255 F.3d 77 (2nd Cir. 2001), 00-2005, Cruz v Miller

Docket Nº:Docket No. 00-2005
Citation:255 F.3d 77
Party Name:SANTOS CRUZ, Petitioner-Appellant, v. DAVID MILLER, Superintendent, Eastern Correctional Facility, Respondent-Appellee.
Case Date:June 22, 2001
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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255 F.3d 77 (2nd Cir. 2001)

SANTOS CRUZ, Petitioner-Appellant,


DAVID MILLER, Superintendent, Eastern Correctional Facility, Respondent-Appellee.

Docket No. 00-2005

United States Court of Appeals, Second Circuit

June 22, 2001

Argued: May 2, 2001

Appeal from the December 12, 1999, judgment, of the United States District Court for the Southern District of New York (Barbara S. Jones, District Judge), denying a petition for habeas corpus. Appellant contends the state courts unreasonably applied Supreme Court law in concluding that the circumstances of his sidewalk interrogation did not place him in custody, requiring Miranda warnings.


Andrea G. Hirsch, New York, N.Y., for petitioner-appellant.

Kimberly Morgan, Asst. Dist. Atty., Bronx, N.Y. (Robert T. Johnson, Dist. Atty., Joseph N. Ferdenzi, Asst. Dist. Atty., Bronx, N.Y., on the brief), for respondent-appellee.

Before: NEWMAN, and CABRANES, Circuit Judges, and UNDERHILL,[*] District Judge.

JON O. NEWMAN, Circuit Judge.

The issue on this appeal from a denial of a writ of habeas corpus is whether the state courts made an "unreasonable application" of clearly established Supreme Court law, see 28 U.S.C.A. §2254(d)(1) (West Supp. 2000), in determining that the circumstances under which a suspect was stopped and questioned on a public street did not result in "custody" requiring Miranda warnings. Santos Cruz appeals from the December 12, 1999, judgment of

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the United States District Court for the Southern District of New York (Barbara S. Jones, District Judge) denying his habeas petition to challenge his state court conviction for murder. After surveying the somewhat uncertain state of the law concerning when a suspect is in "custody" for purposes of requiring Miranda warnings, we conclude that the rejection of Cruz's claim by the state courts was not an unreasonable application of clearly established Supreme Court law. We therefore affirm.


The shooting and questioning. At about 10:30 a.m. on March 26, 1992, two uniformed police officers received a report that an individual had been shot at 1105 Boynton Avenue, an area of the Bronx known for its drug activity. They proceeded to the scene of the crime, where they talked to two witnesses, Jose Alvarez and Luz Arroyo. Alvarez described the shooter as a six-foot tall Hispanic male, wearing a gray hat and black army jacket, who had fled in the direction of the Elder Avenue train station. The officers drove to the station, where they saw an elevated train heading eastbound. They followed the train by car, and at the third stop (Parkchester Station), they saw Cruz exiting the station. Cruz fit Alvarez's description of the shooter.

Officer Thomas Marsich approached Cruz with his gun drawn, and told Cruz, "Police! Don't move! Put your hands up!" The other officer, Paul Daly, also drew his gun. Marsich frisked Cruz, found no weapon, and reholstered his gun. Marsich called on his hand-held radio to the police at the scene of the shooting, asking them to bring the eye-witness to the train station.

Marsich then started to question Cruz without first informing him of his Miranda rights. At the state court pretrial hearing, Marsich recounted the questioning as follows:

Officer Marsich: Where are you coming from?

Petitioner: The Soundview train station.

Officer Marsich: What were you doing down there?

Petitioner: Just copping some dope.

Officer Marsich: Where's the dope?

Petitioner: I did it.

Officer Marsich: Relax. Why are you crying?

Petitioner: I'm crying because you pointed your gun at me. I'm scared. I didn't do anything. I didn't do anything.

Officer Marsich: Okay, no problem. Where did you cop the dope?

Petitioner: I copped it on Stratford Avenue.

Officer Marsich: They don't sell dope on Stratford Avenue that I know of.

Petitioner: Okay. I bought it on Watson then.

Officer Marsich: Where on Watson?

Petitioner: You know, near the restaurant. Near the restaurant.

Officer Marsich: Where? Near Boynton?

Petitioner: No, not Boynton. Down near Wheeler.

Marsich explained that he was trying to use this line of questioning to calm Cruz, who was shaking and very upset throughout the conversation. There were apparently four or five other officers gathered near Cruz when he was being questioned, but it is unclear where they were located relative to Cruz. Cruz was not physically restrained in any way during the questioning. Marsich and Daly acknowledged that had Cruz tried to walk away, they would not have allowed him to leave, but they did

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not tell this to Cruz during the questioning.

