396 F.3d 210 (2nd Cir. 2005), 04-2188, Rosa v. McCray

Docket Nº:04-2188-PR.
Citation:396 F.3d 210
Party Name:Jose ROSA, Petitioner-Appellee, v. Frank McCRAY, Respondent-Appellant, and Eliot L. Spitzer, Respondent.
Case Date:January 27, 2005
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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396 F.3d 210 (2nd Cir. 2005)

Jose ROSA, Petitioner-Appellee,


Frank McCRAY, Respondent-Appellant,


Eliot L. Spitzer, Respondent.

No. 04-2188-PR.

United States Court of Appeals, Second Circuit

January 27, 2005

Argued: Oct. 5, 2004

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Lawrence T. Hausman, The Legal Aid Society, Criminal Appeals Bureau, New York, N.Y., for Petitioner-Appellee.

Andrew N. Sacher, Assistant District Attorney, Bronx County (Joseph N. Ferdenzi, Assistant District Attorney; Robert T. Johnson, District Attorney, Bronx County, on the brief), Bronx, N.Y., for Respondents-Appellants.

Before: MINER, CABRANES, and STRAUB, Circuit Judges.

Judge STRAUB concurs in part and dissents in part in a separate opinion.

MINER, Circuit Judge:

The question presented is whether, absent Miranda warnings, the admission at trial of an unsolicited comment by a defendant to a police officer--volunteered as an additional response to a "pedigree" question during booking--violates the defendant's Fifth Amendment right to be free from self-incrimination.

Respondents-appellants appeal from a judgment entered April 1, 2004, in the United States District Court for the Southern District of New York (Motley, J.) granting the application of the petitioner-appellee, Jose Rosa ("Rosa" or "petitioner"), for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. The District Court determined that the constitutional aspect of petitioner's claim had been fairly presented to the state courts and, therefore, that the claim had been exhausted. Rosa v. McCray, 2004 WL 736859, at *5-*6, 2004 U.S. Dist. LEXIS 5740, at *14-*18 (S.D.N.Y. Apr. 5, 2004).

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We agree with that determination. We conclude, however, that the District Court erred in determining that the police detective should have known that his inquiry regarding the natural color of the petitioner's hair was reasonably likely to evoke an incriminating response and, therefore, that Miranda warnings should have been given. For the reasons that follow, we hold that the state courts' application of clearly established federal law, as determined by the United States Supreme Court, was objectively reasonable, and, accordingly, the application for a writ of habeas corpus should have been denied.


On September 5, 1997, at approximately 7:25 p.m., Juana Hernandez ("Hernandez") was robbed by two men. Hernandez, who made a living going from restaurant to restaurant selling jewelry, had just left a restaurant in the Bronx when Rosa, along with another man, approached Hernandez. They pushed her up against a car; demanded her bag while pointing a gun into her stomach; and then grabbed her bag and ran away. Hernandez had in her bag at the time of the robbery somewhere between $4000 and $5000 worth of jewelry--an amount representing her entire inventory. After her assailants fled, Hernandez received help from a couple in a car, who drove her to a police station. At the police station, Hernandez met with Detectives José Arroyo ("Arroyo") and Thomas Fitzgerald ("Fitzgerald"). Hernandez provided to the detectives a detailed description of the robbers, including the man with the gun. During that interview, Hernandez told Arroyo that the robber with the gun had brown hair, with the ends slightly lighter. Later that evening, Arroyo and Fitzgerald led Hernandez on an unsuccessful canvass of the area where the robbery had occurred.

At approximately 3:30 p.m. on the following day, September 6, 1997, Hernandez saw Rosa standing on the sidewalk. She identified him as the robber with the gun, despite his hair being a different color (blonde) than that of her assailant (brown). She approached nearby police officers, told them that she had been robbed by Rosa the night before, and gave them Arroyo's business card. The officers took Rosa into custody.

Once Rosa was in custody, Fitzgerald was assigned to the case. Arroyo served as an interpreter for Fitzgerald while Fitzgerald completed an on-line booking sheet. Arroyo asked Rosa a series of "pedigree" questions (pertaining to, for example, Rosa's name, date of birth, age, race, height, weight, eye color, and--the subject of this appeal--hair color). As to Rosa's hair color, Arroyo--noticing that Rosa's hair was bright blonde, including the roots--asked Rosa: "What is your real hair color" Rosa responded: "Brown. I colored my hair yesterday." Arroyo translated Rosa's statement for Fitzgerald.

