Jose Rosa v. Frank McCray and Eliot L. Spitzer

STRAUB, Circuit Judge,

concurring in part and dissenting in part.

I agree with the majority that Rosa exhausted his Miranda claim in state court. However, because I do not agree with the majority’s conclusion on the merits of Rosa’s claim, and because I do not believe that the constitutional error was harmless, I would affirm the District Court’s grant of the writ.

I. Constitutional Error

At issue is whether Detective Arroyo should have known that his question— “what is your real hair color?” — was likely to elicit an incriminating response from Rosa. The majority reasons that “[t]he likely answer that an officer in Arroyo’s position would, or should, have expected is a one-word description of the accurate hair color (e.g., ‘brown’ or ‘blonde’).” Ante at 222. According to the majority, the incriminating portion of Rosa’s response was not his statement that his real hair color was brown, but rather was his statement that he had dyed his hair the day before. The majority asserts that Rosa’s statement that he “dyed it yesterday” was “beyond the scope of the question” posed by Arroyo,. and Arroyo “could not reasonably have expected Rosa to offer additional in-culpatory information that was outside the scope of the question.” Ante at 222.

I agree with the majority that Arroyo may not have expected Rosa to volunteer the particularly incriminating statement regarding when he had dyed his hair. What the majority does not recognize, however, is that any answer responsive to the question “what is your real hair color?” would have constituted an “incriminating response” as the Supreme Court has defined that term. In Rhode Island v. Innis, 446 U.S. 291 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980), the Supreme Court explained that interrogation for Miranda purposes means words or actions of the police that “the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301 , 100 S.Ct. 1682 (footnote omitted). The Court explained that “[b]y ‘incriminating response’ we refer to any response — whether incul-patory .or exculpatory- — that the prosecution may seek to introduce at trial.” Id. at 301 n. 5, 100 S.Ct. 1682 . The Court in Innis pointed to its discussion in Miranda of incriminating statements:

“[N]o distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory.’ If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by *224 the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement.”

Id. (quoting Miranda v. Arizona, 384 U.S. 436, 477 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966)).

Under the Supreme Court’s definition of “incriminating response,” any answer Rosa gave that was responsive to Arroyo’s question would have been an incriminating response. Rosa could have: (1) answered truthfully that his real hair color was brown, and the state could have used that response to prove that his real hair color matched the description of the robber given by the victim, Hernandez, see Appellee’s Br. at 32 (“[The] anticipated response, brown hair, which provided a descriptive match, easily satisfies Innis’s definition of ‘incriminating’ ....”); (2) lied and said his hair was really blonde, and the state could have used the answer against him at trial, see Miranda, 384 U.S. at 477 , 86 S.Ct. 1602 (“[Statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication .... ”); or (3) claimed that his hair was some other color, resulting in the same problem as in (2).

Although Arroyo may not have anticipated that Rosa would make the particularly incriminating admission that he dyed his hair the day before, Arroyo certainly should have anticipated that his question was likely to elicit an incriminating response. As the majority recognizes, Arroyo likely expected a one-word description of hair color — e.g., “brown” or “blonde.” Ante at 222. As I have explained, such a response — while not as highly incriminating as the response Rosa actually gave — would still have constituted an incriminating response.

Arroyo should have expected that his question about real hair color was likely to elicit an incriminating response because he knew — or should have known — that hair color was a central issue in the case. Arroyo observed at the time of booking that Rosa’s hair was “bright blonde.” The day before, after obtaining a description of the robber from Hernandez, Arroyo had recorded in the complaint report that the robber’s hair was brown. Although Hernandez identified Rosa the day after the robbery as the man who had robbed her, Rosa’s hair color did not match the description Hernandez gave to Arroyo the day before. Thus, the problem with Hernandez’s identification of Rosa should have been immediately apparent to Arroyo. Establishing that Rosa’s real hair color was brown (or at least that it was not bright blonde) was central to proving that Rosa was the robber. Indeed, the majority acknowledges that this information strengthened Hernandez’s identification. Ante at 222 (“[T]he fact that Rosa’s hair was dyed is not a tell-all piece of evidence demonstrating his guilt — it was merely a piece of evidence supporting Hernandez’ identification of' Rosa as the individual who had robbed her.”). Under these circumstances, Arroyo should have realized that his question would either elicit a response from Rosa that strengthened Hernandez’s identification, or would catch Rosa in a lie.

