Dunston v. Griffin
| Decision Date | 28 March 2016 |
| Docket Number | 16-cv-821(BMC) |
| Parties | MICHAEL DUNSTON, Petitioner, v. THOMAS GRIFFIN, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Petitioner seeks habeas corpus relief under 28 U.S.C. § 2254(d) to vacate his state court conviction on two counts of second degree weapons possession, and one count each of first degree reckless endangerment, third degree weapons possession, and fourth degree weapons possession. He was sentenced as a persistent violent felony offender to concurrent terms totaling twenty years to life. Relevant facts as to each of petitioner's points of error will be set forth below, but to summarize, after getting into a fight at a party, petitioner and his brother returned with guns and started firing "wildly", causing people in the area to scatter and hide. No one was shot but at least two cars in the area were damaged. There may have been a third shooter involved with whom petitioner and his brother were exchanging fire.
Petitioner's points of error are either not cognizable on federal habeas corpus review; procedurally barred; or without merit, and the petition is therefore denied. The points of error are as follows.
At petitioner's trial, one of the prosecution's witnesses was a woman named Evlina Cox. She testified that she was awoken when she heard gunfire. From her window, she saw people diving for cover. She went out of her house to the sidewalk, and testified: "Somebody said to me, your car is shot up." Defense counsel objected on hearsay grounds. The trial court overruled the objection, and instructed the jury that the statement was not being offered to prove its truth but to show Cox's state of mind.
Cox then testified that, having heard this from the unidentified declarant, she walked over to her car, which was parked on the street, and saw a bullet hole in the windshield that had struck and dislodged the rearview mirror. She owned another car parked on the street and, upon inspection, she saw that it had bullet holes in the hood and passenger door. She asked a group of people standing around who had shot up her cars. She then testified, without objection: Cox and her husband had known petitioner as a neighbor for approximately 15 years. When Cox asked petitioner why he had shot up her cars, petitioner apologized, asked her not to call the police, and said he would pay for the repairs.
On direct appeal, petitioner argued that allowing Cox to testify as to the statements she attributed to unnamed people violated both the rule against hearsay and his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. The Appellate Division held that "while the trial court erred in admitting certain hearsay testimony, such error was . . . harmless." People v. Dunston, 100 A.D.3d 769, 770, 953 N.Y.S.2d 660, 662 (2d Dep't 2012), leave to app. denied, 20 N.Y.3d 1098, 965 N.Y.S.2d 794 (2013) (table).
At the outset, I must determine the proper standard of review of the Appellate Division's decision on this point. Notably, petitioner's trial counsel never objected to Cox's testimony on the basis of the Confrontation Clause. Even as to the hearsay objection, she only objected to Cox's first remark - "Somebody said to me, your car is shot up." There was no objection at all to Cox's testimony that "the group" had pointed to petitioner, even though on direct appeal, appellate counsel challenged that testimony under both the hearsay rule and Confrontation Clause.
The Appellate Division thus might well have disposed of the Confrontation Clause claim, and all claims relating to the "group" having identified petitioner, as unpreserved. See Davis v. Lee, No. 13-cv-3827, 2015 WL 1379024, at *5 (S.D.N.Y. Mar. 25, 2015) () (quoting Bryant v. Lempke, No. 08 Civ. 6103, 2010 WL 3063073, at *5 (W.D.N.Y. Aug. 2, 2010); cf. United States v. Dukagjini, 326 F.3d 45, 60 (2d Cir. 2003) () (quoting Daye v. Attorney Gen. of New York, 696 F.2d 186, 193 (2d Cir. 1982) (en banc)). However, because the Appellate Division did not reject the claim as procedurally barred under state law, I will not either. See Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S. Ct. 2633, 2638 (1985) (); Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir.1992).
That does not end the matter, however, because the Appellate Division's holding that it was error to admit these two portions of Cox's testimony, albeit harmless error, is hard to fathom. As to the first statement from an unidentified person - that someone had shot up her car - that statement was clearly not offered to prove that somebody had shot Cox's car. The prosecutor had plenty of evidence as to the truth of that matter, since Cox testified to the bullet holes and damage caused to her car by what the jury found was petitioner's shooting. Rather, the statement explained why Cox went over to her car and found the damage in the first place. The jury would not have had any context if Cox, who previously testified that she went outside when she heard the gunfire to check on her kids, had then inexplicably testified that she then went over to her car to see if it had been shot. Why would she have gone to her car? She went to her car because somebody told her that her car had been shot. The trial court therefore appears to have properly overruled the objection, and gave the appropriate limiting instruction that the statement was not being offered for its truth, but to show Cox's reason for going to inspect her car. I don't see a hearsay issue, let alone a Confrontation Clause issue.
As to the "statement" that was not objected to at all - that "the group" had pointed out petitioner to Cox as the shooter - that again was not offered to prove that petitioner was the shooter. It was to explain why Cox had confronted petitioner in the street and asked him why he shot her car. That question was the predicate for petitioner's admission that it was he who fired the shots that hit her car and his request to Cox that she not report him to the police; petitioner's admission was not objected to at trial or on appeal. Again, it would have made no sense for Cox to testify that she confronted petitioner for no reason at all and that petitioner then admitted the crime. Cox's testimony that the group had pointed out petitioner was the explanation for the confrontation which led to petitioner's admission.
It is therefore hard to understand why the Appellate Division labeled either of these statements as inadmissible, albeit harmless, hearsay. The Appellate Division may have been imprecisely saying that even assuming arguendo that the statements were improperly admitted hearsay, the error was harmless. But once again, my role on a petition for a writ of habeas corpus is to review the Appellate Division's decision for what it held, not for what it should have held or to correct errors that it made in petitioner's favor. I will therefore consider whether the "error" was harmless.
Because of this background, however, it is practically impossible to find that the Appellate Division committed constitutional error when it held that the admission of these statements was harmless. The standard of reviewing state court harmless error rulings on federal habeas corpus is set forth in Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1722 (1993), which requires a federal court to overturn a State conviction only when the constitutional error "had substantial and injurious effect or influence in determining the jury's verdict." The Second Circuit, in directing district courts in the application of this standard, weighs "the overall importance of the wrongly admitted evidence, and the overall strength of the prosecution's case." Wood v. Ercole, 644 F.3d 83, 94 (2d Cir. 2011) (). The "importance" factor in the equation is "determined by the prosecutor's conduct with respect to the evidence, whether the evidence bore on an issue plainly critical to the jury's decision, and whether it was material to the establishment of the critical fact, or whether it was instead corroborated and cumulative." Id. (). This is a difficult standard to meet in any case, and particularly hard in this one.
Because of my view that the two statements challenged on appeal were not improperly admitted in any event, I need not go much further than the uncontested portion of Cox's testimony to conclude that the Appellate Division's conclusion that any error was harmless easily withstands analysis under Brecht. It was Cox who testified that she heard shooting. It was Cox who testified that there were bullet holes in her car. And it was Cox who testified that when she confronted petitioner, he admitted to the shooting and asked her not to go to the police. None of this testimony was objectionable or objected to, and it was highly probative; the jury, if it believed Cox alone, was very likely to convict petitioner.
And while it is true that the context of Cox's remarks (by her references to unidentified persons) marginally increased the credibility of her unobjectionable testimony, there was abundant other evidence...
To continue reading
Request your trial