Christie v. Hollins

• Decision Date: 27 May 2005
• Docket Number: Docket No. 03-2878.
• Citation: 409 F.3d 120
• Parties: Conway CHRISTIE, Petitioner-Appellant, v. Melvin HOLLINS, Superintendent, Oneida Correctional Facility, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

409 F.3d 120

Conway CHRISTIE, Petitioner-Appellant, v. Melvin HOLLINS, Superintendent, Oneida Correctional Facility, Respondent-Appellee.

Docket No. 03-2878.

United States Court of Appeals, Second Circuit.

Argued: December 16, 2004.

Decided: May 27, 2005.

Jeffrey T. Scott, New York, N.Y. (David Crow, Andrew C. Fine, The Legal Aid Society, New York, N.Y., on the brief), for Petitioner-Appellant.

Eliot Spitzer, N.Y. State Atty. General, New York, N.Y., Michael S. Belohlavek, Deputy Solicitor General, Robin A. Forshaw, Asst. Solicitor General, Laurie M. Israel, Asst. Atty. General, New York, N.Y., submitted a brief for Respondent-Appellee.

Before: NEWMAN, POOLER, and KATZMANN, Circuit Judges.

JON O. NEWMAN, Circuit Judge.

This appeal of the denial of a writ of habeas corpus concerns a claim that a state court's exclusion of the testimony of a defense witness, given at a prior trial, resulted in a conviction obtained in violation of the constitutional right to a fair trial. Conway Christie appeals from the October 14, 2003, judgment of the District Court for the Southern District of New York (Michael B. Mukasey, Chief Judge), denying his petition for a writ of habeas corpus to challenge his state court conviction for criminal possession of a weapon in the third degree. Mindful of the deferential standard for assessing state court rulings when considering habeas corpus relief, we nonetheless conclude that under the especially compelling circumstances of this case, the exclusion of the defense witness's prior testimony was "an unreasonable application of[] clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). We therefore reverse.

Background

Christie has been tried twice in state court for offenses arising out of the firing of a gun that occurred in 1996 at an outdoor rap concert on 125th Street near 7th Avenue in Manhattan. Understanding the nature of Christie's claim and the circumstances that bear on its disposition requires an account of the relevant facts of both of his state court trials.

At the first trial, Christie faced three counts: criminal possession of a weapon in the second degree, in violation of N.Y. Penal Law § 265.03; criminal possession of a weapon in the third degree, in violation of N.Y. Penal Law § 265.02[4]; and reckless endangerment in the first degree, in violation of N.Y. Penal Law § 120.25. The core allegation supporting these charges was that, in or near a crowd of several thousand people attending an outdoor concert, Christie had pointed a gun in the air and fired several shots.

The prosecution presented four witnesses, including three police officers who were present at the scene. Their testimony, detailed below in recounting the evidence at the second trial, sought to establish that Christie had been seen holding the gun and firing it. The defense presented testimony from five witnesses, all friends of Christie's, who had been with him at the concert. They each testified that they had not seen Christie with a gun at any time on the day of the concert. Of the five defense eye-witnesses, four had criminal records, but, pertinent to this appeal, the fifth witness, Violet Smith, did not. Christie denied having a gun or firing one. The prosecutor's summation urged the jury not to believe the four defense witnesses who had criminal records.

The jury acquitted Christie of criminal possession of a weapon in the second degree and reckless endangerment in the first degree. On the count charging criminal possession of a weapon in the third degree, the jury was unable to reach a verdict, and the trial judge declared a mistrial.

At the second trial, Christie faced only the charge of criminal possession of a weapon in the third degree. The prosecution agreed with the defense that the only issue was whether the defendant had the gun. To prove possession, the prosecution presented the same police witnesses from the first trial: Officers Richard Breece and Rodney Vargas and Sergeant Stephen Barrett. All three officers testified that they heard shots while performing crowd-control duties at the concert, but their accounts of the incident were somewhat inconsistent. Officer Breece testified that he heard shots at 7:40 p.m., which caused people at the concert to stampede, many moving to both sides of the barricades that had been set up. After hearing the first shot, Breece, who had been facing the concert stage, turned and saw Christie fire two shots. Breece said Christie was then standing in the street. Sergeant Barrett also testified that he saw Christie fire a gun, but he said that Christie was on the sidewalk and in a "crouched position" and "going down with each shot."

