Opposition Brief — Ko v. New York

- - 0!

i

No. 03-1348 | aceice OF THE CLERK

IN THE

Supreme Court of the Gnited States

EDMUND KO,

Petitioner,

- against -

THE STATE OF NEW YORK,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEW YORK,

APPELLATE DIVISION, FIRST JUDICIAL DEPARTMENT

BRIEF FOR RESPONDENT

MARK RYAN DWYER

SUSAN AXELROD*

Assistant District Attorneys

New York County District Attorney’s

Office

One Hogan Place

New York, New York 10013

(212) 335-9000

* Counsel of Record for the

Respondent

May 24, 2004

m= BEST AVAILABLE COPY

“

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......sssesssssssssesssssssseees iii

STATEMENT OF THE CASE..u...sssssssssssssssesessseee 2

ARGUMENT .....csssssssssssssssssssscscessssssescessssueccssssseces 4

I. Petitioner's Assertions That He Was Denied A

Right To Present A Defense When The Prosecutor

Refused His Request To Grant Immunity To

Claudia’ Seong, And That He Was Denied The

Right To Confront His Accusers When One Of

Seong's Statements To The Police Was Introduced

ee ee I sevcntictnseseotinecticcsemioensnn 4

Bi ee te is vvicccccascecscicccicsascciscccsonces 5

i ed aiesie 5

2. The Issue of Claudia Seong's Immunity ......... 6

3. Detective Robert Mooney's Testimony........... 8

B. Petitioner's Claim That He Was Denied Due

Process When The Prosecutor Did Not Grant

Claudia Seong Immunity So That She Could

Testify On His Behalf Is Based On A Distortion Of

The Record And Does Not Present A Compelling

Question For Review By This Court. .................. 11

C. As It Was Petitioner Who Requested That

Seong's Statements To The Police Be Admitted,

Their Introduction Did Not Violate This Court's

Holding In Crawford v. Washington, US. _.,

124 S.Ct. 1354 (2004)......ceccceeseeseereerereneereereneenens 17

Il. Petitioner Failed To Raise A Federal

Question In State Court As To The Admissibility Of

Hong's Statements To Celine Oh, And His

Assertion That The Statements Violated The

Holding In Crawford Is Without IE iissisiccorsinnse’ 19

CONCLUSION ........:::s:esesseesesrestesnessenessnsensennenneees 21

il

TABLE OF AUTHORITIES

FEDERAL CASES

Adams v. Robertson, 520 U.S. 83, 117 S.

ET ene 2,19

Crawford v. Washington, U.S.__, 124S.

os sninsdssnwitchciotaienbabecienc 17, 19, 20

Illinois v. Gates, 462 U.S. 213, 103 S. Ct.

craic cne Minicstiaanicsbanbaisaneveics 19

Lilly v. Virginia, 527 U.S. 116, 119 S. Ct.

a aacccina tb dd hc xirsiblanaratnaicotsbainieni 17

Ohio v. Roberts, 448 U.S. 56, 100 S. Ct.

a in sneer rsscellenitcianeesbincaachaiics 20

United States v. Angiulo, 897 F.2d 1169

a uss EW Asidntcanahicdscuicananonnunenns 13

United States v. Bahadar, 954 F.2d 821 (2d

th sedans ci vaccpbunicdbenckdxesdsiseedinsusesn 14

STATE CASES

People v. Everson, 100 N.Y.2d 609, 767

A me BO I ic ceiccinisdsvonchssennuennrananvcasexsave 9

People v. Ko, 304 A.D.2d 451, 757

N.Y.S.2d 561 (1st Dept. 2003) ........0....... tL, 7,40

People v. Owens, 63 N.Y.2d 824, 482

Be I I I incccscssctcncsisessnsavseienexenssansnns 13

ill

People v. Sapia, 41 N.Y.2d 160, 399

N.Y.S.2d 93 (1976)....:esescssseessereseneeneesserssrsenees

People v. Shapiro, 50 N.Y.2d 747, 431

N.Y.S.2d 422 (1980)....-ccececesseseresrenersesresserenens

People v Tevaha, 84 N.Y.2d 879, 620

N.Y.S.2d 786 (1994)...-scsssccsssssesseensesresrsnennenees

STATUTES

New York Criminal Procedure Law section

iv

03-1348

IN THE SUPREME COURT OF THE UNITED

STATES

OCTOBER TERM, 2003

EDMUND KO,

Petitioner,

-against-

THE STATE OF NEW YORK,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI TO THE SUPREME

