Martin v. Lee

Filing 29

REPORT AND RECOMMENDATION re: 1 Petition for Writ of Habeas Corpus filed by Elvis Martin. In light of these facts, the decision of the Appellate Division was not an unreasonable application of either Supreme Court precedent or the facts at h and. At most this is a question on which "fairminded jurists could disagree," and therefore the decision of the Appellate Division cannot be overturned. Richter, 562 U.S. at 101. For the reasons set forth above, I recommend that Mr. Mar tin's petition for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Loretta A. Preska, Room 2220, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review. (Signed by Magistrate Judge James C. Francis on 6/20/2017) Copies Transmitted this Date By Chambers. (anc)

Background
A.

The Crime

Miguel Littlejohn was murdered on March 18, 2003.

On that

day, Mr. Martin, Royan Jackson, Marvin Forrester, and Oneil Reid
approached Nickiesha Harris in 216th Street Park in the Bronx.
(Tr. at 124-27).1

Ms. Harris is the petitioner’s cousin; she was

sitting in the park talking with friends when the men approached.
(Tr. at 124, 126). The petitioner asked her if she was acquainted
with Mr. Littlejohn and if she knew where he lived.

(Tr. at 128).

Ms. Harris said she did know him, and she took Mr. Martin, Mr.
Jackson, Mr. Forrester, and Mr. Reid to Mr. Littlejohn’s apartment
building at 720 East 216th Street, across the street from the park.
(Tr. at 128-30).

As they were returning to the park, one of Ms.

Harris’ friends called out to the young men, and they rushed down
the block, surrounding Mr. Littlejohn in front of his house.
at 129-32).

(Tr.

They then fired a number of shots at Mr. Littlejohn,

hitting him multiple times.

(Tr. at 133).

Mr. Littlejohn was taken to the hospital, but died later that
night of his wounds.

(Tr. at 257-60, 395-96).

In an interview

with detectives the day after the shooting, the victim’s brother
identified the petitioner as one of the shooters

1

“Tr.” refers to the trial transcript.
refers to the sentencing transcript.
2

(Tr. at 572-74,

“Sentencing Tr.”

579).

The police also interviewed Ms. Harris on the day of the

shooting, and she told them there were three shooters: Mr. Reid,
Mr. Forrester, and a third man she did not know.
When

she

met

with

the

police

again

on

April

(Tr. at 165).
12,

2003,

she

identified the Mr. Martin as one of the shooters. (Tr. at 167-69).
After receiving a tip that Mr. Martin was staying in a nearby
hotel, the investigating officers apprehended and arrested him on
April 11, 2003.

(Tr. at 453-55).

The officers found him in a

hotel room with Ashar Forrester, the brother of Marvin Forrester.
(Tr. at 455, 479). When the officers entered the hotel room, Ashar
Forrester was attempting to hide one of the murder weapons.

(Tr.

at 479). Ashar Forrester told the police he thought the weapon had
been used by Marvin Forrester in a murder on March 18, 2003.
at 479).

Mr. Jackson was arrested on December 1, 2005, and

Reid was arrested on January 10, 2006.

3

(Tr. at 626-28, 636).

(Tr.
Mr.

B.

Procedural History
1.

Trial, Verdict and Sentencing2

Mr. Martin, Mr. Jackson, and Mr. Reid were charged with murder
in the second degree and tried together.3

At trial, the jury heard

the eyewitness testimony of Nickeisha Harris and Tanye Fisher. Ms.
Harris testified about the events of March 18, 2003, as described
above.

She stated that she showed the defendants Mr. Littlejohn’s

house and watched as they shot and killed him on 216th Street a few
minutes later.

(Tr. at 128-33).

As she was Mr. Martin’s cousin

and saw him multiple times each week, she had no difficulty
identifying him on the day of the shooting or at trial.

(Tr. at

126).

