Cotto v. Herbert
| Decision Date | 01 May 2003 |
| Docket Number | Docket No. 01-2694. |
| Citation | 331 F.3d 217 |
| Parties | Richard COTTO, Petitioner-Appellant, v. Victor HERBERT, Warden, Attica Correctional Facility, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Jonathan I. Edelstein, Kew Gardens, N.Y. (Abraham Abramovsky, Fordham University School of Law, New York, NY, on the brief), for Petitioner-Appellant.
Donna Krone, Assistant District Attorney, New York County (Robert M. Morgenthau, District Attorney for New York County, Morrie I. Kleinbart, Assistant District Attorney, on the brief), New York, NY, for Respondent-Appellee.
Before: OAKES, STRAUB, Circuit Judges, and PRESKA, District Judge.*
Shortly before 8:00 p.m. on November 28, 1992, at the corner of East 103rd Street and Second Avenue in Manhattan, Steven Davilla was shot. He died at the hospital four hours later. After approximately a year, petitioner-appellant Richard Cotto was arrested and charged with Davilla's murder. In the months before Cotto's trial began in March 1996, Anthony Echevarria, a neighborhood resident who knew both Cotto and Davilla, told law enforcement officers that he saw Cotto shoot Davilla. When interviewed by detectives shortly after the shooting, Echevarria had given a false name and stated, both orally and in writing, that he could not identify the shooter.
A few days before trial, the lead prosecutor informed the defense that Echevarria would be called as an eyewitness, scheduled to testify on Monday, March 18th. However, Echevarria called the prosecutor on Sunday, March 17th, stating that he feared for the safety of his family, and would not identify Cotto as the shooter if called upon to testify. The prosecutor called Echevarria to the stand anyway, and indeed Echevarria testified on direct examination that he did not see the shooter. After a Sirois hearing, held outside the presence of the jury, in which the prosecution set forth evidence that Cotto had intimidated Echevarria into changing his story, the police officers were permitted to testify about Echevarria's statements inculpating Cotto the week before, and Cotto was convicted. Echevarria was the only eyewitness to the shooting to testify at trial.
In his summation, the prosecutor described Echevarria's taking of the stand, and, seeking to explain the discrepancies between Echevarria's in-court testimony and prior out-of-court statements, said: "The defendant is here, he is confronted by the defendant." Although the prosecutor used the term "confronted" in the physical sense, the question presented by this case is whether Cotto was able to confront Echevarria in the constitutional sense, as guaranteed by the Sixth Amendment.
Due to the number of issues involved in this case, we set out the following table of contents:
BACKGROUND
Cotto appeals from an October 5, 2001 judgment of the United States District Court for the Southern District of New York (Alvin K. Hellerstein, Judge) denying his application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in connection with his April 16, 1996 conviction in the Supreme Court for New York County, following a jury trial, for Murder in the Second Degree, Criminal Use of a Firearm in the First Degree, and Criminal Possession of a Weapon in the Third Degree. Cotto was sentenced to concurrent prison terms totaling 25 years to life, and is now in state prison pursuant to that conviction.
Cotto's trial began on March 15, 1996. After police witnesses testified to the shooting of Davilla, the crime scene investigation and the arrest of Cotto, Echevarria was called as a witness for the prosecution. Echevarria testified that on the evening of November 28, 1992, he was with Davilla on the corner of 103rd Street and Second Avenue, talking, drinking beer and smoking marijuana. While using a payphone, he saw two people across the street in a park, one of whom ran across the street to the sidewalk on Echevarria's side. He then heard someone behind him say "What's up now, money?" and started hearing shots. He testified that he did not see the shooter "[b]ecause once the shots started that was it, I ain't looking at nobody." At that point in the direct testimony, due to the apparent inconsistency between Echevarria's trial testimony and his pretrial statements to law enforcement, the prosecutor asked Echevarria if he recalled his prior conversations with him, and defense counsel objected. The jury was then excused, and Echevarria told the court that he had to "think of [his] family."
During the ensuing colloquy, the prosecution maintained that Echevarria had told them earlier that "some men had approached members of his family" and "gave him reason to believe that there was a contract out on them." In addition, the government alleged, without providing details, that Echevarria's fiancée had expressed fear for herself and her child and that "someone" had approached his mother and sister and inquired into his whereabouts.
At this point, the trial court suggested to the prosecutors that they move for a Sirois hearing — a hearing held in New York criminal cases to determine whether the defendant has procured a witness's absence or unavailability through his own misconduct, and thereby forfeited any hearsay or Confrontation Clause objections to admitting the witness's out-of-court statements. See People v. Geraci, 85 N.Y.2d 359, 625 N.Y.S.2d 469, 649 N.E.2d 817 (1995).1 The prosecution agreed and moved for such a hearing. Their motion was granted, and the hearing was held later that week, outside the presence of the jury.
At the Sirois hearing, the prosecution called Police Officer Wilson Vargas and Detective Hedxan Quinones, who had been present at the March 13 and 14 trial preparation sessions with Echevarria. In each of the sessions, according to these witnesses, Echevarria described the events he saw the night of the shooting, relating that while he was using a telephone on the corner, he saw the defendant cross the street in a crouched manner, holding his hand close to his side. When he reached the corner, the defendant approached Davilla, said "What's up now, money?" while pointing a gun at Davilla, and shot him. Davilla fell backward, stumbled and attempted to run away. Cotto followed, continuing to fire shots, then turned around, looked at Echevarria face-to-face, pointed the gun at him without firing, and fled. Vargas and Quinones further testified that during...
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