COURT OF THE STATE OF NEW YORK, -

APPELLATE DIVISION, FIRST DEPARTMENT

Respondent State of New York respectfully files

this brief in opposition to petitioner's petition for a writ of

certiorari to the New York Supreme Court, Appellate

Division First Department. That writ is sought in

connection with an opinion and order of that court,

rendered on April 23, 2003, and reported at 304 A.D.2d

451, 757 N.Y.S.2d 561 (1st Dept. 2003), affirming

petitioner's conviction, after trial, of Murder in the Second

Degree.

STATEMENT OF THE CASE

Petitioner's conviction resulted from his murder of

his former girlfriend, Hyeseung Lynda Hong, on March 18,

1998. Petitioner and Hong had ended their relationship

about 18 months before her death, and petitioner had since

become involved with Claudia Seong. Although petitioner

and Hong had initially remained in contact after the

termination of their relationship, by the spring of 1997,

they had ceased speaking, until the night of Hong's death.

That night, Hong was on the phone with a friend,

Celine Oh, when her call waiting function signaled that she

had another incoming call. | Hong interrupted her

conversation with Oh to take this call. When she returned

to Oh, she relayed that petitioner had called and that she

was permitting him to come over. After the conversation

continued for a few more minutes, Hong announced that

petitioner had arrived and hung up. Although she promised

to call Oh after petitioner left, she never did. While in the

apartment, petitioner slit Hong's throat twice, causing her

death. Two days later, Hong's current boyfriend discovered

her, lying dead on her living room floor.

Although no witnesses saw petitioner enter or leave

the apartment, the police discovered a bag of bloody

clothing obviously worn by the killer in the middle of

Hong's living room. The police also learned that petitioner

and Seong had attacked another of petitioner's former

girlfriends, Diane Kim, and went to interview petitioner

and Seong that evening. During their interview with

Seong, the police first showed Seong photographs of the

bloody clothes and then the clothes themselves. Seong

broke down in tears and told the police that the sweatpants

were petitioner's and that, while the sweatshirt had been

hers, he often wore it.

Both the New York City Police and the FBI

examined the clothing. DNA testing revealed that the

blood on the clothing belonged to Hong. Fibers from the

clothing matched fibers taken from Seong's car, which

petitioner often drove, and Seong's apartment, where

petitioner was living at the time of the murder. DNA

analysis of hairs recovered from the clothes revealed them

to be petitioner's. Finally, a bloody partial footprint left on

some papers that were scattered on Hong's living room

floor matched petitioner's foot.

Petitioner appealed his conviction to the New York

State Supreme Court, Appellate Division, First Department.

He argued, among other things, that he was denied his nght

to present his defense by the prosecutor's refusal to grant

Seong immunity so that she could testify on petitioner's

behalf; that the introduction of Seong's statements to the

police, including those concerning the ownership of the

bloody clothes, violated his confrontation rights; and that

the prosecutor should not have been permitted to

introduced Hong's "telephone" statements that petitioner

had called and then that he had arrived.

In a unanimous opinion, the First Department

rejected these claims and affirmed petitioner's conviction.

On May 1, 2003, petitioner sought leave to appeal from that

affirmance to the New York Court of Appeals. By order

dated January 2, 2004, the Court denied that request.

In his petition before this Court, petitioner raises

these same claims. It is respectfully submitted that

petitioner has failed to present any reasons for this Court to

grant his request for a wnt of certiorari. As discussed

below, petitioner's assertions of constitutional harm are

based on an inappropriately selective reading of the trial

record. First, a complete review of that record reveals that

petitioner never asked that Seong be granted immunity and

that he would not have been not entitled to that grant had he

made the request. Second, it was petitioner who sought the

introduction of Seong's statements to the police and he

should not now be heard to complain that those statements

were admitted. Finally, this Court is without jurisdiction to

consider the admissibility of Hong's statements to Celine

Oh concerning petitioner's arrival at her apartment.

