Petition for Writ of Certiorari — Morales v. Smith (No. 06-714)
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OFFICE OF THE CLERK
Iu the
Supreme Cuurt of the United States
er po na
ANGEL MORALES,
Petitioner,
Vv.
JOSEPH SMITH.
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
JOSEPH D. JEAN*
MEREDITH SCHAUM
Attorneys for Peationer-
Appellant, Angel Morales
Four Times Square,
24th Floor
New York, New York
10036-6522
(212) 735-2154
~
*Counsel of Record
QUESTIONS PRESENTED FOR REVIEW
Question 1. Mr. Morales has constitutional rights to a
fair trial and to present a defense by confronting witnesses against
him. Nonetheless, the trial court prohibited him from confronting
the prosecution’s expert even though she wrongfully testified that
fingerprint evidence cannot be fabricated. The only evidence
against Mr. Morales was a single fingerprint. Consequently, the
jury erroneously believed that the fingerprint evidence could not
have been fabricated. Did the trial court violate Mr. Morales’s
constitutional rights thereby entitling him to habeas corpus relief?
Question 2. Mr. Morales has the constitutional right to
~call-witnesses to further his defense. Despite extremely limited
evidence against him and the prosecution expert’s erroneous
testimony that fingerprint evidence cannot be fabricated, the tral
court prohibited Mr. Morales from calling a defense expert to
establish: (i) that the errors in the method of collection described
by Officer Curtis precluded verification of the source of the
fingerprint; (ii) that under similiar circumstances to those presented
here, fingerprint evidence can be, and indeed has been, fabricated
by law enforcement officials; and (iii) reasonable doubt. Did the
trial court violate Mr. Morales’s constitutional rights requinng
habeas corpus relief?
- PARTIES TO THE PROCEEDING
Petitioner Angel Morales is an inmate currently
incarcerated under the care, custody and control of Respondent
Joseph Smith, the Superintendent of Shawangunk Correctional
Facility in New York State.
11
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ..............:c000000
PARTIES TO THE PROCEEDING.............. scibisdedaabiebionninagaie
SEE FT FRE MD erin corsa nininndrscieieanciacianpeniiin
FF ITO UATE srscsincoiciuhiecutidndinpbeidivenaanenabadiaanaaabiie
STATEMENT OF JURISDICTION sccecsssssnsvercsrsncsvesevevorsneees
CONSTITUTIONAL PROVISIONS INVOLVED...............
SU ATE Ce CR i reteccesesnercinnerscteentctntereansqnentes
‘. Background
a. Restrictions on Cross-
Examination of the
PLOSSCURION'S EXON .cccccceceesesscseseserss
b. Preclusion of the Defense
Fengerprint EXpestt «0.00: 0sccerssssseeseseseres
C. Tine Habeas POtUtIOR ...0.0:ccveccsseesecesees
REASONS FOR GRANTING THE WRIT... cee eeeeeeee
l. The Trial Court Unconstitutionally
Deprived Mr. Morales of a Fair Trial
and a Meaningful Opportunity to
Present a Complete Defense
ili
a. The Trial Court
Unconstitutionally Denied Mr.
Morales the Right to
Meaningfully Cross-Examine
the Prosecution’s Fingerprint
RENE sts SOON Eos NOI CR 12
b. The T-*al Court
Unconstitutionally Denied Mr.
Morales the Right to Call an
Expert Witness on His Behalf........... 15
a. Standard of Review 18
a. The Trial Court’s Violation of
Mr. Morales’s Confrontation
Clause Rights Were Not
ERENT CRO CE 20
b. The Trial Court’s Violation of
Mr. Morales’s Rights to a Fair
Tnial, to Present a Meaningful
Defense and to Call Witnesses
Were Not Harmless. ....................00000 24
en PAPO scssacponia-cestioruinaahenchaudiabonneouisncedunseumiietendsoeeneas 28
iV
TABLE OF AUTHORITIES
CASES
Blakely v. Washington, 542 U.S. 296 (2004).......... 9
Chambers v. Mississippi, 410 U.S. 284
Eee hina aidacaidacniablanuhaiiniaacsaeikaneninceid 16, 19
Chapman v. California, 386 U.S. 18 (1967)......... 20
Crane v. Kentucky, 476 U.S. 683 (1986) .... 8, 16, 19
Davis v. Alaska, 415 U.S. 308 ( 1974) anauannaess passim
Delaware v. Fensterer, 474 U.S. 15 (1985).......... 12
Delaware v. Van Arsdall, 475 U.S. 673
I Ssccsdubicuenelanibinccecatuattveabesccemueieas 20, 21, 23
Douglas v. Alabama, 380 U.S. 415 (1965)....... 9,12
Kentucky v. Stincer, 482 U.S. 730 (1987)... 9
Mitchell v. Esparza, 540 U.S. 12 (2003)............6 20
O'Neal v. McAninch, 513 U.S. 432 (1995) ........... 20
Penry v. Johnson, 532 U.S. 782 (2001) ....... esses 18
People v. Cronin, 60 N.Y.2d 430, 458 N.E.2d
SS), S78 N.Y B28 TED IGG) ccenscsssisonsnseseneees 26
People v. Gilliam, 37 N.Y .2d 722, 337
N.E.2d 129, 374 N.Y.S.2d 616 (1975)............ 26
Vv
People v. Gilliam, 45 A.D.2d 744, 356
N.Y.S.2d 663 (2d Dep't 1974), rev'd
mem., 37 N.Y.2d 722, 337 N.E.2d 129,
SIR TAY B20 ClO CIF TSP vcvesvcncevavcescencersssensvens 26
People v. Myers, 220 A.D.2d 272, 632
N.Y.5.2¢ 111 (Ist Dept 1995).........0cceressseees 24
Pointer v. Texas, 380 U.S. 400 (1965)............ 12,19
Smith v. Illinois,
390 U.S. 129 (1968)......9, 13, 14, 15, 26, 19, 24
Taylor v. Illinois, 484 U.S. 400 (1988)... 9, 16, 26
United States v Agurs,
git st 16, 18, 25, 27
United States v. Wade, 388 U.S. 218 (1967)......... 25
Washington v. Texas,
ae PET Ptnianieiiiinnnnen oom,
Williams v. Taylor, 529 U.S. 362 (2000)........ 18,19
STATUTES
rie Coe o>.” | | ee
Fe He cert cisieccvenimuiincennnitnniatonitinntotinn 8
Le COR Fae 7
Bk We eI Reece viesenncpeiniaicnisnnmnninnnts 18
Vi
Anti-Terrorism and Effective Death Penalty
Act of 1996, Pub. L. No. 104-132, §§
101-06, 110 Stat. 1214, 1217-21. 18
§ SS A) | I ie eeann en 8
Fe Bie RN Se ieniiiionsrshinisinceidecheneteeniodaiaannnin 13
U.S. Const. amend V1................. panera ]
U.S. Const. amend XIV §1 ........ Nikialscessitiemaiieas steals 2
MISCELLANEOUS
Mark Hansen, Troopers’ Wrongdoing Taints
Cases, 80 A.B.A.J. 22 (1994)... .ececccseeereeees 11
Simon A. Cole, Fingerprinting: The First
Junk Science?, 28 Okla. City U. L. Rev.
Fer eivaceistssiidctauiscicnbninedpiuibaueieecibiataions 11
Tara Marie La Morte, Comment, Sleeping
Gatekeepers: United States v. Llera Plaza
and the Unreliability of Forensic
Fingerprinting Evidence Under Daubert,
14 Alb. L.J. Sci. & Tech. 171 (2003).............. 11
Petitioner Angel Morales respectfully petitions this Court
for a writ of certiorari to review the judgment of the United States
Court of Appeals for the Second Circuit in this Case.
