Cox v. Miller, 071702 FED2, 01-2515

Docket Nº:01-2515
Party Name:Cox v. Miller
Case Date:February 13, 2002
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit




Docket No. 01-2515

August Term, 2001


Argued: February 13, 2002

July 17, 2002

Richard E. Weill, First Deputy District Attorney (Jeanine Pirro, New York District Attorney of Westchester County; Diane E. Selker, Assistant District Attorney, of counsel), White Plains, Ny, for Respondent-Appellant.

Robert N. Isseks (Alex Smith, of counsel), Middletown, Ny, for Petitioner-Appellee.

Before: Sack, B.D. Parker, Jr., and Gibson, (FN1) Circuit Judges.

Sack, Circuit Judge

Appeal from a judgment of the United States District Court for the Southern District of New York (Charles L. Brieant, Jr., Judge) granting the petitioner a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the ground that the state trial court's failure to extend New York's cleric-congregant privilege, N.Y. C.P.L.R. § 4505, to exclude testimony based on, and forensic evidence discovered as a result of, communications made by the petitioner to fellow members of Alcoholics Anonymous violated the Establishment Clause of the First Amendment to the United States Constitution. Assuming that Alcoholics Anonymous is a religious organization for purposes of this analysis, we hold that the petitioner's communications fall outside the scope of New York's cleric-congregant privilege because he failed to establish that he made them for the purpose of obtaining spiritual guidance, as New York's cleric-congregant privilege requires.

Reversed and remanded with instructions to vacate the writ of habeas corpus and dismiss the petition.


Respondent David Miller, Superintendent of New York State's Eastern Correctional Facility, where petitioner Paul Cox is incarcerated, appeals from a judgment of the United States District Court for the Southern District of New York (Charles L. Brieant, Jr., Judge) granting Cox's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On December 6, 1994, a New York State jury found Cox guilty of two counts of manslaughter in the first degree for the 1988 killings of Drs. Lakshman Rao Chervu and Shanta Chervu, a married couple. On December 31, 1988, the Chervus resided in the house where Cox had lived as a child. While alcoholically intoxicated, Cox broke into that house, took a knife from the kitchen, and stabbed the Chervus to death. For more than four years thereafter, the crime remained unsolved. On November 11, 1990, Cox joined Alcoholics Anonymous ("A.A.") and, according to his testimony, thereafter refrained entirely from consuming alcoholic beverages. But as Cox became sober, he increasingly suffered from vivid, anxiety-ridden dreams in which he experienced flashbacks. These eventually led him to realize that it was he who had killed the Chervus.

The Fourth and Fifth Steps of A.A.'s twelve-step therapy program, respectively, instruct members to undertake "a searching and fearless moral inventory" and to "admit[] to God, to [them]selves, and to another human being the exact nature of [their] wrongs." At about the time Cox reached the Fourth Step, he felt a need to confide his guilt of the Chervu killings to other A.A. members. Between 1991 and 1993, Cox confessed to no fewer than seven A.A. members. For example, Cox told his prospective roommate, Ms. H, (FN2) an A.A. member, because he thought that she should be aware of his recurrent nightmares about the killings before deciding whether to share an apartment with him. He described the killings to her in some detail.

Despite the disclosure, Ms. H moved in with Cox and another A.A. member. Two months later, in the Spring of 1993, H moved out. Then, on her psychiatrist's advice, she revealed to local police what Cox had told her. The police renewed their investigation into the Chervu murders and solicited statements from at least six other A.A. members to whom Cox had confessed. On May 20, 1993, the police arrested Cox and matched his palm print to one that had been taken at the scene of the killings. Shortly thereafter, a New York State grand jury indicted Cox for second degree murder. Defense counsel then made a pretrial motion to suppress, as privileged, Cox's statements to A.A. members. Supreme Court, Westchester County (James R. Cowhey, Justice) denied the motion. Defense counsel also objected to the admission of Cox's statements at his first trial, which ended in a hung jury, and raised in vain a similar objection at his second trial. The second jury convicted Cox of second-degree murder, see N.Y. Penal Law § 125.25(1), but found that he acted in a state of extreme emotional disturbance, a mitigating circumstance that reduced his conviction to first degree manslaughter, see id. § 125.25(1)(a).

