Reddy v. Coombe

• Decision Date: 05 October 1990
• Docket Number: D,No. 17,17
• Citation: 916 F.2d 47
• Parties: 31 Fed. R. Evid. Serv. 387 Timothy REDDY, Petitioner-Appellee, v. Phillip COOMBE, Superintendent, of Eastern Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Respondents-Appellants. ocket 90-2079.
• Court: U.S. Court of Appeals — Second Circuit

Page 47

916 F.2d 47

31 Fed. R. Evid. Serv. 387

Timothy REDDY, Petitioner-Appellee, v. Phillip COOMBE, Superintendent, of Eastern Correctional

Facility, and Robert Abrams, Attorney General of

the State of New York, Respondents-Appellants.

No. 17, Docket 90-2079.

United States Court of Appeals, Second Circuit.

Argued Sept. 12, 1990.

Decided Oct. 5, 1990.

Henriette D. Hoffman, The Legal Aid Soc., Federal Defender Services Unit, New York City, for petitioner-appellee.

David J. Mudd, Asst. Dist. Atty., New York County, New York City (Robert M. Morgenthau, Dist. Atty., New York County, Marc Frazier Scholl, Asst. Dist. Atty., New York City, of counsel), for respondents-appellants.

Before KAUFMAN, WINTER and MINER, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

The right to confront and cross-examine witnesses at a trial has long been recognized as essential to the determination of truth. These safeguards, guaranteed by the Sixth Amendment, are fundamental to advancing our society's goal of a criminal justice system in which the reality as well as the perception of fairness prevails.

With these principles in mind, this Court considers, for the second time, the propriety of Timothy Reddy's felony murder conviction. Reddy v. Coombe, 846 F.2d 866 (2d Cir.), cert. denied, 488 U.S. 929, 109 S.Ct. 316, 102 L.Ed.2d 334 (1988). Earlier, after concluding Reddy's jury verdict was supported by ample evidence, we remanded for a determination whether his Sixth Amendment rights had been violated. On remand, Judge Stanton found Reddy had been denied his right to appropriate confrontation. Since Reddy was not afforded the opportunity to challenge the veracity of his non-testifying codefendant's extrajudicial statements, their admission into evidence deprived him of a fair trial. Reddy v. Coombe, 730 F.Supp. 556 (S.D.N.Y.1990).

We agree with the result, but on grounds different from the district court.

I. BACKGROUND

Reddy and his codefendant, Cheryl Christenson, were tried jointly in a New York state court for killing Ivan Zepata Enau on April 4, 1978. Because the homicide allegedly occurred in the course of an attempted robbery, the defendants were charged with second degree felony murder under New York Penal Law Sec. 125.25(3) (McKinney 1987).

The State presented its case primarily through the testimony of law enforcement agents, individuals who had observed or conversed with the defendants on the day of the murder, and statements made by Reddy and Christenson, which were introduced by the investigators who received them. The jury was instructed to consider each admission only against the party who made it. The defendants did not testify and called no witnesses.

A. REDDY'S VERSION

Reddy's account of the events leading to the murder, as related to Assistant District Attorney ("ADA") Carol Remer-Smith, revealed that on the afternoon of April 4, 1978, Reddy and Christenson met at a drinking establishment on Eighth Avenue between 48th and 49th Streets in Manhattan. During this meeting Christenson described her plan to rob John, a man whom she had been dating: She and Reddy would Later that evening, the two proceeded to John's fifth floor apartment at 531 West 48th Street. After determining he was not at home, they decided to leave. As they were descending the stairway they saw Enau, an individual not known to Reddy, exiting his second floor apartment. Christenson, who had lived in the building, approached Enau and spoke with him briefly. Without communicating with Reddy, she accompanied Enau to a corner grocery store and back to his home. Reddy did not join the others; rather, he waited on a landing near Enau's apartment.

go to John's home and accost him with a gun.

Based on his knowledge of Christenson's past, Reddy assumed she was either attempting to engage in an act of prostitution or was trying to rob Enau. Reddy denied to the ADA that he and Christenson discussed robbing anyone other than John, the intended first victim:

Q. When you talked about ripping off John did you talk about if you couldn't find him maybe seeing there [sic] was another mark? ...

A. No, we didn't talk about it. This other guy [Enau] just came out of his apartment.

Q. Did you ever walk along the streets looking for somebody who might have a lot of money, that would be easy to take that from? ...

A. No.

Reddy claimed Christenson was in the apartment for about ten minutes when he saw the door open and Enau attempt to push her outside. At that time Reddy came to Christenson's aid by attacking Enau. When Enau approached Christenson with a knife, she fired her gun, killing him.

