204 F.3d 360 (2nd Cir. 2000), 98-2686, Morgan v Bennett

Docket Nº:Docket No. 98-2686
Citation:204 F.3d 360
Party Name:DARIUS MORGAN, Petitioner-Appellant, v. FLOYD BENNETT, Superintendent, Elmira Correctional Facility, Respondent-Appellee.
Case Date:February 28, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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204 F.3d 360 (2nd Cir. 2000)

DARIUS MORGAN, Petitioner-Appellant,

v.

FLOYD BENNETT, Superintendent, Elmira Correctional Facility, Respondent-Appellee.

Docket No. 98-2686

United States Court of Appeals, Second Circuit

February 28, 2000

Argued: October 20, 1999

Appeal from a judgment of the United States District Court for the Eastern District of New York, Edward R. Korman, Judge, denying petition for habeas corpus alleging deprivation of rights to confer with counsel and to confront witnesses.

Affirmed in part, vacated in part, and remanded.

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HARRY JHO, New Haven, Connecticut (Brett Dignam, The Jerome N. Frank Legal Services Organization, New Haven, Connecticut, on the brief), for Petitioner-Appellant.

CAMILLE O'HARA GILLESPIE, Assistant District Attorney, Brooklyn, New York (Charles J. Hynes, District Attorney for

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Kings County, Roseann B. MacKechnie, Assistant District Attorney, Brooklyn, New York, on the brief), for Respondent-Appellee.

Before: KEARSE, MINER, and LEVAL, Circuit Judges.

KEARSE, Circuit Judge:

Petitioner Darius Morgan, a New York State ("State") prisoner convicted of murder and attempted murder, appeals from a judgment of the United States District Court for the Eastern District of New York, Edward R. Korman, Judge, denying his petition pursuant to 28 U.S.C. §2254 (1994 & Supp. II 1996) for a writ of habeas corpus alleging principally that his Sixth Amendment right to counsel was infringed when the trial court ordered his attorney not to disclose to him that a certain witness was to testify on the following day. Morgan also alleged, inter alia, that his Sixth Amendment right to confront the witness was abridged by other rulings of the trial court. The district court held that the trial court's instruction to Morgan's attorney was not impermissible and ruled that Morgan's confrontation claim was procedurally barred. Morgan challenges these rulings on appeal. For the reasons that follow, we reject his assistance-of-counsel claim, and we affirm the denial of his petition to the extent that it dismissed that claim. However, we conclude that his confrontation claim is not procedurally barred, and we vacate and remand for further proceedings with respect to that claim.

I. BACKGROUND

During the early morning hours of February 27, 1987, in an apartment in Brooklyn, New York, Denise Hill was shot and wounded; her friend Rachel Layne was shot and died shortly thereafter. Hill had known Morgan prior to these events, having bought drugs from him and having begun a sexual relationship with him. While hospitalized after the shooting, Hill selected Morgan's picture from a photographic array, identifying him as the shooter. Morgan was arrested and charged with murder and attempted murder. Hill was scheduled to testify at his trial.

Prior to trial, Morgan moved to suppress Hill's identification testimony. At a suppression hearing held on May 15, 1989, Hill described her relationship with Morgan and gave a more detailed account of the above events. The court denied the motion to suppress.

A. The Events Preceding Hill's Testimony at Trial

On May 30, 1989, after Morgan's trial had begun but before Hill testified, a court officer informed the court that Morgan had spoken to Hill outside of the courtroom, stating "You look good," and asking her, "Are you with me or what?" (Trial Transcript ("Tr.") 162­63.) Although Morgan's attorney stated that Morgan had merely nodded at Hill, the court admonished Morgan and warned him against further attempts at communication.

Later that day, Hill was called to testify. Shortly before she was to be brought into the courtroom, however, she stated that she would not take the witness stand, and she threatened to "take the fifth" unless she could speak with prosecutors. (Tr. 231-32.) Thereafter, in a conference conducted outside the presence of Morgan and the jury, the prosecutor informed the court that Hill was "terrified of testifying against" Morgan and "feared for her family's safety and especially the safety of her daughter." (Tr. 233.) The prosecutor stated that, according to Hill (who was herself then incarcerated on an unrelated charge), two associates of Morgan, "Charles Brown," better known as "Chucky," and "Marty," had visited her in jail and said they knew that she was to be the principal witness at Morgan's trial. They stated that Morgan was "facing too much time" and "proceeded to ask her about her eight-year old daughter" in a

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way that Hill found disturbing. (Tr. 234.) On other occasions, Marty had approached Hill's mother and sister in a threatening manner. (Tr. 235.)