Cox appealed his conviction to the Supreme Court Appellate Division, Second Department, arguing that the trial court erred by refusing to exclude the A.A. members' testimony as privileged cleric-congregant communications pursuant to N.Y. C.P.L.R. § 4505. See Pet.'s Br. to App. Div. at 41-52. The Appellate Division did not address this argument except to find it "either unpreserved for appellate review or without merit." People v. Cox, 264 A.D.2d 854, 854, 696 N.Y.S.2d 177, 178 (2d Dep't 1999) ("Cox I"). The Court of Appeals thereafter denied Cox's petition for leave to appeal. People v. Cox, 94 N.Y.2d 902, 707 N.Y.S.2d 386, 728 N.E.2d 985 (2000) (Bellacosa, Judge).

On May 3, 2001, Cox petitioned the United States District Court for the Southern District of New York for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Cox claimed, inter alia, that "statements to his fellow A.A. members constituted confidential communications, the use of which violated [his] rights under the First and Fourteenth Amendments." Pet.'s Br. in Support of his Petition for a Writ of Habeas Corpus at 83. The district court granted Cox's petition. Cox v. Miller, 154 F.Supp.2d 787, 793 (S.D.N.Y. 2001) ("Cox II"). It reasoned that because Second Circuit case law has treated A.A. as a religion for purposes of the Establishment Clause, (FN3) New York State could not constitutionally construe its cleric-congregant privilege to exclude from its protection communications made during the course of unconventional forms of "religious expression," including "the disclosure of wrongs to a fellow member [of A.A.] as ordained by the Twelve Steps." Cox II, 154 F.Supp.2d at 792. Because the State subpoenaed A.A. members to testify about those disclosures and introduced at trial forensic evidence that would not have been obtained but for the use of Cox's statements by the police, the district court held that Cox's conviction had been obtained in violation of his constitutional rights under the Establishment Clause. Id. at 792-93.

We do not dispute the axiom of constitutional law upon which the district court relied: that "[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another." Larson v. Valente, 456 U.S. 228, 244 (1982). We conclude, however, that Cox failed to establish that his communications to other A.A. members would have been privileged, even were New York's cleric-congregant privilege required to be construed to protect communications made among members of A.A. The privilege only protects disclosures made "in confidence and for the purpose of obtaining spiritual guidance." People v. Carmona, 82 N.Y.2d 603, 609, 606 N.Y.S.2d 879, 882, 627 N.E.2d 959, 962 (1993). With few, if any, exceptions, the record fails to establish that Cox communicated with fellow A.A. members in order to seek spiritual guidance. We therefore hold that even were the Establishment Clause to require that some communications between A.A. members in some circumstances be protected under New York's cleric-congregant privilege, Cox's communications in issue here do not qualify for such protection. We need not consider the district court's assertion that the Establishment Clause requires states to extend the cleric-congregant privilege to those who "practice a religion without having a clergyman as such, or where all members exercise the office of clergyman to the extent of receiving confessions or confidences." Cox II, 154 F.Supp.2d at 792.


The Killing of the Chervus

On the evening of December 30, 1988, Paul Cox and two of his friends attended a neighborhood keg party. By 11:00 P.M., the kegs had been emptied. Cox and his friends retired to "Gary's Barleycorn," a local bar where they continued drinking. At about 2:00 A.M. on the morning of December 31, the trio left Gary's Barleycorn in a car owned by Cox's mother. With Cox driving, the car soon veered off the road somewhere in Larchmont, New York, careening into a guardrail. Cox's friends decided to return to Gary's Barleycorn to resume drinking. Cox abandoned the wrecked car and his friends and wandered toward his parents' home, where he resided at the time.

Along the way, Cox passed the house at 36 Lincoln Avenue, Larchmont, where Drs. Lakshman and Shanta Chervu, a married couple, resided. The Chervus, immigrants from India, had purchased their home from Cox's parents in 1974. Cox lived there as a child until about the age of seven; according to one witness at trial, he boasted that he "could walk through it blindfolded." Still severely intoxicated, Cox broke into the home by smashing a window pane, picked up a knife from the kitchen, walked upstairs to the Chervus' bedroom, and sat at the edge of their bed. Shanta Chervu awoke, and Cox stabbed her. Lakshman then awoke, and Cox stabbed him repeatedly. He then slit the Chervus' throats. (Cox later said that he thought at the time that he was killing his...

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