Garlick v. Lee

• Decision Date: 11 June 2021
• Docket Number: August Term 2020,No. 20-1796,20-1796
• Citation: 1 F.4th 122
• Parties: James GARLICK, Petitioner-Appellee, v. Superintendent William LEE, Eastern Correctional Facility, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

1 F.4th 122

James GARLICK, Petitioner-Appellee,

v.Superintendent William LEE, Eastern Correctional Facility, Respondent-Appellant.

No. 20-1796

August Term 2020

United States Court of Appeals, Second Circuit.

Argued: March 12, 2021

Decided: June 11, 2021

Matthew Bova (Robert S. Dean, on the brief), Center for Appellate Litigation, New York, New York, for Petitioner-Appellee.

Joshua P. Weiss, Assistant District Attorney (Nancy D. Killian, Peter D. Coddington, Robert C. McIver, Assistant District Attorneys, on the brief), for Darcel D. Clark, Bronx County District Attorney, Bronx, New York, for Respondent-Appellant.

Before: Wesley, Sullivan, and Menashi, Circuit Judges.

Menashi, Circuit Judge:

Respondent-Appellant William Lee, Superintendent of the Eastern Correctional Facility, appeals from the final judgment of the district court granting Petitioner-Appellee James Garlick's petition for a writ of habeas corpus pursuant to the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254. In 2013, Garlick was convicted by a jury in state court of first-degree manslaughter. At trial, an autopsy report—prepared at the request of law enforcement during an active homicide investigation—was admitted into evidence over Garlick's objection through a witness who had not participated in the autopsy or in the preparation of the autopsy report. Garlick appealed his conviction, arguing that the introduction of the autopsy report violated his Sixth Amendment right of confrontation. The state appellate court affirmed the conviction on the ground that Garlick's right of confrontation was not violated because the autopsy report did not link the commission of the crime to Garlick and therefore was not testimonial. People v. Garlick , 144 A.D.3d 605, 606, 42 N.Y.S.3d 28 (N.Y. App. Div. 1st Dep't 2016). We conclude that this decision involved "an unreasonable application" of "clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Accordingly, we AFFIRM the judgment of the district court granting a writ of habeas corpus to Garlick.

BACKGROUND

I

On November 1, 2011, police responded to a report of an assault at an apartment building in the Bronx. The responding police officer found the victim, Gabriel Sherwood, bleeding on the floor in the building lobby. The victim was pronounced dead at the hospital.

That same evening, Detective Thomas DeGrazia, the lead homicide detective assigned to the case, initiated an investigation and sought video footage from the building's surveillance video. The video footage showed a man struggling with the victim in the lobby and a woman repeatedly striking the victim on the head. Both attackers—and another woman present during the attack—fled the scene.

Later that evening, the police identified the female attacker as Johanna Rivera and arrested her as a suspect in the victim's homicide. In a post-arrest interrogation, Rivera identified Garlick as the male attacker in the video. At 4:45 a.m. on November 2, 2011, Detective DeGrazia issued a department-wide notification to arrest Garlick for his involvement in the homicide.

On November 1, 2011, the same evening as the murder, Detective DeGrazia also notified staff at the New York City Office of the Chief Medical Examiner ("OCME") of the need for an autopsy of the victim's body and arranged for the body's transport. He informed the OCME staff of details of the incident, including that the body appeared to have multiple stab wounds. With this information, the OCME prepared a "Notice of Death" form, dated November 1, 2011, that stated: "Circumstances of death: App. manner: Homicide." App'x 290. The OCME also prepared a "Supplemental Case Information" sheet, which documented the conversation with Detective DeGrazia and noted that the victim was found with multiple stab wounds in the lobby of a Bronx apartment building. App'x 291.

The following day, on November 2, 2011, Dr. Katherine Maloney of the OCME performed the autopsy with Dr. James Gill and two Bronx homicide detectives present.

Dr. Maloney then prepared an autopsy report concluding that the victim's cause of death was a "stab wound of torso with perforation of heart" and the manner of death was "homicide." App'x 275. The autopsy report is titled "Report of Autopsy" and bears several official seals including that of the OCME. App'x 275. The first page of the autopsy report includes the following certification:

I hereby certify that I, Katherine Maloney, M.D., City Medical Examiner — I, have performed an autopsy on the body of Gabriel Sherwood, on the 2nd of November, 2011, commencing at 9:00AM in the Bronx Mortuary of the Office of Chief Medical Examiner of the City of New York.

App'x 276. Fiber recovered during the autopsy was "submitted to evidence per the usual protocol." App'x 280.

