08-1490-pr
Perkins v. Herbert
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2008
(Argued June 23, 2009) (Decided February 23, 2010)
Docket No. 08-1490-pr
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VICTOR PERKINS,
Petitioner-Appellee,
- against -
VICTOR T. HERBERT,
Respondent-Appellant.
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B e f o r e: MINER and LIVINGSTON, Circuit Judges,
and TRAGER, District Judge.*
Appeal from a judgment of the United States District
Court for the Western District of New York (Bianchini, U.S.M.J.)
entered on March 10, 2008, conditionally granting the writ of
habeas corpus.
The judgment of the district court is reversed.
_______________________
* The Honorable David G. Trager of the United States District
Court for the Eastern District of New York, sitting by
designation.
JULIA PAMELA HEIT, Esq.,
New York, NY,
for Petitioner-Appellee
Michael C. GREEN, Esq.,
District Attorney for Monroe
County,
KELLY CHRISTINE WOLFORD, Esq.,
Assistant District Attorney,
Rochester, NY,
for Respondent-Appellant
Judge Trager, District Judge.
On March 27, 1998, a Grand Jury charged Petitioner Victor
Perkins (“Perkins”) with one count of first degree robbery (N.Y.
Penal Law § 160.15(4)), two counts of criminal possession of a
weapon in the second degree (N.Y. Penal Law § 265.03), two counts
of criminal possession of a weapon in the third degree (N.Y.
Penal Law § 265.02(4)), and one count of unlawful imprisonment in
the first degree (N.Y. Penal Law § 135.10). All counts stemmed
from the robbery and detention of a grocery clerk named Claudia
Cruz (“Cruz”).
Perkins was tried and convicted of first degree robbery and
two counts of weapons possession in the third degree. However,
the jury acquitted Perkins of the unlawful imprisonment charge,
as well as the two counts of weapons possession in the second
degree. The trial court sentenced Perkins as a second violent
felony offender to concurrent prison terms, the longest of which
was a term of twenty years.
Perkins appealed his conviction to the New York State
Supreme Court, Appellate Division (“Appellate Division”),
claiming that the trial court had violated his rights under the
Confrontation Clause by admitting the Grand Jury testimony and
supporting depositions of Cruz without affording him the ability
to cross-examine her at a pre-trial hearing or at trial. Perkins
further argued that his Fifth Amendment rights had been violated
by the introduction of a written confession that had been
obtained after he invoked his right to silence. The Appellate
Division accepted Perkins’s argument that his constitutional
rights had been violated in both instances, but nonetheless
upheld his conviction on the ground that the constitutional
errors had been “harmless beyond a reasonable doubt” in light of
the other evidence presented at trial. People v. Perkins,
289 A.D.2d 940, 941, 735 N.Y.S.2d 273, 275 (4th Dep’t 2001)
(“Perkins II”), lv. denied, 98 N.Y.2d 654, 772 N.E.2d 616 (2002).
Perkins subsequently filed this petition for a writ of
habeas corpus, seeking to have the district court set aside his
conviction. Respondent Victor Herbert (“Herbert”),
Superintendent of the Attica Correctional Facility, opposed
Perkins’s petition. The United States District Court for the
Western District of New York (Victor E. Bianchini, U.S.M.J.),1
however, conditionally granted the writ of habeas corpus pursuant
to 28 U.S.C. § 2254, setting aside Perkins’s conviction for
robbery and weapons possession. Perkins v. Herbert, 537 F. Supp.
2d 481, 506 (W.D.N.Y. 2008) (“Perkins III”). According to the
magistrate judge, the constitutional errors had not been harmless
1
Pursuant to 28 U.S.C. § 636(c), the parties consented to
have Magistrate Judge Bianchini conduct the proceedings and enter
final judgment.
2
under the “substantial and injurious effect” standard set forth
in Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). Perkins III,
537 F. Supp. 2d at 502 (citing Fry v. Pliler, 127 S.Ct. 2321,
2328 (2007)). We disagree with this last ruling and reverse the
grant of the writ.
Background
(1)
Factual Background
On February 26, 1998, at approximately 10:05 a.m., Perkins
and another man named Ernesto Shannon, a.k.a. “Lucky” (“Lucky”),
entered Willie’s Grocery Store in the City of Rochester.
According to an oral statement by Perkins, a third man, named Ted
Francis (“Ted”), stood outside the grocery store acting as a
lookout. After demanding Cruz’s jewelry and the money from the
register, the two men forced Cruz to help them contact a man
named Luis Rijo, a.k.a. “Hector” (“Hector”), a local drug dealer
with whom Cruz was acquainted. Perkins then paged Hector from a
nearby telephone booth with the number “335,” knowing that Cruz
would sometimes use this number to summon Hector to the grocery
store.
Once Hector arrived at the front door, Perkins and Lucky
forced Cruz to participate in his capture. According to
3
testimony from Cruz, as well as a written confession from
Perkins, the two men forced Cruz to meet Hector at the front door
and persuade him to use the rear entrance instead. After Hector
had approached the rear entrance, Cruz coaxed Hector into the
store. However, soon after Hector entered, he was ambushed by
Lucky and taken into the basement, where he was blindfolded,
duct-taped to a chair and beaten. Lucky then threatened Hector
with a semiautomatic pistol and demanded to know where Hector
kept his drugs and money.2
Under duress, Hector relented. He spoke to the two men in
Spanish, which Cruz translated, revealing that his drugs and
money were located in the attic of a nearby house at 295 Avenue
C. At this point, one of the two men left the grocery store in
search of Hector’s drugs and money.3 However, that person soon
returned to the grocery store, where the two men questioned
Hector once more. Hector once again reassured the two men that
he had told them the truth regarding the location of his drugs
and money, and Lucky subsequently exited Willie’s Grocery Store.
Perkins, however, remained behind with Cruz and Hector.
2
The Grand Jury indictment at issue here deals solely with
the robbery and imprisonment of Cruz, and not the crimes
committed against Hector. Hector did not testify at trial.
3
According to Cruz, Perkins left at this point. However,
in his written confession, Perkins states that it was Lucky who
left the grocery store.
4
While the men were struggling to locate Hector’s drugs and
money, the police had received reports of suspicious activity and
shouting coming from Willie’s Grocery Store. In response to
these reports, the police contacted the owner, who unlocked the
store. Upon entering the basement, the officers encountered
Cruz, who appeared distraught, and Hector, who was duct taped to
a chair and bleeding from the head. Although she was crying, and
her hands were trembling, Cruz pointed in Perkins’s direction and
said: “[H]e’s over there.” When the officers looked in this
direction, they saw Perkins fleeing through the rear entrance.
Officer Mark Barna (“Officer Barna”), who had been waiting
outside the rear entrance, observed Perkins fleeing the grocery
store and called out a radio broadcast with Perkins’s
description.
