Corby v. Artus

• Decision Date: 10 October 2012
• Docket Number: Docket No. 11–1650.
• Citation: 699 F.3d 159
• Parties: Norcott CORBY, Petitioner–Appellee, v. Dale ARTUS and Eric T. Schneiderman, Respondents–Appellants.
• Court: U.S. Court of Appeals — Second Circuit

699 F.3d 159

Norcott CORBY, Petitioner–Appellee,

v.Dale ARTUS and Eric T. Schneiderman,¹ Respondents–Appellants.

Docket No. 11–1650.

United States Court of Appeals, Second Circuit.

Argued: April 24, 2012.

Decided: Oct. 10, 2012.

Karen Schlossberg, Assistant District Attorney (Alan Gadlin, Assistant District Attorney, on the brief), for Cyrus Vance, Jr., District Attorney, New York County, NY, for Respondents–Appellants.

Alan S. Axelrod, Legal Aid Society, New York, NY, for Petitioner–Appellee.

Before: WINTER, JOHN M. WALKER, JR. and CABRANES, Circuit Judges.

JOHN M. WALKER, JR., Circuit Judge:

Respondents-appellants are the Superintendent of New York's Clinton Correctional Facility and the Attorney General of the State of New York (together, the “State”). The State appeals from a judgment of the United States District Court for the Southern District of New York (Laura T. Swain, Judge ) granting a writ of habeas corpus to petitioner-appellee Norcott Corby, a New York state inmate by virtue of his New York state convictions for second-degree murder and first-degree robbery. The district court determined that the state trial court violated Corby's Confrontation Clause rights when it prohibited him from cross-examining the prosecution's principal witness about whether she had accused Corby of the crimes at issue only after being told that Corby had accused her. The district court held that the New York Court of Appeals misapplied U.S. Supreme Court precedent in upholding the trial court's ruling and that this error was not harmless.

On appeal, the State contends that Corby's Confrontation Clause rights were not violated at his trial and that even if they were, any violation was harmless. We agree with the State that no Confrontation Clause violation occurred and therefore REVERSE the judgment of the district court.

BACKGROUND

The factual and procedural history of this case is set forth in the prior opinions of the district court and state courts. See Corby v. Artus, 783 F.Supp.2d 547, 550–53 (S.D.N.Y.2011); People v. Corby, 6 N.Y.3d 231, 232–34, 811 N.Y.S.2d 613, 844 N.E.2d 1135 (2005); People v. Norcott, 15 A.D.3d 14, 15–18, 787 N.Y.S.2d 241 (1st Dep't 2004). For present purposes, it suffices to summarize the background for this appeal as follows:

I. Factual Background

Corby was tried and convicted by a jury in New York Supreme Court for second-degree (felony) murder and first-degree robbery, seeN.Y. Penal Law §§ 125.25(3), 160.15(2), in connection with the death of Yousef Mohammed. Mohammed was a drug dealer from San Francisco who had traveled to New York City to sell heroin to Corby. He was killed in the apartment of Xanderia Burnett, who was the prosecution's principal witness against Corby, and the only witness who testified directly about the events surrounding Mohammed's death.

Burnett testified as follows: She agreed to let Corby—who previously had dated her mother and whom she had not seen in years—use her Upper Manhattan apartment to conduct his drug deal with Mohammedin exchange for $1500. On the night of the deal, she saw Corby and two of his associates go into a back room in her apartment, presumably where Mohammed was waiting. When they emerged, Burnett saw Mohammed lying on a bed, dead, with his hands tied behind his back and blood pouring out of his head. At Corby's instruction, Burnett helped Corby and his associates steal drugs from Mohammed's hotel room, remove Mohammed's body from her apartment and clean up the blood. After the murder, Corby continued to stay at Burnett's apartment for several months. He threatened to kill her and her family if she reported him.

Approximately a week after the murder, New York police officers discovered Mohammed's body in a gutter. They found Burnett's contact information in Mohammed's hotel room and Detective John Bourges, who was in charge of investigating Mohammed's death, visited Burnett's apartment. Burnett, who testified that Corby threatened to kill her son if she spoke to Bourges about the murder, claimed to know nothing about it.

In April 1996, Corby was sentenced to prison on an unrelated parole violation. Burnett testified that the following January, after she learned that Corby was being released, she moved with her family to Philadelphia because she still feared him. She admitted to having stolen money that Corby left behind in her apartment.