ARGUMENT

I. Petitioner's Assertions That He Was Denied

A Right To Present A Defense When The

Prosecutor Refused His Request To Grant

Immunity To Claudia Seong, And That He Was

Denied The Right To Confront His Accusers When

One Of Seong's Statements To The Police Was

Introduced At Trial, Are Meritless.

Because the issues of Claudia Seong's immunity

and the trial court's admission of her statements to the

police about the bloody clothes are so closely linked, they

are dealt with together here. A complete review of the

record reveals that petitioner never requested that Seong be

granted immunity; that even had he made such a request,

the prosecutor had compelling reasons to refuse; and that

the trial court did not permit constitutionally offensive

hearsay to ve introduced at trial.

A. The Relevant Record

1. Motion Practice

At a number of court appearances and in papers

filed by the defense, petitioner's attorney made clear that he

intended to argue that either Claudia Seong, Jae Young

Shin' or both had killed Lynda Hong. The People filed a

motion to preclude the defense unless petitioner could

provide reliable evidence supporting those theories.

Petitioner's attorney then sent a series of letters to the court

outlining the evidence that supposedly connected both

individuals to the crime. He noted that the prosecutor had

previously sent him a letter in which she had disclosed that

both Shin and Seong had made statements to the police.

Seong had told them, among other things, that the

sweatshirt removed from the crime scene belonged to her.

Petitioner informed the court that he anticipated that both

Seong and Shin’ would be unavailable to testify at trial and

that he therefore intended to develop his defense theories

either by introducing a portion of the People's letter

summarizing Shin's and Seong's statements to the police or

' Shin was a friend of petitioner's and Seong's and had been

interviewed by the police on several occasions. According to

statements that Seong made to the police, she had directed Shin

to inform Hong that petitioner had a new girlfriend, that he was

severing ties with his old friends, and that Hong was to avoid

him if she saw him on the street. Seong also told the police that,

on the night before Hong's death, Shin had visited with petitioner

and Seong. At that time, Shin told Seong that he had spoken

with Hong that day and that she had remarked that, since

petitioner had ended his relationship with her, he had become

involved with prostitutes. Seong had become so enraged by this

insult that she had slapped petitioner.

? Shin had returned to Korea prior to trial.

by cross-examining the People's police witnesses about

those statements. The prosecutor objected that these

statements were inadmissible under New York's rules of

evidence.

In an oral ruling issued prior to trial, the court

informed petitioner that it would permit him to introduce

two paragraphs of the hearsay statements that counsel had

quoted in his motions. Those statements included that

Seong had told the police that the clothes that had been

recovered from the crime scene were hers. The court found

that this latter statement constituted a statement against

penal interest and was therefore admissible.

2 The Issue of Claudia Seong's

Immunity

As the trial court's ruling was predicated on Seong's

unavailability, petitioner's attorney arranged for her to

appear in court to resolve that issue. When she appeared,

petitioner's attorney informed the court that counsel for

Seong had informed him that Seong intended to invoke the

Fifth Amendment on any questions relating to petitioner,

Lynda Hong, Jae Young Shin and Diane Kim.’ Petitioner's

counsel asked that Seong be compelled to claim this

privilege in front of the jury. Petitioner's attorney argued,

among other things, that the unique context of the case

made Seong's presence in front of the jury imperative. He

reminded the court that the prosecutor had argued, in her

opening statement, that Seong was a manipulative, jealous

3 At the time of trial, both petitioner and Seong were under

indictment in New Jersey for their attack on Diane Kim, a former

girlfriend of petitioner's. The two of them, along with Seong's

sister, had driven Kim to a secluded area in Edgewater, New

Jersey and slashed her face, forehead and thigh with a razor.

woman who had provided the impetus for this murder when

she became enraged that Hong had called her a prostitute.

Counsel also pressed the point that he had argued in his

opening, that either Seong or Shin, or both, were the real

killers.

