George Bundy Smith Like the 10 dissenter in the Appellate Division, he determined that the trial 11 court s ruling prevented Corby from eliciting that Burnett had a 12 specific motive to retaliate against Corby for his alleged 13 accusation by pointing the finger back at him. 14 Smith, J., dissenting). Id. at 239-40 (G.B. 15 B. 16 Following the New York Court of Appeals s affirmance of his This Habeas Petition 17 conviction, Corby filed a 28 U.S.C. § 2254 petition in the district 18 court for a writ of habeas corpus. 19 and recommendation to the district court concluded that the New 20 York Court of Appeals s ruling was in harmony with Supreme Court 21 jurisprudence. 22 2008 WL 8430550, at *10 (S.D.N.Y. Sept. 10, 2008). 23 court disagreed. 24 appellate courts, the district court believed that the exclusion 25 of evidence regarding the alleged accusation eliminated a specific, The magistrate judge s report Corby v. Artus, No. 06 Civ. 15291 (LTS) (KNF), The district Like the dissenting opinions from the state 12 1 prototypical ground for bias from the jury s consideration : 2 retaliation bias. 3 (S.D.N.Y. 2011). 4 court had exceeded its discretion by prohibiting all inquiry into 5 [this] one prototypical form of bias. 6 conclude that the error was not harmless, id. at 557-59, and 7 therefore granted the writ. Corby v. Artus, 783 F. Supp. 2d 547, 556 The district court concluded that the state trial Id. at 557. It went on to The State appeals. 8 DISCUSSION 9 The sole claim before us is whether the New York Court of 10 Appeals erred in upholding the state trial court s limitation of 11 Corby s cross-examination of the prosecution s principal witness, 12 Burnett. 13 him of his Sixth Amendment right to confront witnesses against him 14 and that the Court of Appeals misapplied Sixth Amendment precedent 15 in concluding otherwise. 16 I. 17 Corby argues that the state trial court s ruling deprived Right of Cross-Examination The Confrontation Clause of the Sixth Amendment guarantees 18 the right of an accused in a criminal prosecution to be confronted 19 with the witnesses against him. 20 U.S. 673, 678 (1986) (quoting U.S. Const. amend VI). 21 defendant a meaningful opportunity to cross-examine witnesses 22 against him in order to show bias or improper motive for their 23 testimony. 24 [A] criminal defendant states a violation of the Confrontation 25 Clause by showing that he was prohibited from engaging in otherwise Delaware v. Van Arsdall, 475 It affords a Brinson v. Walker, 547 F.3d 387, 392 (2d Cir. 2008). 13 1 appropriate cross-examination designed to show a prototypical form 2 of bias on the part of the witness. Van Arsdall, 475 U.S. at 680. 3 The right of cross-examination, however, is not absolute. 4 [T]he Confrontation Clause guarantees an opportunity for effective 5 cross-examination, not cross-examination that is effective in 6 whatever way, and to whatever extent, the defense might wish. 7 Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam) 8 (emphasis omitted). 9 restrict cross-examination based on concerns about, among other A trial judge retains wide latitude to 10 things, harassment, prejudice, confusion of the issues, the 11 witness safety, or interrogation that is repetitive or only 12 marginally relevant. 13 Watson v. Greene, 640 F.3d 501, 510 (2d Cir. 2011) (the decision 14 to restrict cross-examination will be reversed only when the court 15 has abused its broad discretion (internal quotation marks 16 omitted)). 17 with other determinations of admissibility of evidence, courts 18 balance prejudice versus probative value. 19 510. 20 II. 21 Van Arsdall, 475 U.S. at 679; see also To determine the propriety of cross-examination, as Watson, 640 F.3d at Standard of Review We review a district court s ruling on a petition for a writ 22 of habeas corpus de novo. 23 Cir. 2002). 24 25 Overton v. Newton, 295 F.3d 270, 275 (2d A federal habeas application by a state inmate may not be granted regarding a claim that was adjudicated on the merits in 14 1 state court unless that adjudication resulted in either a decision 2 that was contrary to, or involved an unreasonable application of, 3 clearly established Federal law, as determined by the Supreme Court 4 of the United States, or a decision that was based on an 5 unreasonable determination of the facts. 6 (2). 7 because the New York Court of Appeals unreasonably applied the 8 Supreme Court s Confrontation Clause jurisprudence in affirming the 9 state trial court s limitation of his cross-examination of Burnett. 