Shortly after receiving Officer Barna’s broadcast, Officer
Richard Gerbino (“Officer Gerbino”) apprehended Perkins. Officer
Gerbino’s search revealed that Perkins was carrying a gun
holster, $78.60 in cash, and numerous pieces of jewelry that
would later be identified as belonging to Cruz. Officer Gerbino
then brought Perkins back to the grocery store for a show-up
identification by Cruz, who hesitated at first, but ultimately
recognized Perkins as the man who had robbed her. Perkins then
asked the officers if they caught “the other guy” and offered to
5
cooperate, stating his desire not to go to prison.
At the police station, Investigators Thomas Baccanti and
Michael McAuliffe (“Inv. Baccanti” and “Inv. McAuliffe”) read
Perkins his Miranda warnings, which Perkins agreed to waive.
Perkins initially denied that he had participated in the robbery
or possessed a gun. Inv. Baccanti, however, told Perkins that he
did not believe this to be true, and that Cruz had already
implicated Perkins in the robbery. After making this comment,
Inv. Baccanti stated: “What really happened was you pointed a gun
at her, at Claudia Cruz, and you took her money and jewelry . . .
that’s the way it happened, isn’t it?” Perkins responded,
“[Y]es, that’s the way it happened.” Perkins also admitted to
possessing a gun, and to accidentally discharging it while he was
fleeing from the police. However, when Inv. Baccanti requested
that Perkins reduce his statement to writing, Perkins refused.
Perkins also indicated that he did not wish to discuss the matter
any further, thus ending the interrogation. Perkins again
refused to discuss the matter two and a half hours later, at 7:00
p.m., when the investigators attempted to re-initiate the
conversation.
After waiting in the interview room by himself until 12:30
a.m., Perkins met with Investigators Thomas Janus and Glenn
Weather (“Inv. Janus” and “Inv. Weather”). Inv. Janus and Inv.
6
Weather had been investigating a homicide that had occurred
earlier that day at 295 Avenue C, the same site that Lucky had
visited in search of Hector’s drugs and money. Unaware that
Perkins had earlier invoked his right to remain silent, Inv.
Weather said to Perkins: “Victor, I realize that you have been -
you have been read your rights and you agreed to waive them.
They still stand here during the conversation we’re having now
and that we’re going to be having over the next few minutes.”
Perkins replied, “[Y]eah, no problem.”
The two investigators informed Perkins that they wished to
discuss what had happened earlier that day, as well as a homicide
that had occurred at 295 Avenue C. Under questioning about the
robbery at Willie’s Grocery Store, and its potential connection
to the homicide at 295 Avenue C, Perkins produced a written
statement detailing his involvement in the robbery of Cruz and
the plot to steal Hector’s drugs and money.4 According to
Perkins’s written statement, he had personally taken Cruz’s
4
After conducting a pre-trial suppression hearing, the
trial court determined that the written confession was
admissible. However, both the New York Appellate Division and
the magistrate judge below disagreed, and found that the written
statement should have been suppressed. See Perkins III, 537 F.
Supp.2d at 502 (“[T]he admission of his written statement was
made in violation of the Fifth Amendment right against self-
incrimination . . . .”); Perkins II, 289 A.D.2d 940 at 941,
735 N.Y.S.2d at 275 (“[T]he court should have suppressed
defendant's written statement.”).
7
chains, ring, and gold watch at gunpoint. However, Perkins also
claimed that he had not visited 295 Avenue C on the date of the
robbery. Instead, Perkins claimed in his written statement that
Lucky was the only one to visit 295 Avenue C in search of
Hector’s drugs and money.
Approximately one month after the robbery, on March 29,
1998, the police discovered that Perkins’s accomplice Lucky had
been the victim of a homicide as well. The police suspected that
Ted, whom Perkins had identified as the lookout in the initial
robbery, had either participated in, or had knowledge of, Lucky’s
death. Furthermore, the police learned that Ted had personally
approached Cruz on one occasion, reminding her of Lucky’s
homicide and warning her not to testify. Ted had also contacted
her step-father and boyfriend on separate occasions, conveying
the same message. As a result, Cruz refused to testify against
Perkins at trial.
(2)
The Sirois Hearing
Under New York law, when a defendant is accused of causing
the unavailability of a witness, the court will hold a pre-trial
Sirois hearing to determine whether the defendant actually did
procure the absence of the witness, in which case the admission
of un-cross examined testimony of the absent witness will be
8
permitted. See People v. Cotto, 92 N.Y.2d 68, 75-76, 699 N.E.2d
394, 398, 677 N.Y.S.2d 35, 39 (1998) (“[A]t a Sirois hearing, the
People must demonstrate by clear and convincing evidence that the
defendant, by violence, threats or chicanery, caused a witness's
unavailability.”). Although the Supreme Court has taken “no
position on the standards necessary to demonstrate such
forfeiture,” Davis v. Washington, 547 U.S. 813, 833 (2006), New
York courts have required the prosecution to show that the
defendant procured the absence of the witness by “clear and
convincing evidence,” People v. Geraci, 85 N.Y.2d 359, 362,
649 N.E.2d 817, 818, 625 N.Y.S.2d 469, 470 (1995) (internal
quotation marks omitted), whereas the Second Circuit has adopted
a “preponderance of the evidence” standard, United States v.
Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982).
On February 22, 1999, the trial court held a Sirois hearing
to determine whether the prosecution could introduce the grand
jury testimony and supporting depositions of Cruz into evidence
in lieu of her live testimony. According to the prosecution,
Perkins had enlisted the aid of Ted to warn Cruz not to testify,
and thereby waived his right to cross-examine Cruz. This Sirois
hearing was intended to determine whether or not Perkins had, in
fact, caused Cruz’s unavailability. See Cotto, 92 N.Y.2d at 75-
76, 699 N.E.2d at 398, 677 N.Y.S.2d at 39.
9
The prosecution first called Inv. Janus, who testified as to
the contents of several conversations he had had with Cruz
regarding her testimony against Perkins. According to Inv.
Janus, Cruz was initially reluctant to mention Ted by name.
However, Cruz soon “indicated that she was seeing Ted on a
regular basis driving by looking at her and that she had been
approached” by Ted on one occasion. Ted reminded Cruz of the
murder of Lucky, a co-conspirator in Cruz’s robbery, saying that
“Lucky was one of their own people and look what happened to
him.” Ted further explained, in the words of Inv. Janus, that
“it would . . . not [be] a good idea for [Cruz] to testify.”
Cruz told Inv. Janus that Ted had also contacted her step-father
and boyfriend, on separate occasions, suggesting to both men that
Cruz should not testify.
As a result, Cruz refused to testify against Perkins, and
expressed anger at Inv. Janus for continuing to request her
testimony. When Inv. Janus ultimately served Cruz with a
subpoena for the Sirois hearing, Cruz began to cry and said that
Inv. Janus “might as well have issued her a death warrant.” Cruz
also remarked that Lucky had been killed “because . . . he had
been talking.”
Throughout these conversations, Cruz never mentioned to Inv.
Janus whether she had ever been contacted by Perkins himself, and
10
never alleged that Ted had conveyed these warnings on Perkins’s
behalf. Indeed, Perkins had been imprisoned continuously since
his arrest on February 26, 1998, and the prison record logs
reveal no contact with Ted.