The prosecutor opposed this request. She asserted

that the People would be most prejudiced by Seong's

presence before the jury. The prosecutor noted that any

procedure to ascertain whether Seong would refuse to

testify was being conducted for petitioner's benefit since he

was the one who was seeking to introduce the statements

that Seong had made to the police. The prosecutor

reminded the court that she had objected, and continued to

object, to the introduction of this hearsay. She also asserted

that, as a result of Seong's unavailability, the People were

harmed as they could not elicit that petitioner had brought

Hong's wallet to Seong to prove that he had killed Hong

and that, when he showed Seong the wallet, he told her that

he had committed the murder for her.” Thus, she asked that

* In his petition, petitioner quotes that portion of the prosecutor's

opening in which she told the jury that they would hear

testimony that, after petitioner killed Hong, he returned to

Seong's apartment and told her "what he had done for her, and

that he had done it for her" (Petition at 4). He states that she

made these statements, "[k]nowing full well . . . that Seong

would be invoking the Fifth Amendment were she called" (id.),

in order to suggest that the prosecutor was attempting to put

evidence before the jury surreptitiously, aware that it would

never be admitted. This is a complete distortion of what

occurred. At the conclusion of her opening remarks, petitioner

moved for a mistrial based on those statements. The prosecutor

stated that she had understood, based on an earlier discussion,

that petitioner had been permitted to elicit that Seong had told

the police of petitioner's confession. The court corrected her and

explained that when defense counsel had asked to introduce the

Seong make her invocation outside of the jury's presence.

Counsel insisted that fundamental fairness mandated that

Seong appear in front of the jury to invoke the privilege.

Petitioner's counsel countered the prosecutor's

suggestion that Seong was unavailable to both sides. He

argued that the prosecutor could make Seong available to

the People by granting her immunity. Thus, he maintained,

her assertion that the People were somehow prejudiced by

her unavailability was simply disingenuous. Counsel did

not ask that the People be obliged to grant immunity to

Seong so that she could testify for the defense.

The court denied counsel's request and conducted a

hearing outside the presence of the jury. Seong avowed

that, if called to testify, she would respond to all questions

concerning petitioner, Lynda Hong, and Jae Young Shin by

invoking her fifth amendment right against self-

incrimination.

ae Detective Robert Mooney's Testimony

On direct examination, Detective Robert Mooney

testified that, on March 20, 1998, he was assigned to

investigate Lynda Hong's death. He interviewed petitioner

and Claudia Seong later that afternoon. During his

interview with Seong, he showed her photographs of the

stateme at, but not for its truth, the court had ruled that if

petitioner wanted to elicit it, then the prosecutor would be

permitted to argue its truth. Counsel then had withdrawn his

request. In short, the prosecutor had simply been mistaken as to

what hearsay evidence had been admitted and made her remarks

because she believed that the jury would hear the evidence she

mentioned. She was not trying to put inadmissible hearsay

before the jury or in any other way acting inappropriately.

bloody clothes that had been removed from the bag found

in Hong's living room. Seong began to cry uncontrollably

and told the detective that the pants were petitioner's and

that, while the shirt was hers, he wore it often. Detective

Mooney then took Seong to the laboratory where the

clothes were being examined and arranged that they be

shown to her. When she saw them, she again burst into

tears, repeating that the pants were petitioner's and that he

often wore her shirt.

Petitioner's attorney interposed only general

objections to this testimony.” Then, on cross-examination,

he asked the detective whether, when Seong looked at the

photographs of the bloody clothes, she had said that both

the pants and the sweatshirt had belonged to petitioner.

Mooney agreed that she had made that statement and that

he had written that down in one of his reports.

Petitioner's counsel also produced a document and

asked Mooney to review it. At that point, the court excused

the jury and informed counsel that he could not question

the detective about the statements on the document.°

Counsel protested that he should be permitted "under the

Confrontation Clause" to cross-examine Mooney about the

full extent of the conversation memorialized on the

document, and not simply be limited to the words on the

> As a matter of New York state law, general objections, which

by their nature fail to inform the court of the rationale for the

objection, are insufficient to preserve a complaint for review by

the appellate courts. People v. Everson, 100 N.Y.2d 609, 767

N.Y.S.2d 389 (2003); People v Tevaha, 84 NY2d 879, 620

N.Y.S.2d 786 (1994).

° The record does not reveal the identity or content of the

document, other than that it was something that had been

supplied by the prosecutor.

page. He went on to complain that the tral court had

improperly permitted the prosecutor to elicit Seong's

statements to Mooney, when petitioner was the one who

had demonstrated Seong's unavailability and therefore was

the one who had the "right" to elicit the testimony. The

court explained that the prosecutor was entitled to introduce

evidence that petitioner had asked the court to admit.

