Lyons v. Johnson

• Decision Date: 16 January 1996
• Docket Number: No. 92 Civ. 8663 (KMW).,92 Civ. 8663 (KMW).
• Citation: 912 F. Supp. 679
• Parties: John LYONS, Petitioner, v. Sally B. JOHNSON, Superintendent, Orleans Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

912 F. Supp. 679

John LYONS, Petitioner, v. Sally B. JOHNSON, Superintendent, Orleans Correctional Facility, Respondent.

No. 92 Civ. 8663 (KMW).

United States District Court, S.D. New York.

January 16, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Edward Scott Zas, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for John F. Lyons.

Nancy D. Killian, Bronx District Attorney, Bronx, NY, for Sally B. Johnson.

OPINION AND ORDER

KIMBA M. WOOD, District Judge.

John Lyons brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for attempted murder in the second degree, N.Y. Penal Law §§ 110.00, 125.25, following a jury trial in New York State Supreme Court, Bronx County.¹ Based on this conviction, Lyons is currently serving an indeterminate sentence, imposed on April 16, 1990, of from eight and one third to twenty-five years of imprisonment.²

On appeal, New York's Appellate Division, First Department, affirmed Lyons's conviction. People v. Lyons, 180 A.D.2d 440, 579 N.Y.S.2d 664 (1992). The New York Court of Appeals denied Lyons leave to pursue a further appeal. Lyons now petitions this court for a writ of habeas corpus, arguing that his Sixth Amendment right to a fair trial was violated because the trial court erroneously denied him the right to introduce relevant, exculpatory evidence.

I initially referred this case, for a Report and Recommendation, to Magistrate Judge James C. Francis IV, who recommended that I find that the trial court erred, but deem that error harmless. I agree with the Magistrate Judge's finding of trial error. However, I do not find the error to have been harmless, when viewed in the context of the record as a whole. As a consequence, I grant the writ.

I. Background

The undisputed facts of the case are these: On January 2, 1989, in the Bronx, a dispute arose in the midst of a crowd of people, which included both the petitioner, John Lyons, and another man, Kevin Moore. Lyons and Moore are both young, African-American men who were wearing black leather jackets that day. A third man, Jose Quiles, approached the crowd. Moore spoke to Lyons. Lyons entered Moore's family's residence and, a few minutes later, emerged carrying a gun. Members of the crowd began to run. Three shots were fired; two of them struck Quiles.

Lyons's defense at trial, when he took the stand and testified, was that Moore, not he, had shot Quiles. A defense witness, Pantojas, corroborated Lyons's testimony by testifying that (1) Moore was the shooter; (2) Moore wore gold "fronts" (temporary, decorative caps) on his teeth; and (3) no one else on the scene wore gold fronts. However, three prosecution witnesses—Ferrera, Poole, and Quiles—testified, to the contrary, that (1) Lyons was the shooter; (2) Lyons wore four gold fronts on his teeth; and (3) no one else on the scene wore gold fronts.

Unlike all of the other witnesses in the case, Lyons himself testified that both he and Moore wore gold fronts on the day of the crime. Moreover, in a voir dire conducted out of the presence of the jury, Moore, who was wearing gold fronts at the time of trial, corroborated Lyons's testimony by stating that the gold fronts he, Moore, was wearing that day were the same ones he, Moore, had worn on the day of the crime. However, Moore stated that he would assert his Fifth Amendment privilege against self-incrimination rather than repeat this testimony before a jury.³

The trial court indicated that it would uphold Moore's invocation of his Fifth Amendment privilege at trial. Defense counsel then requested that Moore be compelled to testify at trial, that Moore be directed to take the stand to assert his Fifth Amendment privilege, or that Moore be marked as an exhibit, entered into evidence, and displayed, with his gold fronts, to the jury. The court refused all of these requests.

The court offered, however, to show the jury a photograph of Moore without his gold fronts⁴ to allow the jury to consider whether Lyons and Moore looked alike. Defense counsel declined the court's offer, pointing out that the gold fronts were "the whole issue" in the case. The court also, at one point, asked the prosecutor whether he was willing to stipulate that Moore wore gold fronts on the day of the crime, but the prosecutor refused. As a consequence, the jury never heard Moore's testimony or saw him or any image of him, with or without his gold fronts.