Reddy denied taking anything from Enau. His narrative was consistent with his defense that the plan to commit a robbery ended when he discovered that John was not at home.

B. CHRISTENSON'S STATEMENTS

Christenson was interviewed on three separate occasions shortly after the murder, first by Detective Virgilio Dalsass and later by the ADA. As time passed, her declarations increasingly incriminated Reddy.

Her first statement was made during the early hours of the morning following the incident. In this version, she did not incriminate Reddy. She stated she left the bar alone, met Enau on West 48th Street and returned home with him. Once inside, Enau saw her gun and threatened her with a knife. Christenson killed him in self defense.

Her second statement was given several hours later. This time she asserted Reddy accompanied her to John's apartment. Not finding him at home, they departed. She encountered Enau on the street and later went to his residence. Again, she claimed Enau attempted to attack her with a knife. Following the shooting, Reddy quickly entered the apartment, panicked, and left.

During this account Christenson claimed she and Reddy had not agreed on one robbery target. She also indicated Reddy might have stolen Enau's wallet. She stated, in response to questions posed by the ADA:

I didn't take the wallet. Then somebody else said the wallet is gone, okay. Maybe Timmy's got it but I didn't take his money.

I know he couldn't have taken the wallet, unless I just didn't see it.

These replies constituted the only evidence at trial that suggested Reddy might have stolen property.

Christenson's third and final statement was made after the ADA informed her of the substance of Reddy's remarks and asked if she "want[ed] to add or change [her testimony] about when Timmy came into the room." She responded by claiming Reddy immediately followed her into Enau's apartment, an allegation inconsistent with her previous accounts. She reiterated that she and Reddy had no specific victim in mind.

C. EARLIER PROCEEDINGS

Prior to the state court trial, Reddy moved for a severance on the ground that admission of Christenson's statements at a joint trial would be unduly prejudicial to his defense. This motion was denied. Reddy was eventually convicted of second degree felony murder and sentenced to eighteen years to life in prison. His conviction was summarily affirmed, People v. Reddy, 79 A.D.2d 1116, 436 N.Y.S.2d 791 (1st Dept.1981), and leave to appeal to the New York Court of Appeals was denied, 53 N.Y.2d 946, 440 N.Y.S.2d 1045, 423 N.E.2d 412 (1981).

After filing several habeas corpus petitions in federal court, see Reddy v. Coombe, 846 F.2d at 868, the district court ordered the state to release or retry Reddy because insufficient evidence supported his conviction. We disagreed, id. at 870, but remanded the case to Judge Stanton to consider whether Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), which bars admission of a nontestifying codefendant's incriminating confession at a joint proceeding, required a new trial.

Upon remand, the district court again granted Reddy's habeas corpus petition. It determined admission of Christenson's testimony did not violate Bruton since it substantially overlapped with Reddy's own statement, thus falling within the interlocking confession exception established by Parker v. Randolph, 442 U.S. 62, 74-75, 99 S.Ct. 2132, 2139-2140, 60 L.Ed.2d 713 (1979). The court, however, also considered the implications of Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). Cruz eliminated the Parker exception, but was decided after Reddy's conviction had become final. Judge Stanton concluded that Cruz applied retroactively to cases on collateral review and reversed Reddy's conviction. The State appeals this decision.

DISCUSSION

The gravamen of Reddy's complaint is that the jury improperly considered Christenson's statements when finding him guilty of felony murder. He argues that since Christenson did not testify and her statements were properly utilized only in determining her own guilt, use of her testimony at Reddy's trial violated his constitutional right to confrontation. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

In Bruton, the Supreme Court fashioned a prophylactic rule to ensure the Sixth Amendment's fair trial guarantee. It found that during a joint trial, a judge's instruction to a jury not to consider a codefendant's incriminating confession against another defendant is unlikely to be effective. Admission of such untested evidence raises grave potential for error since its impact is often disproportionately "devastating to the defendant." Id. at 136, 88 S.Ct. at 1628. Denying the defense the opportunity to cross-examine the maker of the statement adds to the serious possibility that an accused may be improperly adjudged guilty. Accordingly, reversal is required when a non-testifying codefendant's confession incriminates a defendant against whom it is not properly admissible.

The "interlocking confession" exception to the Bruton rule, however, instructs that when a defendant's own inculpatory declarations overlap with those of a codefendant, the "possible prejudice" resulting from the jury's failure to follow limiting instructions does not...