Jackson v. Scully, 249

• Citation: 781 F.2d 291
• Decision Date: 14 January 1986
• Docket Number: D,No. 249,249
• Parties: Jesse James JACKSON, Petitioner-Appellant, v. Charles C. SCULLY, Superintendent, Green Haven Correctional Facility, Respondent-Appellee. ocket 85-2202.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 291

781 F.2d 291

Jesse James JACKSON, Petitioner-Appellant, v. Charles C. SCULLY, Superintendent, Green Haven Correctional

Facility, Respondent-Appellee.

No. 249, Docket 85-2202.

United States Court of Appeals,

Second Circuit.

Argued Sept. 30, 1985.

Decided Jan. 14, 1986.

Guy Miller Struve, New York City (Davis, Polk & Wardwell, of counsel), for petitioner-appellant.

Bruce E. Whitney, Mineola, Dist. Atty. of Nassau County (Robert Abrams, Atty. Gen. of N.Y.), for respondent-appellee.

Before VAN GRAAFEILAND, CARDAMONE and MINER, Circuit Judges.

MINER, Circuit Judge:

Jesse James Jackson appeals from a judgment of the United States District Court for the Southern District of New York (Griesa, J.), denying his petition for a writ of habeas corpus.

In March of 1975, Jackson was convicted in Nassau County Court of murder in the second degree and was sentenced to a term of imprisonment of fifteen years to life. The Appellate Division affirmed his conviction without written opinion, People v. Jackson, 52 A.D.2d 758, 382 N.Y.S.2d 213 (2d Dep't 1976), and the New York Court of Appeals denied leave to appeal, People v. Jackson, 39 N.Y.2d 1063, 389 N.Y.S.2d 1032, 357 N.E.2d 1028 (1976). Prior to the filing of the instant petition, Jackson raised numerous challenges to his conviction in state and federal courts, all of which were denied. ¹

I. BACKGROUND

On the evening of February 1, 1974, Carl Campbell was shot while in the vicinity of 96 Wellsley Street in Hempstead Heights, New York. He later died of complications resulting from the gunshot wound. Following a police investigation, Jackson and co-defendant Willie Somerville were arrested, charged with second degree murder and tried in Nassau County Court. At the conclusion of the prosecution's case, the indictment as against Somerville was dismissed. The case against Jackson, however, was submitted to the jury, and a verdict of guilty was returned.

Prosecution witnesses testified that during an evening in mid-January of 1974, Jackson and Campbell were involved in an altercation at a bar in Hempstead Heights, New York. Later that evening, and also on the following evening, Jackson returned to the bar in search of Campbell, offering patrons and employees money if they would identify Campbell to him. One bar patron, Bobby Miller, testified that Jackson said that he wanted to "get" or "kill" the person who had struck him. Miller, however, was uncertain of Jackson's exact words. Jimmy Sledge, an acquaintance of Jackson's aunt, testified that when Jackson arrived at his aunt's home with Somerville on the night of the shooting, he spoke loudly about his fight with Campbell. According to Sledge, Jackson left the house for a short period of time, and, upon returning, said to his mother "Mama, I spotted him. Give me your gun." At that time, Sledge saw Jackson's mother give Jackson an unidentified object from her purse. Jackson and Somerville again left the house and returned approximately thirty minutes later; Jackson then said to his mother "I got him," and handed her an object which she put in her purse.

Charles Milton, an acquaintance of Somerville, testified that he saw Jackson and Somerville at the bar on the night of the shooting. Later that evening, while standing near the shooting site, Milton observed a car with two occupants and only parking lights on go by. The car then turned onto a side street and followed a third person who was walking there. Milton then heard gun shots and observed someone running away.

Edna Kimble, Somerville's sister, testified that Jackson and her brother visited her house on the night of the shooting. She testified that Jackson told her about his fight at the bar and how he had "gotten the guy" who had beaten him. In response to her inquiry as to whether he had killed Campbell, Jackson said "[i]t's up to him and God." Jackson then went on to describe to Kimble how Campbell had crawled on his hands after being shot.

In the petition at bar, Jackson set forth five arguments for reversal of his conviction, all of which were rejected by the district court after an evidentiary hearing. For the reasons set forth below, we affirm.