OPINIONS BELOW
The unreported opinion of the United States Ccurt of
Appeals for the Second Circuit is appended hereto as Appendix A.
The unreported opinion of the United States District Court for the
Eastern District of New York is attached as Appendix B.
STATEMENT OF JURISDICTION
On August 22, 2006, the Second Circuit entered its
judgment. The jurisdiction of this Court is invoked pursuant to 28
U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS INVOLVED
The Sixth Amendment to the United States Constitution
provides in pertinent part: “In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have
been committed . . .; to be confronted with the witnesses against
him; [and] to have compulsory process for obtaining witnesses in
his favor... .” U.S. Const. amend VI. The Fourteenth
Amendment to the United States Constitution provides in pertinent
part: “No State shall .. . deprive any person of life, liberty, or
property, without due process of law.” U.S. Const. amend XIV
§1.
STATEMENT OF THE CASE
1. Background
Mr. Morales is currently incarcerated at the Shawangunk
Correctional Facility, in the custody of Respondent, Joseph Smith,
the prison superintendent. The burglary for which Mr. Morales
was convicted occurred in an apartment on Tompkins Avenue,
Brooklyn, New York, on April 1, 1999. Mr. Morales is serving a
sentence of /6 years to life.
The only evidence linking Mr. Morales to the crime was a
single fingerprint that Officer Michael Curtis testified was
collected from a champagne glass inside the apartment. At trial,
the prosecution offered neither the champagne glass upon which
the fingerprint was allegedly found nor a photograph of it.'
Importantly, there was no other evidence of guilt (eg. eye
witnesses or stolen goods implicating Mr. Morales in the
burglary).
During its case-in-chief, the prosecution offered
Rosemarie Simonetti as an expert to testify that the latent print
’ See Tr. at 112. Citations to “Tr.” are to the original record.
from the champagne glass was a match to Mr. Morales.” Ms.
Simonetti testified that she had been employed in the field of
latent fingerprint work for ten years, had made “{hJundreds of
thousands” of fingerprint comparisons, and had testified “35 to 40
times as fingerprint expert.’””
Because the fingerprint evidence was so significant to the
prosecution’s case and because there was a complete lack of any
other evidence of guilt, Mr. Morales’s defense was to challenge
the prosecution’s allegation that he left the fingerprint in the
apartment. Key to his defense was first establishing, during the
State 's case~in-chief, the fact that fingerprint evidence can be, and
has been, moved and otherwise fabricated to implicate suspects."
Mr. Morales laid the foundation for the defense by first
establishing, through cross-examination of Officer Curtis, that the
fingerprint evidence bore indicia of being fabricated because it
was not photographed before it was collected and the champagne
glass was not preserved as evidence.”
Defense counsel then sought to obtain a concession
through Ms. Simonetti that fingerprint evidence can be fabricated
to help build the defense that the fingerprint was planted. But Ms.
? Id. at 119.
3 Jd. at 120-21.
* Id. at 70-71, 160-61, 367-68, 418-21, 423-26.
Id. at 112.
Simonetti inaccurately testified that fingerprints could not be
moved or fabricated despite having knowledge of a New York
State Police scandal in which a number of New York State Police
officers had fabricated fingerprint evidence to frame suspects.°
Before defense counsel could correct or otherwise explore this
inaccurate testimony, the trial court unconstitutionally prevented
defense counsel from further cross-examining Ms. Simonetti on
the subject of fingerprint fabrication.
During the defense case, Mr. Morales sought to call a
fingerprint expert to establish: (i) ihat the errors in the method of
collection described by Officer Curtis precluded verification of the
source of the fingerprint; (ii) that under similar circumstances to
those presented here, fingerprint evidence can be, and indeed has
been, fabricated by law enforcement officials; and (iii) reasonable
doubt. But the trial court unconstitutionally precluded Mr.
Morales from calling his own fingerprint expert.
a. Restrictions on Cross-Examination
of the Prosecution’s Expert
During his cross-examination of Ms. Simonetti, defense
counsel sought to develop the theory of the defense that Mr.
Morales’s fingerprint was planted. He began by questioning Ms.
Simonetti about fingerprint fabrication:
° Id. at 160-61.
Defense Counsel: M[s.] Simonetti, is it true that
fingerprints can be moved from one place to
another?
Ms. Simonetti: Not to my knowledge.’
But because Ms. Simonetti’s testimony that fingerprints
cannot be moved was incorrect, he hit an unexpected road block.
Not to be deterred, however, defense counsel sought to the
expert’s testimony with the New York State Police fingerprint
tampering scandal. Ms. Simonetti testified that she knew about
the New York State Police scandal from what she had read in the
newspaper so this line of questioning was perfectly appropriate.*
Despite the fact that Ms. Simonetti acknowledged that she
knew about the fingerprint-tampering scandal, the trial court
inexplicably cut off further cross-examination into the subject of
fingerprint fabrication. As a result, the jury was left, at the close
of the Staie’s case, with the inescapable conclusion that fingerprint
evidence could not be fabricated and that, therefore, Mr. Morales
must have \eft his fingerprint in the apartment. To be sure,
however, neither of these conclusions were correct nor supported
by any credible evidence.
’ Td. at 160.
8 Td. at 160-61.
b. Preclusion of the Defense
Fingerprint Expert
Having been restricted in cross-examining Ms. Simonetti,
Mr. Morales next sought to counter and correct her inaccurate and
prejudicial testimony and support his theory of the defense by
offering a fingerprint expert of his own:
Mr. Sartori: Witl. respect to my two motions to
liminae that we discussed in chambers, [the
defense expert] should be allowed to testify with
respect to fingerprint fabrication and the ability
for there to be movement with respect to
fingerprints from one location to another.
The two witnesses that the People called
with respect to the fingerprint evidence [Officer
Curtis and Ms. Simonetti] testified to two specific
statements that I believe to be inaccurate, if not
untrue.
One, that a print could not be messed up
or destroyed in the lifting process, and secondly,
that fingerprints couldn’t be moved from one
location to another.
I would ask to have my expert be allowed
to be called for those purposes and those purposes
only and the People be limited in their questioning
to those issues.
The Court: That’s denied.”
° Id. at 367-68.
Even though the theory of the defense necessarily required
a concession by Mr. Morales that it was his fingerprint, the trial
court based this unconstitutional decision on its decision that the
___only issue was whether the fingerprint matched Mr. Morales’s
fingerprint:
Mr. Sartori: ‘It’s our argument that these go to
credibility and whether or not these witnesses are
as credible as they would have the Court believe,
one having been declared an expert... .
The Court: I’m going to deny [Mr. Morales’s
motion to present a fingerprint expert]. I think
that the trial should focus on the real issues and
there are two real issues here. Is it his fingerprint,
yes orno.... That’s the legitimate issue. |
On February 17, 2000, Mr. Morales was convicted in
Kings County Supreme Court of burglary in the second degree.
On March 15, 2000, he was sentenced to imprisonment for a
minimum term of sixteen years to life.
c. The Habeas Petition
On February 28, 2005, Mr. Morales filed a timely petition
under 28 U.S.C. § 2254 for a Writ of Habeas Corpus By a Person
in State Custody, in the United States District Court for the
Eastern District of New York. On September 27, 2005, the district
court denied Mr. Morales’s petition in a memorandum opinion.
