Okonkwo v. Lacy, s. 1363

• Decision Date: 03 January 1997
• Docket Number: 1693,Nos. 1363,D,s. 1363
• Citation: 104 F.3d 21
• Parties: Charles OKONKWO, Petitioner-Appellee-Cross-Appellant, v. Peter J. LACY, Superintendent of Bare Hill Correctional Facility, Respondent-Appellant-Cross-Appellee. ockets 95-2626, 95-2672.
• Court: U.S. Court of Appeals — Second Circuit

Page 21

104 F.3d 21

Charles OKONKWO, Petitioner-Appellee-Cross-Appellant, v. Peter J. LACY, Superintendent of Bare Hill Correctional Facility, Respondent-Appellant-Cross-Appellee.

Nos. 1363, 1693, Dockets 95-2626, 95-2672.

United States Court of Appeals Second Circuit.

Argued April 15, 1996.

Decided Jan. 3, 1997.

Dian K. McCullough, Department of Law, State of New York, New York City (Dennis C. Vacco, Attorney General of the State of New York, Peter H. Schiff, Deputy Solicitor General, Daniel Smirlock, Assistant Attorney General, New York City, of counsel), for Respondent-Appellant-Cross-Appellee.

Diane E. Courselle, Office of the Appellate Defender, New York City (E. Joshua Rosenkranz, Joseph M. Nursey, Office of the Appellate Defender, New York City, of counsel), for Petitioner-Appellee-Cross-Appellant.

Before: MINER, WALKER and LEVAL, Circuit Judges.

MINER, Circuit Judge:

Respondent-appellant Peter Lacy, Superintendent of Bare Hill Correctional Facility, appeals from a judgment entered in the United States District Court for the Southern District of New York (Scheindlin, J.) granting a conditional writ of habeas corpus to petitioner-appellee Charles Okonkwo. Okonkwo is a prisoner at the Bare Hill facility, where he is confined pursuant to a judgment of the Supreme Court of the State of New York, New York County, convicting him of criminal sale of a controlled substance in the third degree and sentencing him as a predicate felon to a term of imprisonment of four and one-half to nine years. The district court determined that the state trial court's findings were inadequate to support an order closing the courtroom while an undercover officer testified during the course of Okonkwo's trial. Accordingly, the district court ordered that the writ issue unless the New York court, after an evidentiary hearing, determines upon adequate findings that the closure of the trial proceedings was warranted under established constitutional standards.

We modify the judgment of the district court to direct that the writ issue unless Okonkwo is retried within a reasonable time after the issuance of our mandate.

BACKGROUND

On October 22, 1989, New York City Police Officer John Swift was assigned as an undercover member of the Manhattan South Tactical Narcotics Team. In that capacity, it was his duty to investigate street sales of narcotics south of 59th Street in the borough of Manhattan, New York City. At about 6:00 PM on October 22nd, Swift was positioned in the area of Astor Place and Cooper Union when he saw Okonkwo and Ronald Johnson acting in a suspicious manner. Swift approached the two men and asked Johnson if he was "working." Johnson asked what he wanted, and Swift replied, "black caps." Ultimately, Johnson sold Swift three black-capped vials of crack cocaine for $15.00 in cash after procuring the vials from Okonkwo. Okonkwo was about five feet away from Swift when he gave the vials to Johnson, and Swift was able to observe the hand-off clearly.

After the sale, Swift walked away from the scene and broadcast descriptions of Johnson and Okonkwo to his back-up team. The team consisted of Officers Rodriguez and Cane, who were parked in a police car nearby. Five minutes after receiving the call, Officers Cane and Rodriguez arrested Okonkwo and Johnson, who were walking side-by-side near the corner of Cooper Square and East Seventh Street. Officer Cane searched Okonkwo, seized the cash that Okonkwo was carrying in his right front pocket, and turned it over to Rodriguez. Swift drove past the arrest scene shortly after the arrest and recognized Johnson and Okonkwo as the men who had sold him the three vials of crack.

At the police station later that day, Officer Rodriguez examined the cash seized from Okonkwo, totalling $404.00. She found that $15.00 of the money was part of the pre-recorded "buy" money that she had handed out to undercover officers, including Swift, earlier that day. The contents of the three vials purchased by Swift were tested at the police department laboratory, and each vial was found to contain cocaine.

