946 F.2d 982 (2nd Cir. 1991), 1670, Graham v. Hoke

Docket Nº:1670, Docket 91-2094.
Citation:946 F.2d 982
Party Name:Melvin GRAHAM, Petitioner-Appellee, v. Robert HOKE, Superintendent, Eastern Correctional Facility, Robert Abrams, Attorney General of the State of New York, and Charles J. Hynes, District Attorney, Kings County, Respondents, Robert Hoke, Superintendent, Eastern Correctional Facility, Respondent-Appellant.
Case Date:October 03, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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946 F.2d 982 (2nd Cir. 1991)

Melvin GRAHAM, Petitioner-Appellee,


Robert HOKE, Superintendent, Eastern Correctional Facility,

Robert Abrams, Attorney General of the State of

New York, and Charles J. Hynes, District

Attorney, Kings County, Respondents,

Robert Hoke, Superintendent, Eastern Correctional Facility,


No. 1670, Docket 91-2094.

United States Court of Appeals, Second Circuit

October 3, 1991

Argued June 19, 1991.

Rehearing Denied Oct. 21, 1991.

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Lindsay Brown, Asst. Dist. Atty., Brooklyn, N.Y. (Charles J. Hynes, Dist. Atty., Jay M. Cohen, Asst. Dist. Atty., of counsel), for appellants.

Ronald Cohen, New York City, for petitioner-appellee.

Before MESKILL, KEARSE and McLAUGHLIN, Circuit Judges.

MESKILL, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the Eastern District of New York, Nickerson, J., entered on December 17, 1990. The district court granted appellee Melvin Graham's (Graham) petition pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus and ordered his release unless the State of New York chose to commence a new trial against him within ninety days from the entry of judgment. Graham v. Hoke, 751 F.Supp. 1073 (E.D.N.Y.1990). Graham currently is incarcerated and is in the custody of the State of New York pursuant to a 1982 conviction for murder in the second degree and robbery in the first degree.

In his habeas petition, Graham attacked this New York state conviction. He asserted that in light of the decision of the United States Supreme Court in Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), his conviction was obtained in violation of federal constitutional law. In Cruz, the Supreme Court held that the Confrontation Clause of the Sixth Amendment bars the admission of an interlocking confession of a nontestifying codefendant that would not be directly admissible against the defendant even if the jury is instructed that the confession cannot be considered against the defendant, and even if the defendant's own confession was admitted in evidence. Id. at 193, 107 S.Ct. at 1719.

The district court concluded that the rule announced by the Supreme Court in Cruz, whether it be characterized as an "old" or "new" rule of constitutional criminal procedure, should be applied retroactively. Graham, 751 F.Supp. at 1074. The court held that the admission of the confession of Graham's codefendant was not harmless error and ordered Graham released unless the state retried Graham within ninety days. Id. at 1075. New York appeals from that decision.

We agree with the district court that the Cruz rule should be applied retroactively. After reviewing the record, however, we disagree with the district court's decision to grant the habeas petition. Given the strength of the other evidence against Graham, we conclude that the introduction of his codefendant's interlocking confession was harmless error. Accordingly, we reverse and remand to the district court with instructions to dismiss the petition.


The actions that underlie this case occurred during the early morning hours of December 19, 1981. On that morning, at approximately 4:30 a.m., Graham and two of his companions, Darryl Green (Green)

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and Benjamin Stephens (Stephens), went to Super Jack's Burger Store (Super Jack's), a fast food restaurant located in Brooklyn, New York, to get something to eat. While in Super Jack's, Green noticed an unknown male enter the restaurant to use the public telephone. That individual was wearing two gold rings and appeared to have some money. Green approached Graham and Stephens and suggested that they follow the man out of Super Jack's and rob him of his jewelry and money. Graham and Stephens agreed to participate in this robbery.

The confederates followed the man, later identified as Ronald Sanders (Sanders), out of Super Jack's and down Reed Street toward Fulton Street. They eventually caught up with Sanders and Graham shouted at him to stop. Sanders defied this directive and continued on his way. In response, Graham, who was carrying a .32 caliber handgun and who had had a "few beers," fired three shots at Sanders but missed him. Sanders began to run to evade his pursuers and he eventually sought refuge in the subway station located at Utica Avenue. Graham and his confederates followed.