The district court, however, sua sponte issued a certificate of
10 Td. at 369-70.
appealability as to both issues raised in Mr. Morales’s petition. ''
The district court entered a final judgment denying the petition on
October 3, 2005. Mr. Morales timely filed a Notice of Appeal in
the district court on October 17, 2005. The Second Circuit
affirmed the district court’s opinion on August 22, 2006 finding
that (1) Mr. Morales had no constitutional right to cross-examine
Ms. Simonetti with hearsay evidence or to cross-examine Ms.
Simonetti “with a passage from a text that conflicts with the
opinion he or she has expressed unless the expert has first
admitted that the text is authoritative,” and (ii) a defense expert on
fingerprint fabrication would have been speculative without
evidence that the fingerprint evidence was actually fabricated.
REASONS FOR GRANTING THE WRIT
This Court has repeatedly affirmed that a criminal
defendant’s right to present a full and meaningful defense is a
basic tenet of constitutional law: “Whether rooted directly in the
Due Process Clause of the Fourteenth Amendment . . . or in the
Compulsory Process or Confrontation clauses of the Sixth
Amendment, . . . the Constitution guarantees criminal defendants
‘a meaningful opportunity to present a complete defense.””'* Mr.
Morales did not have a meaningful opportunity to present a
'' See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b)(1).
'? Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citations omitted)
(quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).
8
complete defense in this case because the trial court prevented him
from: (i) cross-examining the State’s expert witness; and (ii)
calling his own expert fingerprint witness.
} The right of a criminal defendant to cross-examine
/
Pn ° . ° . °
/witnesses against him is, “a primary interest secured by [the
\
Confrontation Clause].”"”
Where the right to cross-examine is
unfairly denied, the constitutional error is “of the first
914
magnitude. A defendant’s right to call his own witnesses
“stands on no lesser footing than the other Sixth Amendment
rights {the Court] has previously held applicable to the States.”'°
Where a trial court denies this right, the truth-finding process is
defeated and the jury is forced to render a verdict on incomplete
16
facts.’ Indeed, as this Court stated in Taylor v. Illinois, “(t]he
ends of criminal justice would be defeated if judgments were to be
founded on a partial or speculative presentation of the facts.”
The State’s case against Mr. Morales was based
exclusively on a single fingerprint that was purportedly located on
a glass in the premises. There were no eyewitnesses to the
'? Douglas v. Alabama, 380 U.S. 415, 418 (1965).
'* Smith v. Illinois, 390 U.S. 129, 131 (1968) (quoting Brookhart v. Janis,
384 U.S. 1, 3 (1996)).
y Washington v. Texas, 388 U.S. 14, 18 (1967).
'® See, e.g., Blakely v. Washington, 542 U.S. 296, 308-309 (2004);
Kentucky v. Stincer, 482 U.S. 730, 736 (1987).
'’ Taylor v. Illinois, 484 U.S. 400, 409, 411 (1988).
9
burglary, and the stolen goods were never traced to Mr. Morales.
The prosecution offered neither the glass upon which the
fingerprint was allegedly found nor a photograph of it.
Accordingly, Mr. Morales’s defense was focused on instilling
reasonable doubt as to how and whether that fingerprint was
allegedly found in the premises.
Where the only issue in dispute is the identity of the
perpetrator, and the only evidence offered to adduce the identity is
a single fingerprint, the credibility and reliability of that single
piece of evidence is paramount. From the outset, Mr. Morales
attempted to instill reasonable doubt by attacking the credibility of
the only evidence against him—the fingerprint. He began by
attempting to establish through the State’s fingerprint expert, Ms.
Simonetti, the indisputable proposition that fingerprint evidence
can be and, in fact, has been fabricated by the police to frame
‘ suspects. But Ms. Simonetti testified that, to her knowledge,
fingerprints could not be moved.
As a result, defense counsel was forced to cross-examine
Ms. Simonetti to correct her obviously incorrect testimony by
asking her questions about, among other things, the New York
State Police scandal wherein a number of New York State Police
officers fabricated fingerprint evidence to frame suspects. '*
'® According to Gerald Arenberg, executive director of the National
Association of Chiefs of Police: “‘These things happen every single day
on the street... . And if you don’t believe that, you’re living in a crystal
(cont'd)
10
Despite the extremely damaging impact of Ms. Simonetti’s plainly
wrong testimony on the defense and the fact that Ms. Simonetti’s
acknowledged hearing of the fingerprint-tampering scandal, the
trial court inexplicably prevented further cross-examination into
this area. As a result, the jury was left with the inescapably wrong
conclusion that fingerprint evidence cannot be fabricated.
After this devastating setback, Mr. Morales sought to call
an expert of his own to testify regarding fingerprint fabrication in
this case. The obvious intent was to not only correct the jury’s
misunderstanding that fingerprint could not be fabricated, but also
to instill reasonable doubt as to the authenticity of the single piece
of evidence that the prosecution offered. But the trial court denied
this effort as well. By precluding Mr. Morales from effectively
challenging that single fingerprint, the trial court left the jury with
no choice but to find Mr. Morales guilty.
Mr. Morales’s conviction was therefore obtained in
violation of the Constitution of the United States because he was
prevented from presenting a defense, from adequately confronting
(cont'd from previous page)
palace.’* Mark Hansen, Troopers’ Wrongdoing Taints Cases, 80 A.B.A.
J. 22, 22 (1994). See also Simon A. Cole, Fingerprinting: The First
Junk Science? , 28 Okla. City U.L. Rev. 73, 77-78 & n.21 (2003) (citing
Nelson E. Roth, The New York State Police Evidence Tampering
Investigation (1997), as evidence that “fingerprint evidence ts not
immune to either error or fraud”); Tara Marie La Morte, Comment,
Sleeping Gatekeepers: United States v. Llera Plaza and the Unreliability
of Forensic Fingerprinting Evidence Under Daubert, 14 Alb. L.J. Sci. &
Tech. 171, 187-88 (2003) (discussing documented fingerprint fabrication
by police officers in New York and other states).
1]
the prosecution’s expert witness and from calling his own expert
witness. These errors by the trial court involved the only piece of
evidence connecting Mr. Morales to the burglary—a single
fingerprint. These errors were not harmless.
ke The Trial Court Unconstitutionally
Deprived Mr. Morales of a Fair Trial and a
Meaningful Opportunity to Present a
Complete Defense
a. The Trial Court Unconstitutionally
Denied Mr. Morales the Right to
Meaningfully Cross-Examine the
Prosecution’s Fingerprint Expert
Mr. Morales’s Sixth Amendment right to cross-examine
witnesses testifying against him is one of the most deeply-rooted
principles under Supreme Court law.'? The Confrontation Clause
protects questioning of a prosecution witness’s accuracy, general
credibility and, in the case of an expert, knowledge and
expertise.”” When Ms. Simonetti testified that she believed that
fingerprints could not be moved, defense counsel had to pursue
additional questioning to correct that inaccuracy and if he could
not, to demonstrate that she was not a credible witness, that she
'? Douglas v. Alabama, 380 U.S. 415, 418 (1965). This Sixth
Amendment right applies to the states through the Fourteenth
Amendment. See Pointer v. Texas, 380 U.S. 400, 406 (1965); Davis v.
Alaska, 415 U.S. 308, 318 (1974).
2° See Delaware v. Fensterer, 474 U.S. 15, 20-21 (1985).
12
did not possess the requisite knowledge or expertise and that her
testimony was wrong. But the trial court’s preclusion of further
cross-examination prevented Mr. Morales from doing that.”!