2

The respondent has been unable to locate portions of the
trial transcript due to a fire at the storage facility where they
were kept. See Declaration of Jordan K. Hummel dated December 21,
2016, at ¶ 4 n.1.
The testimony of the ballistics experts,
Detectives Camacho and Barry, appears in the pages missing from the
transcript. Fortunately, in this case the facts relevant to the
issues raised are undisputed and are set forth in the parties'
briefs submitted both on direct appeal and in this habeas corpus
proceeding.
Accordingly, I have relied on those narratives in
summarizing the facts. See Rules Governing Section 2254 Cases in
the United States District Courts, Rule 5 (“If a transcript is
cannot be obtained, the respondent may submit a narrative summary
of the evidence.”); Douglas v. Portuondo, 232 F. Supp. 2d 106, 108
n.1 (S.D.N.Y. 2002); Rodriguez v. Fisher, No. 01 Civ. 3993, 2002 WL
1492118, at *1 n.1 (S.D.N.Y. July 11, 2002).
3

Mr. Forrester was arrested on September 8, 2003. He pled
guilty to manslaughter and was not charged with the other three
men. (Tr. at 36).
4

Ms. Harris’ testimony was supported by that of her friend, Ms.
Fisher, who provided a similar account of the events leading up to
the shooting.

She described seeing Ms. Harris talk to four young

men, leave the park with two of them, and return a few minutes
later.

(Tr. at 287-88).

After they returned, she testified that

she saw the same four men leave the park again a few moments later,
pursue Mr. Littlejohn down 216th Street, surround him, and begin
firing. (Tr. at 290-93). However, Ms. Fisher did not identify the
four men.

(Tr. at 287).

Cassandra Reynolds also testified, supplying a potential
motive for the crime.

She was Mr. Reid’s ex-girlfriend, and she

said that their relationship had recently fallen apart because she
had talked to a man named Miguel, presumably Mr. Littlejohn.

(Tr.

at 102-04).
In addition to the eyewitness testimony, a New York City
Police Department (“NYPD”) examiner testified that the lead residue
on Mr. Littlejohn's clothing meant that the shots were fired at
very close range.

(Tr. at 425).

autopsy

that

concluded

the

The doctor who performed the

stippling

around

the

wounds

also

indicated that the shots were fired within a few feet of Mr.
Littlejohn.

(Tr. at 591).

The testimony of these two experts

corroborated the eyewitness accounts of Ms. Harris and Ms. Fisher,
who described the shooting as occurring at very close range.
5

Several other police officers described the events surrounding the
investigation and arrest of the co-defendants.

The doctor who

performed the autopsy testified that the cause of Mr. Littlejohn’s
death was gunshot wounds to the head and torso.

(Tr. at 613).

Ballistics experts from the NYPD testified that the guns found on
the Forrester brothers were used in the shooting.
At issue in this petition is the admission of statements Mr.
Jackson and Mr. Reid made to the police.

Detective Michael

DePaolis, one of the detectives investigating the case, testified
that after being read his Miranda Rights:
[Mr. Jackson] said that he had been hanging out with
Marvin, Elvis and [Mr. Reid] at Evander Childs High
School for about a half hour when they decided to walk up
Barnes Avenue northbound. And when they reached 216th
Street, East 216th Street, Marvin, Elvis and [Mr. Reid]
made a left hand turn going in the direction of White
Plains Road, he remained on Barnes Avenue.
Several
minutes later he heard some gunshots.

(Tr. at 632).
Mr. DePaolis also testified that Mr. Reid made a written
statement after being arrested and read his Miranda rights:
On March 18th, 2003 at about twelve PM I left school and
met my friends, [Mr. Jackson], Marvin, Elvis. We all
went to 216th park, we played around for about twenty
minutes. After about twenty-five minutes we were about
to leave the park.
(Tr. at 641).

6

Mr. Reid also made a video statement on January 10, 2006. The
video and transcript were both shown to the jury.