In an indictment filed on September 18, 1997, a Bronx County grand jury charged Rosa with Robbery in the First Degree, in violation of New York Penal Law § 160.15(4); Robbery in the Second Degree, in violation of New York Penal Law § 160.10(1); and Criminal Possession of Stolen Property in the Fourth Degree, in violation of New York Penal Law § 165.45(1), for the September 5, 1997 robbery of Hernandez. Rosa was convicted in the Supreme Court of the State of New York, Bronx County, following a jury trial, of all counts set forth in the indictment. He was sentenced to concurrent indeterminate terms of imprisonment of seven-to-fourteen years, six-to-twelve years, and two-to-four years on the respective counts.

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At trial, the State sought to introduce Rosa's statements, made in response to Arroyo's questioning for completion of the post-arrest booking form, that Rosa's natural hair color was brown and that he had dyed it blonde on the day after the robbery. Defense counsel moved to preclude the statements because the prosecutor had not given Rosa notice, pursuant to New York Criminal Procedure Law § 710.30 (New York's pre-trial notice statute), of their intended use. 1 The prosecutor, citing People v. Rodney, 85 N.Y.2d 289, 624 N.Y.S.2d 95, 648 N.E.2d 471 (1995), argued that the statements were within the "pedigree exception" and, therefore, that notice was not required.

The trial judge held an evidentiary hearing, outside the presence of the jury, regarding the admissibility of Rosa's response to Arroyo during the booking process. Arroyo, the only witness to testify at the hearing, testified: that he had spoken with Hernandez the day before his processing interview of Rosa and, at that time, had completed a complaint report that included her description of Rosa's appearance, including hair color; that Arroyo had noted in the complaint report that Rosa's hair color was brown; and that during the processing interview the following day, Arroyo questioned Rosa in Spanish and translated the answers into English for Fitzgerald, who completed the booking sheet. Arroyo further testified that booking sheets include, inter alia, a physical description of the defendant "so [the police] know who he or she is."

During the booking process and while completing the booking form, as Arroyo explained at the hearing, he noticed that Rosa's hair was "bright flaming blonde." This observation led Arroyo to believe Rosa's hair had been dyed. Arroyo asked Rosa: "What is your real hair color?" According to Arroyo, Rosa responded: "Brown, but I colored it yesterday." Arroyo asserted that he did not record Rosa's response but did translate it from Spanish to English for Fitzgerald. Arroyo also testified at the evidentiary hearing that the purpose of asking Rosa's real hair color was to ascertain the correct color of the arrestee's hair for the required administrative report: "You just want to make sure, when I put the hair color down to identify the individual, his hair is really blonde, black and not colored. And his eyebrows were darker color than the hair, so I asked what is his real hair color .... I just wanted to make sure for the report." The booking sheet contained a space to note any "wig/hair dye," but that space apparently was left blank by Fitzgerald. In addition, the space on the form for hair color was marked "BL" for blonde.

Following the evidentiary hearing, the Bronx County Supreme Court ruled that

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Rosa's responses to the booking questions could be admitted into evidence, holding that they fell within the pedigree exception to New York's Criminal Procedure Law § 710.30. The judge stated:

[I]t's my view that the questions asked by the detective, as testified to at the hearing, were asked for legitimate processing purposes and that their intent was to obtain accurate information, as distinct from incriminating information. The question--all of the questions, but particularly the question regarding hair color, clearly corresponded to portions of the form that were being filled out. I conclude that the questions were incident to ordinary--to the ordinary booking process and did not require notice. I would also note that the color of one's hair is not an element of this crime or of any crime. And when compared to other cases that have discussed what pedigree is, it seems to me that this is well within pedigree, so [Rosa's] motion to preclude is denied.

Rosa, 2004 WL 736859, at *1-*2, 2004 U.S. Dist. LEXIS 5740, at *3-*4 (quoting the trial judge's determination).

At trial, Hernandez testified that she had been robbed by two men, and testified to the following facts. One of the men, whom she identified as Rosa, pointed a gun at her during the robbery. His face was six or seven inches from Hernandez when he demanded that she give him her bag, which contained her entire inventory of jewelry. Hernandez looked directly at the petitioner's face and exclaimed: "Don't be bad, please don't take the bag.... My father is sick, I'm working for him." Hernandez testified that Rosa, in response, exclaimed: "Don't look at me, don't look at me ... give me your bag." During the robbery, which lasted about three minutes, Hernandez recognized Rosa as a man that she had seen in the street earlier that same day.

Hernandez also testified that,...

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