Yarborough v. Keane

• Decision Date: 10 December 1996
• Docket Number: D,No. 219,219
• Parties: Kemp YARBOROUGH, Petitioner-Appellant, v. John P. KEANE, Superintendent, Sing Sing Correctional Facility, Respondent-Appellee. ocket 96-2166.
• Court: U.S. Court of Appeals — Second Circuit

Page 894

101 F.3d 894

Kemp YARBOROUGH, Petitioner-Appellant, v. John P. KEANE, Superintendent, Sing Sing Correctional

Facility, Respondent-Appellee.

No. 219, Docket 96-2166.

United States Court of Appeals, Second Circuit.

Argued Nov. 8, 1996.

Decided Dec. 10, 1996.

Richard D. Willstatter, White Plains, NY (Green & Willstatter), for Petitioner-Appellant.

Carolyn Pokorny, Assistant District Attorney, Bronx, NY (Robert T. Johnson, Bronx County District Attorney, Joseph N. Ferdenzi, Billie Manning, Assistant District Attorneys, of counsel), for Respondent-Appellee.

Before: OAKES, LEVAL and PARKER, Circuit Judges.

LEVAL, Circuit Judge:

Kemp Yarborough appeals from Judge Martin's dismissal of his petition for habeas corpus. During Yarborough's murder trial in New York State Supreme Court, the prosecutor notified the judge in a robing room conference that a prospective prosecution witness had been present in the courtroom, without the prosecutor's knowledge, while a police officer was testifying. Yarborough's attorney moved to disqualify the witness. The judge called in the witness and questioned him to determine whether the witness's testimony would be influenced by hearing the officer testify. Yarborough's counsel did not request that Yarborough be brought in for the hearing. The judge denied the motion to disqualify the witness.

Yarborough claims that holding this hearing in his absence violated his constitutional right to be present at all material stages of the proceedings and to confront the witnesses against him. We find that, if it was error to conduct the hearing in Yarborough's absence, the error was harmless. We therefore affirm.

Background

Yarborough was charged with, inter alia, the murder of Keith Duncan. At trial, it was undisputed that Yarborough was involved in a fight between two groups of young men. After awhile the fight died down, and Yarborough walked away from the area. The prosecution evidence was that shortly after the fighting subsided, Yarborough returned, brandishing a gun, and fired three shots, two of which hit Duncan, who died of the wounds. After a brief chase, Yarborough was arrested by police officers who had witnessed the shooting.

Police Officer Orlando Torres testified that he was on patrol with his two partners in an unmarked car when he observed a group of young men arguing at the corner of 163rd Street and Third Avenue in the Bronx. Officer Torres saw four males coming down the street, heading toward the group. Leading the foursome was a young black male wearing a long dark coat and carrying a gun, who fired three shots into the crowd.

Torres testified that he immediately pulled the car up to the scene. As the officers got out of the car, the shooter turned toward them with the gun, then turned back around, and ran up the street. Torres chased the shooter, who threw the gun over a fence into a parking lot. Torres soon caught and arrested him. Torres and the other officers identified the shooter as the defendant, Kemp Yarborough.

Another officer promptly recovered the gun from the parking lot. Ballistics tests revealed that this gun fired the bullets that killed Duncan.

The morning after Officer Torres testified, the prosecutor notified the judge in a robing room conference that a prospective prosecution witness, Michael Garvin, a cousin of the deceased, had entered the courtroom without the prosecutor's knowledge and had been present during a portion of Torres's testimony. Defense counsel moved to preclude Garvin from testifying. The judge called Garvin into the robing room, and questioned him to determine whether he would be influenced by Torres's testimony. Yarborough's attorney also questioned Garvin. She made no objection to conducting the proceedings in Yarborough's absence. Garvin explained that, with one insignificant exception (the fact that a car was parked on the curb), he had not observed the events that Torres had testified about. He stated that hearing Officer Torres testify would not influence the testimony he was prepared to give. The trial judge determined that Garvin would not be influenced by Torres's testimony and denied the motion to bar his testimony. When trial resumed, Garvin testified. Neither Yarborough nor his attorney made any objection to the fact that Yarborough had been absent from the hearing.

Garvin did not see the shooting, but was present during the fight that preceded the shooting and heard the shots fired. According to Garvin, Yarborough, who was the only person present wearing a long denim coat, participated in a street fight with Duncan; at one point Duncan pushed Yarborough to the ground. Eventually the fight died down, and Garvin walked away. Shortly thereafter he heard three shots.