In April 1998, following his release from prison, Corby met with Agent Robert Hom of the DEA, seeking to become a paid informant. He also sought the DEA's help in tracking down Burnett, who, he explained, had stolen from him. Hom refused the offer and suggested that Corby report the theft to local authorities, which Corby declined to do. About a week later, Corby returned and provided Hom with specific information about certain drug-related crimes. In particular, he told Hom that he had distributed heroin for Yousef Mohammed and that Burnett “might have been involved” in Mohammed's death. Corby claimed that he had been in Burnett's apartment with Burnett, Mohammed and another, that he left to visit his parole officer, and that Mohammed was dead when he returned. While Corby admitted to helping dispose of Mohammed's body, he claimed not to have been involved in the murder itself. Hom relayed this conversation to Detective Bourges.

In July 1998—more than two years after Mohammed's murder—Bourges and another detective paid Burnett another visit, this time at her Philadelphia residence. Burnett claimed not to recognize a photograph of Mohammed. Bourges then told Burnett that he had spoken with Corby and that Corby had accused Burnett of murdering Mohammed. This statement was incorrect for two reasons: Corby had met with DEA Agent Hom, not Bourges, and Corby had only said that Burnett “might have been involved” in Mohammed's murder. But, after hearing about Corby's alleged accusation, Burnett began crying and accompanied the detectives to the local precinct, where she was given Miranda warnings. There, for the first time, Burnett implicated Corby in Mohammed's death. Corby was arrested several months later.²

While the foregoing account of Corby's April 1998 interview with Hom and of Bourges's subsequent visit to Burnett's Philadelphia residence was elicited at a pretrial hearing, not all of this information was made explicit to the jury at Corby's trial. Specifically, although the jury learned that Corby had spoken with the DEA about Mohammed's murder, and that Bourges later discussed that meeting with Burnett, the jury never was explicitly told that Corby claimed that Burnett “might have been involved” in Mohammed's murder or that Bourges later told Burnett (incorrectly) that Corby had accused her of the crime.

II. Corby's Trial and the Cross–Examination at Issue

In November 1998, a New York grand jury indicted Corby for second-degree murder and first-degree robbery in connection with Mohammed's death. In March 2000, Corby was tried by a jury in New York Supreme Court for these crimes, convicted on both counts and sentenced to concurrent prison terms of 25 years to life and 12 1/2 to 25 years, which he is currently serving.

At trial, Corby's lawyer cross-examined Burnett—the sole testifying witness to the murder—about her personal history, her account of Mohammed's murder and her accusation of Corby. In particular, counsel focused on Burnett's delayed implication of Corby in Mohammed's murder. Corby's lawyer confronted Burnett with her original claim to law enforcement that she knew nothing of Mohammed's murder. He elicited that Burnett did not accuse Corby of this crime until after Bourges visited her in Philadelphia and told her (incorrectly) that Bourges—rather than Agent Hom—had met with Corby. And he established that, after Bourges told Burnett about that meeting, Bourges took Burnett to the local precinct and gave her Miranda warnings.

The trial court, however, sustained the prosecution's objection when Corby's attorney began to inquire into what Bourges had told Burnett about the substance of Corby's alleged meeting with Bourges. The trial judge and counsel for both sides then engaged in a lengthy colloquy over what Corby's lawyer hoped to elicit from Burnett and why. Corby's lawyer explained that he wanted the jury to learn that Bourges told Burnett that Corby had accused her of murdering Mohammed and that it was only then that Burnett accused Corby of the crime. The defense's theory was that Burnett and another had murdered Mohammed, and that when Burnett learned of Corby's accusation against her, she acquired a strong motive to lie and shift the blame falsely to Corby. Counsel explained that he wanted to craft the cross-examination question to identify Corby as the source of the accusation against Burnett because Burnett would have feared that the police would find such an accusation credible, as it would have come from an “individual who was there, and saw [Burnett] do it.” Appendix (“A.”) 104. Later, however, Corby's attorney proposed a compromise in which he would leave Corby's name out and ask Burnett only whether Bourges had told her that someone—without specifying who—had accused her of the murder.

The trial court agreed with the prosecution that the sought cross-examination was improper. It noted that, up to that point in the trial, it had given Corby's lawyer “every latitude” in cross-examining Burnett. Id. at 110. And, while Corby had the right to offer evidence that Burnett had killed Mohammed and that she therefore had a motive to falsely accuse Corby, the issue was how Corby could introduce such evidence. The judge concluded that the line of questioning sought by Corby's attorney invited the jury to speculate about whether Corby in fact had accused Burnett. The trial court was worried that, by cross-examining Burnett as to what Bourges said Corby had said, Corby's attorney was trying to introduce to the jury through cross-examination (1) Corby's defense that Burnett had...