The prosecutor requested that the proceedings be adjourned for the day so that she could prepare a motion for a "Sirois hearing," i.e., a hearing to determine whether a witness's unavailability or unwillingness to testify was caused by misconduct on the part of the defendant, such that "the defendant will be deemed to have waived any objection to the admissibility of the witness' prior Grand Jury testimony and said testimony may be admitted as direct evidence at the defendant's trial." Holtzman v. Hellenbrand, 92 A.D.2d 405, 415, 460 N.Y.S.2d 591, 597 (2d Dep't 1983) (per curiam). Over Morgan's objection, the court granted the adjournment.

On the following morning, in a conference from which Morgan was excluded, the court notified counsel that it had been informed by a court officer that after the previous day's adjournment, Morgan had blown a kiss to Hill as he was being returned to his holding cell, and said, "I love you too. You don't have to worry about nothing. You took good care of it." (Tr. 249-50.) After the court officer was questioned, the prosecutor elaborated on the fears that had been expressed by Hill. According to Hill, Chucky and Marty had visited her in jail after she testified at the suppression hearing. They told her that if she testified at trial, they could not guarantee that nothing would happen to her family. They stated that they could, however, guarantee that nothing would happen to her family if she did not testify.

Following a luncheon recess, the conference resumed and the prosecutor reported that Hill remained concerned for her safety but was wavering about whether or not to testify. The court decided to grant the motion for a Sirois hearing, and it instructed the prosecutor to have her other witnesses brought to court. After calling her office, the prosecutor informed the court that Hill had now indicated that although she "was still afraid ... she would take the stand and testify." (Tr. 280.) Because the court had not yet obtained counsel to represent Hill in connection with the possible invocation of her Fifth Amendment privilege against self-incrimination, however, Hill could not be called to testify until the next day. The court decided to begin the Sirois hearing in case Hill changed her mind a third time and refused to testify. The court noted that if Hill testified the following morning, the hearing would be abandoned as unnecessary.

Before adjourning the conference and opening the Sirois hearing, the court instructed Morgan's counsel "not to discuss with your client . . . that Miss Hill may take the stand tomorrow once the jury is brought up and may testify in connection with the trial proper." (Tr. 284.) The court stated that the revived expectation that Hill would testify was "[t]he only thing I am directing you not to discuss with your client." (Id.) Although counsel objected and argued that the restriction was improper, he stated that he would comply.

The Sirois hearing was begun that afternoon, with Morgan present. One witness, a police detective, described in detail Hill's fears and the threats Hill had reported receiving from Morgan and his associates. As it turned out, however, the Sirois hearing was not completed because on the following morning, June1, Hill testified.

B. Hill's Testimony and the Proposed Impeachment Evidence

To the extent pertinent here, Hill testified at trial that she had gone to the apartment on February 23, 1987, to buy drugs and had remained there through the early morning hours of February 27, when the shootings occurred. With her at the apartment were Morgan, Layne, and a man known to Hill as "Monk." In the wee hours of February 27, Hill, Layne, Monk,

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and Monk's brother Randy were in the living room of the apartment smoking crack cocaine.

Between 6:00 and 6:30 a.m., Morgan briefly left the apartment, returning in a state of agitation because he could not find his car and asking what had happened to it. When no one could provide an answer, Morgan said, "Y'all don't tell me what happened to my car, I'm going to murder everybody in here." (Tr. 364.) He asked Monk and Randy, "If I murder, if I knock them off, would y'all tell on me?" (Id.) After Monk and Randy said they would not, Morgan pulled out a gun and shot Hill in the knee and back. He shot and wounded Layne, who vainly sought refuge in another room; she was pursued by Morgan who shot her repeatedly, inflicting wounds that proved to be...

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