II. DISCUSSION

A. Sixth Amendment Claim

When Milton was interviewed by police prior to trial, he identified the two individuals whom he had observed in the car as Somerville and Jackson, and he signed a statement to that effect. He also informed the officers that subsequent to the night of the shooting he had met Somerville in jail, where Somerville had confirmed that he and Jackson were present in the vehicle. At a pre-trial conference, the prosecutor agreed with defense counsel that Milton's statement regarding his conversation with Somerville could create a sixth amendment problem and therefore assured the court that he would limit his examination of Milton to Milton's direct knowledge of the events. While on the stand, however, Milton contradicted his earlier statements and denied first-hand knowledge of the identity of the two individuals in the vehicle. Upon further questioning by the prosecutor, Milton stated that "[t]he only reason I knew it was them or thought it was them was because of me and Somerville was talking about the case [sic]." Joint Appendix at 975. Jackson contends that the failure to strike this statement violated Bruton v. United States, 391 U.S. 123, 126-37, 88 S.Ct. 1620, 1622-28, 20 L.Ed.2d 476 (1968) (sixth amendment right of confrontation infringed when a confession by one defendant implicating another defendant is placed directly, or indirectly, before the jury). The district court rejected this claim. The court held that although Jackson had sufficiently exhausted his Bruton claim in state court, he had failed to raise a contemporaneous objection on Bruton grounds at trial, see N.Y.Crim.Proc.Law Sec. 470.05(2) (McKinney 1983), and that absent a showing of cause and prejudice, this procedural default barred him from raising the issue on federal habeas review. Wainwright v. Sykes, 433 U.S. 72, 82-90, 97 S.Ct. 2497, 2504-2508, 53 L.Ed.2d 594 (1977). Furthermore, the court determined that even if Jackson's counsel had lodged such an objection, Milton's statement was neither crucial to the prosecution's case nor devastating to Jackson's defense and thus did not violate the sixth amendment right of confrontation. Rado v. Connecticut, 607 F.2d 572, 579 (2d Cir.1979), cert. denied, 447 U.S. 920, 100 S.Ct. 3009, 65 L.Ed.2d 1112 (1980).

On appeal, Jackson contends that his counsel in fact raised a Bruton objection in the form of a motion to strike Milton's testimony in its entirety. Alternatively, Jackson argues that counsel's failure to lodge such an objection would constitute ineffective assistance of counsel, satisfying the cause and prejudice exception under Wainwright. The prosecution, on the other hand, contends that Jackson has not exhausted his state remedies as to this claim and in fact has never raised the claim in a post-conviction proceeding in state court.

We find that Jackson has exhausted his state remedies as to this claim. In Daye v. Attorney General, 696 F.2d 186 (2d Cir.1982) (in banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984), we described four ways in which a defendant in a state criminal proceeding could fairly present the constitutional nature of his claim to a state court without expressly referring to the constitutional provision at issue: (1) by relying on federal case law employing federal constitutional analysis; (2) by relying on state case law employing federal constitutional analysis in similar fact situations; (3) by asserting "the claim in terms so particular as to call to mind a specific right protected by the Constitution;" and (4) by alleging a factual situation "well within the mainstream of constitutional litigation." Id. at 194.

We conclude that Jackson's second pro se habeas petition, in which he characterized Milton's testimony as both hearsay and "illegal, incompetent and prejudicial evidence," satisfied at least the fourth, and perhaps the third, method of exhaustion enunciated in Daye. Although the petition made no mention of a sixth amendment right of confrontation, reference to the testimony itself sufficiently apprised the state court of the constitutional dimension of the claim. See Hutchins v. Wainwright, 715 F.2d 512, 519 (11th Cir.1983) (substance of petitioner's claim, although obliquely stated, was sufficient to alert state court to confrontation issue where type of situation was "exactly what the confrontation clause is designed to prohibit"), cert. denied, 465 U.S. 1071, 104 S.Ct. 1427, 79 L.Ed.2d 751 (1984).

Turning to the merits of the petition, we agree with the district court that the Bruton claim must fail. ² Even assuming Milton's statement was admitted improperly, Jackson's sixth amendment right of confrontation was not violated unless the statement was crucial to the prosecution's case or devastating to Jackson's defense. Rado v. Connecticut, 607 F.2d at 579; United States v. Puco, 476 F.2d 1099, 1104 (2d Cir.), cert. denied, 414 U.S. 844, 94 S.Ct. 106, 38 L.Ed.2d 82 (1973). While these terms do not embody a "precise standard," Puco, 476 F.2d at 1104, it is clear that the evidence at issue must be "in some way essential, indeed central, to the prosecution's case." Id. Where, absent the tainted testimony, a sufficient basis exists for the jury to convict, the testimony does not violate the sixth amendment. See United States v. Wright, 588 F.2d 31, 38 (2d Cir.1978), cert. denied, 440 U.S. 917, 99 S.Ct. 1236, 59 L.Ed.2d 467 (1979).

Milton's one-sentence, disjointed statement clearly was not central to the prosecution's case. At no time during Milton's direct examination did the prosecutor question him about his discussion with Somerville or seek to introduce the conversation as proof of Jackson's participation in the crime. Rather, Milton volunteered this statement in the midst of...