Inv. Janus further testified that Ted himself was suspected
of acting as the lookout in the robbery of Cruz and of possibly
being involved in the homicide at 295 Avenue C that occurred the
same day. Additionally, Perkins himself had identified Ted as an
accomplice in the robbery, even though “he feared for his safety
by identifying him.” Furthermore, Cruz had confirmed that there
was a third robber just outside the grocery store, although she
told Inv. Janus that she did not see this person’s face.
Next, Inv. Weather testified that Perkins had identified Ted
as an accomplice. According to Inv. Weather, Perkins had
revealed that Ted had acted as a lookout during the robbery.
Accordingly, Ted remained a suspect in the robbery.
Additionally, Inv. Weather noted that Ted was a suspect in a
homicide that occurred on the same day at 295 Avenue C, which the
police believed may have been linked to the robbery.
The prosecution next called Investigator James Rossiter
(“Inv. Rossiter”), who testified that he had served Cruz with a
material witness order, compelling her presence at the Sirois
hearing. Upon receiving the order, Cruz began to cry, stating
11
that she didn’t want “to be the next homicide victim” and that
she was fearful of coming to court due to the threats she had
received. Nonetheless, Inv. Rossiter escorted Cruz to the
District Attorney’s Office. Inside the District Attorney’s
Office, Inv. Rossiter overheard part of a conversation that Cruz
was having with her boyfriend. According to Inv. Rossiter, Cruz
said that “they don’t care about the robbery, it’s the homicide
they’re concerned with.” Inv. Rossiter, however, did not know to
whom Cruz was referring when she used the word “they.”
Finally, the prosecution called Pedro Oliver (“Oliver”),
Cruz’s step-father. Oliver testified that a black male had
approached him in his driveway, saying “make sure you tell your
daughter not to go to court.” The man said nothing more before
walking away.
After hearing testimony from these witnesses, Cruz’s
attorney addressed the court. According to Cruz’s attorney, Cruz
“has explained to me that as a result of threats that have been
made to her, she is fearful that if she testifies, even as to the
threats themselves, and implicates anyone in relation to those
threats, that her life will be in danger.” Therefore, the
attorney then represented to the court that Cruz “is not willing
to testify and would not answer questions if called.”
After hearing that Cruz refused to testify in open court,
12
and that Perkins refused to waive his presence during her
testimony, the trial court conducted an in camera proceeding,
over defendant’s objection, in which the court questioned Cruz
outside the presence of both the defendant and the defendant’s
counsel, as well as the prosecution. The trial court permitted
the defendant to submit written questions, which the court would
ask of Cruz, but did not allow any direct questioning.
Additionally, the court did not allow the defendant to see an
actual transcript of the in camera proceeding. Instead, the
court provided the defendant with a written summary. The court
explained that it believed such a procedure “could safeguard the
rights of the defendant by posing relevant questions to the
victim and listening to her answers, while protecting the rights
of the obviously distraught witness by excluding the defendant
and his counsel.” People v. Perkins, 180 Misc.2d 495, 498,
691 N.Y.S.2d 273, 275 (Sup. Ct., Monroe County 1999) (“Perkins
I”).
During her in camera testimony, which largely overlapped
with the testimony of the investigators, Cruz noted that she “had
a feeling that [Ted] was involved” in the robbery because “he
used to hang around with [Perkins and Lucky].” Therefore, she
was fearful of Ted, and reluctant to speak with Ted when he
approached her after the robbery. Cruz told the judge that Ted
13
had personally warned her on one occasion not to testify,
reminding her of Lucky’s murder. Ted had also approached her
boyfriend, while Cruz waited inside her car, conveying a similar
message. Ted had even approached her step-father with the same
message.
In response to written questions from Perkins’s attorney,
Cruz confirmed that she had not had any contact with Perkins
since the date of the robbery. Furthermore, Cruz did not at any
point testify that she believed that Perkins had orchestrated the
threats. Nonetheless, the trial court ruled that Perkins had
waived his Sixth Amendment right of confrontation, and that
Cruz’s grand jury testimony and supporting depositions could be
admitted at trial. Perkins I, 180 Misc.2d at 500, 691 N.Y.S.2d
at 277. Although the court acknowledged that “there was no
direct evidence to demonstrate that the defendant orchestrated
the intimidation of the victim,” it nonetheless held that “the
prosecutor proved the same by presenting sufficient
circumstantial evidence.” Id. Particularly, the court
emphasized that “there was no suggestion that anyone else stood
to gain from the witness’s silence.” Id. at 500, 691 N.Y.S.2d at
276 (quoting Cotto, 92 N.Y.2d at 77, 699 N.E.2d at 398,
677 N.Y.S.2d at 39). In a footnote, the court explained that Ted
didn’t have anything to gain because he was never identified by
14
Cruz as a participant in the robbery and had not been charged.
Perkins I, 180 Misc.2d at 500 n.13, 691 N.Y.S.2d at 276 n.13.
(3)
The Trial
At trial, the prosecution introduced the testimony of
various officers who had responded to the robbery that took place
at Willie’s Grocery Store. According to the testimony of these
officers, Perkins had been seen fleeing from the basement of
Willie’s Grocery Store on February 26, 1998, leaving behind Cruz
and Hector. The responding officers testified that when they
arrived at the scene, Cruz appeared to be hysterical, and Hector
was duct taped to a chair and bleeding from the head. Cruz’s
pants were unbuttoned and unzipped, and she was trembling and
crying.5 However, she pointed in Perkins’s direction, saying
“[H]e’s over there,” before Perkins could flee from the basement.
Once the officers apprehended Perkins, they discovered him to be
carrying numerous items of jewelry, $78.60 in cash, and a gun
holster. Along Perkins’s flight path, the officers also found a
roll of duct tape, a .22 caliber semiautomatic pistol, a .380
caliber semiautomatic pistol, and a spent casing that matched the
.22 caliber pistol. Perkins asked the officers if they caught
5
According to Cruz, Lucky demanded that she lift her shirt
and unbutton her pants to make sure that she was not armed.
15
“the other guy” and offered to cooperate, stating that he did not
wish to go to prison.
Additionally, the prosecution introduced testimony from Inv.
Baccanti and Inv. McAuliffe, both stating that Perkins had orally
admitted to the robbery of Cruz. According to both
investigators, Inv. Baccanti had accused Perkins of pointing a
gun at Cruz and taking her jewelry, and Perkins had responded by
saying, “[Y]es, that’s the way it happened.”
Furthermore, pursuant to the trial court’s ruling at the
Sirois hearing, the prosecution introduced the Grand Jury
testimony of Cruz, as well as two of Cruz’s depositions.
According to Cruz’s statements, Perkins had pointed a gun at Cruz
and had stolen her jewelry under threat of force.
Finally, again, pursuant to the trial court’s ruling at the
pre-trial suppression hearing, the prosecution introduced
Perkins’s written confession. According to this written
statement, Perkins confessed that he had taken Cruz’s jewelry.
