McBee v. Burge

09-3679-pr
McBee v. Burge
09-3679-pr

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF ApPELLATE
PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL ApPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER") • A PARTY CITING A SUMMARY ORDER MUST
SERVE A COpy OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 6th day of October , two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 BARRINGTON D. PARKER,
9 PETER W. HALL,
10 Circuit Judges.
11
12 - - -X
13 JERRY McBEE,
14
15 Petitioner-Appellant,
16
17 -v. ­ 09-3679-pr
18
19 SUPERINTENDENT JOHN BURGE,
20
21 Respondent-Appellee.
22 - - - - - - -X
23 APPEARING FOR APPELLANT: Diane Mirabile Rafal (Daniel J.
24 Goodstadt, Brendan M.
25 Palfreyman, and Ursala Bentele
26 on the brief), BLS Legal
27 Services, Inc., Brooklyn, NY.
28
29 APPEARING FOR APPELLEE: Lori Glachman (Leonard Joblove
30 on the brief), for Charles J.
 1 Hynes, District Attorney, Kings
2 County, Brooklyn, NY.
3
4 Appeal from a judgment of the United States District
5 Court for the Eastern District of New York (Irizarry, J.).
6
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
8 AND DECREED that the judgment of the district court be
9 AFFIRMED.
10
11 Petitioner-appellant Jerry McBee appeals from a
12 judgment of the United States District Court for the Eastern
13 District of New York (Irizarry, J.), denying McBee's
14 petition for a writ of habeas corpus and granting a
15 certificate of appealability. We assume the parties'
16 familiarity with the underlying facts, the procedural
17 history, and the issues presented for review.
18
19 We assume without deciding that McBee's rights under
20 the Confrontation Clause of the Sixth Amendment -- as
21 interpreted in Crawford v. Washington, 541 U.S. 36 (2004)
22 were violated by the admission at trial of the statements
23 made by David Tyson and Lamont Beasley.
24
25 Such an error is reviewed for harmlessness. See
26 Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
27 Specifically, this court evaluates whether the (assumed)
28 error "had substantial and injurious effect or influence in
29 determining the jury's verdict.II Brecht v. Abrahamson, 507
30 U.S. 619, 637 (1993) (internal quotation marks omitted) i see
31 also Fry v. Pliler, 551 U.S. 112, 121 (2007) (applying the
32 Brecht standard to "assess the prejudicial impact of
33 constitutional error in a state-court criminal trial") i
34 Brinson v. Walker, 547 F.3d 387, 395 (2d Cir. 2008)
35 (applying the Brecht standard to assess harmlessness in the
36 context of a Confrontation Clause violation). In so doing,
37 "the court looks to the record as a whole," evaluating,
38 inter alia, "the overall strength of the prosecution's case,
39 the importance of the improperly admitted evidence, and
40 whether the evidence was emphasized at trial.II Brown v.
41 Keane, 355 F.3d 82, 92 (2d Cir. 2004) i see also Van Arsdall,
42 475 U.S. at 684 (explaining that relevant "factors include
43 the importance of the witness' testimony in the
44 prosecution's case, whether the testimony was cumulative,
45 the presence or absence of evidence corroborating or
46 contradicting the testimony of the witness on material

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 1 points, the extent of cross-examination otherwise permitted,
2 and, of course, the overall strength of the prosecution's
3 case"). "No one factor is disposi ti ve," but "the strength
4 of the prosecution's case is probably the single most
5 critical factor." United states v. Reifler, 446 F.3d 65, 87
6 (2d Cir. 2006) (internal quotation marks and alteration
7 omi tted). At the same time, "the mere fact that the
8 properly admitted evidence, standing alone, would have been
9 sufficient to support the conviction is not determinative of
10 whether the improperly admitted evidence had a substantial
11 and injurious effect." Wray v. Johnson, 202 F. 3d 515, 526
12 (2d Cir. 2000).
13
14 We have no trouble concluding that the (assumed) error
15 is harmless. No evidence contradicts Tyson and Beasley's
16 statements in issue, and they are corroborated by McBee's
17 admissions and Ebony Lilly's testimony, as well as other
18 evidence. The overall strength of the prosecution's case
19 outweighs any factors favoring McBee.
20
21 We reject McBee's three primary arguments to the
22 contrary. First, although the prosecutor referred to
23 Beasley's statements in her opening and both Tyson and
24 Beasley's statements in her summation, the references were
25 brief, especially relative to the emphasis on other
26 important evidence. See Gutierrez v. McGinnis, 389 F.3d
27 300, 309 (2d Cir. 2004). Second, although McBee's two
28 previous mistrials may be considered as evidence of the
29 weakness of the prosecution's case, these prior hung juries
30 are not determinative, see United States v. Newton, 369 F.3d
31 659, 680 (2d Cir. 2004), especially given the presentation
32 of Lilly's testimony for the first time in the third trial.
33 Third, whatever grounds existed for the jury to doubt
34 Lilly's credibility, her testimony reinforced the
35 prosecution's theory of the case. Cf. United States v.
36 Payne, 591 F.3d 46, 60 (2d Cir. 2010) (in the context of a
37 sufficiency challenge, explaining that "[a]ssessments of
38 witness credibility . . . lie solely within the province of
39 the jury") .
40
41 We have considered all of McBee's contentions on this
42 appeal and have found them to be without merit.
43 Accordingly, the judgment of the district court is hereby
44 AFFIRMED.
45
46 FOR THE COURT:

47 CATHERINE O'HAGAN WOLFE, CLERK

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