The sale by Okonkwo and Johnson to Swift resulted in Okonkwo's indictment for criminal sale of a controlled substance in the third degree, which requires proof of knowing and unlawful sale of a narcotic drug. N.Y. Penal Law § 220.39(1) (McKinney 1989). After a jury was selected and sworn on February 5, 1990, a pretrial hearing was held in camera on the People's application to close the courtroom during the testimony of Officer Swift. At the hearing, Swift testified as to his modus operandi as an undercover officer. He described the practice of "maintenance," under which officers would return to the location where they previously had made narcotics purchases in an effort to make additional purchases. He testified that he expected to engage in "maintenance" in the area where Okonkwo and Johnson sold him the cocaine.

During the hearing, Swift answered "yes" to the prosecutor's question: "Would your life be endangered if your identity as an Near the conclusion of the hearing, the trial court stated:

                undercover was exposed to the community in the area where you would operate?"   He also answered in the affirmative the trial court's question:  "[H]ave there been arrests in cases where you made buys where those cases are not yet disposed of, except for this case?"   Defense counsel argued that there were no special circumstances that would justify closure of the courtroom, citing a decision of the New York Court of Appeals, People v. Hinton, 31 N.Y.2d 71, 75-76, 334 N.Y.S.2d 885, 286 N.E.2d 265 (1972)
                

I think that what needs to be shown to justify excluding the public is the--basically, as I understand the cases, is putting basically, putting the--or jeopardizing the continuing undercover activity of the officer, that he says.

And I find this fact: that he continues to function as an undercover officer in the general area in which this crime occurred; that the--and it's clear enough then that if anybody were to come into this courtroom and see him, that his knowledge of his identity might well jeopardize his life. It seems to be as simple as that he is not out of business.

He is functioning in the very area in which this case occurred and continues to function in that fashion.

The court also stated:

My sense is that, from reading the cases, is that it is a matter in which I have some discretion, although the People have a heavy burden, but I think they have met their burden and they have showed he is a functioning undercover officer; that has continuing investigations, as he put it, "maintenance". He keeps going back into the same areas; one of them being the very area involved in this case.

I will order that the courtroom be closed to the public during his testimony only. All right. We will wait for the jury, and then we will begin.

The trial then proceeded, concluding with a verdict of guilty on February 6, 1990. The Appellate Division of Supreme Court affirmed Okonkwo's conviction in a Decision and Order dated September 19, 1991, and the New York Court of Appeals denied an application for leave to appeal on January 5, 1992, without a written opinion. People v. Okonkwo, 176 A.D.2d 163, 574 N.Y.S.2d 186 (1st Dep't 1991), leave denied, 79 N.Y.2d 862, 580 N.Y.S.2d 733, 588 N.E.2d 768 (1992).

In its opinion, the Appellate Division stated:

[J]eopardy to the undercover officer's effectiveness and, indeed, to his life by exposure of his identity was properly determined to be an overriding interest to defendant's constitutional right to a public trial. Defendant's argument, first raised on appeal, that the trial court might have considered some alternative to closing the courtroom during the undercover officer's testimony, such as having the officer testify behind a screen, is purely speculative and unpreserved for appellate review by appropriate and timely objection.

176 A.D.2d at 163, 574 N.Y.S.2d 186 (citations omitted).

Okonkwo filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on July 8, 1994. The proceeding was referred to a magistrate judge and, after argument, the magistrate judge issued a Report and Recommendation that the petition be denied. The recommendation was rejected in the Memorandum Opinion and Order of the district court entered on June 7, 1995, conditionally granting the writ. Okonkwo v. Lacy, 895 F.Supp. 571 (S.D.N.Y.1995). The condition was that the writ would be granted if the state court finds, after an evidentiary hearing and adequate findings, that closure of the trial proceedings was not constitutionally warranted. Id. at 579. The district court applied to the case before it the four-pronged test established in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), for averting a Sixth Amendment violation for courtroom closure in a criminal case:

[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court Id. at 48, 104 S.Ct. at 2216.

must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

The district court found that Okonkwo's claims of failure to meet the second and third prongs of the Waller test were barred by procedural default. As to the claim based on the third prong, reasonable alternatives to closure, the district court noted that the Appellate Division opinion rejected the claim because it was first raised on appeal and was not preserved by objection in the trial court. As to the claim based on the second prong, breadth of closure, the district court found procedural default because it was "inextricably linked to the alternatives prong," even though "the Appellate Division did not specifically refer to the breadth of the closure." Okonkwo, 895 F.Supp. at 579.

The district court sustained Okonkwo's...