This Court’s decisions in Davis v. Alaska and Smith v.
Illinois” are especially relevant here. In Davis v. Alaska, this
Court held that a defendant’s rnght to cross-examination is
effectively denied when a defendant is prohibited from
“expos[ing] to the jury the facts from which jurors, as the sole
*! The Second Circuit’s finding that Mr. Morales’s constitutional rights
were not denied because he could not impeach Ms. Simonetti with
hearsay evidence was erroneous and was not the basis upon which the
trial court precluded the questioning. Indeed, hearsay is an out of court,
unsworn statement offered in evidence to prove the truth of the matter
asserted. See, e.g., Fed. R. Evid. 801(c) (upon which New York’s
hearsay rule is modeled). First, defense counsel did not seek to offer into
evidence an out of court, unsworn statement to confront Ms. Simonetti.
Second, the questioning surrounding fingerprint fabrication also could
not have qualified as hearsay because it was offered to probe Ms.
Simonetti’s state of mind and not for the truth of the matter asserted. To
the extent that the Second Circuit found that the trial court was correct in
precluding cross-examination “with a passage from a text that conflicts
with the opinion [that the expert] has expressed unless the expert has first
admitted that the text is authoritative,” the Second Circuit’s opinion finds
no support in the trial court record. Indeed, the trial transcript reveals
that defense counsel never sought to cross-examine Ms. Simonetti with a
passage from any text. Rather, defense counsel simply asked Ms. -
Simonetti if she knew about the New York State Police fingerprint
scandal to which she responded affirmatively because she had read about
it in the newspaper. Tr. at 160-161.
22 Smith v. Illinois, 390 U.S. 129 (1968).
13
triers of fact and credibility, could appropriately draw inferences
relating to the reliability of the witness.””’
In Davis v. Alaska, the petitioner was convicted of
burglary and grand larceny for allegedly stealing a safe from a bar.
This Court determined that the trial court violated the petitioner’s
Sixth Amendment Confrontation Clause right by refusing to allow
the petitioner to question a key prosecution witness about the
witness’s probationary status. This Court reasoned that the
inability of the defense to question the witness about his
probationary status deprived the jury of information it could use to
weigh the witness’s credibility. Even though Davis v. Alaska
primarily dealt with witness bias, this Court restated the broader
rule that impeachment is also fair game: “the cross examiner is not
only permitted to delve into the witness’ story to test the
witnesses’ perceptions and memory, but the cross-examiner has
traditionally been allowed to impeach, i.e., discredit the witness.””*
Similarly, in Smith y. Illinois, the trial court refused to
allow the defense to question a witness about his real name and
where he lived. On appeal, the petitioner argued that the trial
Court denied his Sixth Amendment Confrontation rights. This
Court found that although these questions seemed preliminary,
they also served a deeper purpose. The defense was attempting to
23 Davis v. Alaska. 415 U.S. at 318.
4 Td at 316.
14
help the jury understand the witness’ perspective and background,
an area “to which cross-examination may always be directed.”
This Court further found that “[t]o say that prejudice can be
established only by showing that the cross-examination, if
pursued, would necessarily have brought out facts tending to
discredit the testimony in chief, is to deny a substantial right and
withdraw one of the safeguards essential to a fair trial.””° In Smith
v. illinois, the cross examination was not limited to a specific area
of inquiry as in Davis, yet the trial court still violated the
defendant’s right by not allowing an effective cross examination.
Under Davis v. Alaska and Smith v. Illinois, Mr. Morales
should have been allowed to cross-examine Ms. Simonetti to
“delve into [her] perceptions and memory” and to “impeach, i.e.,
discredit [her].”""’ Because there was so little evidence of guilt and
because Ms. Simonetti’s mistaken testimony was so intimately
related to that evidence and Mr. Morales’s theory of defense, there
was no reason to bar the cross-examination.
b. The Trial Court Unconstitutionally
Denied Mr. Morales the Right to
Call an Expert Witness on His
Behalf
25 Smith v. Illinois, 390 U.S. at 132 (emphasis added).
26 Td. at 132.
27 Davis v. Alaska, 415 U.S. at 316.
15
Mr. Morales was also denied the paramount constitutional
right to call witnesses to meaningfully present his defense.”* This
Court has unequivocally held that “[flew rights are more
fundamental than that of an accused to present witnesses in his
own defense.””” Moreover, as this Court explained in Washington
v. Texas, “(t]he right to offer the testimony of witnesses . . . is in
plain terms the right to present a defense, the right to present the
defendant’s version of the facts as well as the prosecution’s to the
3
0 Where, as here, the
jury so it may decide where the truth lies.
evidentiary support for the conviction is very weak, the wrongfully
excluded evidence need only be of “relatively minor importance”
to support habeas relief. Indeed, as this Court stated in United
States v. Agurs, “if the verdict is already of questionable validity,
additional evidence of relatively minor importance might be
sufficient to create a reasonable doubt.” *'
** “The right to compel a witness’ presence in the courtroom could not
protect the integrity of the adversary process if it did not embrace the
right to have the witness’ testimony heard by the trier of fact. The right
to offer testimony is thus grounded in the Sixth Amendment.” Taylor v.
Illinois, 484 U.S. 400, 409 (1988); see also Washington v. Texas, 388
U.S. 14, 18-19 (1967); Crane, 476 U.S. at 690-91.
>? Chambers vy. Mississippi, 410 U.S. 284, 302 (1973). A state court
cannot apply state evidentiary rules in such a way as to violate this right.
See id. (state evidentiary rules cannot be inflexibly applied in such a way
as to violate fundamental fairness).
°° Washington v. Texas, 388 U.S. at 19.
*' United States v Agurs, 427 U.S. 97, 113 (1976).
16
Mr. Morales’s expert’s testimony directly related to a
disputed factual issue at trial—-the validity of the sole piece of
evidence—and would have been both material and favorable to his
defense because the jury could have concluded that this fingerprint
was fabricated. Indeed, the fingerprint expert would have been
able to opine as to whether, in his opinion, the fingerprint evidence
had been fabricated or that the situation bore sufficient indicia to
suggest fabrication (e.g, no eye witnesses, no glass and no
photograph of the print). Mr. Morales’s expert was, therefore,
critically important to refuting the prosecution’s case and
establishing reasonable doubt.
The trial court excluded Mr. Morales’s expert witness
based upon the erroneous conclusion that such testimony would be
irrelevant. The trial court ruled that the defense could not call an
expert to establish the possibility that prints could be planted,
without first showing that the print had been moved. Without
such a factual showing, the trial court reasoned, the expert
testimony would be speculative.” But if the defense had been able
*? The Second Circuit’s assertion that the trial court did not violate Mr.
Morales’s constitutional rights because Mr. Morales did not lay sufficient
foundation to show that the fingerprint was fabricated is misplaced. The
law simply cannot be that a criminal defendant must first have the police
officer who collected the evidence admit on the stand that he illegally
fabricated the fingerprint before the defendant is permitted to call an
expert to explain to the jury the likelihood of such fabrication. Sucha
standard not only would be impermissibly high and would eviscerate the
defendant’s Sixth and Fourteenth Amendment rights, but it would be
(cont'd)
17
to show, as a matter of fact, that the print had been fabricated,
there would have been no reason to call an expert to explain that
possibility to the jury.
Here, as in Agurs, where the trial courts’ ruling prohibited
Mr. Morales from presenting his expert’s testimony to the jury, the
error was unconstitutional because the expert would have
“create([d] a reasonable doubt that did not otherwise exist” as to
the authenticity and validity of the fingerprint evidence.*? Without
Mr. Morales’s expert’s testimony, which would have controverted
the State’s case, Mr. Morales had no opportunity to present his
theory of the defense that his fingerprint was planted.