The primary

difference between the written and video statements is that in the
latter Mr. Reid added at the end of the statement “[t]hen all of
(Tr. at 674).4

the sudden I hear someone shout there he goes.”
During
argued

pre-trial

that

proceedings,

admission

of

petitioner’s

these

statements

trial

counsel

violated

the

Confrontation Clause and opposed the prosecution’s request to
consolidate the trials of the three defendants.

(Tr. at 27).

The

trial court nevertheless granted the prosecution’s application.
(Tr.

at

46).

Petitioner’s

counsel

objected

again

when

the

statements were first discussed during the trial, asking the judge
to reconsider the motion to sever and seeking a mistrial. (Tr. at
524-26).

The trial court denied that motion, and did not give any

limiting instructions regarding the use of these statements against
the petitioner.

(Tr. at 529).

The jury ultimately convicted Mr. Martin of second-degree
murder, and he received a sentence of twenty-five years to life.
(Sentencing Tr. at 14-15).

4

This portion of the statement was originally redacted at the
request of defense counsel. (Tr. at 536). Due to a technical
error at trial, this portion of the statement was played to the
jury. (Tr. at 674-75). Defense counsel objected again to its use.
Although the record is not clear, it appears that the objection was
overruled. (Tr. at 673-76).
7

2.

Direct Appeal

In April 2008, the petitioner appealed to the Appellate
Division, First Department, arguing that the refusal to suppress
his co-defendants’ statements violated the Confrontation Clause.
The Appellate Division found the admission of these statements
without redaction to be error under Bruton.

People v. Martin, 58

A.D.3d 519, 872 N.Y.S.2d 16 (1st Dep’t 2009).

However, it held

that any error was harmless given “the overwhelming evidence of
guilt based upon the testimony of [Ms. Harris].” Id.
also found harmless any putative error under Crawford.

The court
Id.

The

New York State Court of Appeals denied leave to appeal in April
2009.

People v. Martin, 12 N.Y.3d 818 (2009).

Discussion
A.

Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), a federal court may grant a writ of habeas corpus
to a state prisoner for a claim that a state court has adjudicated
on the merits only where the state court’s adjudication
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal 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).
8

This

deference

is

only

required

where

the

state

court

“adjudicated [the claim] on the merits,” 28 U.S.C. § 2254(d);
otherwise, the pre-AEDPA, de novo standard of review applies.
Noble v. Kelly, 246 F.3d 93, 98 (2d Cir. 2001); see also Sellan v.
Kuhlman, 261 F.3d 303, 309-10 (2d Cir. 2001).

A finding of

harmlessness constitutes a decision on the merits.

See, e.g.,

Mitchell v. Esparza, 540 U.S. 12, 17-18 (2003) (per curiam); see
also Davis v. Ayala, __ U.S. __, __, 135 S. Ct. 2187, 2198 (2015).
Federal law is “clearly established” when it is expressed in
“the holdings, as opposed to the dicta, of [the Supreme] Court’s
decisions.”

Howes v. Fields, 565 U.S. 499, 505 (2012) (quoting

Williams v. Taylor, 529 U.S. 362, 412 (2000)).

Habeas relief is

not available when a petitioner raises an issue that the Supreme
Court has not squarely addressed or clearly answered.

Wright v.

Van Patten, 552 U.S. 120, 125-26 (2008).
A state court’s decision is “contrary” to clearly established
federal law when the state court “applies a rule that contradicts
the governing law set forth” in a Supreme Court opinion, or when it
“confronts a set of facts that are materially indistinguishable
from a decision of [the Supreme] Court and nevertheless arrives at
a result different from [Supreme Court] precedent.”
U.S. at 405-06.

9

Williams, 529

An unreasonable application of the law is different from an
“incorrect or erroneous decision.”

Jackson v. Conway, 763 F.3d

115, 134 (2d Cir. 2014) (internal quotation marks omitted).

A

decision is an unreasonable application of clearly established law
when “the state court correctly identifies the governing legal
principle . . . but unreasonably applies it to the facts of the
particular case.”

Bell v. Cone, 535 U.S. 685, 694 (2002).