Officer Breece testified that he ran toward Christie, who ran behind a female in the crowd and, after the female fled, Christie threw the gun to the ground just before being tackled by Breece and other officers, including Sergeant Barrett. Sergeant Barrett testified that he was less than five feet away from Christie and that no one was near Christie. Barrett also said that he saw Christie throw the gun to the ground just before being tackled, but he denied that he had tackled Christie. Officer Vargas testified that he saw Officer Breece and Christie rolling around on the ground and, during the scuffle, "this gun came out from in between them." Officer Vargas testified that he picked up the gun and unloaded ammunition from it. Sergeant Barrett testified that he was the one who unloaded the gun. Officer Breece testified that after the arrest, Christie made incriminating statements. Sergeant Barrett testified that Christie denied guilt while in police custody.

Christie testified in his own defense. He denied possessing or firing a gun at any time on the day of the concert and also denied making any incriminating statements. Four of his five friends who had testified at the first trial also testified, repeating their accounts of being with Christie at the concert and denying that he had possessed or fired a gun. The prosecution again sought to impeach the four friends' testimony on the basis of their prior criminal records. Notably absent from the second trial, and pertinent to this appeal, was the fifth friend who had testified at the first trial, Violet Smith.

The defense also presented expert testimony from Charles Haase, who for 20 years had investigated crime scenes for the New York City Police Department. Haase was called to refute the testimony of Officer Vargas, who had testified that he had kicked the gun fifteen feet away from himself before picking it up, and that when he picked up the gun, it was warm and smoking. Haase testified that a gun similar to the one alleged to have been held by Christie would smoke for no longer than two seconds after being fired and would not feel warm if touched nearly five to ten seconds after being fired.

After the prosecution rested, defense counsel informed the trial judge that he was unable to locate Violet Smith and sought to introduce her testimony from the first trial. At a hearing outside the jury's presence, counsel elicited from an investigator, Dwayne Matthews, the following details concerning efforts to obtain Smith's presence at the second trial. Because Smith was an entertainer who traveled frequently, Matthews had, prior to the first trial, established a system for locating her to inform her when her testimony would be needed. She had given him the telephone numbers for her mother and her agent, and he had used these numbers to secure her return from California to testify at the first trial.

Matthews remained in contact with Smith after the first trial ended and gave her the expected starting date of the second trial, July 2, 1997. On July 9, five days before Christie's first witness testified, Matthews telephoned Smith's mother, learned that Smith was somewhere in California, and told her mother to have Smith call Matthews regarding the date for her testimony. The next day he went to Smith's house and left his name and number in her mailbox, a technique that had previously resulted in her contacting him. Matthews also tried, without success, to learn her whereabouts from one of her friends. Matthews called Smith's mother on July 12, 13, and 14, and learned that Smith was back in New York City but had not yet come home. Matthews told Smith's mother to tell Smith that she should appear in court on July 15. When Smith did not appear in court on July 15, Matthews called Smith's mother that night and was told that the mother had decided, on her own, not to tell Smith about the trial date because she thought it was too late for Smith to testify. Matthews also left messages for Smith's agent, which were not returned.

Matthews testified that Smith was always cooperative concerning Christie's trial dates and always indicated, when they were in contact, that she would attend and testify. Defense counsel offered to testify concerning the efforts that he and others had made to obtain Smith's presence at the second trial, but the trial court declined to hear further testimony on this subject.

The trial court initially expressed complete satisfaction with the defense efforts to obtain Smith's attendance:

I have no question that everybody that I have had contact with tried desperately to get her to come to court. I have no question about that. I have no question that you have notified her of the court date.

It's clear to me that you have done everything to bring this woman into court.

...

I accept [the investigator's] testimony. I believe that is correct. I believe you have been trying for two weeks to get her to come to court and she has not come.

...

You have been diligent in getting your witnesses here. It's clear to me that you made an effort to find this witness.

Nevertheless, without receiving any contrary evidence from the prosecution, the trial court later switched its position, expressed the view...