893 F.2d 1434 (2nd Cir. 1990), 1376, Leecan v. Lopes

Docket Nº:1376, Docket 89-2134.
Citation:893 F.2d 1434
Party Name:Christopher LEECAN, Petitioner-Appellant, v. Raymond LOPES, Commissioner of Correction, Respondent-Appellee.
Case Date:January 11, 1990
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 1434

893 F.2d 1434 (2nd Cir. 1990)

Christopher LEECAN, Petitioner-Appellant,

v.

Raymond LOPES, Commissioner of Correction, Respondent-Appellee.

No. 1376, Docket 89-2134.

United States Court of Appeals, Second Circuit

January 11, 1990

Argued July 19, 1989.

Page 1435

Richard Emanuel, Office of the Chief Public Defender, New Haven, Conn., for petitioner-appellant.

Judith Rossi, Asst. State's Atty., Office of the Chief State's Atty., Wallingford, Conn., for respondent-appellee.

Before WINTER and MAHONEY, Circuit Judges, and RE, Chief Judge. [*]

MAHONEY, Circuit Judge:

Petitioner-appellant Christopher Leecan appeals from the denial of his petition for a writ of habeas corpus by the United States District Court for the District of Connecticut, Jose A. Cabranes, Judge. The writ sought to overturn Leecan's conviction for felony murder in the state courts of Connecticut.

Leecan was convicted after a jury trial of the felony murder of Raymond Lovell. The murder occurred on or about December 10, 1980. Leecan surrendered to the New Haven police on March 4, 1981, whereupon he was arraigned and advised of his Miranda rights by the judge presiding at the arraignment. Leecan made no statement to the police regarding his involvement in or knowledge of the murder.

At trial, Leecan testified in his own behalf and presented for the first time a version of events exculpating him from the crime. On cross-examination, the prosecutor questioned Leecan about his prearrest silence in an effort to impeach Leecan's alibi. Leecan's response implied that he originally related his alibi to the police when he surrendered. The prosecutor challenged this implication through questions concerning Leecan's postarrest silence. The prosecutor returned briefly to the question of Leecan's postarrest silence during recross-examination of Leecan.

Leecan appealed to the Connecticut Supreme Court, contending that the cross-examination and recross-examination concerning his postarrest silence was prohibited by Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Leecan also argued that the jury instruction concerning reasonable doubt impermissibly lowered the State's burden of proof. The Connecticut Supreme Court affirmed his conviction, State v. Leecan, 198 Conn. 517, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986), and the Supreme Court denied certiorari, id.

Leecan thereafter presented the same issues to the district court in a petition for habeas corpus. Affirming a recommended ruling by Magistrate Joan Glazer Margolis, 1 the district court denied the petition, ruling that (1) although Doyle had been violated, the error was harmless beyond a reasonable doubt; and (2) no constitutional error occurred in the jury instruction concerning reasonable doubt.

Leecan raises the same issues in his appeal to this court. We affirm the denial of the petition, but on a somewhat different ground with respect to the asserted Doyle violation, as to which we conclude that (1) no Doyle violation occurred during his cross-examination because Leecan invited the inquiry into his postarrest silence by responses implying that he told the police his alibi upon surrendering; and (2) any Doyle violation which occurred on recross-examination was harmless.

Background

The Connecticut Supreme Court made the following recital concerning the evidence presented at Leecan's trial:

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The jury could reasonably have found from the evidence that on December 11, 1980, Raymond Lovell was found dead in his hotel room at the Holiday Inn in New Haven. He had been bound with handcuffs and a cord, gagged, his head covered with a pillow case, and beaten on the head with a blunt object, causing injuries that resulted in his death.

On December 8, 1980, three days before Lovell's body was discovered, the defendant had driven to New Haven from Philadelphia, accompanied by Lawrence Nowlin and Theresa Spencer. The defendant brought with him a set of handcuffs, a metal pipe and a handgun. Nowlin and Spencer testified in behalf of the state at the defendant's trial and provided most of the evidence of his involvement in the crime.

The trio spent the night of December 8 in New Haven at the home of an acquaintance of Spencer. They had initially intended to rob this person, but later abandoned the plan. On December 9, Spencer contacted Lovell, the victim, whom she had met previously while working for a magazine sales organization that also employed him. She spent that night with Lovell in his motel room.