Officer Torres's two partners, Todd Majett and Bernard Malone, corroborated Torres's account of the events. Officer Majett testified that he observed four black males heading toward a group of youths on the corner of 163rd Street and Third Avenue. Leading them was a tall individual, whom he identified as Yarborough, wearing a long black coat. Majett saw flashes coming from a gun in Yarborough's hand and heard three shots. Majett testified that Officer Torres chased and caught Yarborough.

Officer Malone also testified that from the car, he saw four males running down the street toward a group of others. Yarborough, who was wearing a long dark coat, led these four and fired three shots. As Malone leapt out of the car, Yarborough turned toward the officers with the gun in his hand. Yarborough then started running back up the street, threw his gun over a chain link fence, and shortly thereafter was apprehended by Officer Torres.

The defense presented two witnesses. The first, Carlos Cordero, was arrested with the defendant. He testified generally about the fight that preceded the shooting and stated that Yarborough participated in the fight. He said, however, that Yarborough did not have a gun that evening.

The defense's second witness was Yarborough himself. He admitted that he was involved in the fight and that he punched a black male in the face during the fight. He also testified that he was wearing a long black denim coat. He denied shooting anyone or having a gun that night. He testified that after the fighting stopped, he had walked away from the area and then heard shots ring out from behind him.

The jury convicted Yarborough of, among other things, murder in the second degree.

On appeal to the Appellate Division, Yarborough raised, for the first time, his contention that his absence from the robing room hearing violated his constitutional right to be present during all material stages of the proceedings and to confront his accusers. The Appellate Division found that, "[c]ontrary to defendant's unpreserved argument on appeal, his exclusion from this hearing did not deprive him of his ... constitutional right to be present at any material stage of his trial." People v. Yarborough, 184 A.D.2d 394, 395, 585 N.Y.S.2d 372, 373 (1st Dep't 1992). The New York Court of Appeals denied leave to appeal. People v. Yarborough, 80 N.Y.2d 935, 589 N.Y.S.2d 863, 603 N.E.2d 968 (1992).

Yarborough then petitioned for habeas corpus, again alleging that his absence during the hearing violated his constitutional rights. Judge Martin disagreed and denied the petition. Yarborough then brought this appeal.

Discussion

Yarborough's appeal raises three potential questions. First, were Yarborough's constitutional rights violated by holding the hearing in his absence? Second, if a violation did occur, does harmless error analysis apply? Third, if harmless error analysis does apply, was this harmless?

We hold that harmless error analysis does apply and that, if it was error to hold this hearing in Yarborough's absence, that error was harmless. These two findings make it unnecessary for us to pass on whether holding the hearing in Yarborough's absence violated his constitutional rights.

I. Does Harmless Error Analysis Apply?

In Arizona v. Fulminante, 499 U.S. 279, 307-10, 111 S.Ct. 1246, 1263-65, 113 L.Ed.2d 302 (1991), in an opinion by Chief Justice Rehnquist, the Supreme Court distinguished between two classes of constitutional errors: the vast majority, denominated "trial errors," which are subject to harmless error review, and a very limited class of errors, called "structural," which require automatic reversal regardless whether the error had any appreciable effect on the outcome of the trial. See also Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986) (noting that some constitutional violations are not subject to harmless error review but emphasizing that "they are the exception and not the rule"). The Court explained that structural errors are those errors which "transcend[ ] the criminal process," "affecting the framework within which the trial proceeds." Fulminante, 499 U.S. at 309-11, 111 S.Ct. at 1265; see also Rose, 478 U.S. at 577, 106 S.Ct. at 3106 (explaining that some errors are not subject to harmless error review because they "necessarily render a trial fundamentally unfair"); Vasquez v. Hillery, 474 U.S. 254, 263-64, 106 S.Ct. 617, 623, 88 L.Ed.2d 598 (1986) (errors which "undermine[ ] the structural integrity of the criminal tribunal" are not subject to harmless error review). Errors are properly categorized as structural only if they so fundamentally undermine the fairness or the validity of the trial that they require voiding its result regardless of identifiable prejudice. See Fulminante, 499 U.S. at 309-10, 111 S.Ct. at 1265. To illustrate the distinction between the two categories of errors, the Court pointed to numerous cases in which it had found constitutional violations subject to harmless error review, and contrasted those cases with the few examples of violations, such as the total deprivation of the right to counsel and trial by a biased judge, which it had found to require automatic reversal. Fulm...