Evans v. Fischer, Docket No. 11–4418–pr.

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: GERARD E. LYNCH
• Citation: 712 F.3d 125
• Parties: Carlos EVANS, Petitioner–Appellee, v. Brian FISCHER, Respondent–Appellant.
• Docket Number: Docket No. 11–4418–pr.
• Decision Date: 03 April 2013

712 F.3d 125

Carlos EVANS, Petitioner–Appellee,
v.
Brian FISCHER, Respondent–Appellant.

Docket No. 11–4418–pr.

United States Court of Appeals,
Second Circuit.

Argued: Oct. 3, 2012.
Decided: April 3, 2013.

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Glenn A. Garber, (Angharad Vaughan, on the brief), Glenn A. Garber, P.C., New York, NY, for petitioner-appellee.

Thomas M. Ross, Assistant District Attorney (Leonard Joblove, Ann Bordley, Assistant District Attorneys, on the brief), for Charles J. Hynes, Kings County District Attorney, Kings County, NY, for respondent-appellant.

Before: LYNCH, LOHIER, and DRONEY, Circuit Judges.

GERARD E. LYNCH, Circuit Judge:

Petitioner Carlos Evans was convicted by a jury of burglarizing a Brooklyn apartment and sentenced to fifteen years in prison. He was tried along with two codefendants, Hudson Merzier and Anthony Foster, on the strength of evidence recovered from the scene as well as the testimony of, among others, Aisha Walker. Walker was both an acquaintance of the defendants and a neighbor and acquaintance of the burglary victim, Olujimni Omitogun. One week before Evans's trial, Walker agreed to testify against the defendants in exchange for a non-custodial sentence for her own role in the burglary.

On October 22, 2002, in New York Supreme Court in Kings County, a jury convicted Evans of burglary in the first degree, two counts of criminal possession of a weapon in the second degree, and assault in the second degree. seeN.Y. Penal Law §§ 140.30; 265.03; 120.05. He was sentenced to concurrent terms of fifteen years' imprisonment (on the burglary and weapons possession counts) and seven years' imprisonment (on the assault count). Petitioner appealed his conviction and sentence, but the Second Department affirmed.

On October 31, 2006, petitioner filed the habeas petition at issue in this case in the United States District Court for the Eastern District of New York. Concluding that the trial judge had improperly admitted a hearsay document into evidence, the district court (Raymond J. Dearie, Judge ) granted petitioner's application for the writ. The state appeals, arguing that the Appellate Division's affirmance of petitioner's conviction was not an “unreasonable application” of United States Supreme Court precedent within the meaning of 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104–132, § 104, 110 Stat. 1214 (“AEDPA”). We agree and reverse the grant of habeas corpus.

BACKGROUND I. The Evidence at Trial

Because this case centers on Walker's various statements, including the hearsay statement admitted at trial, it will be most useful to describe the facts as she told them at trial, including the inconsistencies in her account revealed on cross-examination

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and through the admission of her written statement.

A. Walker's Testimony on Direct Examination

The account in this section relies only on Walker's sworn testimony given on direct examination at trial. Walker is a dancer who, at all times relevant to the facts of this case, worked part-time at an adult club called Sweet Cherry, located in the Sunset Park neighborhood of Brooklyn. Walker met Omitogun, the victim of the burglary, soon after moving into the apartment complex where they both resided in the Canarsie neighborhood of Brooklyn. She had visited his apartment on two occasions, observed that he had “fairly nice things,” and heard him brag about his car, jewelry, and brand-name clothes.

Walker met Evans's co-defendant Merzier through a mutual friend three weeks to a month prior to the evening of the burglary. That meeting was arranged so that Walker could ask Merzier for a loan to pay her overdue rent, but Merzier was not able to lend her the money at the time. She met Evans a few weeks before the burglary, and Foster only one or two days before the crime.

On August 15, 2001, Walker was at her apartment with the three defendants and one of her coworkers, Diamond. During this gathering, Foster told the group that he intended to rob Omitogun. Foster then went to the roof of Walker's building to canvass Omitogun's apartment, which was accessible via the roof. He later commented on the similarity of the layout of Walker's and Omitogun's apartments. Over the course of the evening, the group planned the burglary. Foster was to be the ringleader and direct the burglary, Evans was to follow him into Omitogun's apartment, and Merzier was to stay behind in Walker's apartment as a lookout and getaway driver. The proceeds from the burglary were to be split among the defendants and Walker, whose share was promised in exchange for allowing the burglars to use her apartment as a staging ground.