28 U.S.C. § 2254(d)(1), Corby contends that his petition falls in the former category 10 See, e.g., Williams v. Taylor, 529 U.S. 362, 409-13 (2000); Cotto 11 v. Herbert, 331 F.3d 217, 247-48 (2d Cir. 2003). 12 III. Analysis 13 We agree with the analysis of the New York Court of Appeals 14 that the state trial court did not abuse its discretion in limiting 15 Corby s cross-examination of Burnett. 16 36. 17 deflect the investigators attention from herself, given her deep 18 involvement in the events surrounding Mohammed s murder: the murder 19 occurred in her apartment and she helped steal drugs from the 20 victim, remove the body from the apartment and clean up the blood. 21 And the evidence of Burnett s hostility towards Corby - her 22 testimony that he had threatened her and her family, and her 23 admission that she had stolen from him - established that, to the 24 extent she would falsely accuse anyone, Corby was the most 25 plausible candidate. See Corby, 6 N.Y.3d at 235- Corby was able to show that Burnett had a motive to lie to Id. at 235. 15 Thus, any additional evidence 1 of Burnett s motive to falsely shift blame to Corby would have been 2 cumulative and of little additional probative value, but would have 3 been unduly prejudicial to the prosecution for the reasons stated 4 at sidebar by the state trial court. 5 cross-examination of Burnett therefore was not an abuse of 6 discretion. The limitation of Corby s 7 Corby, however, argues that, even if the jury heard some 8 evidence of Burnett s motive to lie and to implicate him, the state 9 trial court s ruling had the effect of prohibiting all inquiry into 10 retaliation bias, i.e., Burnett s alleged motivation to retaliate 11 against Corby for his alleged accusation against her by pointing 12 the finger back at him. 13 Supreme Court s statement in Van Arsdall that: For this argument, Corby relies on the 14 15 16 17 18 19 20 21 22 475 U.S. at 680 (internal quotation marks and modification 23 omitted). 24 32, 35 (Andrias, J., dissenting), the New York Court of Appeals 25 dissent, Corby, 6 N.Y.3d at 238-39 (G.B. Smith, J., dissenting), 26 and the district court, Corby, 783 F. Supp. 2d at 554, all were 27 persuaded by this retaliation-bias argument and relied on Van 28 Arsdall in concluding that Corby s conviction should be overturned. 29 For two reasons, we disagree with their conclusion. [A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby to expose to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness. The Appellate Division dissent, Norcott, 15 A.D.3d at 16 1 A. 2 At the sidebar regarding Corby s cross-examination of Burnett, Corby Failed to Argue Retaliation Bias at Trial 3 Corby s lawyer did not argue that the sought cross-examination 4 would be relevant to prove retaliation bias. 5 that (1) he wanted to ask about the relayed accusation against 6 Burnett to prove that she had a motive to shift blame away from 7 herself, and (2) he wanted the jury to know that the accusation 8 came from Corby because in that case, Burnett s motive to lie would 9 be greater, as she would fear that the authorities would believe an Instead, he contended 10 accusation coming from someone who had witnessed the events in 11 question. 12 would have foreclosed any retaliation argument: he would forgo 13 specifying that Corby was the person who had accused Burnett if he 14 could ask only whether some unidentified person had accused her. 15 Because the retaliation-bias argument was not presented to the 16 trial judge, it could not have been an abuse of that judge s 17 discretion not to rule in Corby s favor on this basis. 18 v. Gorczyk, 273 F.3d 212, 222 (2d Cir. 2001). Later, Corby s lawyer even proposed a compromise that See Fuller 19 In a subsequent motion, made to and denied by the state trial 20 court after Burnett was dismissed as a witness, Corby request[ed] 21 that either Ms. Burnett be recalled for further cross-examination 22 solely with regard to [her motive to lie], or that a mistrial be 23 granted. 24 - specifically, the second sentence of the following passage -- 25 arguably implied the retaliation-bias theory of relevance: Supplemental Appendix 3. 17 One statement in that motion 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Id. at 7-8. 15 in the context of this passage and buried in counsel s motion, was 16 not sufficient to alert the trial judge to a new theory of 17 retaliation-bias relevance. 18 argued that the trial court had created error of Constitutional 19 dimension, id. at 3, and that the restriction [imposed] was 20 fundamental error, id. at 4. 