Accordingly, the trial court’s denial of Mr. Morales’s request to
call a fingerprint expert deprived Mr. Morales of his Sixth and
Fourteenth Amendment rights to a fair trial, to present a defense
and to compel witnesses on his behalf.
2. Standard of Review
The Anti-Terrorism and Effective Death Penalty Act of
1996 (“AEDPA”) governs the disposition of this Petition.’ Under
the AEDPA, habeas relief may not issue unless the state court has
(cont'd from previous page)
unnecessarily duplicative because the officer’s admission would be a
game ender for the prosecution’s case.
3 Agurs, 427 US. at 112.
** See Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L.
No. 104-132, §§ 101-06, 110 Stat. 1214, 1217-21; Penry v. Johnson, 532
U.S. 782, 792 (2001); Williams v. Taylor, 529 U.S. 362, 412 (2000).
18
rendered 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.””*
The threshold question is whether the rule sought to be
applied by the habeas petitioner was clearly established by
holdings of Supreme Court cases. Under this Court’s analysis in
Williams v. Taylor, the question whether a particular rule is
“clearly established” by Supreme Court precedent depends upon
whether the Court has previously announced a general rule
governing the constitutional claim of the sort advanced by the
habeas petitioner. The analysis is not dependent upon whether this
Court has expressly decided a case involving the exact fact-pattern
as in the habeas petitioner’s case. Here, Mr. Morales seeks to
apply the general, well-settled rules of, for example, Pointer v.
Texas, Smith v. Illinois, Chambers v. Mississippi, Davis v. Alaska
and Crane v. Kentucky that a criminal defendant is entitled to a
fair trial, to a meaningful opportunity to present a complete
defense, to cross-examine witnesses and to compel witnesses on
his own behalf.”
33 98 U.S.C. § 2254(d)(1).
*© See, e.g., Crane v. Kentucky, 476 U.S. 683, 690 (1986) (“[T]he
Constitution guarantees criminal defendants ‘a meaningful opportunity to
present a complete defense.’”) (citation omitted); see also Chambers v.
Mississippi, 410 U.S. 284, 302 (1973) (“Few rights are more fundamental
than that of an accused to present witnesses in his own defense.”);
Pointer v. Texas, 380 U.S. 400, 404 (1965) (noting that the Supreme
(cont'd)
19
Although harmless error review is the standard in federal
habeas corpus proceedings, this Court has established that where a
constitutional right is involved, relief is required unless the error is
harmless beyond a reasonable doubt.*’ This Court has also
confirmed that where there is uncertainty about whether or not a
trial court’s error was harmless, “the uncertain judge should treat
the error, not as if it were harmless, but as if it affected the verdict
(i.e., as if it had a ‘substantial and injurious effect or influence in
determining the jury’s verdict’).””*
a. The Trial Court’s Violation of Mr.
Morales’s Confrontation Clause
Rights Were Not Harmless
Federal courts look to five factors to determine whether a
violation of the Confrontation Clause was harmless:
(1) how important the witness’ testimony was to
the prosecution’s case, (2) whether the testimony
was cumulative, (3) whether other evidence in the
record corroborated or contradicted the witness on
relevant matters, (4) whether other cross-
examination of the witness was permitted and the
(cont'd from previous page)
Court has “constantly emphasized the necessity for cross-examination as
a protection for defendants in criminal cases”).
57 See Mitchell v. Esparza, 540 U.S. 12, 17-18 (2003) (“A constitutional
error is harmless when ‘it appears “beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.”’”)
(citations omitted); accord Chapman vy. California, 386 U.S. 18, 24
(1967).
38 O'Neal v. McAninch, 513 U.S. 432, 435 (1995).
20
extent of it, and (5) what effect the testimony
would have on proof of defendant’s guilt.”
Importantly, under Van Arsdall, the reviewing court must assume
that the cross-examination would have had its maximum effect.“
In this case, each of the Van Arsdall factors weighs heavily in Mr.
Morales’s favor.
Of the Van Arsdall factors, the first (the importance of the
testimony) and the fifth (the effect the witness’s testimony had on
proving the defendant’s guilt) are the most important and
overwhelmingly favor Mr. Morales. Regarding the first prong,
that Ms. Simonetti’s testimony was essential to the prosecution’s
case cannot be disputed. She was a designated expert and the only
witness offered by the prosecution to identify the fingerprint as
— Mr. Morales’s. Without her testimony, the prosecution would not
have been able to place Mr. Morales in the apartment. Moreover,
by refusing to permit further cross-examination of Ms. Simonetti
on the issue of fingerprint fabrication, the trial court undermined
Mr. Morales’s defense and the credibility of defense counsel. Ms.
Simonetti’s erroneous testimony that fingerprints could not be
moved completely eviscerated defense counsel’s theory that the
fingerprint evidence may have been fabricated.*' Thus, the first
°° Delaware v. Van Arsdail, 475 U.S. 673, 684 (1986).
*° Id.
*! Tr at 160-61.
21
prong under Van Arsdall indicates that the constitutional error was
not harmless.
With respect to the fifth factor, the prosecution’s case
hinged on Ms. Simonetti’s matching of the fingerprint identified as
having been found at the scene of the burglary to Mr. Morales. If
the jury had reasonable doubt as to whether Mr. Morales left the
fingerprint at the scene of the crime, then no evidence linked Mr.
Morales to the burglary. Ms. Simonetti’s testimony and credibility
were thus critical to proving guilt. If Mr. Morales had been
allowed to impeach Ms. Simonetti’s credentials by establishing
her unfamiliarity with fingerprint evidence fabrication and her
inability to assess whether fingerprint evidence had been
fabricated (much less her understanding that it could have been),
her testimony and the prosecution’s single piece of physical
evidence would have been questioned by the jury. But because the
trial court barred further cross-examination, the jury had no
alternative but to believe Ms. Simonetti’s testimony and conclude
that the fingerprint that she identified must have been left at the
scene by Mr. Morales.
As to the second prong (whether the witness’s testimony
was cumulative), Ms. Simonetti’s testimony was not, nor could it
have been, cumulative because she was the only witness who
testified about the identity of the fingerprint. Nor was confronting
her inaccurate testimony cumulative. Rather, it was necessary to
either correct the inaccurate assertions that she made or impeach
22
her credibility. Accordingly, this prong overwhelmingly favors
Mr. Morales.
The third prong (whether other evidence in the record
corroborated or contradicted the witness on relevant matters) also
supports Mr. Morales because there was no other evidence on the
record to corroborate Ms. Simonetti’s testimony. Cross-
examination was the first opportunity for the defense to offer
evidence that both contradicted her testimony on the highly
relevant issue of whether this fingerprint could have been
fabricated and raised concern about her credibility. Significantly,
the trial court also precluded Mr. Morales from introducing his
own fingerprint expert to contradict Ms. Simonetti’s testimony,
compounding the damage done by denying his right to fully cross-
examine her.
The fourth prong under Van Arsdall (the extent to which
cross-examination about other issues was permitted) also favors
Mr. Morales. Mr. Morales was not allowed to cross-examine at
all about the possibility that the fingerprint could have been
fabricated. Cross-examination in other areas was no substitute for
cross-examination in this central area to the defense.