Once inside the subway station, Sanders approached the token booth attendant, Claude Watson, Jr. (Watson), and asked him to call a police officer. Sanders shouted: "Where's a cop? They're trying to rip me off upstairs." Sanders then ran to the public telephone located inside the Utica Avenue station. In response to Sanders' request for assistance, Watson triggered the emergency alarm located inside the token booth to notify the Transit Authority that an emergency existed. He also picked up the emergency telephone to advise the Transit Authority of what was happening.

Graham, Stephens and Green entered the subway station and spotted Sanders who was still at the public telephone with the receiver in his hand. Graham stood directly in front of Sanders. Stephens stood behind an old phone booth located next to the public telephone that Sanders was using. Green stood behind the token booth. It was at this point that the fateful events of December 19, 1981 unfolded.

Graham approached Sanders and told him to "give it up." Sanders reacted to this demand by slamming down the telephone receiver and moving toward Graham. Graham then once again pulled his handgun and began to fire at Sanders' chest. Sanders grabbed his chest and staggered toward the token booth where he eventually collapsed. Graham ran toward the stairway leading out of the Utica Avenue station. Green, however, ran to the spot where Sanders had fallen, turned Sanders' body over, and removed the rings from his fingers. Stephens left his spot behind the old telephone booth and moved to the area behind the token booth. He then approached Sanders' body, removed the wallet from Sanders' pocket, took something from the wallet, and threw the wallet down beside the victim. Stephens and Green then ran up the stairway that leads to Utica Avenue.

By this time, Transit Police Officer Paul Perpall had reached the Utica Avenue station. He found Sanders lying next to the token booth surrounded by two or three civilians. Watson, the token clerk, was still in the booth. Officer Perpall approached the victim, determined that Sanders was still breathing, and called for an ambulance. Within a few minutes, two Transit Police patrol cars arrived at the Utica Avenue station. Because the ambulance had yet to arrive, Officer Perpall, the other officers and some civilians carried Sanders up the stairs and placed him in a patrol car. The officers then brought Sanders to St. John's Hospital where he later died.

The Transit Police, in conjunction with the New York City police, initiated an investigation into Sanders' death. The primary sources of information were the token booth attendant, Watson and a civilian, John Ford (Ford), who was present in the Utica Avenue station at the time of the shooting. Based on the information obtained from these and other sources, the police soon centered their attention on Green, Graham and Stephens and eventually brought each one in for questioning. Green was placed in a lineup and was identified by Ford as being the individual who

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was behind the token booth during the shooting and who had taken the rings from Sanders' hand. 1

At approximately 4:30 a.m. on December 22, 1981 Stephens was located and was taken to the 81st Precinct for questioning. There Stephens was questioned by Detective Gerald Gallagher in the presence of Detective Ernest Bostic. Stephens was advised of his constitutional rights and voluntarily waived them. During the course of his discussion with the detectives, Stephens orally admitted to his involvement in the attack on Sanders. Detective Gallagher memorialized Stephens' oral confession on paper, going through the statement with Stephens line by line. Stephens reviewed the written statement and signed it. Detectives Gallagher and Bostic also signed the statement to indicate that they were present when it was made.

Similarly during the early morning hours of December 22, Graham was brought to the 81st Precinct by Detective Gerald Molloy. While being transported, Detective Molloy advised Graham of his constitutional rights and instructed him not to say anything until he got to the Precinct. Rejecting the detective's advice, Graham proceeded to "mumble" that he had shot Sanders and stated "I knew this was going to happen. I knew this was going to happen." At the Precinct, Graham met with Detectives Gallagher and Bostic and was once again advised of his constitutional rights. Graham voluntarily waived his rights and orally confessed to having shot Sanders on the morning of December 19, 1981. Subsequently, he signed a written statement that recounted the events of that fateful morning. Graham admitted to having fired three shots at Sanders prior to Sanders' attempt to seek refuge in the Utica Avenue station. He also admitted to having fired the shots that resulted in Sanders' death. Graham stated that when confronted in the station Sanders slammed the telephone receiver, said "I'm tired of this shit," and then charged at him. It was at this point that Graham pulled his weapon and began to fire. Graham further stated that after the shooting he immediately returned to his "block" and attempted to discard the pistol. He eventually sold the pistol to a "Rastafarian West Indian guy" for "forty dollars and two nickel bags of reefers."

At approximately 11:30 a.m. on December 22, 1981 both Graham...

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