Orlando v. Nassau Cnty. Dist. Attorney's Office

• Citation: 915 F.3d 113
• Decision Date: 11 February 2019
• Docket Number: No. 17-2390,August Term, 2017,17-2390
• Parties: Mark ORLANDO, Petitioner-Appellant, v. NASSAU COUNTY DISTRICT ATTORNEY’S OFFICE, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

915 F.3d 113

Mark ORLANDO, Petitioner-Appellant,

v. NASSAU COUNTY DISTRICT ATTORNEY’S OFFICE, Respondent-Appellee.^1,2

No. 17-2390

August Term, 2017

United States Court of Appeals, Second Circuit.

Argued: May 30, 2018

Decided: February 11, 2019

Jane Simkin Smith, Millbrook, NY, for Petitioner-Appellant.

Sarah S. Rabinowitz, Assistant District Attorney (Tammy J. Smiley, Assistant District Attorney, on the brief ), for Madeline Singas, Nassau County District Attorney, Mineola, New York, for Respondent-Appellee.

Before: Jacobs and Droney, Circuit Judges, and Shea, District Judge.^*

Judge SHEA dissents in a separate opinion.

Droney, Circuit Judge:

On Friday night, December 3, 2004, at approximately 8:45 p.m., in response to a 911 call, police officers from the Long Beach, New York, police department found the body of Bobby Calabrese.³ Calabrese was lying face down next to his Infiniti automobile, which was still running. He had been shot in the back of his head at close range three times with a .44 caliber revolver. Calabrese had been a "runner" for an illegal sports betting organization.

The following Thursday, Nassau County police detectives interviewed Mark Orlando and Herva Jeannot, who were together the night of Calabrese’s homicide. The detectives believed that Orlando and Jeannot had been with Calabrese that night. Orlando and Jeannot were questioned in separate rooms at the police station. Jeannot confessed to shooting Calabrese, stating that Orlando hired Jeannot to murder Calabrese to avoid paying a gambling debt to Calabrese. During his questioning, Orlando gave two different statements to the police but denied being involved in the murder.

Orlando and Jeannot were charged with murder for their roles in Calabrese’s death and, in August 2005, a jury in the New York Supreme Court for Nassau County convicted Mark Orlando of murder in the second degree. The trial court had severed Orlando and Jeannot’s trials to avoid a Sixth Amendment Confrontation Clause violation that could have arisen from Orlando’s jury hearing Jeannot’s confession if Jeannot did not testify and thus could not be cross-examined about it.⁴ Severing the trials, however, did not avoid violating Orlando’s right to confront the witnesses against him, as the trial court allowed the jury to learn of Jeannot’s confession implicating Orlando at Orlando’s trial and Jeannot did not testify at Orlando’s trial.

ORLANDO’S TRIAL

I. Evidence Before the Jury of Jeannot’s Statement

The state’s theory at trial was that Orlando paid Jeannot to murder Calabrese to extinguish a $17,000 gambling debt Orlando owed to Calabrese and that Orlando assisted Jeannot in the murder. The prosecution argued that Orlando lured Calabrese to the remote location near Long Beach⁵ on the pretext of meeting to pay the $17,000 debt, but that Orlando had previously agreed to pay Jeannot to shoot Calabrese when Orlando met up with Calabrese. Orlando did not dispute at trial that he was present for the murder, but contended that he had intended merely to pay Calabrese; he did not expect Jeannot (who was a friend of Orlando’s and a passenger in the car Orlando drove that night) to shoot Calabrese and then take the gambling money for himself.

During his police interrogation, Orlando gave two statements to Nassau County Police Detectives. Detectives McHugh and McGinn jointly interviewed Orlando when he gave his first statement, and Detective McHugh testified to this statement at Orlando’s trial. According to McHugh, Orlando first stated that he and Jeannot were good friends and coworkers at Professional Credit Services, a Long Island debt collection agency. Orlando regularly gambled on sports. About one month before the murder, another coworker introduced Orlando to Calabrese. Orlando began to place bets through Calabrese and soon won $28,465.

Orlando’s winning streak with Calabrese ended, and Orlando lost $17,800 over the course of two weeks. At that point, Orlando stopped betting with Calabrese. But Orlando still owed Calabrese $17,000, and he arranged to pay Calabrese on December 3.

In that first statement to the Nassau County detectives, Orlando indicated that he and Jeannot went together in Orlando’s wife’s car to pay Calabrese, did so, and otherwise had an uneventful evening. After Orlando paid Calabrese the $17,000, he and Jeannot made several stops: at a Suzuki car dealership to pick up a check, at an ATM, and at Orlando’s friend’s house to look at some new construction. Orlando then dropped off Jeannot at Jeannot’s home, around 10:30 p.m.