II. Analysis

The trial court both should have admitted Moore's voir dire testimony at trial and should have permitted defense counsel to exhibit Moore, wearing the gold fronts, to the jury, as I will explain below.⁵

A. The Court's Decision Not to Compel Moore to Testify, Not to Compel Moore to Take the Stand, And Not to Allow Moore's Voir Dire Testimony to Be Admitted At Trial

Lyons's habeas counsel contends that, by answering some questions during the voir dire, Moore waived his privilege against answering the same questions at trial. However, during the voir dire, Moore stated several times that he would claim his Fifth Amendment privilege if asked to testify at trial. Moreover, Moore's willingness to answer questions on voir dire which he adamantly refused to answer at trial suggests that he did not understand that he might waive his Fifth Amendment privilege as to his trial testimony by his answers on voir dire. Thus, like Magistrate Judge Francis, I conclude that Moore did not, during the voir dire, knowingly waive his right to assert his Fifth Amendment privilege at trial.

Moore was therefore unavailable to testify at trial, due to a claim of privilege. As a consequence, his voir dire testimony could have been admitted at trial, under two clearly established New York hearsay exceptions, which apply where the declarant is unavailable, for (1) third-party declarations against penal interest, and (2) testimony given in a prior proceeding.

1. The Hearsay Exception for Third-Party Declarations Against Penal Interest

New York's Smith case contains one of the most recent pronouncements by New York courts on the hearsay exception for third-party declarations against penal interest. People v. Smith, 195 A.D.2d 112, 606 N.Y.S.2d 656 (1st Dep't 1994). In Smith, the defendant's brother had confessed to two people that he had committed the crime charged, but he asserted his Fifth Amendment privilege against testifying about these confessions at trial. Id. 606 N.Y.S.2d at 659-60. The New York appellate court held that the trial court should have admitted the brother's confession under the hearsay exception for third party declarations against penal interest. Id. 606 N.Y.S.2d at 662.

The Smith court listed the factors that, under New York law, qualify a third-party declaration against penal interest for admission under a hearsay exception:

First, the declarant must be unavailable as a witness at trial; second, when the statement was made the declarant must be aware that it was adverse to his penal interest; third, the declarant must have competent knowledge of the facts underlying the statement; and, fourth, and most important, supporting circumstances independent of the statement itself must be present to attest to its trustworthiness and reliability.

Id. 606 N.Y.S.2d at 662 (citation omitted); cf. Fed.R.Evid. 804(a).

All these factors are satisfied here. First, Moore was unavailable at trial due to his proper assertion of his Fifth Amendment privilege. Second, Moore was aware that his voir dire statements concerning the gold fronts were adverse to his penal interest, for he refused to repeat them at trial, on the ground that they might incriminate him. (Indeed, the state asserts—in arguing that Moore's voir dire statements did not waive his Fifth Amendment privilege—that Moore's voir dire statements provided a necessary basis for the assertion of his Fifth Amendment right at trial). Third, Moore obviously had a basis for knowing whether he had worn the gold fronts on the day of the crime. Fourth, several circumstances attested to Moore's statements' reliability: (1) Moore wore the gold fronts during the voir dire, which established, at least, that Moore possessed a pair of custom-made gold fronts; (2) Lyons and Pantojas testified that Moore wore the gold fronts on the day of the crime; and (3) Moore's statements were made in court, before a judge, immediately after consultation with a lawyer, and were subjected to cross-examination by the same prosecutor who was prosecuting Lyons.

This last circumstance, that the statements were made in court, is especially significant. This special guarantee of reliability was not present in the Smith case. There, in contrast, the hearsay statements at issue were made prior to trial and out of court, to private parties. Id. 606 N.Y.S.2d at 661. Yet the Smith court still held the hearsay statements at issue there to be admissible.

2. The Hearsay Exception for Statements Made at a Prior Judicial Proceeding

Because Moore's voir dire statements were made in court, another, independent New York hearsay exception also applies here: the exception for testimony given by an unavailable witness at a prior proceeding, where that testimony is accompanied by indicia of reliability such as prior cross-examination. See, e.g., People v. Phan, 150 Misc.2d 435, 568 N.Y.S.2d 498 (Kings Cty.1990) (grand jury testimony of unavailable witness admissible, under hearsay exception, to exculpate defendant at trial); People v. Muccia, 139 A.D.2d 838, 527 N.Y.S.2d 620 (3d Dep't 1988) (testimony of co-defendant at an earlier trial admissible, under hearsay exception, to inculpate defendant at trial); People v. Okafor, 130 Misc.2d 536, 495 N.Y.S.2d 895 (Bronx Co.1985) (prior family court testimony of murder victim admissible, under hearsay exception, to inculpate murder defendant at trial).

In determining whether this hearsay exception applies here, I must determine whether a voir dire examination counts as a ...