In sum, all of the Van Arsdall factors compel a finding
that the trial court’s Confrontation Clause violation was not
harmless error. Moreover, because the incorrect testimony and the
resultant constitutional error in limiting cross-examination related
to the only piece of evidence linking Mr. Morales to the crime,
there can be no doubt that the constitutional error adversely
23
affected the jury verdict. A reasonable doubt about whether Mr.
Morales left the fingerprint at the scene of the burglary would a
fortiori translate into a reasonable doubt as to whether Mr.
Morales committed the burglary. Here, as in Davis v. Alaska and
Smith v. Illinois, because the trial court prevented Mr. Morales
from effectively cross-examining Ms. Simonetti, Mr. Morales was
prevented from mounting any challenge to the fingerprint evidence
whatsoever.
b. The Trial Court’s Violation of Mr.
Morales’s Rights to a Fair Trial, to
Present a Meaningful Defense and
to Call Witnesses Were Not
Harmless
Once the trial court precluded cross-examination of Ms.
Simonetti, Mr. Morales’s excluded expert testimony was relevant
to the only critical issue in the case: whether Mr. Morales had to
have \eft the fingerprint in the apartment or whether the evidence
could have been fabricated. Indeed, once Ms. Simonetti
incorrectly testified that fingerprints could not be moved and the
trial court unconstitutionally precluded further cross-examination,
Mr. Morales should absolutely have been permitted to call an
expert of his own to rebut the incorrect conclusion that her
24
testimony left in the jury’s mind, to show why this fingerprint
might have been fabricated and to install reasonable doubt.”
Expert witness testimony on fingerprint evidence
fabrication would also have supported the defense’s theory and
could have been adopted as fact by the jury.** To be sure, Mr.
Morales did not have to prove that his fingerprint was actually
planted or fabricated; he needed only to instill reasonable doubt in
the prosecution’s assertion that he left it at the scene. The
prosecution offered only a image of the fingerprint, Officer
Curtis’s testimony that he collected it (but did not photograph it or
save the glass), and Ms. Simonetti’s testimony that it matched Mr.
Morales’s fingerprint. Mr. Morales’s expert’s testimony (e.g., that
the evidence could have been fabricated) would necessarily have
“create[d] a reasonable doubt that did not otherwise exist” about
the credibility and sufficiency of the prosecution’s evidence and of
Ms. Simonetti’s testimony.“
*? Because fingerprint identification and fabrication are subjects beyond a
juror’s lay knowledge, a defense expert was essential to establish the
theory of the defense. See, e.g., People v. Myers, 220 A.D.2d 272, 273,
632 N.Y.S.2d 111, 112 (1st Dep’t 1995).
** See United States v. Wade, 388 U.S. 218, 227-28 (1967) (discussing
“the accused .. . opportunity for a meaningful confrontation of the
Government’s case at trial through the ordinary processes of cross-
examination of the Government’s expert witnesses and the presentation
of the evidence of his own experts” as related to fingerprint identification
for example) (decided on other grounds).
” Agurs, 427 U.S. at 112.
25
Furthermore, it is widely accepted that both the
prosecution and the defense must be allowed to cross-examine and
impeach each other’s expert witnesses, as well as to put forth their
5
own expert with a different conclusion.” Indeed, in Taylor v.
Illinois, this Court stated:
The night to offer the testimony of witnesses, and
to compel their attendance, if necessary, is in plain
terms the nght to present a defense, the right to
present the defendant’s version of the facts as well
as the prosecution’s to the jury so it may decide
where the truth lies. Just as an accused has the
right to confront the prosecution’s witnesses for
the purpose of challenging their testimony, he has
the right to present his own witnesses to establish
a defense. This right is a fundamental element of
due process of law.*°
This Court has also repeated in Smith v. Illinois that ‘“‘‘a
denial of cross-examination without waiver . . . would be
constitutional error of the first magnitude and no amount of
* See. e.g., People v. Cronin, 60 N.Y.2d 430, 432, 458 N.E.2d 351, 352,
470 N.Y.S.2d 110, 111 (1983); see People v. Gilliam, 45 A.D.2d 744,
745, 356 N.Y.S.2d 663, 664 (2d Dep’t 1974) (Hopkins, J., dissenting)
(noting that a defendant’s nght to produce witnesses in support of
defense is fundamental), rev'd mem., 37 N.Y.2d 722, 337 N.E.2d 129,
374 N.Y.S.2d 616 (1975); see also People v. Gilliam, 37 N.Y.2d 722,
723, 337 N.E.2d 129, 129, 374 N.Y.S.2d 616, 616 (1975) (mem. per
curiam) (reversing and ordering a new trial “on the dissenting opinion by
Mr. Justice James D. Hopkins”).
*° Taylor v. Illinois, 484 U.S. 400, 409 (1988) (quoting Washington v.
Texas, 388 U.S. 14, 19 (1967)).
26
showing of want of prejudice would cure it.““7 And in Davis v.
Alaska, this Court sated: “Cross-examination is the principal
means by which the believability of a witness and the truth of his
testimony are tested. Subject always to the broad discretion of a
trial judge to preclude repetitive and unduly harassing
interrogation, the cross-examiner is not only permitted to delve
into this witnesses’ . . . perceptions and memory, but the cross-
examiner has traditionally been allowed to impeach, /.e., discredit,
the witness.”
The trial court’s preclusion of a defense expert in this case
prevented the jury from effectively weighing the evidence because
the jury was unaware of all of the relevant testimony. Because the
single fingerprint was the only evidence linking Mr. Morales to
the crime, the jury could not have convicted Mr. Morales without
a finding of reliability.
In light of the minimal evidence used to convict Mr.
Morales, the precluded expert testimony is far greater than the
evidence of “relatively minor importance” required by this Court
as a predicate for habeas relief in a case where the verdict is
premised upon weak evidence. “’ Under the circumstances
presented here, any evidence calling into question the authenticity
47 Smith v. Illinois, 390 U.S. 129, 131 (1968) (quoting Brookhart v. Janis,
384 USS. 1, 3 (1966)).
8 Davis v. Alaska, 415 U.S. 308, 316 (1974).
Agurs, 427 U.S. at 113.
27
of the fingerprint evidence and its purported discovery, especially
in the form of expert testimony showing that the fingerprint
evidence could have been fabricated, would have created
reasonable doubt in this case. The trial court’s exclusion of Mr.
Morales’s expert was, therefore, not a harmless error.
CONCLUSION
Certiorari is warranted because, by excluding cross-
examination of Ms. Simonetti and the defense expert, the trial
court and the Appellate Division (in affirming) unreasonably
applied Supreme Court precedent protecting the constitutional
right to a fair trial, to call and confront witnesses and to present a
defense. The petition for a writ of certiorari should therefore be
granted.
Dated: New York, New York
November 20, 2006
Respectfully submitted,
Four Times Square, 24th Floor
New York, New York 10036
Telephone: (212) 735-2154
Facsimile: (917) 777-2154
Attorneys for Petitioner-
Appellant Angel Morales
28
APPENDIX
la
APPENDIX A — SUMMARY ORDER OF THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT FILED AUGUST 22, 2006
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PRESENT:
HON. CHESTER J. STRAUB,
HON. ROSEMARY S. POOLER,
HON. ROBERT D. SACK,
Circuit Judges.
No. 05-6059-pr
ANGEL MORALES,
Petitioner-Appellant,
v.
JOSEPH SMITH,
Respondent-Appellee.
SUMMARY ORDER
Appeal from a final decision of the United States District
Court for the Eastern District of New York (Charles P. Sifton,
Judge).
AFTER ARGUMENT AND UPON DUE
CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court 1s hereby
AFFIRMED.