Although in many situations officers may be able to question arrestees about their real hair color as part of the booking process without the need for Miranda warnings, under the particular circumstances of this case, Arroyo plainly should *225 have been' aware that a question relating to real hair color was likely to elicit an incriminating response from Rosa. Therefore, before he asked the question, Arroyo should have given Rosa his Miranda warnings and obtained an effective waiver. Because he did not do so, Rosa’s statement should have been suppressed at trial.

The fact that a question is asked during booking does not immunize it from Miranda . In a ease such as this, where the officer questioning a suspect should know, at the time he asks his question, that the question is likely to elicit an incriminating response, Miranda warnings must be given before the question is posed. I do not believe that this places an unreasonable burden on police officers. Where Miranda warnings have not been given, an officer must give some thought to questions posed.

I agree with the District Court that Arroyo plainly should have known that his question was likely to elicit an incriminating response. I find unreasonable the Appellate Division’s conclusion that Arroyo’s question was not reasonably likely to elicit an incriminating response, see People v. Rosa, 294 A.D.2d 159, 160 , 743 N.Y.S.2d 400, 401 (1st Dep’t 2002), and therefore I believe that the-state court’s adjudication of the claim “resulted in a decision that ... involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254 (d)(1).

II. Harmless Error Review

I do not believe the constitutional error in admitting Rosa’s statement was harmless.

This Court has not yet decided what harmless error standard applies when a constitutional error is being evaluated for harmlessness for the first time on federal habeas review of a state court conviction. On direct appeal, courts apply the standard set forth in Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967), which provides that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was' harmless beyond a reasonable doubt.” Id. at 24 , 87 S.Ct. 824 .

In 1993, the Supreme Court held in Brecht v. Abrahamson, 507 U.S. 619 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993), that Chapman did not apply on collateral review. Rather the standard to be applied is “whether the error ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Id. at 637, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946)).

After the enactment of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub.L. No. 104-132, 100 Stat. 1214 (1996), it was “an open question in this circuit whether, following the passage of AEDPA, the applicable test on habeas review of a state conviction remains the one set forth in Brecht , or instead should be a determination whether the state court’s decision was contrary to, or involved an unreasonable application of Chapman.” Brown v. Keane, 355 F.3d 82, 91 (2d Cir.2004) (internal quotation marks omitted). We recently resolved part of that question by holding “that when a state court explicitly conducts harmless error review of a constitutional error, a ha-beas court must evaluate whether the state unreasonably applied Chapman.” Gutierrez v. McGinnis, 389 F.3d 300, 306 (2d Cir.2004); see also Zappulla v. New York, 391 F.3d 462, 467 (2d Cir.2004).

In the present case, the Appellate Division did not conduct harmless error re *226 view, 2 and thus Gutierrez does not resolve what standard to apply. In Gutierrez, we noted that we were not reaching the issue of what standard to apply “where the state court has not engaged in harmless error review.” Gutierrez, 389 F.3d at 306 .

The state urges us to apply the harmless error standard set forth in Brecht . Rosa argues that Chapman applies where a state appellate court did not engage in harmless error review. According to Rosa, the reason for the more deferential standard in Brecht was that the state courts in that case had engaged in harmless error review. Neither party argues that the proper standard is whether the state appellate court unreasonably applied Chapman .

I do not resolve which of the possible harmless error tests apply, because I think under any of tests the constitutional error was not harmless.

“In making a determination of harmless error, the court looks to the record as a whole, considering the overall strength of the prosecution’s case, the importance of the improperly admitted evidence, and whether the evidence was emphasized at trial.” Brown, 355 F.3d at 92 .

The state’s ease against Rosa rested entirely on Hernandez’s identification of Rosa as the armed robber. There was no physical evidence or other testimony linking Rosa to the crime.

Hernandez testified at trial that during the course of the robbery, a man pushed her up against a car, grabbed her case containing jewelry, and pointed a pistol at her stomach. Hernandez said that the robbery lasted for approximately three minutes and she was nervous during the incident. Hernandez said that she had not seen the robber before the day of the robbery, but she had seen him earlier that day on the street.

