People v. Eastman

• Citation: 85 N.Y.2d 265,624 N.Y.S.2d 83
• Parties: , 648 N.E.2d 459 The PEOPLE of the State of New York, Respondent, v. Cecilio EASTMAN, Appellant.
• Decision Date: 21 February 1995
• Court: New York Court of Appeals Court of Appeals

Page 83

624 N.Y.S.2d 83

85 N.Y.2d 265, 648 N.E.2d 459

The PEOPLE of the State of New York, Respondent, v. Cecilio EASTMAN, Appellant.

Court of Appeals of New York.

Feb. 21, 1995.

Toko Serita and Philip L. Weinstein, New York City, for appellant.

Charles J. Hynes, Dist. Atty. of Kings County, Brooklyn (Shulamit Rosenblum, Roseann B. MacKechnie and Monique Ferrell, of counsel, for respondent).

OPINION OF THE COURT

CIPARICK, Judge.

On this appeal, defendant collaterally attacks his conviction contending that it was obtained in violation of his Sixth Amendment right of confrontation as delineated in Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 issued by the Supreme Court after his conviction became final. In Cruz, the Supreme Court held that the Confrontation Clause bars the introduction of a confession of a nontestifying codefendant, not directly admissible against the defendant, that inculpates the defendant. The issues before us are whether Cruz should be accorded retroactive effect and, if so, whether the admission of the codefendant's redacted confession was harmless error. We now decide that Cruz should be applied retroactively, and, as applied to this case, the introduction of the nontestifying codefendant's confession is not harmless error.

I.

Between midnight and 12:30 a.m. on April 1, 1981, Wilfred Barrett, a Con Edison security guard, was fatally shot in an attempted robbery. During the scuffle, Barrett fired his gun. When a police officer arrived at the crime scene, Barrett, who was lying on the ground, told the police officer that he may have shot one of his three or four assailants. When the police officer removed the revolver from Barrett's hand, he observed that one shell was missing from the chamber. Before Barrett was transported to a nearby hospital, he identified a suspect the police brought to the scene, who later proved not to be involved in the incident. Barrett subsequently died of his wounds at the hospital.

When the detective assigned to this case arrived at the hospital, he was informed by a fellow officer that Barrett had already been taken to the operating room, and that a Mr. Eastman was in the emergency room with a gunshot wound which he claimed he sustained at the same location where Barrett was fatally shot. When the detective questioned Eastman about where he was shot, Eastman identified the same location where Barrett was found. Eastman was subsequently removed for surgery, during which a bullet was recovered. This bullet was later identified as the bullet discharged from Barrett's gun.

Thereafter, the detective observed Carlos Croney, Carlos Richards and Rubin Charles waiting near the emergency room, individuals whom the detective believed had information about the shooting incident. The detective consequently directed his fellow officers to transport these individuals to the precinct for questioning.

The detective learned that at least two of these individuals, Croney and Richards, were in the car that fled the crime scene with the wounded defendant, and that the gun used to shoot Barrett was dropped off at Charles's apartment, where the detective later recovered it. The detective then proceeded to question Croney after he waived his rights. During the course of questioning, Croney gave a statement that provides, as relevant:

"[Eastman] told me to stop the car * * * and wait. [Eastman] got out the car with [Richards]. * * * I heard more than one shot. [Richards] and [Eastman] came running back. [Eastman] told me he was shot. When they got out of the car, they had told me stop we see something. Either [Richards] or [Eastman] said we going to take the man off. When they came back [Richards] said the man shot [Eastman]. I took them to the hospital and drove off. The black gun was on the front seat of the car."

Later that day, the detective returned to the hospital to speak with Eastman. After obtaining permission from hospital administrators to speak with Eastman, the detective advised him of his rights, which he waived. The detective then proceeded to question him about the Barrett shooting and his gunshot wound. In his trial testimony, the detective indicated that Eastman was in the recovery room during this questioning, that he was speaking in a low voice, and that he was laced with IV tubes. Eastman recounted that earlier that day he was in the car with Croney, who was driving, that Croney dropped him off, he heard a shot and that he sustained a gunshot wound. Eastman claimed three unknown individuals came to his aid and transported him to the hospital. The questioning then concluded.