Habeas

relief should be granted on this prong only where there is “no
possibility

fairminded

jurists

could

disagree

that

the

state

court’s decision conflicts with [the Supreme] Court’s precedents.”
Harrington v. Richter, 562 U.S. 86, 102 (2011).
Mr. Martin brings this claim pro se. A pro se habeas petition
must be construed liberally to include any colorable legal claim
and the strongest arguments it suggests.

Parisi v. United States,

529 F.3d 134, 139 (2d Cir. 2008); Mears v. Graham, No. 13 Civ.
8737, 2014 WL 4060022, at *1 (S.D.N.Y. Aug. 14, 2014).
B.

Underlying Error

The Confrontation Clause of the Sixth Amendment provides,
“[i]n all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him.” U.S. Const.
Amend.

VI.

In

Bruton,

the

Supreme

Court

interpreted

the

Confrontation Clause to preclude the admission of statements by a
non-testifying co-defendant tending to incriminate the defendant
10

when the defendant is unable to cross-examine the co-defendant.
391 U.S. at 124-25.

Potential Bruton problems may be addressed by

redacting or deleting references to the defendant in the codefendant’s statements.
(1987).

Richardson v. Marsh, 481 U.S. 200, 211

In Crawford, the Supreme Court held that an out-of-court

testimonial statement must be excluded unless the witness is
unavailable and the defendant had a prior chance to cross-examine.
541 U.S. at 68.
The

Appellate

Division

found

that

the

admission

of

Mr.

Jackson’s and Mr. Reid’s statements was error under Bruton and
assumed it was error under Crawford. Martin, 58 A.D.3d at 519, 872
N.Y.S.2d at 17.

Indeed, the prosecution introduced out-of-court

statements, testimonial in nature, with no prior opportunity to
cross-examine
statements

the

were

declarants

those

of

a

(violating
co-defendant

Crawford),
that

and

the

referenced

and

implicated the petitioner and were not redacted to remove his name
(violating Bruton). But the Appellate Division also found that the
error was harmless.

Id.

At this stage, the parties do not dispute

that an error occurred, but only the finding of harmlessness.
C.

Harmless Error Review
1.

Standard of Review

A Confrontation Clause violation is subject to harmless error
analysis. See, e.g., Fuller v. Gorczyk, 273 F.3d 212, 220 (2d Cir.
11

2001); Mingo v. Artuz, 174 F.3d 73, 78 (2d Cir. 1999).
appeal,

“before

a

federal

constitutional

error

On direct

can

be

held

harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.”
U.S. 18, 24 (1967).

Chapman v. California, 386

The Appellate Division did this, citing to

People v. Crimmins, which applied the Chapman standard in New York
state court.

36 N.Y.2d 230, 236, 367 N.Y.S.2d 213, 218 (1975).

The standard of review differs on collateral review, where a
petitioner

must

satisfy

the

Abrahmson, 507 U.S. 619 (1993).

test

established

by

Brecht

v.

See Davis, __ U.S. at __, 135 S.

Ct. at 2199 (“[A] prisoner who seeks federal habeas relief must
satisfy Brecht, and if the state court adjudicated his claim on the
merits,

the

AEDPA.”).

Brecht

test

subsumes

the

limitation

imposed

by

In Brecht, the Supreme Court held that a federal court

must determine whether the error “had substantial and injurious
effect in determining the jury’s verdict.”

507 U.S. at 623

(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
“[C]laimants are entitled relief for trial error only if they can
establish that ‘actual prejudice’ resulted.”

Id. at 621.

To determine whether the error had an influence on the jury,
the federal court must review thoroughly the record and determine
“the probable impact of [the erroneously admitted testimony] on the
minds of an average jury.” Harrington v. California, 395 U.S. 250,
12

254 (1969).

In analyzing the probable impact, it is relevant to

consider “(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 properly admitted
evidence.”