Petitioner argued that, nonetheless, the Confrontation

Clause permitted him to cross-examine the detective as to

the accuracy of his rendition of those statements. The court

informed him that it had allowed him that nght and then

terminated the discussion on that matter.

By his other questions, petitioner's counsel

suggested that the police had arrested petitioner so that they

could conduct a press conference and announce that they

had solved the murder, rather than because the evidence

dictated that he was the killer. Thus, on re-direct, the

prosecutor asked whether Detective Mooney’s decision to

arrest petitioner was based, in part, on information provided

by Seong. Petitioner's counsel objected and a colloquy was

conducted outside the presence of the jury. The prosecutor

explained that she sought to introduce the fact that Seong

had relayed that petitioner had confessed to her to counter

petitioner's claim that the arrest was premature and that the

police had manufactured evidence against petitioner.

Counsel protested that the prosecutor should not be

permitted to introduce Seong's hearsay but rather should be

required to call Seong to testify in order to permit petitioner

to cross-examine her.

The court then denied the prosecutor's request to

elicit this information from the detective. As the prosecutor

had not received an answer to her question as to whether

the arrest was based, in part, on information provided by

Seong, she asked that she be allowed to elicit a simple yes

10

or no to that question without exploring what that

information was. Counsel protested that even this answer

would prejudice him as it would not allow him to conduct

cross-examination. He reiterated that the prosecutor could

grant Seong "the immunity that [Seong] has been begging

for" and then call her to testify. After further discussion,

the court precluded the prosecutor from obtaining any

answer to this question.

B. Petitioner's Claim That He Was Denied Due

Process When The Prosecutor Did Not Grant

Claudia Seong Immunity So That She Could

Testify On His Behalf Is Based On A

Distortion Of The Record And Does Not

Present A-Compelling Question For Review

By This Court.

Petitioner now claims that the prosecutor's refusal to

grant Claudia Seong immunity presents a comp. 'ling issue

that merits review. He notes t>at this Court has not

delineated a standard which trl] courts can use to

determine whether a prosecutorial refusal to grant

immunity deprives a criminal defendant of his mght to

present a defense. Petitioner's assessment that this case

merits such review is incorrect for several reasons.

To begin, as the review of the record, supra, makes

clear, petitioner never asked that the prosecutor grant

Seong immunity so that she could testify on his behalf.

Petitioner's only references to immunity came in his

complaints that the prosecutor had introduced Seong's

statements to the police in the People's direct case.

However, petitioner was not asking that Seong receive

immunity so that she could testify as a defense witness.

11

Rather, his complaint was that, as an evidentiary matter,

Seong was not unavailable to the prosecutor, since she

could grant the witness immunity. As Seong was

unavailable to the defense, who did not have that same

option, only the defense should be permitted to introduce

the hearsay statements that Seong made to the police.

To be sure, petitioner is correct that the New York

Supreme Court, Appellate Division First Department did

hold that petitioner was not deprived of his constitutional

rights by the prosecutor's refusal to grant immunity. Thus,

as his federal claim was addressed by the state court, this

Court does have jurisdiction to entertain it. Adams v.

Robertson, 520 U.S. 83, 117 S.Ct. 1028 (1997). But as the

record makes plain that petitioner was denied nothing, his

immunity claim is untenable. Moreover, petitioner's failure

to raise the claim at the trial level renders the record

incomplete, to the detriment of the prosecutor. After all,

because petitioner never asked that Seong be granted

immunity, he deprived the prosecutor of the opportunity to

make a record as to her theory of Seong's liability or the

investigatory steps that the prosecutor and the police had

undertaken and would continue to undertake in order to

ascertain Seong’s role in the murder. It is therefore

respectfully submitted that this Court decline petitioner's

request for review.

In any event, petitioner has failed to demonstrate a

compelling legal issue that requires resolution by this

Court. Petitioner's arguments in that vein are two-fold. He

asserts, first, that New York state has essentially no test by

which to resolve when a prosecutor abuses her discretion in

refusing a defense request to grant a witness immunity. He

then claims that the federal appeals courts utilize two

different tests and that resolution by this Court is necessary.

Petitioner is simply incorrect on all fronts.

