Ayala v. Leonardo
| Decision Date | 04 April 1994 |
| Docket Number | No. 1059,D,1059 |
| Citation | 20 F.3d 83 |
| Parties | Neftali AYALA, Petitioner-Appellant, v. Arthur LEONARDO, Warden, Great Meadows Correctional Facility, Respondent-Appellee. ocket 92-2751. |
| Court | U.S. Court of Appeals — Second Circuit |
Theodore S. Green, White Plains, NY (Green & Willstatter, of counsel), for petitioner-appellant.
John J. Gibson, Asst. Dist. Atty. of Westchester County, White Plains, NY (Carl A. Vergari, Dist. Atty., Joseph M. Latino, Asst. Dist. Atty., of counsel), for respondent-appellee.
Before OAKES, KEARSE, and CARDAMONE, Circuit Judges.
Neftali Ayala appeals from a judgment of the United States District Court for the Southern District of New York, Vincent L. Broderick, Judge, dismissing his pro se petition for a writ of habeas corpus. See 28 U.S.C. Sec. 2254 (1988). His petition for a writ of habeas corpus challenges his convictions for murder in the second degree, N.Y.Penal Law Sec. 125.25, subdiv. 1 (McKinney 1987), and attempted assault in the first degree, N.Y. Penal Law Secs. 110.00, 120.10 (McKinney 1987). At issue is the admissibility of three out-of-court statements.
We affirm the district court's judgment holding that although two of the statements were wrongly admitted in violation of federal constitutional law, their admission constituted harmless error in each instance.
We now set forth the background facts of this case without the use of the wrongly admitted evidence. We then set forth the contents of the inadmissible evidence.
On Sunday, March 21, 1982, at approximately 9 p.m., three friends, James McKinley, Thomas Barrett, and Eileen Morgan, were loitering on Palisade Avenue in Yonkers, New York. Transcript of Trial at 50-51, People v. Ayala, Indictment No. 454/82 (Nov. 10-18, 1983) ("Transcript"). At about the same time, Neftali Ayala (a.k.a. "Shock"), together with Frank Villar and James Santiago, was walking along Palisade Avenue. McKinley and Barrett left Morgan and approached Ayala. Upon meeting, Barrett asked Ayala whether there was any trouble between McKinley and him. Ayala responded by hitting McKinley. Transcript at 51-52, 118, 216-17.
Ayala and Barrett began to fight and fell to the ground. McKinley then kicked Ayala in the face. Id. at 119-20, 218-19. Ayala stood up, removed his belt, and used it to strike Barrett. McKinley and Barrett retreated. Id. at 120. The antagonists exchanged words and another fight between Ayala and Barrett ensued. Id. at 121, 221. During the fight, Barrett produced a long metallic object, identified as either a knife or an ice pick. Id. at 122, 222. This time, Ayala, Villar, and Santiago retreated. Id.
Ayala and his companions ran over to the home of James Ortiz (a.k.a. "Cuch") to enlist him in an attack on McKinley and Barrett. For additional support, the group drove in Ortiz's green car to search for Danny Mercado (a.k.a. "Lucan"). The group located Mercado and his friend, Robert Ramos (a.k.a. "Baretta"), both of whom jumped into Ortiz's car and joined in the planned attack. The group stopped briefly at Mercado's home, but the driver, Ortiz, refused to drop off Villar or Santiago. The six men subsequently drove around hunting for McKinley and Barrett. Transcript at 122-24, 135-39, 222-28.
In the meantime, McKinley and Barrett rejoined Morgan, who had fled to Barrett's home at 4 Schroeder Place, Yonkers, when the fight erupted. After spending some time at Barrett's home, the friends left for Morgan's apartment at 55 School Street, Yonkers.
At approximately 10:30 p.m., McKinley, Barrett, and Morgan arrived at 55 School Street. At that time, Donnita Bunch and Zita Everett were socializing in the lobby of the building. McKinley and Barrett walked Morgan up to her apartment on the sixth floor, and then returned to the lobby. They stopped to talk to Bunch and Everett, with whom they were acquainted. Bunch and Everett were standing close together, near the mailboxes, as they spoke with McKinley and Barrett. McKinley, who stood near the entrance, was only five feet from the two young women. See Transcript at 96-102.
The lobby is approximately 5 feet wide by 20 feet long. Directly opposite the front entrance are two elevators and a stairwell which provides access to the rear of the building. Individualized mailboxes are in the wall to the right. On both sides of the elevators are short hallways where apartments are located. Two overhead light fixtures, one in the center of the ceiling and the other in front of the elevators, illuminate the lobby. The short hallways each have two ceiling light fixtures. All lights were functional that evening. Four outside light fixtures illuminate the outside of the building. A street lamp is directly across the street from the building's entrance.