Zapulla v. New York, 391 F.3d 462, 468 (2d Cir. 2004);

see also Griggs v. Phillips, 401 F. App’x 590, 593 (2d Cir. 2010);
Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2000). These factors
are all indicative of whether the improperly admitted evidence
impacted

the

jury’s

decision

cumulative and unimportant.

or

if

the

evidence

was

simply

Zapulla, 391 F.3d at 468.

When performing this inquiry under the AEDPA, substantial
deference to the state court is required.
135 S. Ct at 2198-99.
court’s

harmlessness

Davis, __ U.S. at __,

For a federal court to overturn a state
decision,

that

decision

must

have

been

unreasonable in its application of federal law or its determination
of the facts of the case. Id.; see also Fry v. Pliler, 551 U.S.
112, 119 (2007).

“[A] state-court decision is not unreasonable if

‘fairminded jurists could disagree on [its] correctness.’”

Davis,

__ U.S. at __, 135 S. Ct. at 2199 (second alteration in original)
(internal quotation marks omitted) (quoting Richter, 562 U.S. at
101).

To be entitled relief, the petitioner must show that the

harmlessness decision was “so lacking in justification that there
13

was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”

Richter, 562

U.S. at 103.
In sum, the question in this case is whether a fair minded
jurist could agree with the Appellate Division’s finding that the
admission of the co-defendants’ unredacted statements was harmless.
Davis, __ U.S. at __, 135 S. Ct. at 2999.

A court must defer to

the Appellate Division’s decision if it was reasonable, even if the
court may have decided the case differently on de novo review. Id.
2.

Analysis
i.

Of

the

The Strength of the Prosecution’s Case

relevant

considerations,

“[t]he

strength

of

the

prosecution’s case is probably the single most critical factor.”
United

States

v.

Reifler,

446

F.3d

65,

87

(2d

Cir.

2006)

(alteration in original) (quoting Latine v. Mann, 25 F.3d 1162,
1167–68 (2d Cir. 1994)).

This factor favors the respondent.

Aside from the statements of Mr. Reid and Mr. Jackson, the
prosecution relied primarily on the eyewitness testimony of Ms.
Harris and Ms. Fisher described above.

Cross-examination by Mr.

Martin’s attorney hinged on the fact that Ms. Harris left the
petitioner out of her account during her first conversation with
the police on March 18, 2003.

(Tr. at 146-48).

Mr. Martin’s

attorney also questioned Ms. Harris’ status as an undocumented
14

immigrant, attempting to show that she changed her story because
she was threatened with deportation.

(Tr. at 153-60).

Defense

counsel also emphasized that Ms. Harris had a partially obscured
view of the shooting, and was some distance away from the events.
(Tr. at 198).
Despite these deficiencies, the jury evidently judged her
account to be credible.

The fact that she was testifying against

the interests of her own cousin and seemingly found that fact
difficult, getting emotional when asked to identify the petitioner,
likely bolstered her credibility in the eyes of the jury.
125).

(Tr. at

And, as discussed previously, the testimony of Ms. Fisher

and the expert witnesses corroborated Ms. Harris’ account.

Ms.

Harris stated that the men surrounded Mr. Littlejohn and shot him
at very close range.

(Tr. at 133).

The doctor who performed the

autopsy and the NYPD examiner both confirmed that the shooting
occurred at close range.

(Tr. at 425, 591).

Ms. Harris also

described seeing that Mr. Littlejohn was shot in the leg and the
hip (Tr. at 133), wounds confirmed by the doctor (Tr. at 593-94).
Ms.

Harris

further

stated

that

the

men

had

surrounded

Mr.

Littlejohn (Tr. at 133), and the doctor, in turn, described
entrance wounds on the back, front, left, and right sides of Mr.
Littlejohn’s body (Tr. at 598-602).
In addition, as discussed above, the petitioner was arrested
15

in suspicious circumstances in a hotel room with one of the murder
weapons, $1,400 in cash, and no other possessions.

(Tr. at 455).

The fact that he was in the same room as the murder weapon could
lead the jury to believe that the gun was his.

