90 F.3d 43 (2nd Cir. 1996), 1393, Justice v. Hoke

Docket Nº:1393, Docket 95-2508.
Citation:90 F.3d 43
Party Name:David Kevin JUSTICE, Petitioner-Appellant, v. Robert HOKE, Superintendent, Eastern Correctional Facility, Respondent-Appellee.
Case Date:July 19, 1996
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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90 F.3d 43 (2nd Cir. 1996)

David Kevin JUSTICE, Petitioner-Appellant,


Robert HOKE, Superintendent, Eastern Correctional Facility,


No. 1393, Docket 95-2508.

United States Court of Appeals, Second Circuit

July 19, 1996

        Argued May 16, 1996.

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        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

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        LASKER, Senior District Judge:

        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:

        [LYONS]: eventually [Locke] ain't give us our right amount of money.... So the little bit of money we gave to Kevin [Justice] to give to him. Kevin gave us a little bit, little salary off of that and then I don't know, George [Locke] must have got into something about that.

        THE COURT: Why do you say that?

        [LYONS]: Because I hear that ... the money he is supposed to give to George, he gave to us.

        THE COURT: Who gave to you?

        [LYONS]: Kevin gave the money that we gave him to give to George. He paid us off with it.


* * *

        THE COURT: How do you know he didn't give it to Mr. Locke?

        [LYONS]: Because Mr. Locke had to give us our pay and he didn't give us our pay, so Kevin gave us our pay.

        (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

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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...

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