Mungo v. Duncan, No. 03-2706.

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtLeval
Citation393 F.3d 327
Docket NumberNo. 03-2706.
Decision Date28 December 2004
PartiesMarcus MUNGO, Petitioner-Appellant, v. George DUNCAN, Respondent-Appellee.
393 F.3d 327
Marcus MUNGO, Petitioner-Appellant,
v.
George DUNCAN, Respondent-Appellee.
No. 03-2706.
United States Court of Appeals, Second Circuit.
Argued: May 12, 2004.
Decided: December 28, 2004.

Page 328

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Randall D. Unger, Bayside, NY, for Petitioner-Appellant.

Amy Appelbaum, Assistant District Attorney (Charles J. Hynes, District Attorney, Leonard Joblove, Assistant District Attorney, on the brief), Kings County Office of the District Attorney, Brooklyn, NY, for Respondent-Appellee.

Before: MESKILL, LEVAL, and CABRANES, Circuit Judges.

LEVAL, Circuit Judge.


Petitioner Marcus Mungo appeals from the judgment of the United States District Court for the Eastern District of New York (Jack B. Weinstein, J.) denying his petition for a writ of habeas corpus, which sought to overturn his conviction in the courts of New York for murder. Petitioner contends that the admission at his trial of certain hearsay statements made by the murder victim just before his death violated the Confrontation Clause of the Sixth Amendment to the United States Constitution. Upon petitioner's direct appeal from his conviction, the New York Supreme Court, Appellate Division, determined that the admission of the hearsay statements was proper under the excited utterance exception to the hearsay rule. In judging the habeas petition, the district court concluded that this ruling was not an unreasonable application of clearly established Supreme Court law, including Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), and White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). The district court accordingly ruled that the state court's decision satisfied the deferential standards of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d)(1), and denied the petition. While this appeal from the district court's judgment was pending, the Supreme Court decided Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), in a manner that reconceived much of the Court's Confrontation Clause jurisprudence. Petitioner contends that under the standards established in Crawford he is entitled to grant of the writ. We agree with the district court that the state court did not unreasonably apply Roberts and White, and we further hold that petitioner is barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), from relying on the new rule established in Crawford.

Background

At approximately 1:20 a.m. on the morning of June 23, 1997, on Euclid Avenue in Brooklyn, New York, two plainclothes police officers, driving a police cruiser disguised as a taxicab, heard shots fired. Driving toward the sound of the shots, they were flagged down by the wounded Brent Arthur. They saw two black men in light-colored shirts run across the street. The driver, Sergeant Robert Delaney, asked Arthur, "Who shot you? Those guys running?" Arthur answered, "Yeah those guys." With Arthur in the cruiser, they drove off in pursuit. The second

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officer, Dante Cavallo, asked Arthur, "Do you know where they are going?" Arthur responded, "Go to the projects, go to the projects," referring to a nearby housing project at 1220 Sutter Avenue. When they arrived at Sutter Avenue, the officers saw two black men in the driveway. One wore a gray t-shirt; the other a white t-shirt with multicolored lettering. Delaney asked Arthur if the two men were his assailants. Arthur answered, "Those are them."

Cavallo, joined by other officers, pursued the men into 1220 Sutter Avenue and found them hiding in the doorway of a fourth-floor apartment. The men were later identified as petitioner Marcus Mungo (in the gray shirt) and LeShawn Stewart (in the white shirt). No weapons were found on either man. By the time the men were brought downstairs, Arthur was lying on the ground near the cruiser writhing in pain. Sergeant Delaney told him that an ambulance was on the way and said, "Listen, I'm going to bring over two people, bring two people over to you one at a time. You have to tell me are these the guys that shot you." Officer Cavallo then brought forward Stewart and asked, "Is that the guy that shot you?" Arthur answered, "Yes." Cavallo then brought forward petitioner and asked, "Is this the guy that shot you?" Arthur again answered, "Yes." Cavallo then asked Arthur, "I need to know exactly who shot you." Arthur responded, "The guy in the gray." Delaney asked Arthur why they had shot him, and Arthur stated, "They tried to rob me." Arthur died shortly thereafter. In Officer Cavallo's estimation, the entire episode from the time when Arthur entered the cruiser until he identified the defendant lasted only about two and one-half to three minutes.