After Detective McHugh finished testifying, Detective McGinn took the stand and confirmed much of the substance of Orlando’s first statement. According to McGinn, after Orlando signed a written statement summarizing that version of the night’s events, Detectives McGinn and McHugh left the interview room. McHugh went to speak with Jeannot. Approximately three hours after leaving Orlando’s interview room, McGinn returned to speak further with Orlando.

Before Detective McGinn had begun testifying at Orlando’s trial (and out of the presence of the jury), counsel for Orlando had objected, on hearsay and Confrontation Clause grounds, to the admission of McGinn’s anticipated testimony recounting Jeannot’s statement as to Orlando’s involvement in the murder. The trial court denied the objection, ruling that "this information that the People are intending to offer in their direct case is not being offered for the truth of the contents of the statement but rather to give a clear picture to the jury [of] what was going on during the interrogation of [Orlando]." T. 166–67.

After Orlando’s objection was denied, the prosecution asked Detective McGinn about "the circumstances under which [McGinn] resumed speaking with" Orlando. T. 620.⁶ McGinn testified that he had learned from Detective McHugh that Jeannot was making inculpatory statements about the murder. "I knew Detective McHugh was in talking to Mr. Herva Jeannot," McGinn testified. Id . "I believe," he told the jury, "that Herva Jeannot was relaying some of the events that really took place that night [of the murder]." Id .

McGinn then testified that he re-entered Orlando’s interview room. Id . "I went back in and I told Mr. Orlando that Detective McHugh was over there talking to Herva [Jeannot] and he was probably giving us ... other facts that happened that night, the truth as to what happened that night." Id . "Now, would be the time ... to tell us what was going on." Id .

According to McGinn’s testimony, Orlando responded, "[y]ou don’t understand," and McGinn left the interview room. T. 620. McGinn testified that he returned a few minutes later. According to McGinn, "[a]gain, I explained to Mr. Orlando that Herva Jeannot was, in fact, giving up ... what we felt were truer versions of the events of Bobby Calabrese’s murder. That we had a videotape of the spot the meeting took place. That the meeting did not take place where [Orlando] originally told us it had taken place. I told [Orlando] that Herva Jeannot had given up where the gun was and that the defendant should ...[,] if he wants his version of the story told[,] ... tell us the truth at this point." T. 621.

Orlando initially responded, again, "you don’t understand," but eventually stated, without elaboration, that he was afraid (of Jeannot) for his family. T. 621–23. McGinn testified that he again left the interview room and that he came back around an hour later. He then testified, over the renewed objection of Orlando’s attorney, to the following: "I told [Orlando] ... that Herva Jeannot was, in fact, talking to the other detectives. [Jeannot] had given a statement and that he had implicated himself in the murder. [Jeannot] said that he was the murderer, but that Mark Orlando had paid him to do it." T. 623–24.

At this point, the trial court gave the jury a limiting instruction. The trial court stated, "Ladies and gentlemen, you have been permitted to hear testimony about remarks made to the defendant by Detective McGinn about statements allegedly made by Herva Jeannot. You’re to consider this testimony only when considering the circumstances under which the defendant himself may have made statements and for no other purposes." T. 624.

The trial court then instructed the jury "to completely disregard any statement allegedly made by Herva Jeannot when considering evidence against the defendant. ... You are not to concern yourself with whether Herva Jeannot did or did not make any statements to the police, if he did, what those statement[s] may have been or whether or not they were true."⁷ Id .

McGinn then resumed testifying. He testified that, after learning of Jeannot’s statement implicating Orlando in the murder, Orlando changed his account of the evening’s events. Orlando stated that when he and Jeannot met Calabrese that night, Orlando paid Calabrese and then Jeannot unexpectedly shot Calabrese, taking the cash.⁸ T. 676–82. According to Orlando, he and Jeannot then drove away, and Jeannot threatened to harm Orlando’s (pregnant) wife if Orlando were to tell anyone about the homicide. T. 682. Jeannot told Orlando that Calabrese was not the first person Jeannot had killed and that Calabrese would not be the last. Id . As a result, according to Orlando, he then made the stops at the car dealership and elsewhere because he wanted people and cameras to observe that Jeannot was with him. In addition, at some point, Jeannot told Orlando to stop on a bridge, and Jeannot then threw the gun he used to kill Calabrese into the water.

II. The Prosecution’s Summation

The prosecution argued in its summation to the jury that Orlando had paid Jeannot to murder Calabrese. The prosecution also specifically called to the jury’s attention that "Detective McGinn leaves [Orlando’s interrogation room], comes back a little later, ... [and] Detective McGinn finally says, look, [Jeannot’s] giving it up. [Jeannot’s] telling us everything. ... He’s telling us he did the shooting and you...