Morales v. Artuz

• Decision Date: 08 February 2002
• Docket Number: Docket No. 00-2730.
• Parties: Hector MORALES, Petitioner-Appellant, v. Christopher ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

281 F.3d 55

Hector MORALES, Petitioner-Appellant, v. Christopher ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent-Appellee.

Docket No. 00-2730.

United States Court of Appeals, Second Circuit.

Argued December 3, 2001.

Decided February 8, 2002.

Steven J. Miraglia, New York, NY (Andrew C. Fine, Richard Joselson, The Legal Aid Society, New York, NY, on the brief), for petitioner-appellant.

Rafael A. Curbelo, Asst. District Atty., Bronx, NY (Robert T. Johnson, District Atty., Joseph N. Ferdenzi, Stuart P. Levy, Asst. District Attys., Bronx, NY, on the brief), for respondent-appellee.

Before: WALKER, Chief Judge, NEWMAN, and F.I. PARKER, Circuit Judges.

JON O. NEWMAN, Circuit Judge.

The issue on this appeal is whether a state court defendant's constitutional right to confront the witnesses against him was violated by the trial court's permitting a principal witness to testify without removing her dark sunglasses. Hector Morales appeals from the November 17, 2000, judgment of the District Court for the Southern District of New York (John G. Koeltl, District Judge) denying his petition for a writ of habeas corpus to challenge his conviction for first-degree manslaughter and criminal use of a firearm. We conclude that the state courts did not unreasonably apply clearly established federal law, as determined by the Supreme Court of the United States, and we therefore affirm.

Background

Sometime after midnight on a June evening in 1991, Tonita Sanchez, who would become one of two key witnesses in Morales's trial, was leaning out of her first-floor apartment window in the Bronx, ten feet above the sidewalk, engaged in conversation with her friends, Jaime Padilla and Tommy Villanueva, who were on the street below. The area was illuminated by a street light and light from Sanchez's apartment building. As Sanchez would later testify, Morales, whom she recognized, walked up to Villanueva and said "You are the one" (or words to that effect), pulled out a gun, and as Villanueva was running away, shot him once in the back. Villanueva continued to run, then collapsed in the street, and died. After the shooting, Padilla, who knew Morales well and who became the other key witness, started running away, and then, seeing no one behind him, ran back to the apartment building to get a gun from a friend. Padilla testified that he was going to shoot petitioner, but could not find him. The next time Padilla saw Morales was when he picked him out of a lineup.

Morales was charged with two counts of murder and related charges. The prosecution's case rested primarily on the eyewitness testimony of Sanchez and Padilla. A first trial ended in a mistrial, when the jury could not reach a unanimous verdict.

The sunglasses episode. Before Sanchez testified at the second trial, the prosecutor informed the state court trial judge that the witness wanted to wear her sunglasses while testifying, as she had done at the first trial. Defense counsel objected. The trial judge initially ruled against allowing her to wear the sunglasses. After Sanchez was sworn in as a witness, the following colloquy ensued:

THE COURT: Okay Miss Sanchez, I've advised Mr. Racolin [the prosecutor] that although I understand that you're somewhat nervous and shy and that you prefer to wear those sunglasses[,] that it is not proper for you to testify. I don't believe and it does not provide the defendant with adequate opportunity to exam[ine] you and it does not provide the jurors with the opportunity to evaluate your credibility, if they can't see your eyes. So I'm going to require you to take those sunglasses off during your testimony. You understand that?

THE WITNESS: I'm not going to take them off.

THE COURT: Pardon me?

THE WITNESS: I'm not going to take them off.

THE COURT: Well, Miss Sanchez, I don't mean to be unsympathetic in any[ ]way but you're in a court of law now and I'm the Judge.

THE WITNESS: Well and I'm the witness.

Sanchez remained intransigent, and after two recesses and extensive colloquy with counsel, the trial judge relented and permitted her to testify with her sunglasses on.