The conversation ended when the police car containing Alvarez arrived. After one of the officers nodded to Marsich that Alvarez had identified Cruz, Marsich spoke to Alvarez, arrested Cruz, and then informed Cruz of his Miranda rights.

Huntley Hearing and Trial. Cruz was charged with second-degree murder and related crimes. At a pretrial Huntley hearing, see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838 (1965), in the New York State Supreme Court, Cruz argued that the questioning at the train station was custodial interrogation conducted without Miranda warnings and that his responses should therefore be excluded at trial. The Supreme Court rejected the claim. The Court reasoned that the questioning was not an "interrogation" but rather "investigatory in nature," since the "police officers did not know whether they actually had the right person," and the inquiry was "prior to the time that the show up was conducted for the purpose of the identification." The Court did not explicitly determine whether the circumstances of the questioning resulted in "custody" for purposes of Miranda.

At trial Arroyo and Alvarez testified that Cruz was the shooter. Officer Marsich testified as to his questioning of Cruz at the train station. Before he testified, defense counsel, having lost his Miranda challenge, moved to exclude Cruz's statements on the ground that they concerned an uncharged crime. The Court denied the motion, holding that the statements were relevant to show that Cruz had a "guilty mind in trying to obfuscate his whereabouts in the previous half hour... and to put himself in a location other than where the crime was committed."

The jury acquitted Cruz of second-degree murder but convicted him of first-degree manslaughter. Cruz was sentenced to an indeterminate sentence of 12 1/2 to 25 years.

State Court Appeals. Cruz appealed to the Appellate Division, arguing again that his statements at the train station should have been suppressed. The Appellate Division affirmed the trial court's decision to admit the statements, ruling that "[t]he record supports the hearing court's finding that defendant's statements were not the product of custodial interrogation." People v. Cruz, 233 A.D.2d 102, 102, 649 N.Y.S.2d 429, 430 (1st Dept. 1996). The Court of Appeals affirmed on the ground that the Appellate Division's "ruling constitute[d] a determination on a mixed question of law and fact" and was thus "beyond" its "further review". People v. Cruz, 90 N.Y.2d 961, 962, 665 N.Y.S.2d 46, 47 (1997).

Habeas petition. Cruz then filed a habeas petition in the Southern District of New York, again arguing that he had been unconstitutionally convicted on evidence that should have been suppressed under Miranda. Magistrate Judge Andrew J. Peck did not determine whether Cruz had been subjected to custodial interrogation, but recommended that even if that had occurred, any error in admitting the statements should be considered harmless because it lacked a "substantial and injurious effect or influence in determining the jury's verdict," as required by Brecht v. Abrahamson, 507 U.S. 619, 638 (1993) (internal quotation marks omitted), for issuance of habeas relief. Judge Jones adopted the Magistrate Judge's recommendations, agreeing that any error in failing to suppress the interrogation was harmless in light of the testimony of the two eye-witnesses. Cruz v. Miller, No. 98 Civ. 4311 BSJ, 1999 WL 1144280 (S.D.N.Y. Dec. 2, 1999).

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Although the District Court denied relief on the ground that, if there was error, it was harmless, we need not reach the harmlessness issue, which would require a careful assessment of the significance of Cruz's responses during the sidewalk interrogation against the totality of the evidence, including the probative force of the eye-witnesses' testimony and the extent to which that force was diminished by substantial attacks on their credibility.1 Instead, we resolve the appeal by considering the issue on which the state courts rested their decision: whether Cruz was subjected to custodial interrogation requiring Miranda warnings. In considering that issue, we bear in mind that, although "custody" for purposes of Miranda warnings is a mixed question of law and fact as to which state courts were owed no deference prior to AEDPA, see Thompson v. Keohane, 516 U.S. 99, 112-16 (1995), after AEDPA habeas corpus may not be granted

with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;....

28 U.S.C.A. §2254(d)(1) (emphasis added). Thus, our task is to determine whether the state courts, in ruling that the sidewalk questioning of Cruz did not have to be preceded by Miranda warnings, "unreasonably appli[ed]" Supreme Court law.2

In rejecting Cruz's claim because his responses were "not the product of custodial interrogation," the state courts were ambiguous as to whether they meant that Miranda warnings were not required because the circumstances of the sidewalk questioning did not constitute "custody," compare Miranda v. Arizona, 384 U.S. 436, 465 (1966)...

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