Perkins also confessed to conspiring with Lucky to “go to the
store . . . and make [Cruz] page [Hector]” so that the two men
could rob Hector as well. The prosecution would ultimately
stress the importance of this written statement in closing
arguments, encouraging the jurors to “read[] that statement aloud
[and] keep in mind [that the testimony of] the different police
16
officers . . . supports, corroborates, [and] confirms what is
within that statement.”
In his closing arguments, Perkins’s attorney suggested that
Cruz may have been an accomplice in the robbery of Hector, rather
than a victim herself. To support this theory, Perkins
introduced evidence that Cruz had been previously convicted of
welfare fraud, and that, as a condition of her probation, Cruz
was required to make restitution in excess of $9,000. In his
closing statement, Perkins’s attorney argued that this provided a
financial motive for Cruz to conspire with Perkins and Lucky to
rob Hector. With respect to the jewelry that Perkins had been
carrying when he was apprehended, Perkins’s attorney suggested
that Cruz may have actually handed this to Perkins voluntarily.
According to Perkins’s attorney, Cruz may have given Perkins her
jewelry in order to convince Hector that she was a victim, rather
than a participant, in the robbery at Willie’s Grocery Store.
Prior to deliberations, the parties agreed to present all of
the exhibits to the jury, which then commenced deliberations and
found Perkins guilty of first degree robbery and two counts of
third degree criminal possession of a weapon. However, the jury
acquitted Perkins on the unlawful imprisonment count and the two
17
counts of second degree criminal possession of a weapon.6
(4)
The Appellate Division Ruling
On direct appeal following his conviction, Perkins asserted
a constitutional challenge under the Confrontation Clause of the
Sixth Amendment, arguing that the trial court erred in admitting
the Grand Jury testimony and supporting depositions of Cruz
without allowing Perkins the opportunity to cross-examine her.
Perkins II, 289 A.D.2d at 940-41, 735 N.Y.S.2d at 274. Perkins
also contended that the trial court erred in refusing to suppress
his written confession, which was obtained after he had invoked
his right to remain silent. Id. at 941, 735 N.Y.S.2d at 274.
The Appellate Division unanimously agreed with Perkins
regarding the constitutional violations, and found that the trial
court had erred in admitting the Grand Jury testimony of Cruz in
lieu of her live testimony. Id. According to the Appellate
Division, the prosecution had failed to establish that Perkins
had procured the absence of Cruz, and thus had failed to
establish that Perkins waived his right to cross-examination.
6
Although the jury’s reasoning is not apparent from the
record, the jurors may have found that the prosecution had failed
to establish that Cruz had been “expose[d] . . . to a risk of
serious physical injury” as required to secure a conviction for
unlawful imprisonment in the first degree. N.Y. Penal Law
§ 135.10.
18
Id. (emphasizing that the warnings against Cruz had been made by
a suspected accomplice rather than by Perkins himself).
Furthermore, the Appellate Division found that the trial court
erred by failing to suppress Perkins’s written confession. Id.
at 941, 735 N.Y.S.2d at 274-75 (quoting People v. Brown,
266 A.D.2d 838, 838, 700 N.Y.S.2d 605, 607 (4th Dep’t 1999)
(after a suspect has invoked his right to remain silent,
interrogation must cease, and can resume “only where a
significant period of time has passed since the invocation of the
right to remain silent and where the police have reiterated the
requisite warnings”), lv. denied, 94 N.Y.2d 860, 725 N.E.2d 1098,
704 N.Y.S.2d 536 (1999)). The Appellate Division held that
Perkins had invoked his right to remain silent, and that
custodial interrogation could not have constitutionally resumed
unless the interrogating officer waited a significant period of
time and re-read Perkins his Miranda rights. Perkins II,
289 A.D.2d at 941, 735 N.Y.S.2d at 274-75 (citing Brown,
266 A.D.2d at 839, 700 N.Y.S.2d at 607); see also Michigan v.
Mosley, 423 U.S. 96, 106-07 (1975). Because the interrogating
officer resumed questioning without reiterating the requisite
warnings, and in fact told Perkins that he had waived his rights,
the Appellate Division found that the trial court should have
suppressed Perkins’s subsequent written confession. Perkins II,
19
289 A.D.2d at 941, 735 N.Y.S.2d at 274-75.
Despite having found two constitutional violations, a
divided Appellate Division ultimately upheld Perkins’s
conviction. Id. at 941, 735 N.Y.S.2d at 275. According to the
majority, these errors were “harmless beyond a reasonable doubt”
because “[d]efendant’s oral admission of guilt was properly
admitted, defendant was identified by an officer who saw him
inside the store, and defendant was apprehended immediately after
the robbery while in possession of the stolen property.” Id.
(citing Brown, 266 A.D.2d at 839, 700 N.Y.S.2d at 607).
Therefore, the Appellate Division concluded, “there is no
reasonable possibility that the errors might have contributed to
the conviction.” Id. Two judges dissented, arguing that the
constitutional errors were not harmless. Perkins II, 289 A.D.2d
at 942, 735 N.Y.S.2d at 275-76 (arguing that “there is a
reasonable possibility that the error in admitting that evidence
might have contributed to defendant’s conviction”) (quoting
People v. Crimmins, 36 N.Y.2d 230, 237, 326 N.E.2d 787, 791,
367 N.Y.S.2d 213, 218 (1975) (internal quotation marks omitted)).
(5)
The District Court’s Order Granting the Writ
In a pro se petition for habeas corpus under 28 U.S.C.
§ 2254, Perkins challenged his conviction on the same grounds,
20
asserting violations of his Fifth and Sixth Amendment rights, and
arguing that those errors had not been harmless. Perkins III,
537 F. Supp. 2d at 484. After a lengthy discussion, the
magistrate judge found that the Appellate Division was correct in
determining that Perkins’s Fifth and Sixth Amendment rights had
been violated. Id. at 494-502. With respect to the Sixth
Amendment Confrontation Clause issue, the magistrate judge agreed
with the Appellate Division that the state trial court had failed
to establish that Perkins procured the absence of Cruz,
emphasizing that Ted had an independent motive to threaten Cruz
on his own behalf. Id. at 494-97 (“I agree with the Appellate
Division’s finding on this point . . . . Singularly lacking on
this record is any proof — direct or circumstantial — that Ted
Francis’ threats toward Cruz were made at Perkins’ behest.”).
Likewise, the magistrate judge agreed with the Appellate
Division’s finding that the trial court had violated Perkins’s
Fifth Amendment right against self-incrimination by admitting
Perkins’s written confession into evidence. Id. at 501-02.
Furthermore, the magistrate judge found that Perkins’s Fifth and
Sixth Amendment rights had also been violated by his exclusion
from Cruz’s questioning at the Sirois hearing itself, which the
magistrate judge found to be a material stage of the trial. Id.
at 497-501.