A "Case Worksheet" was prepared at the same time as the report by Dr. Maloney and bears her signature. According to the Case Worksheet, the immediate cause of death was a "[s]tab wound of torso with perforation of heart." App'x 285. After receiving Dr. Maloney's findings, the police decided not to pursue a murder charge against Johanna Rivera and instead sought to charge Garlick with murder because, as Detective DeGrazia testified, "the medical examiner made it clear that it was the stab wounds that caused the death." Trial Tr. at 277, Garlick v. Lee , 464 F. Supp. 3d 611 (S.D.N.Y. 2020) (No. 18-CV-11038), ECF No. 13-7.

Following his arrest on November 11, 2011, Garlick told the police that the victim had been sexually harassing his girlfriend, Lisa Rivera; that he and the victim began fighting outside of the apartment building and then moved into the lobby; that the victim brandished what he thought was a weapon; that the two struggled for it; and that he did not have a knife. He asserted that he was only trying to defend himself and his girlfriend.

On December 29, 2011, after receiving the forensic toxicology and microscopic analysis reports, Dr. Maloney finalized the autopsy report. Dr. Maloney certified that she performed the autopsy, and she signed the autopsy report.¹ The OCME certified the autopsy report as a business record under New York's statutory business-record rule and affixed the official OCME seal. As mandated by state and local law, the OCME then delivered the signed autopsy report to the Bronx District Attorney's Office. See N.Y. County Law § 677(4) ; see also N.Y. City Charter § 557(g); N.Y. C.P.L.R. § 4520.

II

On November 28, 2011, Garlick was indicted for murder, first-degree manslaughter (intent to cause serious physical injury), and assault with a dangerous weapon (first and second degree) in Bronx County Court. See N.Y. Penal Law §§ 125.25(1), 125.20(1), 120.10(1), 120.05(2).

At trial, the State introduced the autopsy report through the testimony of Dr. Susan Ely of the OCME. Garlick objected, arguing that introducing the autopsy report through Dr. Ely's testimony would violate his right of confrontation under the Sixth Amendment because Dr. Ely did not prepare the autopsy report and was not involved in the victim's autopsy.² Relying on People v. Freycinet , 11 N.Y.3d 38, 862 N.Y.S.2d 450, 892 N.E.2d 843 (2008), and People v. Hall , 84 A.D.3d 79, 923 N.Y.S.2d 428 (N.Y. App. Div. 1st Dep't 2011), the trial court held that it was "proper to allow a witness to testify to the contents of an autopsy" even if the witness had not participated in the autopsy or the preparation of the autopsy report. Trial Tr. at 22, Garlick , 464 F. Supp. 3d 611, ECF No. 13. The trial court admitted the autopsy report as a business record, based on Dr. Ely's testimony laying a foundation, and Dr. Ely then testified about the contents of the report as an expert in the fields of clinical, anatomic, and forensic pathology.

The State relied heavily on the autopsy report throughout the trial. In its opening statement, the State referenced the report to describe the victim's wounds and promised that Dr. Ely would provide the details. The State used the autopsy report to eliminate Johanna Rivera as a potential cause of the victim's death. Because the video of the incident presented at trial did not clearly show that Garlick had a knife and because Garlick denied ever possessing a knife, the State connected Garlick to the victim's knife wounds by relying on the conclusions in the autopsy report. The State also offered the autopsy report as evidence of Garlick's intent to cause serious physical injury. Finally, the State relied on the autopsy report in its closing argument, recounting Dr. Ely's testimony about the victim's wounds and describing the report's conclusions as the "final diagnosis" of the victim's "cause of death." Trial Tr. at 449, 452-53, Garlick , 464 F. Supp. 3d 611, ECF No. 13-12.

The jury convicted Garlick of first-degree manslaughter and acquitted him of the murder charge. He was sentenced to twenty years’ imprisonment and five years of supervised release. He is currently serving that sentence.

III

Garlick appealed his conviction to the Appellate Division, First Department, arguing that the autopsy report was testimonial and therefore should not have been admitted through a surrogate witness. The First Department disagreed and held that Garlick's right of confrontation "was not violated when an autopsy report prepared by a former medical examiner, who did not testify, was introduced through the testimony of another medical examiner" because the report "did not link the commission of the crime to a particular person" and therefore "was not testimonial." People v. Garlick , 144 A.D.3d 605, 606, 42 N.Y.S.3d 28 (2016) (alteration omitted) (quoting People v. Acevedo , 112 A.D.3d 454, 455, 976 N.Y.S.2d 82 (N.Y. App. Div. 1st Dep't 2013), and People v. John , 27 N.Y.3d 294, 315, 33 N.Y.S.3d 88, 52 N.E.3d 1114 (2016) ). The First Department also rejected Garlick's argument that People v. Freycinet , 11 N.Y.3d 38, 862 N.Y.S.2d 450, 892 N.E.2d 843 (2008), which held that an...