12

—

To begin, the test utilized by the courts of New

York state is hardly "nebulous," as petitioner claims

(Petition at 15). The New York Court of Appeals has held

that a prosecutor abuses her discretion when 1) she refuses

to immunize a defense witness in order to prevent a

criminal defendant's access to a police informant active, as

a government agent, in the commission of the crime at

issue; 2) the prosecutor has built her case on immunized

testimony but denies the defendant a similar opportunity; 3)

the prosecutor affirmatively threatens the defendant's

witness with prosecution for perjury if the witness gives

evidence favorable to the defense; or 4) the prosecutor's

failure to grant immunity deprives a defendant of vital

exculpatory testimony. People v. Owens, 63 N.Y.2d 824,

825-26, 482 N.Y.S.2d 250, 250-51 (1984); People v.

Shapiro, 50 N.Y.2d 747, 760, 431 N.Y.S.2d 422 (1980);

see also, People v. Sapia, 41 N.Y.2d 160, 399 N.Y.S.2d 93

(1976). This test provides a trial court with clear guidelines

as to how to address the issue.

Furthermore, the two tests utilized by the federal

courts differ only by small degree from one another. The

"effective defense" standard permits a court to grant

immunity even when the prosecutor has refused to do so

only when the court finds that the defense witness could

offer testimony that was clearly exculpatory and essential,

and that the prosecutor did not have a strong interest in

withholding immunity. See United States v. Angiulo, 897

F.2d 1169, 1191-92 (1st Cir. 1990). Pursuant to the

"prosecutorial misconduct test," a court may order the

prosecutor to grant immunity if it finds that prosecutor

abused her discretion by attempting to distort the fact-

finding process and that the witness's testimony would be

exculpatory. A prosecutor abuses that discretion by

harassing or intimidating witnesses to discourage them

13

from testifying or by deliberately withholding immunity

from defense witnesses for the purpose of keeping

exculpatory evidence from the jury. United States v.

Bahadar, 954 F.2d 821, 826 (2d Cir. 1992); United States v.

Angiulo, supra. The misconduct test simply gives more

detail to the "effective defense" test; however, both require

the court to find that the witness's testimony would

exculpate the defendant and that the prosecutor has no

legitimate reason for refusing to grant the witness

immunity. Put differently, there is no need for this Court to

grant review of petitioner's case in order to harmonize two

tests that are already so similar.

But, even assuming that some harmonization is

required on the federal side, it is respectfully submitted that

this case does not provide the appropriate vehicle by which

to achieve that goal. The New York test is broad enough to

encompass both federal tests. Just as in the "effective

defense" test, a New York prosecutor may have to provide

immunity to an informant with exculpatory evidence or

when the prosecution has sought to keep exculpatory

witnesses off the stand. Furthermore, similar to the

"prosecutorial misconduct test," a New York trial judge

may find that a prosecutor who has taken affirmative steps

to discourage a defense witness from testifying, such as by

threatening that witness unjustly with prosecution for

perjury, has acted improperly and can then compel the

prosecutor to grant the witness immunity. As New York's

test encompasses both federal standards, then, any

reconciliation of those two federal tests would have no

effect upon New York law in this area.

Relatedly, no matter which test is applied here, the

results would still be the same since, even on this limited

record, it is clear that petitioner was not entitled to have

Seong testify under a grant of immunity. First, under New

14

York law, the prosecutor clearly would not have abused her

discretion by refusing to grant Seong immunity. Seong was

not a police informant: she had not been acting at the

behest of the government at the time that Hong was

murdererd. The People had not built their prosecution on

immunized witnesses. Nor has petitioner ever established

that Seong possessed information that exculpated

petitioner. He has never provided proof that suggested,

even remotely, that Seong participated in the crime and, at

the same time, petitioner did not. Additionally, as noted

above, it was Seong who told the police that the bloody

clothes worn by killer belonged to petitioner.

Petitioner would fare no better under either federal

test. Because both require some proof that the witness

possessed exculpatory information, petitioner's claim that

immunity should have been conferred would fail in the first

instance. But, even had petitioner managed to satisfy this

prong, he still could not prevail. In order to satisfy the

other prong of the prosecutorial misconduct test, petitioner

would have had to establish that the prosecutor either

intimidated Seong to encourage her to refuse to testify or

sought to keep exculpatory evidence from the jury, United

States v. Badahar, supra, and he has never alleged either.