21
After finding these three constitutional violations, the
magistrate judge proceeded to analyze the harmfulness of these
violations under the standard set forward in Brecht. Id. at 502-
05 (citing Brecht, 507 U.S. at 623). Although the Appellate
Division had found the errors to be harmless under the Chapman
test,7 the magistrate judge still found that “a habeas court’s
task is to apply the Brecht standard independently,” whether or
not the state court had found harmlessness on its own. Perkins
III, 537 F. Supp. 2d at 503 (citing Fry, 127 S.Ct. at 2321).
Accordingly, rather than reviewing the state court’s application
of the Chapman test, the magistrate judge proceeded to
independently analyze whether the constitutional error “had
substantial and injurious effect or influence in determining the
jury's verdict.” Perkins III, 537 F. Supp. 2d at 503 (quoting
Brecht, 507 U.S. at 635) (internal quotation marks omitted).
In applying the Brecht standard for harmlessness, the
magistrate judge relied on Delaware v. Van Arsdall, 475 U.S. 673
(1986), a case that developed five factors to assess when
7
The Appellate Division used the harmless error standard of
review from Crimmins, 36 N.Y.2d at 237, 326 N.E.2d at 791,
367 N.Y.S.2d at 218, which incorporates the standard of review
from Chapman. Gutierrez v. McGinnis, 389 F.3d 300, 307-08
(2d Cir. 2004).
22
evaluating whether a Confrontation Clause error is harmless.8
Perkins III, 537 F. Supp. 2d at 504-05. The magistrate judge
also stressed that there is a “substantial burden of persuasion
on the State” to prove harmlessness to a federal habeas court,
id. at 503 (quoting Fry, 551 U.S. at 122 (Stevens, J.,
concurring) (internal quotation marks omitted)), and that a
federal court’s “grave doubt” regarding harmlessness should be
resolved in favor of the habeas petitioner, id.
After evaluating the five Van Arsdall factors, the
magistrate judge concluded that the constitutional errors “had
substantial and injurious effect or influence in determining the
jury’s verdict,” and issued the writ of habeas corpus. Id. at
505-06 (quoting Brecht, 507 U.S. at 623) (internal quotation
marks omitted).
Discussion
(1)
Constitutional Violations
On appeal, appellant Herbert argues that the magistrate
judge erred in finding that Perkins’s Fifth and Sixth Amendment
8
Although the Supreme Court initially developed the Van
Arsdall factors under Chapman review, we have analyzed these same
factors when evaluating the harmfulness of a constitutional
violation under Brecht analysis as well. See, e.g., Brinson v.
Walker, 547 F.3d 387, 395 (2d Cir. 2008).
23
rights had been violated by the admission of Cruz’s testimony and
Perkins’s written confession. Even though the Appellate Division
and magistrate judge below both agreed that the trial court
violated Perkins’s constitutional rights by admitting this
evidence, Herbert urges this court to find otherwise, and to hold
that the state trial court acted reasonably in making its
determination. Perkins III, 537 F. Supp. 2d at 496; Perkins II,
289 A.D.2d at 941, 735 N.Y.S.2d at 274. For the reasons below,
we decline to do so.
With respect to the Confrontation Clause error in admitting
Cruz’s testimony, Herbert argues that the state trial court acted
reasonably in determining that Perkins procured the absence of
Cruz, notwithstanding the Appellate Division’s rebuke of that
very same position. Perkins II, 289 A.D.2d at 941, 735 N.Y.S.2d
at 274 (“[A]ll of the threats warning [Cruz] not to testify were
made by a suspected accomplice [Ted], not defendant [Perkins].”
(emphasis added)). In support of this contention, Herbert
reiterates the trial court’s argument that Perkins had a motive
to procure the absence of Cruz, and that Perkins was the “only
person who stood to gain” from Cruz’s silence. However, the
Appellate Division and magistrate judge both correctly observed
24
that this argument misstates the facts presented below.9
In this case, the prosecution merely demonstrated that
Perkins had a motive to procure Cruz’s silence. It did not
demonstrate, however, that Perkins took any steps to orchestrate
the intimidation of Cruz. It did not even demonstrate that
Perkins had the opportunity to do so, which is particularly
significant due to the fact that Perkins was incarcerated
continuously since the date of the robbery, and the prison record
logs reveal no contact with either Cruz or Ted. Cf. Cotto v.
Herbert, 331 F.3d 217, 233 (2d Cir. 2003) (finding that defendant
procured the absence of a witness in part because the defendant
“had the opportunity to arrange for [the witness’s] intimidation
because he was out on bail both prior to and during the trial”
(internal quotation marks omitted)).
Furthermore, even Perkins’s motive to silence Cruz — the
9
The Appellate Division found that “[t]he People failed to
establish that the witness’s unavailability was procured by
[Perkins]” under New York’s application of the Confrontation
Clause, Perkins II, 289 A.D.2d at 941, 735 N.Y.S.2d at 274, which
requires the prosecution to demonstrate that the defendant
procured the absence of the witness by “clear and convincing
evidence,” People v. Geraci, 85 N.Y.2d 359, 362, 649 N.E.2d 817,
818, 625 N.Y.S.2d 469, 470 (1995) (internal quotation marks
omitted). However, this court requires the prosecution to prove
the same by a “preponderance of the evidence.” United States v.
Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982). Regardless, the
prosecution here clearly failed to demonstrate that Perkins
procured the absence of the witness, even under this court’s more
forgiving “preponderance of the evidence” standard.
25
only real evidence linking Perkins to the threats — was shared by
Ted, the man who personally conveyed the threats to Cruz.
Perkins III, 537 F. Supp. 2d at 497. Ted had already been
identified by Perkins as an accomplice in the robbery of Cruz,
and the Sirois hearing demonstrated that the police suspected Ted
of being involved in two related homicides, as well as in the
robbery itself. According to Inv. Janus, even Cruz had
acknowledged that there was a third robber just outside Willie’s
Grocery Store, although she claimed that she did not see this
person’s face.10 Although Cruz may not have explicitly
identified Ted as a participant in the robbery, there has been no
showing that Ted was aware of this fact. Furthermore, even if he
were aware that Cruz had failed to explicitly identify him, Ted
would still have a motive to prevent Cruz from testifying under
oath about the facts of the robbery and potentially revealing his
involvement. Given these circumstances, Ted had a strong,
independent incentive to prevent Cruz from testifying in court
and potentially implicating him. When we further consider that
Cruz herself never indicated that Perkins had orchestrated the
threats, we must conclude that the prosecution failed to meet its
burden in showing that Perkins procured the absence of the
10
Nonetheless, during her in camera testimony, Cruz noted
that she “had a feeling that [Ted] was involved, being that he
used to hang around with [Perkins and Lucky].”