Indeed, during

summation the prosecutor argued that Mr. Martin colluded with Ashar
Forrester to hide the weapon and that Ashar Forrester claimed the
weapon was his in order to protect Mr. Martin.

(Tr. at 924-925).

And,

understood

more

generally,

the

jury

could

have

these

suspicious circumstances to show that Mr. Martin attempted to evade
capture and was conscious of his guilt.
This was not a case, as the petitioner argues, that was based
entirely on the statements of one witness and bolstered by the
improperly

admitted

testimony.

While

defense

counsel

raised

question about Ms. Harris’ and Ms. Fisher’s distance from the
shooting and their evolving stories, this is far from a case based
primarily on improper evidence.

Cf.

Wood v. Ercole, 644 F.3d 83,

96-97 (2d Cir. 2011) (finding error not harmless where erroneously
admitted evidence “central [] in persuading the jury to convict”);
Benn v. Greiner, 402 F.3d 100, 106 (2d Cir. 2005) (finding error
harmless even where trial error affected issue that “was certainly
important to the prosecution’s case”).
addressed a similar case.

The Third Circuit recently

In Johnson v. Lamas, in addition to the

improperly admitted statements, the prosecution relied on two
16

eyewitnesses and corroborating medical testimony.
121,

134-35

(3d

Cir.

2017).

The

eyewitness

850 F.3d 119,
testimony

was

“significantly impeached,” id. at 135, and both witnesses only saw
the incident for a “mini-second,” id. The defense also highlighted
the witness’ substantial criminal histories and drug addiction
problems, calling into question their motives for testifying.

Id.

But the Johnson court still found that the decision of the state
court finding harmless error was not “objectively unreasonable such
that no fair-minded jurist could agree with it.”

Id.

Here, in

contrast to Johnson, the cross examinations of Ms. Harris and Ms.
Fisher were considerably less successful.
The jury did request that the testimony of Mr. Reid and
Detective DePaulis, who arrested Mr. Jackson, be read back.

(Jury

Note No. 1, attached as Exh. 1 to Petition’s Reply to Respondent
[sic] Opposing Declaration)
indicative

that

the

evidence

These sorts of requests may be
was

important

to

the

jury’s

deliberation. United States v. Swiderski, 548 F.2d 445, 451-52 (2d
Cir. 1977).

However, the fact that the improper evidence may have

been considered by the jury is not dispositive, as the question is
what impact the evidence likely had on the decision.
Florida, 405 U.S. 427, 432 (1972).

Schneble v.

Here, the jury requested not

only the statements of Mr. Reid and Mr. Jackson, but also the
testimony of Ms. Harris, Ms. Fisher, and Ms. Reynolds, as well as
17

the witness’ initial interviews and the 911 call.
1).

(Jury Note No.

Given that the jury requested that the majority of the trial

testimony be read back, it is unclear what, if any, importance any
single piece of evidence had in their deliberation. This request
also does not show that the jury necessarily adopted Mr. Reid and
Mr. Jackson’s statement during their review, as the petitioner
suggests.
ii.

The Prosecution’s Conduct

The prosecution’s conduct at trial also demonstrates the
relatively minor role the co-defendants’ statements played.
opening

statement

contained

only

three

short

paragraphs

The
that

referenced the statements, while the discussion of Ms. Harris and
the

physical

evidence

took

center

stage.

(Tr.

at

21-28).

Similarly, the prosecutor touched on these statements in only a few
sentences

over

summation.

the

course

(Tr. at 904).

of

an

approximately

supports a finding of harmlessness.

improperly

spending
admitted

page

These statements were far from the

cornerstone of the prosecution’s theory.

(prosecution

thirty

nearly
evidence

half

The lack of emphasis

Cf. Wood, 644 F.3d at 97-98
its

summation

demonstrated

its

discussing

substantially

injurious character); Satterwhite v. Texas, 486 U.S. 249, 260
(1988) (emphasis prosecution placed on improperly admitted evidence
during summation suggested its importance to jury’s decision).
18

iii. Importance of Statements
It is also questionable how much strength the statements of
co-defendants lent to the prosecution’s case in the first place.
This case included testimony from two eyewitnesses that was backed
up by corroborative forensic evidence.