Several hours later, Eastman told the police officer guarding him in the hospital that he wanted to speak with the detective again. Subsequently, the detective, accompanied by an Assistant District Attorney and a stenographer, returned to the hospital, where they requested and received permission to speak to Eastman. Eastman was still encumbered by numerous IV tubes. The Assistant District Attorney advised Eastman of his rights, which he again waived, and a question and answer session ensued, which was recorded by the stenographer.

During this questioning, Eastman indicated that he was in a car with Croney and Richards, and that at about 12:15 a.m., Richards said "Let's go check out that old man over there." Eastman related that Richards wanted to take the envelope the man was holding. Thereafter, he and Richards got out of the car, Richards ran up to the man and Eastman observed Richards try to grab the envelope from the man. Eastman claimed that as he was approaching this scuffle, he heard a shot, and turned around to run away. While he was running, he "started feeling beat" and realized he had been shot. Eastman stated that Richards said he got hit, that Richards "shot once," and then he and Richards returned to the car where Croney was waiting. Eastman told Croney that he had been shot and asked Croney to take him to the hospital. In response to the Assistant District Attorney's questions, defendant denied that he had a gun, that he asked anyone to "do a job with him and Croney," or that he saw Croney with a gun. At the conclusion of the questioning, the Assistant District Attorney authorized Eastman's arrest.

By an indictment dated April 10, 1981, Eastman and Croney were jointly charged with murder in the second degree and criminal possession of a weapon in the second degree ¹ under the theory that they were "aiding the other and acting in concert with another person" in an attempt to commit a robbery, and in furtherance of such crime fatally shot Wilfred Barrett.

Prior to trial, defendant moved, inter alia, to sever his case from codefendant Croney's on the ground that his Sixth Amendment right of confrontation would be violated by the introduction of Croney's inculpatory statement against him at trial. Defendant argued that severance was required under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 ² since the codefendant would not testify and his statement and the codefendant's were antagonistic. Defendant asserted that his statement was consistent with his defense that Richards committed the crime while he merely exited the car to see what was happening with Richards. Defendant maintained that he was not acting in concert with anyone. The trial court denied severance but ordered redaction of the codefendant's statement. The trial court directed deletion of the specific reference indicating who ordered the car to stop before the shooting, and ruled that the codefendant's statement that he saw defendant carry the gun back to the codefendant's car after the shooting incident and place it on the front seat be omitted.

At trial, the People presented as witnesses, inter alia, the investigating police officers, the detective who questioned the defendants, the Assistant District Attorney who authorized defendant's arrest, and two doctors and a nurse who were involved in the operation to remove the bullet from defendant's abdomen.

The detective testified that the codefendant related that "somebody" in the vehicle directed him to stop the car because "they wanted to take off the old man." The detective also testified that the codefendant reported that Richards and Eastman exited the vehicle together and came running back together after Eastman was shot. Finally, the detective stated that the codefendant claimed he drove Eastman and Richards to the hospital, dropped them off there, and then took the gun they left in the car to Charles's apartment. At defense counsel's request, the trial court issued a limiting instruction, which was again repeated as part of the charge to the jury, advising that this "statement is only admitted as evidence to be considered [in] the case against the defendant Croney."

With respect to defendant, the detective testified about the substance of the conversations he held with defendant at the hospital. Similar testimony regarding the question and answer session at the hospital was also provided by the Assistant District Attorney.

On his direct examination, defendant disavowed any involvement in the attempt to rob Barrett. Defendant expressly denied that he planned or assisted in a plan to rob Barrett, denied that he directed anyone to rob Barrett, ³ denied that he intended to share in the fruits of a robbery of Barrett and that he or anyone else in the car that night had a gun. Defendant claimed that he did not recall having any conversation with the detective or an Assistant District Attorney, with a stenographer present, after his operation to remove the bullet. Defendant testified that Richards directed the codefendant to stop the car, that Richards got out of the car by himself, and that he only proceeded after Richards when the codefendant told him to see what Richards was doing. Defendant claimed that after he exited the car, he turned the corner, heard a shot and immediately ran back to...