At this point, Ayala and his companions spotted Barrett and McKinley in the lobby. Transcript at 141, 228-29. They parked their car on the side of the apartment building, out of the sight of those in the lobby. They then entered through the rear, rushing through the stairway door into the lobby. Id. at 141-42, 229. Ayala was the first one through, followed by Ortiz, Mercado, and Ramos. Id. at 143, 231. Villar and Santiago stayed behind.
The young women recognized Ayala from high school, and noticed that he had a scrape on his face. Transcript at 106. They watched as Ayala jumped on top of McKinley striking him with his right hand three times in the area of his left breast. According to Bunch, Ayala delivered the blows with his "fist raised with the bottom portion of the hand facing forward and using the elbow as a fulcrum." Id. at 105.
Ayala's companions began to shoot at McKinley and Barrett. Id. at 108, 146. The young women ran away from the direction of the shooting into one of the hallways. When it quieted, the young women returned to the lobby. No one was there by that time. Id. at 107-08.
Before the attack, Morgan went to her window to watch McKinley and Barrett leave. As she watched for her friends, she noticed a car in front of the building. She watched the car drive past the building and park. She saw Ayala with a scrape on his face. Shortly thereafter, she heard gunshots. She then watched McKinley and Barrett flee the building as they were chased by someone with a gun. One of the pursuers, Ortiz, stopped, held his gun with arms extended and shot. Transcript at 146. McKinley and Barrett jumped into a car and sped off. The four pursuers went back into their car and left. Id. at 56-59.
McKinley and Barrett arrived at Yonkers General Hospital Emergency Room at 11 p.m. Id. at 160. McKinley had no pulse and no blood pressure. He suffered from massive internal bleeding caused by a stab wound to his left chest which punctured his heart, and a stab wound to the back which punctured his lung. He also suffered from other less severe injuries including a gun shot wound to his left shoulder and an abrasion on the right side of his back. The hospital pronounced McKinley dead at 11:45 p.m. Id. at 160-62.
Barrett suffered from a single gun shot wound caused by a bullet which entered the right side of his back and then exited through his abdomen. Id. at 163. He was admitted to the hospital where he underwent emergency surgery. Although Barrett survived the injury, he died of unrelated causes prior to the hearings and trial held in this matter. Id. at 339.
The emergency room staff who treated McKinley found one .22 calibre bullet in his clothing. Later, the hospital coroner recovered a second .22 calibre bullet from his body during the autopsy. Both slugs, together with a third one discovered in the lobby entrance, were fired from the same .22 calibre gun. Two shell castings from a .25 calibre semi-automatic pistol also were recovered at the murder scene.
At trial, three out-of-court statements were wrongly admitted into evidence: (1) a written statement by Ortiz, (2) an oral statement by Mercado, and (3) the prior testimony of Everett. Intentionally omitted from the above synopsis is any consideration of these improperly admitted pieces of evidence. We now take each piece of evidence in turn.
Police arrested Ayala several hours after McKinley died. Two days later, on March 23, 1982, Ortiz voluntarily surrendered to Yonkers Police. After being advised of his rights, and having acknowledged his understanding of his rights, Ortiz dictated a statement to police which was reduced to writing and then executed by him. A redacted version of this out-of-court statement was admitted into evidence (the "redacted Ortiz statement"). The redacted Ortiz statement read:
On March 21, 1982, I was at home at 179 Ashburton Ave., when two friends of mine, Frank (Mase), Jimmy came to my house. They told me that another friend had been beat up by four other guys and they wanted to get even. They asked me if I would drive some other people to pick up two of his friends and take them to School St. I agreed, and went downstairs where we met him. At this time Frank and Jimmy left, walking away. I then drove him down to Buena Vista Park where we met two of his friends, one I know as 'Lucan 1', and the other one I did not know. He asked me to drive to 55 School St., and as we drove, one person said that he had a knife, and another person said that he had something, but I did not know what at the time.
When we got to 55 School St., one person told me to drive to the front of the building, and when we looked in I saw three black people standing inside the lobby. One person said "That was one of them with the hat" and he told me to drive around the corner and park. They all got out of the car and walked to the front entrance of the building. A few seconds later, I heard two shots, and two people ran back to the car, and got in, told me to drive away. As we drove away, one person said to me that he paid them back, and he had stabbed him. He also...
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