In statements to police the next day, petitioner admitted that until the previous evening he had lived on Euclid Avenue in an apartment owned by Arthur. Petitioner stated that he had decided to move out of the apartment the previous night and move into Stewart's apartment at 1220 Sutter Avenue. Petitioner denied hearing any gunshots, but stated that while he and Stewart were standing on the street, Stewart had suddenly begun to run. Petitioner then ran with him back to Stewart's apartment, whereupon they were arrested.

Over objection, the trial judge admitted into evidence under the excited utterance exception to the hearsay rule Arthur's several statements tending to identify petitioner as the shooter. The jury convicted petitioner of second degree murder, and he was sentenced to a term of twenty-five years to life. The Appellate Division affirmed, rejecting petitioner's contentions relating to his hearsay objection. People v. Mungo, 287 A.D.2d 523, 731 N.Y.S.2d 632, 632-33 (App. Div.2d Dep't 2001). Leave to appeal to the Court of Appeals was denied. People v. Mungo, 97 N.Y.2d 685, 738 N.Y.S.2d 301, 764 N.E.2d 405 (2001); People v. Mungo, 98 N.Y.2d 639, 744 N.Y.S.2d 768, 771 N.E.2d 841 (2002).

Mungo petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, arguing that the admission of Arthur's statements at trial violated his rights under the Confrontation Clause. The district court applied AEDPA's deferential standard of review and denied the petition, finding that the state court's ruling was not an unreasonable application of Supreme Court precedent. The court reasoned that the statements were properly admitted under the excited utterance exception to the hearsay rule, and thus, under White, were categorically immune from Confrontation Clause challenge. Mungo v. Duncan, 277 F.Supp.2d 176, 184 (E.D.N.Y.2003). The court, however, granted a certificate of appealability, noting the "fallacy of the assumption that out of court `excited utterances,'

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as a class, should be presumed reliable without further examination of the trustworthiness of the statements." Id. at 185.

Discussion

1. Analysis of the petition under Roberts and White. The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, provides, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." In Ohio v. Roberts, the Court stated that the Confrontation Clause "was intended to exclude some hearsay," 448 U.S. at 63, 100 S.Ct. 2531, but that it nonetheless countenances "hearsay marked with such trustworthiness that `there is no material departure from the reason of the general rule,' "id. at 65, 100 S.Ct. 2531 (quoting Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 78 L.Ed. 674 (1934)). Reliability, the Court said, could either be established through "a showing of particularized guarantees of trustworthiness," or be inferred from the fact that the evidence fell "within a firmly rooted hearsay exception." Id. at 66, 100 S.Ct. 2531. Subsequently, in White v. Illinois, the Court recognized that "spontaneous declarations" — which describes the same category of statements as the term "excited utterances" used in the courts of New York — fell within a "firmly rooted" hearsay exception. See 502 U.S. at 355 n. 8, 112 S.Ct. 736. The Court therefore ruled constitutionally admissible statements by a four-year-old girl made about an hour after her sexual assault, even though the girl was available and could have been required to testify. Id. at 356-57, 112 S.Ct. 736. See also Brown v. Keane, 355 F.3d 82, 89-90 (2d Cir.2004) (noting that the excited utterance exception "has been ruled to be firmly rooted") (citing Lilly v. Virginia, 527 U.S. 116, 126, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999)).

Petitioner essentially concedes that the statements challenged here fall within New York's excited utterance exception to the hearsay rule. See Pet. Reply Br. at 2 ("[T]he appellant has essentially conceded that the statements elicited from Arthur by the police were excited utterances, as the courts in New York have consistently interpreted this exception."). Under New York's rule, "[a]n excited utterance occurs under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection" — a period which "is not measured in minutes or seconds but rather is measured by facts." People v. Cotto, 92 N.Y.2d 68, 78-79, 677 N.Y.S.2d 35, 699 N.E.2d 394 (1998) (internal quotation marks omitted).