Hernandez further testified that she told Arroyo after the robbery that the robber had “fallen” eyes, an unshaven look, chubby cheeks, medium length hair that was brown with light tips, and full lips. Hernandez said that she had not described the robber as “pale.” However, the defense established that the complaint report written by Arroyo on the day of the robbery, which was based on Hernandez’s statements, included no -details about fallen eyes or chubby cheeks. The report said that the robber had short hair, a mustache, and fair complexion.

Hernandez testified that she saw Rosa on the street the day after the robbery and identified him as the robber. According to Hernandez, Rosa’s hair at that time was a different color than at the time of the robbery. At trial, Hernandez identified Rosa as the armed robber. Hernandez said that Rosa’s appearance in court was different from the day of the robbery because in court he had a goatee and his hair was a different color. In addition, Hernandez said that the robber’s hair covered his forehead whereas in court Rosa’s hair was pulled back.

Although the defense was able to raise questions about Hernandez’s identification of Rosa as the robber, the defense had to contend with Arroyo’s testimony that Rosa had admitted that his real hair color was brown and that he had dyed it on the day of the robbery. In closing arguments, the state argued: “The defendant himself, *227 through his actions and through his words, confirmed that he is the person who robbed Juana Hernandez .... He dyed his hair blond to conceal his identity so he wouldn’t get caught.” The state repeatedly emphasized Rosa’s statement that he had dyed his hair “yesterday” or “last night,” and urged that “those actions of the defendant, dying [sic] his hair bright blond the day after he robbed Juana Hernandez, that is evidence of the defendant’s guilty conscience.” Finally, the trial court instructed the jury that it could consider Rosa’s statement regarding “having dyed his hair and when” as proof of his consciousness of guilt. However, the court warned the jury that “proof of conduct evidencing consciousness of guilt has slight value” and that “[sjtanding alone, such evidence may never be made a basis for the finding of guilt.”

On appeal, the state argues that even if Rosa’s statement had been excluded, the jury could have concluded that Rosa had dyed his hair after the robbery to conceal his identity. Hernandez testified that Rosa’s hair was a different color the day of the robbery than the day of the arrest. The state points out that Officer O’Shea testified that on the day of Rosa’s arrest, Rosa’s hair was “bleached or dyed blonde,” and that Arroyo testified that Rosa’s hair that day was “real bright flaming yellow.” The state asserts also that Rosa’s arrest photograph showed him with bright yellow hair and no visible roots. Finally, the state argues that the jury would have seen that Rosa’s hair was dark at trial. Therefore, according to the state, even if Rosa’s statement had been excluded, the jury could have concluded that Rosa dyed his hair after the robbery.

Without Rosa’s statement, however, the jury would have had to arrive at its own conclusion regarding when Rosa dyed his hair. Rosa could have dyed his hair a week earlier and still had bright blonde hair with no visible roots on the day that he was arrested. Rosa’s statement that his real hair color- was brown and that he had dyed it the day before not only corroborated Hernandez’s identification of Rosa as the robber but was also strong evidence that Rosa had dyed his hair to avoid being identified. Rosa’s statement was highly incriminating, which is why the state fought to have it admitted and emphasized it so strongly in its closing.

In sum, the state’s evidence was far from overwhelming, and without Rosa’s statement, its case would have been quite ■ weak. I agree with the District Court that Rosa’s acknowledgment that his real hair color was brown and that he had dyed it on the day of the robbery may well have made the difference. Because I believe that the admission of the statement had a “substantial and injurious effect or influence in determining the jury’s verdict,” Brecht, 507 U.S. at 638 , 113 S.Ct. 1710 , and could not reasonably be found to be “harmless beyond a reasonable doubt,” Chapman, 386 U.S. at 24 , 87 S.Ct. 824 , I would affirm the grant of the writ.

. The Appellate Division rejected Rosa's constitutional claim on the ground that admitting Rosa's statement at trial was not error because "the officer’s inquiry as to defendant’s actual hair color was reasonably related to administrative concerns, and was neither intended, nor reasonably likely, to elicit an incriminating response.” Rosa, 294 A.D.2d at 160 , 743 N.Y.S.2d at 401 .