26
witness, and that the Appellate Division and magistrate judge,
therefore, both correctly concluded that Perkins did not waive
his right of confrontation.11
With respect to the Miranda violation in admitting the
written confession of Perkins, Herbert argues that the state
trial court was correct in finding that Perkins’s written
confession was not obtained in violation of his right to remain
silent, due to the fact that the police waited several hours
after Perkins invoked his right before resuming questioning, and
“advised [Perkins] that the rights and warnings he was previously
given still applied.” However, again, this statement does not
accurately reflect the facts of the case, and we therefore agree
with the Appellate Division and magistrate judge, which both
11
According to the magistrate judge, the admission of
Cruz’s testimony was caused by two separate constitutional
violations. First, it was caused by the trial court’s violation
of Perkins’s right of confrontation, and, second, it was caused
by the trial court’s violation of Perkins’s constitutional right
to be present at a material stage of the trial (i.e., the Sirois
hearing). Perkins III, 537 F. Supp. 2d at 494-501. With respect
to the second violation, the magistrate judge noted that
Perkins’s presence at the Sirois hearing could have produced more
effective cross-examination, which might have ultimately led to
the exclusion of Cruz’s testimony from the trial. Id. at 497-
501. However, whether or not there was an exclusion from a
material stage of the trial that contributed to the admission of
Cruz’s testimony, we still find that the trial court erred in
admitting the testimony of Cruz. Therefore, there is no need to
discuss the merits of the magistrate judge’s second argument, and
we can proceed to analyze whether the admission of Cruz’s
testimony amounted to harmless error.
27
found that Perkins’s right to remain silent was not “scrupulously
honored” by the interrogating officers. See Mosley, 423 U.S. at
104 (explaining that, after one invokes his right to remain
silent, the admissibility of any further statements depends upon
whether that right to remain silent has been “scrupulously
honored.” (internal quotation marks omitted)).
In this case, the interrogating officers failed to re-read
Perkins his Miranda rights before resuming questioning, even
though Perkins had previously invoked his right to remain silent.
See Campaneria v. Reid, 891 F.2d 1014, 1021 (2d Cir. 1989)
(“Questioning can be resumed after fresh Miranda warnings are
given and the right to remain silent is otherwise scrupulously
honored.” (emphasis added)); Wilson v. Henderson, 584 F.2d 1185,
1187-88 (2d Cir. 1978) (Where a person has invoked his right to
remain silent, “[Q]uestioning can resume after new warnings have
been given.” (emphasis added)); see also Brown, 266 A.D.2d at
838, 700 N.Y.S.2d at 607 (interrogation can resume “only where a
significant period of time has passed since the invocation of the
right to remain silent and where the police have reiterated the
requisite warnings.” (emphasis added)). Additionally, even
though Herbert suggests that the officers “reminded” or “advised”
Perkins that he had previously been read his rights, the record
reveals that the officers positively stated that Perkins had
28
“waived” these rights. Perkins III, 537 F. Supp. 2d at 485
(before resuming questioning, the investigator stated: “Victor, I
realize that you have been - you have been read your rights and
you agreed to waive them.” (emphasis added)). Therefore, under
these facts, we adhere to the determinations of both the
Appellate Division and magistrate judge, finding that the
interrogating officers did not honor Perkins’s right to remain
silent, and that the subsequently obtained written confession was
erroneously admitted.
Nonetheless, Confrontation Clause errors and Miranda
violations are both subject to harmless error review. Delaware
v. Van Arsdall, 475 U.S. 673, 684 (1986) (Confrontation Clause
errors are subject to harmless error review.); Zappulla v. New
York, 391 F.3d 462, 466 (2d Cir. 2004) (Miranda violations are
subject to harmless error review.). For the reasons discussed
below, we find both of these errors to be harmless.
(2)
Harmless Error
a. Standard of Review
Where a state appellate court has found that a state trial
court committed a constitutional violation but has held that the
violation was harmless, the standard of review for a federal
court conducting habeas corpus review has not yet been clearly
29
established. Compare Johnson v. Acevedo, 572 F.3d 398, 404
(7th Cir. 2009), with Ruelas v. Wolfenbarger, 580 F.3d 403, 412-
13 (6th Cir. 2009). Instead, federal courts have developed two
different approaches to the standard of review to apply on habeas
review.
Under one approach, first outlined in Brecht v. Abrahamson,
a federal habeas court must assess, in its own judgment, whether
the constitutional error resulted in “actual prejudice” to the
defendant. 507 U.S. 619, 637-39 (1993) (internal quotation marks
omitted); see also id. at 639 (holding that the state’s
unconstitutional references to the habeas petitioner’s post-
Miranda silence amounted to harmless error where the references
were infrequent, the state’s properly admitted references to the
petitioner’s pre-Miranda silence were more frequent, and “the
State’s evidence of guilt was, if not overwhelming, certainly
weighty”); Ruelas, 580 F.3d at 412-13. Rather than requiring the
prosecution to demonstrate that the error was “harmless beyond a
reasonable doubt,” as has traditionally been required on direct
review, Brecht held that habeas relief is not warranted unless,
“in light of the record as a whole, [the constitutional
violation] had substantial and injurious effect or influence” in
securing the defendant’s conviction. 507 U.S. at 638 (emphasis
added). Due to its concerns with finality, comity and
30
federalism, the Brecht court intentionally designed this standard
to be “less onerous” to the state than the harmlessness test
generally used on direct review of a constitutional error. Id.
at 637.
Under the other approach, first outlined in Mitchell v.
Esparza, a federal habeas court must assess whether the state
appellate court acted reasonably in determining that the error
was “harmless . . . beyond a reasonable doubt.” 540 U.S. 12, 17-
19 (2003) (per curiam) (internal quotation marks omitted);
Gutierrez v. McGinnis, 389 F.3d 300, 306 (2d Cir. 2004). The
Mitchell court derived this approach from the Chapman test,
traditionally used on direct review, which requires the
prosecution to demonstrate that the error was harmless beyond a
reasonable doubt. Mitchell, 540 U.S. at 17-19; see also Chapman
v. California, 386 U.S. 18, 24 (1967). Subsequent to Chapman,
Congress tightened the statutory requirements for a writ of
habeas corpus by passing the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). See Fry v. Pliler, 127 S.Ct.
2321, 2326 (2007). Under AEDPA, an application for a writ of
habeas corpus may not be granted with respect to a claim that has
been adjudicated on the merits in state court unless the state
court’s adjudication:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
31
law, as determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.
28 U.S.C. § 2254(d). In applying the “unreasonable application”
clause of AEDPA to a state appellate court’s Chapman analysis,
Mitchell held that “[w]e may not grant respondent’s habeas
petition . . . if the state court simply erred in concluding that
the State’s errors were harmless [under Chapman’s ‘harmless
beyond a reasonable doubt’ standard]; rather, habeas relief is
appropriate only if the [state court of appeals] applied
harmless-error review in an ‘objectively unreasonable’ manner.”