21 arguments advanced at the sidebar, and nowhere suggested that it 22 was advancing a new theory of relevance. 23 not required to read between the lines of counsel s motion to 24 divine a previously unasserted legal theory, and it would undermine 25 our system of federalism to disturb a state-court conviction on 26 federal habeas review based on that judge s failure to do so. [W]ere the jury to hear that the defendant was accusing her, then the jurors would have a fact from which they could infer that she has a specific motive to cast blame on another. Were the Jury to hear that it was the defendant who was accusing her, then the jurors would have a fact from which they could infer that Ms. Burnett has a particular motive to lie against this defendant. Were the jury to hear that the defendant was accusing her, and that the Detective was confronting her with this material, then the jurors would have a fact from which they could infer that she has a motive to avoid being investigated herself. We conclude, however, that this single statement, read The motion was backward-looking - it To that end, it reiterated the The state trial judge was 27 B. 28 Furthermore, and in any case, our precedent makes clear that The Desired Testimony Was Admitted by Implication 29 the facts Corby sought to elicit from Burnett were effectively 30 before the jury at his trial. 18 1 In Bruton v. United States, 391 U.S. 123 (1968), the Supreme 2 Court held that a defendant s right to confront witnesses includes 3 the right not to have the incriminating hearsay statements of non- 4 testifying co-defendants admitted against him. 5 16 F.3d 38 (2d Cir. 1994), we held that the Bruton principle must 6 be applied to exclude testimony when an arresting officer would 7 testify that after a conversation with a co-defendant, he went 8 looking for the defendant, because that testimony implies that the 9 co-defendant had accused the defendant. In Mason v. Scully, Id. at 42-44; see also 10 Ryan v. Miller, 303 F.3d 231, 250 (2d Cir. 2002) ( The relevant 11 question is whether the way the prosecutor solicited the testimony 12 . . . ma[d]e obvious to the jury the content of the conversation -- 13 an accusation against [the defendant] -- and the source . . . even 14 though it did not directly state this information. ). 15 Here, without objection, Corby s lawyer elicited from Burnett 16 the very information that would require exclusion under Mason and 17 Ryan because it demonstrates the accusation; namely, that (1) 18 Detective Bourges claimed to have met with Corby and discussed 19 Mohammed s murder, (2) Bourges proceeded to track down Burnett in 20 Philadelphia and tell her about his purported conversation with 21 Corby, and (3) at that point, Burnett broke down in tears and was 22 taken in a police car to the police station, where she was given 23 Miranda warnings. 24 implication of this chronology was the substance of that which 25 Corby argues he was unable to present to the jury: that Burnett As recognized by Mason and Ryan, the plain 19 1 believed Corby had implicated her in Mohammed s murder when she 2 first accused him. 3 precluded from expos[ing] to the jury the facts from which the 4 jurors could appropriately draw inferences relating to the 5 reliability of Burnett, Van Arsdall, 475 U.S. at 680, specifically 6 as to whether she accused him in retaliation for his accusation 7 against her. 8 Confrontation Clause rights. It therefore cannot be said that Corby was Consequently, there was no violation of Corby s 9 10 * * * Because we hold that no constitutional violation occurred, we 11 need not consider whether any error was harmless. 12 however, that the district court applied an incorrect harmless 13 error standard (harmless beyond a reasonable doubt) in this case. 14 Corby, 783 F. Supp. 2d at 557-58. 15 is whether a constitutional error was harmless beyond a reasonable 16 doubt, see Chapman v. California, 386 U.S. 18, 24 (1967), in 17 deciding federal habeas claims by state prisoners, because of the 18 deference we afford to state courts, we find an error harmless 19 unless it had substantial and injurious effect or influence in 20 determining the jury s verdict. 21 (2007) (citations and internal quotation marks omitted). 22 23 We note, While the test on direct appeal Fry v. Pliler, 551 U.S. 112, 116 CONCLUSION We have considered all of Corby s arguments on appeal and find 24 them to be without merit. 25 Corby s petition for a writ of habeas corpus is REVERSED. The district court s order granting 20
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