The next day, December 10, she rejoined Nowlin and the defendant at the motel where they were then staying. The defendant, with Nowlin and Spencer, drove to the Holiday Inn where Lovell was staying. Lovell did not return to the motel until the late afternoon, at which time he spoke with Spencer about her returning to his room that evening.

The defendant, observing that Lovell wore expensive clothing and jewelry and drove a Cadillac, expressed his intention of robbing Lovell with the assistance of Nowlin and Spencer. The trio returned to the Holiday Inn at about 8 p.m. that evening. Spencer entered Lovell's room while Nowlin and the defendant remained in the car. After some period of time, Nowlin knocked on the door of the room and Spencer let him and the defendant into the room. The defendant used the bathroom and, when he emerged, he held a handgun. He demanded that Lovell give him his money and his drugs. Lovell was bound, gagged and blindfolded by placing a pillow case over his head. The defendant then struck Lovell several times on the head with an iron pipe. Assisted by Nowlin and Spencer, the defendant searched the room and removed some of Lovell's jewelry and clothing, which they placed in the trunk of the defendant's car. One of his accomplices drove Lovell's Cadillac and followed the defendant, who was driving his own car. After it had been searched, the Cadillac was abandoned on the Merritt Parkway. The trio then returned to Philadelphia.

State v. Leecan, 198 Conn. at 519-20, 504 A.2d at 483.

On or about January 15, 1981, Spencer was arrested in Miami on unrelated charges, and gave a statement implicating Leecan and Nowlin in the robbery and murder. On or about January 19, 1981, Nowlin surrendered to the Philadelphia police, to whom he gave a statement acknowledging his presence in Lovell's room during the night of the murder and implicating Leecan and Spencer in the crime.

An arrest warrant was issued for Leecan on January 20, 1981, and he surrendered to the New Haven police on March 4, 1981. He made no statement to the police. Petitioner has provided a transcript of his arraignment in the Superior Court of the State of Connecticut at New Haven on that date, indicating that he, together with an unspecified additional number of criminal defendants, was then given Miranda warnings in open court. The State of Connecticut does not dispute that this occurred. 2

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As noted by the Connecticut Supreme Court, 198 Conn. at 519, 504 A.2d at 483, Nowlin and Spencer testified in behalf of the prosecution at Leecan's trial, and provided most of the evidence of Leecan's involvement in the crime. Both witnesses admitted that they had lied in prior statements concerning Lovell's murder. Both witnesses also admitted to drug use at the general time of the events in question, and Nowlin to alcohol abuse, as well. Nowlin had pleaded guilty, and Spencer had been found guilty after trial, prior to Leecan's trial, and both were awaiting the imposition of sentence when they testified against Leecan.

Leecan testified in his own behalf, relating an alibi that on the evening of the murder, he, Nowlin and Spencer had gone to a bar near the Holiday Inn where Lovell was staying. Eventually, Leecan asserted, Spencer and Nowlin left the bar and took Leecan's car to Lovell's motel to pick up Spencer's belongings and a paycheck. Leecan claimed that he stayed at the bar, and that when Nowlin and Spencer returned to the bar sixty to ninety minutes later, all three departed for Philadelphia. Leecan stated that he learned of the murder several weeks later, when the three were together in North Carolina.

During his cross-examination of Leecan, the prosecutor attempted to impeach Leecan's alibi as a recent fabrication.

The cross-examination included the following:

Q. So it's fair to say that by January 15, 1981, you knew this murder had taken place?

A. Yes.

Q. You were not under arrest?

A. No.

Q. You were free to move about?

A. Yes.

Q. You were free to come and go as you pleased?

A. Yes.

Q. But you never once went to the police, did you?

A. No, I didn't.

Q. You never once went to the police and said, "I'm innocent. I was sitting in a bar"?

A. No, I didn't.

* * *

* * *

Q. Did you come forward to any authorities and say, "Look, I was sitting in a bar. I can help you on this thing"?

A. Not until I turned myself in in March. No, I didn't.

Q. And in March, did you tell them that?

A. No, I didn't tell them anything. I was under the advice of an attorney.

Q. So you never said it until you were sitting here?

A. As a result of the advice of my attorney.

Q. Well, sir, let me ask you this: From January 15 to the date of March 3, forgetting when you turned yourself in, up to March 3, did you ever go forward and say, "Hey, I've got some information concerning that accident that took place in New Haven"?

* * *

* * *

A. No, I didn't.

* * *

* * *

Q. And you did nothing...

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