The next day, in the evening of August 16, 2001,¹ Walker was at home with Diamond, Evans, and Merzier. As she entered her apartment, Walker received a phone call from Omitogun, who said that he was at a friend's apartment in the same building. Omitogun asked Walker if she and other dancers from Sweet Cherry would be willing to entertain him and several friends from out of town. Walker told Omitogun that she had to be at work in approximately half an hour, but that she would come by his apartment afterward. Evans, having overheard this conversation, stated that he intended to rob Omitogun that night. Shortly thereafter, Merzier left the apartment, Walker and Diamond took a taxi to work at Sweet Cherry, and Evans stayed behind at Walker's apartment.

Upon her arrival at the club, Walker was told that she was not allowed to work that evening because she was late. Fearing for her safety, however, she decided to remain at the club. Walker called Omitogun's cell phone to arrange details related to her visit to Omitogun's apartment later that evening, particularly whether she and her coworkers would be paid for their services. About an hour after her conversation with Omitogun, Walker spoke on the phone with Merzier, who by that point had returned to Walker's apartment. Walker testified, over defense objections, that Merzier told her that Foster and Evans were in Omitogun's apartment robbing

[712 F.3d 129]

him. She also testified that she believed no weapons would be used in the robbery.

While returning home from work, Walker received a call from Omitogun. Omitogun told her that he had been robbed. Another man, also on the phone, threatened her with harm unless Omitogun's money and belongings were returned. Shortly thereafter, Walker had a series of telephone conversations with Merzier. Walker testified (again over defense objections) that Merzier told her that he was unable to leave the apartment complex because police cars and helicopters had surrounded the block.

Rather than returning home, Walker and Diamond decided to go to the police precinct because Walker feared Omitogun's threats. She also feared that her role in the plan might be uncovered. Upon arriving at the 69th Precinct, Walker spoke with a police officer whose name she could not remember. She explained that she was being threatened and requested an escort home but did not mention anything about the burglary at Omitogun's home. The police officer asked where Walker lived and, when told, informed Walker there had been a homicide (apparently unrelated to the events at issue in this case) on her block. As a result, all the other officers were unavailable at that time. Walker left the station, but returned some time later, at which point she spoke with Detectives Ahern and Rivera.

Over the course of approximately two days, Walker gave varying statements about the events at issue in this case to the two detectives. Most importantly, she told Detective Rivera that Evans and Foster (but not Merzier) had discussed robbing Omitogun. She also gave details about the plan to Detective Rivera in a seven-page written statement, which omitted her role in the discussions.

B. Walker's Testimony on Cross–Examination

The facts in this section are drawn from Walker's testimony on cross-examination, during which defense counsel successfully elicited several inconsistencies in Walker's account, as well as contradictions between Walker's testimony on direct examination and various other statements she had given at different times about her role in the burglary. The defendants sought on cross-examination to demonstrate that Walker was willing to tell different stories at different times to serve her interests.

Walker admitted that, when giving a statement to Detective Ahern, she “basically lied and said [she] had nothing to do with” the burglary. She further testified that she did not mention any of the defendants in her initial statement to Detective Ahern. She told Detective Ahern that there was no one in her apartment and that nobody had her permission to be there.

Walker testified that, after she spoke with Detective Ahern, the police accompanied her back to her apartment. Upon arriving there, they found the three defendants, who were then arrested for burglary of Walker's apartment. ² When asked by the police officers, Walker denied knowing the defendants except for Merzier. She then swore out a complaint falsely stating that the defendants did not have permission to be in her apartment that evening.

Defense counsel did not ask Walker about the specific contents of the seven-page written statement other than to ask

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whether her comments to Detective Rivera were consistent with her testimony on direct examination. Walker did not testify about the contents of the written statement other than to say that the statement she gave to Detective Rivera was at least partially false.

Finally, Walker admitted that she agreed to testify against the defendants in exchange for a non-custodial sentence. Defense counsel also attempted to elicit contradictions in Walker's timeline of events and to raise questions about the true nature of her profession and her relationships with Omitogun and Merzier. However, Walker denied that she had misrepresented anything about...