Justice v. Hoke, 1393
| Citation | 90 F.3d 43 |
| Decision Date | 19 July 1996 |
| Docket Number | No. 1393,D,1393 |
| Parties | David Kevin JUSTICE, Petitioner-Appellant, v. Robert HOKE, Superintendent, Eastern Correctional Facility, Respondent-Appellee. ocket 95-2508. |
| Court | U.S. Court of Appeals — Second Circuit |
Andrew C. Fine, New York City (Daniel L. Greenberg, The Legal Aid Society, Criminal Appeals Bureau, New York City, of counsel), for Petitioner-Appellant.
Nancy F. Talcott, Assistant District Attorney, Brooklyn, NY (Charles J. Hynes, District Attorney, Kings County, Roseann B. MacKechnie, Assistant District Attorney, Brooklyn, NY, of counsel), for Respondent-Appellee.
Before: MESKILL and MINER, Circuit Judges, and LASKER, District Judge. 1
David Kevin Justice appeals from an order and judgment of the United States District Court for the Eastern District of New York, denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. A portion of the writ, relating to a separate claim regarding jury instructions, was granted by the district court on May 19, 1994, but later reversed by this court on January 10, 1995. The district court's first order and judgment did not render a decision on Justice's second claim, that he had been denied his right to present a defense as a result of the trial court's refusal to allow two defense witnesses to testify. Justice renewed his petition on the second claim, and the district court denied the writ on July 18, 1995. The district court also denied Justice's application for a certificate of probable cause on August 16, 1995. This court granted the motion for a certificate of probable cause pursuant to 28 U.S.C. § 2253 and Rule 22(b) of the Federal Rules of Appellate Procedure on November 14, 1995. Justice now appeals the district court's second order and judgment. The judgment of the district court is reversed.
Justice's petition for a writ of habeas corpus alleges that the trial court's refusal to allow the testimony of two defense witnesses deprived him of his constitutional right to present a defense. Justice contends that these witnesses at issue would have corroborated his defense that the complainant had a motive to fabricate his accusations and, more importantly, would have undermined the complainant's allegations against Justice.
Based solely on the allegations of complaining witness George Locke, Justice was indicted in Kings County for first degree robbery, pursuant to N.Y. Penal Law § 160.15, and for intimidating a witness in the third degree, pursuant to N.Y. Penal Law § 215.25. 2 Locke, a jewelry maker who bought gold and scrap jewelry, reprocessed it, and used it to make his own jewelry, conducted his business in his Brooklyn apartment. Justice allegedly sold gold to Locke approximately twice a week for two years before October 3, 1987, when Justice allegedly entered Locke's apartment and robbed him of jewelry and money at gunpoint. Later that day, Justice allegedly threatened Locke to prevent him from pressing charges. Following a jury trial in Kings County Supreme Court, in which Locke was the only witness for the prosecution, Justice was convicted of both crimes and sentenced to consecutive terms of 12 1/2-25 years and 2-4 years, respectively.
At trial, Michael Lyons testified for the defense that he had known Locke for two years and had a "business relationship" with him. The court then called a sidebar, and after hearing argument, conducted an in camera examination of Lyons. Lyons testified that Locke paid him for selling drugs and that Justice collected the proceeds for Locke. Lyons further testified as follows:
(Joint App. at 37-38.) The trial court ruled that Lyons'
testimony ... is of an impeaching nature, going to the character and the criminal proclivities of Mr. George Locke .... it's collateral to the issue.... I have heard nothing from [Lyons] which would indicate that he has any firsthand knowledge of any contretemps or arguments between the defendant and George Locke which would lead the jury to conclude that George Locke, as a result of being injured ... by Mr. Justice, would have a motive for revenge or bias.
(Joint App. 38-39.) The court concluded that Lyons' testimony was "pure conjecture" and excluded the testimony as collateral evidence. (Joint App. at 40.)
Following Lyons' curtailed testimony, Justice testified that Locke was a crack dealer, that Locke paid him to collect proceeds of crack sales from Lyons, Ebbie Newman, and two other street dealers who were friends of Justice, and that he delivered the proceeds to Locke. Justice testified that the day before the alleged robbery, he collected money from the dealers, but did not turn it over to Locke. Instead, he gave half of the money back to the street dealers and kept the other half for himself because he believed that Locke was not adequately compensating his friends. Justice testified that Locke fabricated the accusations against him in retaliation for his withholding of the drug sale proceeds. On cross-examination Locke denied that he had previously quarreled with Justice, that he had any connection with Justice unrelated to his jewelry business, and that he had any involvement in crack dealing.
Following Justice's testimony, Newman was called as a witness for the defense. The trial court again called a sidebar, at which defense counsel made an offer of proof that Newman would testify about a conversation he had with Locke himself, in which Locke told Newman that Justice owed Locke money. (Joint App. at 62-64.) The court ruled that the proffered testimony was inadmissible because it would provide only circumstantial evidence of Locke's hostility toward Justice and whether Locke had made a false accusation:
[I]f you want to show bias, ... you have to show it directly, not circumstantially, and just the fact that Locke [said] ... he owes me the money, is he going to pay it, certainly doesn't support the inference, A, that he was angry at him and, B, that he was going to falsely charge him or that he had already falsely charged him.
Justice then moved to recall Lyons, and the court denied the motion. In response to counsel's argument that Lyons' testimony should be admitted because Justice had testified as to facts which Lyons would corroborate, the court ruled that (Joint App. at 76.)
In its denial of Justice's second petition for a writ of habeas corpus, the district court stated that the witnesses
could only provide only hearsay testimony ... as corroboration for Locke's alleged motive to falsify the robbery charges.... Petitioner did not have a right to call a witness who was not ... capable of testifying to events that he had personally observed.... While [the] evidence [regarding Locke's crack dealings] would have corroborated a part of petitioner's barely plausible story, [its] exclusion ... does not rise to the level of a Due Process Clause Violation.
Justice then petitioned for a certificate of probable cause, which was denied by the district court judge, who stated:
Shorn of hearsay and speculation, what remained of the testimony of [Lyons' 3] and the presumably similar testimony of [Newman] was a story that was materially inconsistent 4 with petitioner's testimony and that, consequently, provided the most attenuated corroboration for petitioner's version of the alleged dispute between himself and Locke. While I would have allowed this testimony to be admitted ... I was unable to conclude that its exclusion would have "created a reasonable doubt [regarding petitioner's guilt] that did not otherwise exist."
The same is true of ... the testimony of Ebbie Newman.... [W]hile a statement by Locke that petitioner owed him money could provide a basis for suggesting that he had a grievance against petitioner, it did not do so in a compelling way [because it did not] support the inference ... that he was angry at him and ... that he was going to falsely charge him.
(Joint App. at 17-18 (citations omitted)).
Justice argues that the exclusion of Lyons' and Newman's testimony deprived him of his constitutional right to present a defense. He asserts that it is "highly probable" that the excluded testimony would have changed the jury's verdict by substantiating Justice's defense of fabrication and creating a reasonable doubt that did not otherwise exist. Justice argues that the proffered testimony regarding the crack dealing arrangement was based on each witness' personal knowledge, and thus did not constitute inadmissible hearsay. Justice further argues that neither Lyons' nor Newman's testimony was collateral because it would not merely have contradicted Locke's testimony, but provided strong support for Justice's contention that Locke fabricated his accusations in retaliation for Justice's withholding of drug sale proceeds.
Justice stresses that Newman's testimony would have shown that Locke was aware of the withholding, since Locke stated directly to Newman that Justice owed him money. Justice argues that...
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