2a
Appendix A
Petitioner-Appellant Angel Morales appeals from a
judgment entered on October 3, 2005, in the United States
District Court for the Eastern District of New York (Charles
P. Sifton, Judge), denying his petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Morales seeks to vacate
his convictions for burglary in the second degree, N.Y.
Penal L. § 140.25(2), and related crimes. Although the
District Court denied Morales’s petition in its entirety, it
granted a certificate of appealability on the issues of whether
“the exclusion of Morales’ expert witness and the limitations
placed on his cross-examination of Simonetti [, the
prosecution’s expert witness,] were unreasonable
applications of federal law.” Morales v. Smith, CV-05-1104,
2005 WL 2367621, at *8 (E.D.N.Y. Sept. 27, 2005). We
assume the parties’ familiarity with the facts, the procedural
history, and the specification of issues on appeal.
Under 28 U.S.C. § 2254(d), as modified by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, 1216, we
may only grant relief to Morales if the decision of the state
court' “resulted in a decision that ... involved an
unreasonable application of [] clearly established Federal law,
as determined by the Supreme Court of the United States
... [or] that was based on an unreasonable determination of
1. The Appellate Division of the Supreme Court of New York
affirmed Morales’s convictions, People v. Morales, 308 A.D.2d 229
(2d Dep't. 2003), and the New York Court of Appeals declined to
hear his case, 1 N.Y.3d 576 (2003).
3a
Appendix A
the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d).’
“The right of cross-examination is included in the night
of an accused in a criminal case to confront the witnesses
against him.” Howard v. Walker, 406 F.3d 114, 128 (2d Cir.
2005) (internal quotation marks omitted and alterations
incorporated). The right to cross-examine is not absolute,
but is subject to the “wide latitude” the Sixth Amendment
affords trial judges, allowing them “to impose reasonable
limits on such cross-examination based on concerns about,
among other things, harassment, prejudice, confusion of the
issues, the witness’ safety, or interrogation that is repetitive
or only marginally relevant.” /d. at 129 (internal quotations
marks omitted) (quoting Delaware v. Van Arsdall, 475 U.S.
673, 679 (1986)), The right to cross-examine “is effectively
denied when a defendant is prohibited from ‘expos[ing] to
the jury the facts from which jurors, as the sole triers of fact
and credibility, could appropriately draw inferences relating
to the reliability of the witness.”’ /d. (alteration in original)
(quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)).
2. The “contrary to” clause of 28 U.S.C. § 2254(d) is not
relevant to this case because the Appellate Division did not “arrive[ ]
at a conclusion opposite to that reached by this Court on a question
of law or... decide[] a case differentiy than this Court has on a set
of materially indistinguishable facts.” Williams v. Taylor, 529 U.S.
362, 413 (2000). Where —- as in this case — “a state court fails to
articulate the rationale underlying its rejection of a petitioner’s claim,
and when that rejection is on the merits, the federal court will focus
its review on whether the state court’s ultimate decision was an
‘unreasonable application’ of clearly established Supreme Court
precedent.” Sellan v. Kuhlman, 261 F.3d 303, 311-12 (2d Cir. 2001).
4a
Appendix A
We find no merit in Morales’s claim that the trial
courtviolated his right to cross-examine Simonetti. The trial
court’s limitation was entirely reasonable given that the
proposed line of questioning concerned hearsay information
contained in the “Roth Report.”’ See United States v. Delano,
55 F.3d 720, 732 (2d Cir. 1945) (holding that exclusion of
hearsay statements that contradicted witnesses’ testimony did
not violate defendant’s rights under the confrontation clause);
accord People v. Laracuente, 21 A.D.3d 1389, 1391 (4th
Dep’t 2005) (holding that limiting questioning concerning
hearsay information in a report that was not admitted in
evidence was proper under New York law).
Furthermore, the proposed line of cross-examination was
not a proper method for impeaching Simonetti’s reliability.
There was nothing unreasonable in the trial court’s
application of the black-letter law principle that an expert
witness may not be confronted with a passage from a text
that conflicts with the opinion he or she has-expressed unless
the expert has first admitted that the text is authoritative.
See People v. Feldman, 299 N.Y. 153, 168 (1949);
Laracuente, 21 A.D.3d at 1391 (holding that the trial court
properly limited the cross-examination regarding a text that
was not established to be authoritative); accord Fed. R. Evid.
803(18) (requiring either an admission or judicial notice that
the text is an authority). Morales failed to obtain such an
admission from Simonetti concerning the Roth Report.
3. The “Roth Report,” is a 1997 report prepared by special
prosecutor Nelson E. Roth, detailing the results of an investigation
into practices of tampering with evidence, including fingerprint
evidence, by some New York State police officers.
Sa
Appendix A
We also think that Morales has failed to establish that
he is entitled to relief on the basis of the trial court’s exclusion
of his expert witness. “The [D]ue [P]rocess [C]lause of the
Fifth Amendment and the compulsory process clause of the
Sixth Amendment guarantee each criminal defendant the right
to present a defense.” United States v. Stewart, 433 F.3d 273,
310-11 (2d Cir. 2006) (quoting United States v. Almonte, 956
F.2d 27, 30 (2d Cir. 1992) (per curiam) (internal quotation
marks omitted)). To establish a Sixth Amendment violation,
a defendant must demonstrate that he was deprived of the
opportunity to present a witness who would have provided
testimony that was both material and favorable to his defense.
Howard, 406 F.3d at 132 (2d Cir. 2005).
At trial, Morales sought to introduce expert testimony
to the effect that fingerprints can “be moved from one location
to another.” The trial court excluded the testimony as
“irrelevant” because, in the court’s view, the only “legitimate
issue” was whether the fingerprint found in the burglary
victim’s apartment was Morales’s. Whether or not the trial
court properly excluded Morales’s evidence, we do not think
that any such error would render Morales eligible for habeas
relief. A state court’s evidentiary errors are subject to
harmless error review. See id. at 122. We think that, in light
of the absence of any evidence to indicate that the fingerprint
in issue had been planted at the crime scene or otherwise
tampered with, Morales’s proffered expert testimony, even
if admissible, was highly speculative. The trial court’s
decision to exclude it could not have had a “substantial and
injurious effect or influence” on the jury’s verdict, Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation
marks and citations omitted), and could be reasonably thought
_———————— Te —
6a
Appendix A
“harmless beyond a reasonable doubt,” Chapman v.
California, 386 U.S. 18, 24 (1967); see Benn v. Greiner, 402
F.3d 100, 105 (2d Cir. 2005) (stating that it is an “open
question” whether we apply Brecht or Chapman to determine
harmless error under AEDPA).
For the foregoing reasons, the judgment of the District
Court is hereby AFFIRMED.
FOR THE COURT:
ROSEANN B. MACKECHNIE, CLERK
BY: s/ Lucille Carr
Ta
APPENDIX B — MEMORANDUM OPINION AND
ORDER OF THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
DATED SEPTEMBER 29, 2005
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
CV-05-1104 (CPS)
Angel Morales,
Petitioner,
- against -
Joseph Smith,
Respondent.
MEMORANDUM OPINION AND ORDER |
SIFTON, Senior J.