Mitchell, 540 U.S. at 18; see also id. at 17-19 (omitting any
mention of the Brecht test, and holding that a state court’s
harmlessness finding regarding improper jury instructions was not
“objectively unreasonable”); see also Gutierrez, 389 F.3d at 306
(“Mitchell signals, and we therefore hold, that when a state
court explicitly conducts harmless error review of a
constitutional error, a habeas court must evaluate whether the
state unreasonably applied Chapman.”); but see Fry, 551 U.S. at
121-22 (holding that Brecht applies on habeas corpus review
“whether or not” the state court conducted its own harmless-error
review under Chapman’s “harmless beyond a reasonable doubt”
standard). This AEDPA/Chapman test imposes a high burden on a
32
reviewing court, and requires a federal court on habeas review to
ask “whether the state court’s application of clearly established
federal law was objectively unreasonable.” Williams v. Taylor,
529 U.S. 362, 409 (2000) (emphasis added); see also id. at 410
(“[T]he most important point is that an unreasonable application
of federal law is different from an incorrect application of
federal law.”). Therefore, “a federal habeas court may not issue
the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.” Id. at 411; see also
Sorto v. Herbert, 497 F.3d 163, 169 (2d Cir. 2007) (Under the
“unreasonable application” clause of AEDPA, “petitioner must
identify some increment of incorrectness beyond error in order to
obtain habeas relief.”).
Recently, the Seventh Circuit held that a habeas court must
explicitly find both a lack of reasonableness under AEDPA/Chapman
and harm under Brecht before issuing the writ of habeas corpus.
Johnson, 572 F.3d at 404. The Sixth Circuit, by contrast, found
that the Brecht test “subsumes” the AEDPA/Chapman test, and that,
therefore, only the Brecht test should be applied on habeas
review of a state appellate court’s determination of
harmlessness. Ruelas, 580 F.3d at 412-13 (“[I]t certainly makes
33
no sense to require formal application of both tests
(AEDPA/Chapman and Brecht) when the latter obviously subsumes the
former.”) (quoting Fry, 127 S.Ct. at 2327). Both circuits agree,
however, that a finding of harmlessness under Brecht, by itself,
is sufficient to deny the writ of habeas corpus.
We need not decide whether both tests apply in such a
scenario, or whether Brecht applies by itself. For present
purposes and in keeping with Second Circuit precedent, we now
“decline[] to decide the question because we conclude[] that the
result [is] the same under either test.” Brown v. Keane,
355 F.3d 82, 91 (2d Cir. 2004); see also Howard v. Walker,
406 F.3d 114, 123 (2d Cir. 2005) (“Where the question has arisen
[regarding the Chapman and Brecht standards of review], this
court has declined to resolve it, finding instead that the
harmlessness determination would be identical under either
analysis”); Benn v. Greiner, 402 F.3d 100, 105 (2d Cir. 2005)
(referring to the “open question” of whether AEDPA/Chapman or
Brecht applies, and declining to resolve that issue because the
standards both “produce the same result in this case”);
Gutierrez, 389 F.3d at 305 (noting the “persistent similarity in
outcomes” of the AEDPA/Chapman and Brecht tests, and stating that
34
it is “unlikely” for a constitutional harm under Brecht to be
harmless under AEDPA/Chapman). For the reasons that follow, we
hold that the errors were harmless under both tests.
b. The Constitutional Errors Were Harmless
In conducting our harmless error review, we must ultimately
decide whether the Confrontation Clause and Miranda violations at
issue resulted in “actual prejudice” to Perkins, Brecht, 507 U.S.
at 637 (internal quotation marks omitted), and whether the
Appellate Division acted unreasonably in finding harmlessness,
Mitchell, 540 U.S. at 18. This requires us to analyze several
factors in an effort to assess the “importance [that] the
error[s] should reasonably have had.” United States v. Mejia,
545 F.3d 179, 199 n.5 (2d Cir. 2008).
The factors to be assessed in determining the harmlessness
of Confrontation Clause and Miranda errors largely overlap.
Under both the AEDPA/Chapman and Brecht analyses, when assessing
the harmlessness of the admission of testimony in violation of
the Confrontation Clause, this court has traditionally examined
several factors first discussed in the Van Arsdall case. See
Brinson, 547 F.3d at 395 (applying the Van Arsdall factors under
Brecht review); Benn, 402 F.3d at 105-06 (applying the Van
35
Arsdall factors under Brecht review, and noting that it produces
the same result as AEDPA/Chapman review); Gutierrez, 389 F.3d at
308 (applying the Van Arsdall factors under AEDPA/Chapman
review). “These factors include the importance of the witness'
testimony in the prosecution's case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted, and, of
course, the overall strength of the prosecution's case.” Van
Arsdall, 475 U.S. at 684. Additionally, when a confession has
been improperly admitted in violation of Miranda, this court has
assessed the harmlessness of the error by evaluating similar
factors, including: “(1) the overall strength of the
prosecution's case; (2) the prosecutor's conduct with respect to
the improperly admitted evidence; (3) the importance of the
wrongly admitted testimony; and (4) whether such evidence was
cumulative of other properly admitted evidence.” Zappulla,
391 F.3d at 467-68 (applying AEDPA/Chapman review to a state
court’s finding of harmlessness); Robinson v. Greene,
507 F. Supp. 2d 279, 300 (W.D.N.Y. 2007) (applying Zappulla
factors on Brecht review).
36
Ultimately, however, “[t]he strength of the prosecution's
case is probably the single most critical factor” in a harmless
error analysis. United States v. Reifler, 446 F.3d 65, 87
(2d Cir. 2006) (quoting Latine v. Mann, 25 F.3d 1162, 1167-68
(2d Cir. 1994) (alteration in original)). “Although harmless
error analysis originally focused on whether the error had
affected the jury, over the years our focus has shifted from the
impact of the error on the jury's analysis to an assessment of
the strength of the remaining evidence of guilt.” Mejia,
545 F.3d at 199 n.5 (citations omitted).
Applying these factors here, we conclude that the
erroneously admitted evidence was cumulative of the properly
admitted evidence, and that the remaining evidence of guilt,
including Perkins’s oral confession, was strong. Therefore, we
hold that Perkins did not suffer “actual prejudice,” Brecht,
507 U.S. at 637 (internal quotation marks omitted), and that the
Appellate Division’s finding that the errors were harmless was
correct, and certainly not “objectively unreasonable.”12
12
In granting the petition for habeas corpus, the
magistrate judge below did not specify whether the writ was
granted with respect to the robbery charge only, or with respect
to Perkins’s conviction of two counts of possession of a weapon
in the third degree as well. Perkins III, 537 F. Supp. 2d at
37
Mitchell, 540 U.S. at 18; Williams, 529 U.S. at 409.
In this case, the testimony of Cruz constituted significant
evidence of guilt and, as such, was “important” to the
prosecution’s case. See Brinson, 547 F.3d at 395 (testimony of
the victim and sole witness to a robbery was “more than
important” to the prosecution’s case); Benn, 402 F.3d at 106-07
(holding that Confrontation Clause error was harmless “in the
face of the overwhelming evidence” of guilt, but noting that the
testimony of the rape victim herself was “certainly important to
the prosecution’s case”). However, Cruz’s testimony regarding
the robbery was merely cumulative of the properly admitted
evidence, which included an explicit oral confession from Perkins
himself. See United States v. Lee, 549 F.3d 84, 99 (2d Cir.