Neither Mr. Reid nor Mr.

Jackson mentioned Mr. Littlejohn, details of the shooting itself,
the events immediately preceding the shooting, or whether the
petitioner had a gun.

(Tr. at 632, 641).

link the petitioner to the crime.

They did not directly

See People v. A.S. Goldman,

Inc., 9 A.D.3d 283, 284, 779 N.Y.S.2d 489, 491 (1st Dep’t 2004)
(admission

of

multiple

plea

allocutions

of

co-defendants

was

harmless error as they did not directly link defendant to crime and
formed only small portion of evidence).

Given the inculpatory

evidence discussed above, the admission of these statements did not
substantially affect the jury’s verdict.
In

addition,

Mr.

Reid’s

and

Mr.

Jackson’s

statements

corroborate some aspects of Ms. Harris’ account, but differ in
other

ways.

Neither

Mr.

conversation with Ms. Harris.

Jackson

nor

Mr.

Reid

(Tr. at 632, 641).

mentions

a

The statements

also are not entirely consistent with each other. Mr. Jackson does
not mention an observer saying “there he goes,” while Mr. Reid
does.

(Tr. at 632, 674).

Mr. Jackson also notes that he separated

from the other three who continued down 216th Street, while Mr.
19

Reid never mentions this occurrence.

(Tr. at 632, 641).

In his summation, petitioner’s trial counsel emphasized the
inconsistencies in the witness accounts.

He drew the jury’s

attention to the fact that Ms. Harris originally stated that there
were only three shooters and later told the police there were four.
(Tr. at 829).

He also pointed out that Ms. Fisher initially

reported that only two young men were involved in the shooting.
(Tr.

at

829).

Mr.

Reid’s

and

Mr.

Jackson’s

contradictory

statements provided two more inconsistent accounts about which of
the men were moving down 216th Street in the moments leading up to
the shooting.

While the defense’s summation admitted Mr. Martin

was in 216th Street Park, his argument was that the conflicting
eyewitness accounts cast doubt on who was involved in the actual
shooting.

(Tr. at 821-22, 824).

The admission of the offending

statements provided no further clarity on this critical issue.
iv. Cumulative Evidence
Mr. Reid’s and Mr. Jackson’s statements primarily agree on the
fact that the petitioner and his co-defendants were at the park
around the time of the shooting.

But that was already well

established by Ms. Harris’ and Ms. Fisher’s testimony. And despite
claiming early in the proceedings that Mr. Martin was never at
216th Street Park, in summation Mr. Martin’s counsel argued that he
was actually in the park, albeit “at the wrong time with the wrong
20

people.”

(Tr. at 31-32, 842).

Mr. Jackson and Mr. Reid only

provided cumulative evidence confirming that the four young men
were at 216th Street Park.

A Confrontation Clause error is

harmless if “the improperly admitted testimony was cumulative of
other admissible evidence.” Bowen v. Phillips, 572 F.Supp.2d 412,
419 (S.D.N.Y. 2008), see also Harrington, 395 U.S. at 253-54.
Conclusion
In light of these facts, the decision of the Appellate
Division was not an unreasonable application of either Supreme
Court precedent or the facts at hand.

At most this is a question

on which “fairminded jurists could disagree,” and therefore the
decision of the Appellate Division cannot be overturned.

Richter,

562 U.S. at 101.
For the reasons set forth above, I recommend that Mr. Martin’s
petition for a writ of habeas corpus be denied.

Pursuant to 28

U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days from
this

date

to

Recommendation.

file

written

objections

to

this

Report

and

Such objections shall be filed with the Clerk of

the Court, with extra copies delivered to the chambers of the
Honorable Loretta A. Preska, Room 2220, and to the chambers of the
undersigned, Room 1960, 500 Pearl Street, New York, New York 10007.
Failure to file timely objections will preclude appellate review.
21