Petitioner instead contends that the statements admitted here were so inherently unreliable that, despite falling within New York's excited utterance exception, they should not be considered to bear the "indicia of reliability" generally required by Roberts. See 448 U.S. at 66, 100 S.Ct. 2531. We cannot say that it would have been unreasonable for the Appellate Division to reject this argument. Even accepting that some statements that fall within New York's excited utterance exception might be too unreliable to...

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79 practice notes
  • In re Fernando R., No. H028851.
    • United States
    • California Court of Appeals
    • March 1, 2006
    ...similarly emphasized the formality of the statement in concluding that it was nontestimonial. (See, e.g., Mungo v. Duncan (2d Cir.2004) 393 F.3d 327, 336, fn. 9 [dictum that statement to police, to be testimonial, requires formality in questioning]; State v. Alvarez (2005) 210 Ariz. 24, 107......
  • In re Markel, No. 75459-4
    • United States
    • United States State Supreme Court of Washington
    • May 5, 2005
    ...all of these courts have concluded that Crawford does not apply retroactively to cases on collateral review. See Mungo v. Duncan, 393 F.3d 327, 334-36 (2d Cir.2004); Dorchy v. Jones, 398 F.3d 783, 788 (6th Cir.2005); Murillo v. Frank, 402 F.3d 786 (7th Cir.); Evans v. Luebbers, 371 F.3d 438......
  • State v. Lewis, No. 558PA04.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 7, 2005
    ...of offhand comments—it has the form of an interview), involves the government, and has a law enforcement purpose."); Mungo v. Duncan, 393 F.3d 327, 336 n. 9 (2d Cir.2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1936, 161 L.Ed.2d 778 (2005). (Citing, in dictum, the above definition of &q......
  • In re Moore, No. D045553.
    • United States
    • California Court of Appeals
    • October 4, 2005
    ...of whether Crawford is to apply retroactively to a habeas proceeding after direct review is final (see Mungo v. Duncan (2nd Cir.2004) 393 F.3d 327, 334-336 (Mungo); Dorchy v. Jones (6th Cir.2005) 398 F.3d 783, 788; Murillo v. Frank (7th Cir.2005) 402 F.3d 786, 790; Bintz v. Bertrand (7th Ci......
  • Request a trial to view additional results
79 cases
  • In re Fernando R., No. H028851.
    • United States
    • California Court of Appeals
    • March 1, 2006
    ...similarly emphasized the formality of the statement in concluding that it was nontestimonial. (See, e.g., Mungo v. Duncan (2d Cir.2004) 393 F.3d 327, 336, fn. 9 [dictum that statement to police, to be testimonial, requires formality in questioning]; State v. Alvarez (2005) 210 Ariz. 24, 107......
  • In re Markel, No. 75459-4
    • United States
    • United States State Supreme Court of Washington
    • May 5, 2005
    ...all of these courts have concluded that Crawford does not apply retroactively to cases on collateral review. See Mungo v. Duncan, 393 F.3d 327, 334-36 (2d Cir.2004); Dorchy v. Jones, 398 F.3d 783, 788 (6th Cir.2005); Murillo v. Frank, 402 F.3d 786 (7th Cir.); Evans v. Luebbers, 371 F.3d 438......
  • State v. Lewis, No. 558PA04.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 7, 2005
    ...of offhand comments—it has the form of an interview), involves the government, and has a law enforcement purpose."); Mungo v. Duncan, 393 F.3d 327, 336 n. 9 (2d Cir.2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1936, 161 L.Ed.2d 778 (2005). (Citing, in dictum, the above definition of &q......
  • In re Moore, No. D045553.
    • United States
    • California Court of Appeals
    • October 4, 2005
    ...of whether Crawford is to apply retroactively to a habeas proceeding after direct review is final (see Mungo v. Duncan (2nd Cir.2004) 393 F.3d 327, 334-336 (Mungo); Dorchy v. Jones (6th Cir.2005) 398 F.3d 783, 788; Murillo v. Frank (7th Cir.2005) 402 F.3d 786, 790; Bintz v. Bertrand (7th Ci......
  • Request a trial to view additional results

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