2008) (Straub, J., concurring in part and dissenting in part);
Reifler, 446 F.3d at 88 (2d Cir. 2006); United States v. McClain,
377 F.3d 219, 223 (2d Cir. 2004); Williams v. Greene, No.
04-CV-4507, 2009 WL 2579259, at *4 (E.D.N.Y. Aug. 20, 2009).
484, 506. Because the judge stated that Perkins’s habeas
petition “challeng[es] his conviction . . . on one count of
robbery in the first degree and two counts of criminal possession
of a weapon in the third degree” and ultimately granted the
petition, we assume that the habeas petition was directed to all
counts of conviction.
38
Although the magistrate judge below cited to several cases
in arguing that Cruz’s testimony could potentially have bolstered
Perkins’s confession, and therefore was not cumulative, Perkins
III, 537 F. Supp. 2d at 504, all of the cases cited by the
magistrate judge involved the bolstering of testimony of a third
party in a relatively weak case as compared to the present one.
See Arizona v. Fulminante, 499 U.S. 279, 299 (1991); Cotto,
331 F.3d at 254; Vasquez v. Jones, 496 F.3d 564, 576 (6th Cir.
2007); Stapleton v. Wolfe, 288 F.3d 863, 865-67, 868 (6th Cir.
2002). In this case, by contrast, Perkins was apprehended while
fleeing the scene with the stolen property, and personally
confessed to the investigators that he had robbed Cruz at
gunpoint. Under these circumstances, Cruz’s testimony regarding
the events of the robbery may be considered cumulative of the
other testimony and evidence clearly establishing Perkins’s
involvement in the robbery.
At trial, Perkins introduced no testimony or evidence
directly contradicting Cruz’s account of the robbery on any
material points, which also weighs in favor of finding harmless
error. Indeed, Cruz’s account of the robbery was strongly
corroborated by Perkins’s oral confession, as well as by the fact
39
that Perkins was apprehended while fleeing the scene with the
stolen property. While Perkins’s attorney did raise a possible
defense in his summation, suggesting that no actual robbery had
taken place at Willie’s Grocery Store, this defense was not
plausible and was not supported by other evidence. According to
Perkins’s attorney, Cruz may have been a co-conspirator in the
robbery of Hector, and may have voluntarily given Perkins her
jewelry in order to fool Hector into falsely believing that she
was a victim as well.
Perkins’s proffered defense is undermined by the
observations of the police officers who arrived at Willie’s
Grocery Store. As the responding officers testified at trial,
Cruz was found in the basement of Willie’s Grocery Store with her
pants unbuttoned and unzipped. The responding officers observed
that Cruz was disheveled, hysterical and crying. She trembled as
she pointed towards Perkins, saying “[H]e’s over there.” This is
not the demeanor of a co-conspirator. Rather, this more closely
resembles what one would expect from a robbery victim.
Therefore, although the complete preclusion of cross-examination
“weighs heavily in favor of” finding harm, the fact that Perkins
introduced no evidence disputing Cruz’s account of the robbery —
40
which was strongly corroborated by other admissible evidence —
similarly weighs against finding harm. See Herbert, 331 F.3d at
254.
With respect to the erroneously admitted confession, “[t]he
persuasive influence of a signed confession cannot be
[over]estimated.” Zappulla, 391 F.3d at 473. Indeed, this was
very strong evidence tending to demonstrate Perkins’s guilt. Id.
(“The fact that the evidence at issue is a signed detailed
confession should weigh heavily against finding that its
erroneous admission was harmless.”). However, the mere fact that
there is a recorded confession should not detract from the fact
that the prosecution already properly admitted an oral confession
from Perkins, stating essentially the same facts. See
Campaneria, 891 F.2d at 1022 (where the prosecution properly
admits an untainted oral confession, but also improperly admits a
subsequent recorded confession to the same crime, the recorded
confession is considered “entirely cumulative,” and its admission
is considered to be harmless error). “Although a recorded
confession can be impressive evidence in a criminal trial,” this
does not by itself warrant a finding of harmful error when there
is already a properly admitted oral confession “that came in
41
through the testimony of the police officers.” Id. In this
case, the properly admitted oral confession was not seriously
disputed, and there was no evidence that the confession was the
product of unlawful coercion of any kind. Therefore, the
existence of Perkins’s oral confession undercuts the impact of
the written confession.
With respect to the prosecution’s conduct, we must note that
the prosecution emphasized the importance of Perkins’s written
confession and Cruz’s testimony during closing arguments, which
weighs against finding harmless error. See Lee, 549 F.3d at 91-
92. However, “our focus [on harmless error review] has shifted
from the impact of the error on the jury’s analysis to an
assessment of the strength of the remaining evidence of guilt.”
Mejia, 545 F.3d at 199 n.5; see also Brecht, 507 U.S. at 637
(“[G]ranting habeas relief merely because there is a reasonable
possibility that trial error contributed to the verdict is at
odds with the historic meaning of habeas corpus - to afford
relief to those whom society has grievously wronged.” (internal
quotation marks and citations omitted)). Therefore, the
prosecution’s conduct does not weigh as heavily in our analysis
as the overall strength of the prosecution’s remaining case.
42
In sum, although some of the above-mentioned factors weigh
in favor of finding harmful error, the strength of the
prosecution’s case - the most important factor in our inquiry -
weighs heavily in favor of finding harmless error. Contrary to
the magistrate judge’s assessment that the prosecution’s case was
“fairly weak” without these items of evidence, we conclude that
the remaining evidence against Perkins was quite strong. Perkins
III, 537 F. Supp. 2d at 505; see also Brecht, 507 U.S. at 639
(finding harmless error where “the State's evidence of guilt was,
if not overwhelming, certainly weighty”). Here, as the Appellate
Division stated, “[Perkins’s] oral admission of guilt was
properly admitted, [Perkins] was identified by an officer who saw
him inside the store, and [Perkins] was apprehended immediately
after the robbery while in possession of the stolen property.”
Perkins II, 289 A.D.2d at 941, 735 N.Y.S.2d at 275. This
constitutes very significant evidence of guilt, particularly
given Perkins’s oral confession. Fulminante, 499 U.S. at 296
(“[T]he defendant's own confession is probably the most probative
and damaging evidence that can be admitted against him.”
(internal quotation omitted)). Furthermore, as previously
discussed, Perkins’s explanation of why he was fleeing with
43
Cruz’s jewelry was not plausible and was contradicted by other
evidence. Therefore, because the remaining evidence of guilt was
so strong, and because the erroneously admitted evidence was
cumulative of the properly admitted evidence, we find that the
erroneously admitted evidence did not result in “actual
prejudice” to Perkins, Brecht, 507 U.S. at 637 (internal
quotation marks omitted), and that the Appellate Division
reasonably concluded that the errors were harmless. Mitchell,
540 U.S. at 18.
Conclusion
Because we hold that the constitutional violations at issue
were harmless, we reverse the district court’s grant of the writ
of habeas corpus.
44