The trial judge acknowledged that the sunglasses were "dark," and that "you can't see through them," presumably referring to the inability of anyone in the courtroom to see the witness's eyes. He noted that the witness exhibited a "great fear" as evidenced by the fact that she was willing to risk imprisonment for disobeying the Court's order, and he found her fear justified in light of the defendant's prior record and the presence in the courtroom of his friends. He concluded that however "partially" the defendant's right to confrontation would be infringed was outweighed by the necessity of having her provide critical testimony in a serious case.

The jury found Morales guilty of first-degree manslaughter and first-degree criminal use of a firearm, and he was sentenced to concurrent terms of 12½ to 25 years in prison. The Appellate Division affirmed the conviction, People v. Morales, 246 A.D.2d 302, 666 N.Y.S.2d 410 (1st Dept.1998), and leave to appeal to the Court of Appeals was denied, People v. Morales, 91 N.Y.2d 975, 672 N.Y.S.2d 855, 695 N.E.2d 724 (1998). The Appellate Division noted that the trial judge had "properly concluded that the procedure was justified by the necessities of the case" and that any error was "harmless in view of the overwhelming evidence of guilt and the minimal impact of the sunglasses on the jury's ability to assess the credibility of the witness." Morales, 246 A.D.2d at 303, 666 N.Y.S.2d 410.

Morales filed a petition for habeas corpus, which the District Court denied. The Court concluded that no clearly established Supreme Court law had interpreted the right of confrontation to preclude a witness from testifying with minimal disguise, and that the state trial judge had made a sufficient case-specific justification for permitting Sanchez to wear sunglasses. Morales v. Artuz, No. 98 CIV. 6558(JGK), 2000 WL 1693563, at *3 (S.D.N.Y. Nov.13, 2000).

Discussion

The standard for review of state court determinations in federal habeas corpus proceedings is provided by 28 U.S.C. § 2254(d), which states that a writ of habeas corpus

shall not be granted ... unless the adjudication of the claim —

(1) 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; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

See also Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

There can be no question that the right of a defendant to confront the witnesses against him has been clearly established in decisions of the Supreme Court, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), but whether that right is impaired by a witness testifying with the minimal disguise of sunglasses is far less clear. In two decisions that reached different outcomes, the Court considered whether the right of confrontation was violated by arrangements that precluded the normal face-to-face confrontation that occurs when a witness testifies in the unobstructed view of the defendant. In Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), the Court found a Confrontation Clause violation where young female witnesses, accusing the defendant of sexual assault, were permitted to testify behind a screen that prevented their seeing the defendant although it allowed him "dimly" to perceive them. Id. at 1015, 108 S.Ct. 2798. However, in Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the Court upheld permitting a young female victim of sexual assault to testify by one-way closed circuit television where necessary to further an important state interest and to protect the welfare of the witness.

These two precedents clearly establish that where the defendant and witness are physically separated, "a defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." Craig, 497 U.S. at 850, 110 S.Ct. 3157; see also Coy, 487 U.S. at 1021, 108 S.Ct. 2798 (stating that any exception to face-to-face confrontation "would surely be allowed only when necessary to further an important public policy"). Although Craig and Coy set forth the appropriate test where the witness is physically separated from the defendant, none of the cases thus far decided by the Supreme Court deals with our precise context — a witness testifying in the presence of the defendant and the jury with a slight disguise that prevents the defendant and the jurors from seeing the witness's eyes. Indeed, the Court has not considered any case involving a disguise that obscures the normal opportunity to observe all aspects of a witness's demeanor.¹ Thus, we doubt that the Craig, Coy test can be considered "clearly established" law under these circumstances for the purposes of 28 U.S.C. § 2254(d).

In considering whether the right of confrontation was denied, we note the sometimes varying rationales that the Supreme Court has given concerning that right. In Van Arsdall, the Court said that "[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." 475 U.S. at 678, 106 S.Ct. 1431 (quoting Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)); see Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965) ("[A] primary interest secured by [the Confrontation Clause] is the right of cross-examination."). In addition to cross-examination, the Court has emphasized ...