Grayton v. Ercole

• Decision Date: 15 August 2012
• Docket Number: Docket No. 10–1419.
• Citation: 691 F.3d 165
• Parties: Nathaniel GRAYTON, Petitioner–Appellant, v. Robert ERCOLE, Respondent–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

691 F.3d 165

Nathaniel GRAYTON, Petitioner–Appellant,

v.Robert ERCOLE, Respondent–Appellee.

Docket No. 10–1419.

United States Court of Appeals, Second Circuit.

Argued: Sept. 21, 2011.

Decided: Aug. 15, 2012.

Julia Pamela Heit, New York, N.Y., for appellant, Nathaniel Grayton.

Morgan J. Dennehy, Leonard Joblove, Anthea N. Bruffee, Assistant District Attorneys (of counsel) on behalf of Charles J. Hynes, District Attorney Kings County, Brooklyn, N.Y., for appellee, Robert Ercole.

Before: POOLER, B.D. PARKER, and CARNEY, Circuit Judges.

B.D. PARKER, Circuit Judge, filed a concurring opinion.

POOLER, Circuit Judge:

This appeal arises from a denial of a petition for a writ of habeas corpus. Appellant Nathaniel Grayton was found guilty on January 17, 2003 after a jury trial, of Murder in the Second Degree, N.Y. Penal Law § 125.25(1). He was sentenced to twenty-five years to life imprisonment on February 6, 2003. He exhausted his state appeals. He then timely petitioned for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court for the Eastern District of New York, arguing that his exclusion from a Geraci hearing violated his constitutional right to presence at all material stages of the trial. Geraci hearings are held in New York state courts to determine whether a defendant has procured a witness's unavailability by misconduct and has thus forfeited his Confrontation Clause rights in regards to that witness. People v. Geraci, 85 N.Y.2d 359, 365–66, 625 N.Y.S.2d 469, 649 N.E.2d 817 (1995). The district court assumed arguendo that Grayton had a federal constitutional right to be present at the hearing and then determined that he had waived that right. Accordingly, it denied the writ. We now affirmatively hold that there is a right to be present at a Geraci hearing. We also hold that right was waived in Grayton's case and so affirm the district court's judgment.

Judge Parker concurs in a separate opinion.

BACKGROUND

On November 27, 2001, Isaiah Rodriguez was shot to death in front of a residence in Brooklyn during a confrontation with appellant Nathaniel Grayton. Grayton was indicted and brought to trial in New York State Supreme Court, Kings County. Jessica Osario, one of two eyewitnesses called to testify for the prosecution, had to be produced for the trial pursuant to a material witness order. After being brought to court, Osario was provided a lawyer. Without Grayton or his counsel present, the judge began questioning Osario about her reluctance to testify. Osario's counsel indicated his belief that Osario was “in extreme fear of the family of the defendant.” He also indicated that if forced to testify, Osario would say she did not remember anything. Grayton and his counsel were only brought into the courtroom after the court offered to hear an application about the possibility of closing the courtroom for Osario's testimony. While both defense counsel and Grayton were present, Osario's attorney repeated that Osario was very frightened of having Grayton's family in the courtroom. Osario refused to state what had made her fearful, saying only that she would absolutely refuse to testify and that they could “take [her] in” if necessary. The court found her in contempt and had her held overnight.

When proceedings began the next day, defense counsel appeared and stated, “my client is produced but he's not present. I waive his appearance for the purposes of conference for right now.” Some time after this waiver, Grayton was brought into the courtroom. The court then broke for lunch. After the recess, the court noted, “[Defense counsel] is present. [He] is here without his client.” Grayton's lawyer replied “That's correct, Your Honor.” During this time, Osario continued her refusal to testify. Her counsel indicated that it was his “understanding that the statements in the Grand Jury will differ substantiallyfrom her testimony on the stand in this particular case.”