Nor could he have proved such allegations, even had he

made them. As the prosecutor noted, Seong's insistence on

invoking her privilege potentially kept highly incriminatory

evidence, namely petitioner's confession to Seong that he

had committed the killing, from the jury. Thus, she had no

interest in prevent Seong from taking the stand, only in

doing so with immunity.

Finally, under the effective defense test, a

prosecutor cannot be compelled to grant immunity if she

has a strong interest in withholding it, United States v.

Anguilo, supra, something the prosecutor clearly did here.

15

It is worth noting that in New York, there is no power to

compel testimony with a grant of "use" immunity. Rather,

a witness receiving immunity cannot be "convicted of any

offense or subjected to any penalty or forfeiture for or on

account of any transaction, matter or thing concerning

which he gave immunity. . . .". New York Cnminal

Procedure Law Section 50.10. Thus, had Seong received

immunity for her testimony, she would have escaped

prosecution for any crime in connection with Hong's

murder. As petitioner has impliedly conceded by his

reference to the prosecutor's theory that petitioner had

killed Hong in order to ingratiate himself with Seong

(Petition at 3), the prosecutor believed that Seong was

involved in some way in the killing.’ She therefore clearly

had a strong interest in withholding immunity from this

possible accomplice to the murder.

In sum, all of petitioner's rationales for the necessity

of review by this Court are unavailing. Thus, this Court

should deny his request for a wmit of certiorari.

” Petitioner refers to a portion of the prosecutor's opening

statement in which she told the jury that petitioner went to

Hong's apartment by himself to commit the murder. Petitioner

claims that, "by this statement [the prosecutor] completely

eliminated the personal involvement of Claudia Seong in the

charged murder" (Petition at 4). Such an assertion is utterly

meritless. The fact that the People did not contend that Seong

was present in Hong's apartment at the time of the killing was

hardly the equivalent of a concession that Seong bore no liability

in the crime. And, indeed, in her summation the prosecutor

noted that that Seong might well have acted as an accomplice by

urging petitioner to commmit the murder but that her role was

irrelevant to the trial issue, which was petitioner's guilt or

anocence.

16

c. As It Was Petitioner Who Requested That

Seong's Statements To The Police Be

Admitted, Their Introduction Did Not

Violate This Court's Holding In Crawford v.

Washington, _ U.S. _, 124 S.Ct. 1354

(2004).

Petitioner next asks this Court to evaluate the case

under the principles enunciated in Crawford v. Washington,

_US. _, 124 S.Ct. 1354 (2004). He focuses on Seong's

statement to the police that the bloody pants found in a bag

in Hong's apartment belonged to petitioner and that, while

the shirt belonged to her, petitioner often wore it. He

maintains that this statement constituted "testimonial

hearsay" and that its.admission into evidence offends the

Constitution. Again, however, petitioner supports this

claim by a distortion of what occurred at trial. As a

complete review of the record makes clear, it was

petitioner, and not the prosecutor, who asked that the court

permit Detective Mooney to testify that Seong told the

police who owned the clothes; the prosecutor

unsuccessfullly opposed the application. Thus, the

introduction of this evidence at trial could not offend the

Confrontation Clause. Lilly v. Virginia, 527 U.S. 116, 130,

119 S.Ct. 1887 (1999).

To be sure, once the court granted petitioner's

request, it did permit the prosecutor to introduce the

statements in her case-in-chief, rather than insist that only

petitioner could elicit them on cross-examination of the

witness. However, certainly that could not offend the

Confrontation Clause. For the most part, the prosecutor did

not elicit more than petitioner had asked for or than the

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court had allowed. It is true that Detective Mooney

testified that Seong told him that the pants belonged to

petitioner and the shirt was hers, while petitioner's offer of

proof was that Seong had told the police that all the

clothing was hers. However, petitioner's reaction at trial

demonstrated that that discrepancy was of no moment.

Petitioner's lawyer, who had appeared often at trials in

courts in New York state, made only general objections to

that testimony, thereby failing to suggest that the testimony

was not what he anticipated and preserve any complaint he

had about this discrepancy for review by any New York

appellate court. And, before the trial court, he never

announced that he was, in fact, taken by surprise by it.