After more discussion between the parties, the prosecutor requested a Geraci hearing. A Geraci hearing is “held in New York criminal cases to determine whether the defendant has procured a witness's absence or unavailability through his own misconduct, and thereby forfeited any hearsay or Confrontation Clause objections to admitting the witness's out-of-court statements.” Cotto v. Herbert, 331 F.3d 217, 225–26 (2d Cir.2003); see also People v. Geraci, 85 N.Y.2d 359, 625 N.Y.S.2d 469, 649 N.E.2d 817 (1995).¹ The court responded to the prosecutor's request by saying, “[n]ow, just to be clear, we still have [defense counsel] here. We do not have the defendant present. The defendant is not entitled to be present at a Gerac [i] hearing nor is his counsel, I believe.” Defense counsel did not object to this statement, but instead argued that there was no basis to hold the hearing, given Osario's counsel's suggestion that his client feared perjury, not Grayton. The court responded to this objection by telling defense counsel, “I'm a little conflicted. I know that this hearing is meant to be held out of the presence of the defendant[,] but obviously if there is going to be any issue as to whether the defendant is responsible for any of these threats and how he can respond if his attorney is precluded, so I think we're going to let you stay [defense counsel].” The court asked Osario's lawyer “whether [Osario's] refusal has anything to do with threats or fear,” to which he responded, “[n]ot that I know of, Judge.” The court nonetheless decided to “to give [the prosecution] the opportunity to present” its evidence of misconduct in a Geraci hearing. The court told defense counsel “certainly your client is not going to be present.” He replied, “[i]t's understood, Your Honor.”

At the hearing, the prosecution called a detective, an assistant district attorney, Osario, and Osario's mother to testify. Grayton's attorney did not call any witnesses or conduct any cross-examination. He made only a summation, arguing to the court that misconduct was not demonstrated on the part of his client. Defense counsel framed his role in the Geraci hearing as “having the opportunity to observe [it].” Grayton was not present during the hearing. The next day, with Grayton present, the court issued its decision. After discussing at length its finding that Osario was made unavailable by Grayton's misconduct, the court indicated that Osario's grand jury testimony would be admissible in lieu of her live testimony at trial.

After the jury was reseated, the court reporter who originally transcribed Osario's grand jury testimony read it into the record. That testimony indicated that on the night of the incident, Osario was standing in front of her building with three other people. While they were outside, Isaiah Rodriguez drove up in his car, made a U-turn and parked. He then went inside the apartment of Genaia Wright.² At that point Grayton came outside, and he and Rodriguez began arguing. Osario reported Grayton was putting his hands in Rodriguez's face, to which Rodriguez responded by punching him. Osario heard three or four gunshots and then ran. Grayton's left hand was in his pocket when he was arguing with Rodriguez; Osario did not see a gun. After the shooting, Grayton rode away on his bicycle, saying “Niggers think I'm playing.” This testimony substantially corroborated the testimony of the other eyewitness who testified at trial.

Grayton was found guilty of Murder in the Second Degree, N.Y. Penal Law § 125.25(1), on January 17, 2003, and was sentenced to 25 years to life imprisonment on February 6, 2003. On appeal to the Second Department of the Appellate Division of New York, appellant argued, as he does now, that his constitutional right to presence was violated by his exclusion from the Geraci hearing. In a summary affirmance, the Appellate Division upheld Grayton's conviction, holding that “his constitutional right to be present at a material stage of the trial was not violated.” People v. Grayton, 22 A.D.3d 598, 801 N.Y.S.2d 757, 757 (2d Dep't 2005). A judge of the New York Court of Appeals denied Grayton permission to appeal the Appellate Division's order. People v. Grayton, 6 N.Y.3d 754, 754, 810 N.Y.S.2d 422, 843 N.E.2d 1162 (2005) (Rosenblatt, J.). Grayton then turned to habeas. After a report and recommendation from a magistrate judge, the district court determined that even if Grayton had a federal constitutional right to be present at the Geraci hearing, he had expressly and impliedly waived that right. Grayton v. Ercole, No. 07–cv–0485, 2009 WL 2876239, at *6 (E.D.N.Y. September 8, 2009). On appeal, Grayton raises three main issues: 1) whether he had a right to be present at the Geraci hearing; 2) whether that right was waived; and 3) whether any error was harmless.

DISCUSSION

We review the denial of a petition for a writ of habeas corpus de novo. Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir.2001). The standard we apply in our de novo review is set forth by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254 et seq. As relevant here, AEDPA requires that where a claim was adjudicated on the merits ³ a writ of habeas corpus must be denied unless the state court's determination “resulted in a decision that was contrary to, or 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). Grayton argues that he had a federally protected right to be present at the Geraci hearing, though he does not specify whether he views his claim as falling under Section 2254(d)(1)'s “contrary to” prong or its “unreasonable application” prong. The government argues that since the Supreme Court has not decided a case that is materially indistinguishable from this one, see Williams v. Taylor, 529 U.S. 362, 412–13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), any analysis must spring from the “unreasonable application” prong. We agre...