Instead, on’ cross-examination, he purposefully elicited

from Mooney that Seong had said something even more

inculpatory as to petitioner -- that all of the clothing was

his. Clearly, he thought that Seong's attempts to make

petitioner the owner of the clothing was helpful to his

defense, in that she was too eager to shift the blame to

another. If Seong's statements were useful for petitioner's

defense, then, it should have made no difference which

party introduced them.

Simply put, the only reason that the jury heard the

testimony about which petitioner now complains is because

petitioner requested that it be introduced. Thus, there is no

compelling issue tht merits review by this Court.

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Il. Petitioner Failed To Raise A_ Federal

Question In State Court As To The Admissibility

Of Hong's Statements To Celine Oh, And His

Assertion That The Statements Violated The

Holding In Crawford Is Without Merit.

Petitioner next turns to the admission of two

statements made by Lynda Hong shortly before her death to

her friend, Celine Oh. In the first, Hong announced that

petitioner had just called and was on his way over. Then, a

few minutes later, Hong stated that petitioner had arrived.

Petitioner suggests that this Court review the admissibility

of this evidence under the Confrontation Clause.

To begin, this Court is without jurisdiction to hear

this claim, as petitioner did not raise a federal question

either at trial or on his direct appeal and the state court's

decision rested only on state law. 28 U.S.C. §1254; Adams

v. Robertson, 520 U.S. at 83, 117 S.Ct. at 1024; Illinois v.

Gates, 462 U.S. 213, 218, 103 S.Ct. 2317 (1983). In the

motions that he filed prior to trial, petitioner asserted that

the prosecutor would be unable to establish that these

statements satisfied the requirements for statements of

future intent under the Hillmon doctrine: New York's rules

of- evidence required that the proffered statement

unambiguously contemplate some future action by the

declarant and, petitioner claimed, Hong's statements did not

satisfy that requirement. Petitioner also asserted that

Hong's statements did not satisfy the "present sense

impression" exception to the hearsay rule, since the

prosecutor could introduce statements under that exception

only if their accuracy were corroborated by the presence of

another witness and, as none existed, the prosecutor would

be unable to meet her burden. In other words, petitioner

never raised the claim that hearsay upon which the

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prosecutor would be relying violated the Confrontation

Clause of the Federal Constitution, only that the prosecutor

could not meet the burdens imposed under New York's

rules of evidence.

Even on his direct appeal to the New York Supreme

Court, Appellate Division, First Department, petitioner did

not raise constitutional claims. Petitioner simply reiterated

those arguments made before the trial court that the

prosecutor could not meet the requirements of New York

law for the admission of statements of future intent and that

the prosecutor failed to provide the necessary corroboration

to introduce the statements under the present sense

impression exception to the hearsay rule. As a result, the

Appellate Division rendered its decision rejecting

petitioner's complaints based solely on New York State's

rules of evidence and did not rule on any federal issues.

People v. Ko, 304 A.D.2d at 451-52, 757 N.Y.S.2d at 561.

Thus, this Court is without jurisdiction to review this claim.

In any event, petitioner cannot demonstrate that his

claim merits consideration by this Court. Petitioner

concedes that Hong's statements to Oh were not

"testimonial." In Crawford, this Court stated that the

holding in that case was limited to testimonial hearsay;

statements between civilians were still governed by the test

enunciated in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531

(1980). Under that test, out-of-court statements can be

admitted at trial, without offending the Sixth Amendment,

so long as the prosecutor can demonstrate that the declarant

was unavailable and that the statements bore sufficient

indicia of reliability. Crawford v. Washington, supra. As

petitioner no longer contests, the prosecutor satisfied her

burdens as to both portions of Hong's statements before the

trial court.

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Simply put, as petitioner has failed to establish that

this Court has jurisdiction to hear this claim and also has

offered no basis upon which Hong's conversation with Oh

should have been excluded, his request for review must be

rejected.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

ROBERT M. MORGENTHAU

District Attorney, New York County

MARK RYAN DWYER

SUSAN AXELROD*

Assistant District Attorney

New York County District Attorney's Office

1 Hogan Place

New York, New York 10013

(212) 335-9000

*Counsel of Record for the Respondent

May 24, 2004

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