On February 28, 2005, Angel Morales filed this petition
for habeas corpus pursuant to 28 U.S.C. § 2254 seeking
review of his conviction in New York Supreme Court for
second degree burglary. He is currently serving a sentence
of sixteen years to life imprisonment. Morales states the
following two claims for relief from his conviction: (1) he
was denied the right to present a meaningful defense in
violation of the Due Process Clause of the Fourteenth
Amendment because the trial judge excluded testimony of
his expert fingerprint witness; and (2) he was denied the right
to confront witnesses against him in violation of the
Confrontation Clause of the Sixth Amendment and the Due
8a
Appendix B
Process Clause of the Fourteenth Amendment because the
trial judge unduly limited the scope of his cross-examination
of the state’s expert witness.
For the reasons that follow, the petition is denied.
Background
The following facts are drawn from the record of the
state court proceedings. They are undisputed except where
noted.
Morales was arrested on May 1, 1999, after the police
received a report that a man was breaking into an apartment
on Vernon Avenue in Brooklyn. Shortly after his arrest,
Morales was taken to Brooklyn Jewish Hospital. On May 5,
1999, he attempted to escape from the hospital, but was
apprehended again. Morales was subsequently charged with
the Vernon Avenue burglary.
The police were in the same period of time investigating
a burglary that had occurred on Tompkins Avenue in Brooklyn
on April 1, 1999. Based on a computer assisted search of the
state’s fingerprint records, it was determined that a fingerprint
recovered from the Tompkins Avenue burglary matched
Morales’ prints. He was thereafter charged with the Tompkins
Avenue burglary.
At trial, the state called Officer Michael Curtis, who
recovered the fingerprint from the Tompkins Avenue
9a
Appendix B
apartment. Curtis testified that he lifted the print from a
champagne glass in the apartment. An occupant of the
apartment testified that she saw the police dust the
champagne glass and that she used the glass to store coins.'
(Tr. 76, 82.) On cross-examination, Curtis testified that he
did not take a picture of the glass prior to lifting the print.
(Tr. 112.) The occupant of the apartment testified that she
washed the glass after the police left. (Tr. 83.)
The state called a fingerprint expert, Rosemarie
Simonetti, to testify that the print lifted from the glass
matched Morales’. (Tr. 140.) Simonetti testified that she had
received the print from Officer Curtis. She testified that she
placed the print into a computer fingerprint-matching
program. (Tr. 130.) The computer provided a number of
possible matches, including Morales’ prints. (Tr. 134-35.)
She then visually compared the Tompkins Avenue print to
Morales’ fingerprints and determined that they matched.
(Tr. 135-36.) During this testimony, the jury was shown
projected pictures of the fingerprint found at the Tompkins
Avenue apartment and Morales’ fingerprint. (Tr. 144.) After
describing the similarities the two prints had, Simonetti
testified that she was “a hundred percent” certain that the
prints were identical. (Tr. 147.)
On cross-examination, Simonetti testified that, although
she had been trained in fingerprint comparison, she had only
a vague understanding of how fingerprints are lifted.
1. The coins had been removed from the glass, but not taken in
the burglary, perhaps because they were Canadian. (Tr. 93.)
10a
Appendix B
(Tr. 152.) During this cross-examination, Morales sought to
elicit testimony that fingerprints can be “planted.”? In that
connection, Morales sought to cross-examine Simonetti
2. On cross-examination by Morales’ lawyer, the following
exchange took place:
Q: [I]s it true that fingerprints can be moved from one
place to another?”
A: Not to my knowledge.
©
Are you familiar with the Roth Report?
A: No.
KOHLER [ADA]: Objection.
SARTORI [Morales’ lawyer]: Judge, she is
declared an expert.
THE COURT: She said she’s not familiar with it.
Q: Are you familiar with newspaper .. .
A: Yes.
KOHLER: Objection.
THE COURT: Sustained.
Q: Are you familiar with New York State troopers
KOHLER: Objection.
Q: ... being arrested and indicted for removing
fingerprints?
A: Only from reading it in the paper.
THE COURT: Sustained. Sustained.
A: I’m sorry.
(Tr. 160-61.)
lla
Appendix B
concerning a document referred to by counsel as “the Roth
Report.”?
On the defense case, Morales sought leave to call a
fingerprint expert witness to testify (1) that fingerprints could
3. The Roth Report, prepared by special prosecutor Nelson E.
Roth, details the results of an investigation into a specific New York
State Police troop’s practices of tampering with evidence, including
planting of fingerprints.
According to the Roth Report, New York State Police Troop C used
a variety of methods of fabricating evidence, including:
(1) simply lying about the source of a legitimate latent
print, claiming it came from one location generally
incriminating to the suspect rather than its actual source;
(2) using the same method as (1), but having the
defendant touch an object while in plice custody so that
his prints could be obtained to frame him; (3) lifting an
nk impression from an inked fingerprint card, perhaps
doctoring its appearance, and claiming that it was a latent
lift taken from a crime scene; (4) making copies of ink
impressions, using a variety of methods, and making lifts
from the copies; (5) manipulating photograpic negatives
to produce photographs of latents and/or ink
impresssions and also depicting a background different
than the actual source of the “print”; and (6) making
“lifts” directly from the fingers of a dead homicide
victim and doctoring their appearnc so as to be able to
use them at a later time to “plant” as evidence against a
subject ...
Roth Report 5-6
Morales does not contend that any of the police officers or units
discussed in the Roth Report were involved in the investigation of
his case.
12a
Appendix B
in fact be moved from one place to another and (2) that a
fingerprint can be smudged during the process of lifting it.
(Tr. 367-68.) The trial judge denied the application during
the following colloquy:
SARTORI: With respect to my two motions in
limine that we discussed in chambers, first
with respect to calling my expert witness,
Judge, my initial application is that he
should be allowed to testify with respect to
fingerprint fabrication and the ability for
there to be movement with respect to
fingerprints from one location to another.
The two witnesses that the People
called with respect to fingerprint evidence
testified to two specific statements that I
believe to be inaccurate, if not untrue. One,
that a print could not be messed up or
destroyed in the lifting process, and
secondly, that fingerprints couldn’t be
moved from one location to another. I would
ask to have my expert be allowed to be called
for those purposes and those purposes only
and the People be limited in their
questioning to those issues.
THE COURT: That’s denied. I don’t think there
is any reasonable view of the evidence that
fingerprint was moved. You can ask the
witness, does the fingerprint match the
defendant’s fingerprint. The two experts can
l3a
Appendix B
disagree on that point, but the movement
from point A to point B seems irrelevant in
the context of this case. Therefore, I’m not
going to permit that.
Then you had another point about the tape.
SARTORI: Note my exception. Yes.
COURT: Your argument was you should be
permitted to ask the witness, isn’t it true that
the tape will smudge a fingerprint. That,
again, seems an irrelevant issue. The
question is, does the fingerprint match the
defendant. Was it smudged or unsmudged.
Your expert can say this is the wrong
fingerprint. It doesn’t match.
SARTORI: It’s our argument that these go to
credibility and whether or not these
witnesses are as credible as they would have
the Court believe, one having been declared
an expert. | believe that the fact that those
answers are not accurate goes to their
credibility and would have to shed some
light on the rest of their testimony as well.
THE COURT: I’m going to deny that. | think that
the trial should focus on the real issues and
there are two real issues here. Is it his
fingerprint; yes or no. Was he trying to break
l4a
Appendix B
in to steal or just trying to go in for some
other purpose. That’s the legitimate issue
(Tr. 368-69.)
Morales thereafter took the stand in h's own defense.
Morales testified that when he was first arrested, he was
suffering from heroin withdrawal. The police took him to
the hospital to be treated. He testified that during his hospital
stay, he was under police guard, but attempted to escape.
The only questioning concerning his presence in the
Tompkins Avenue apartment where the fingerprint was found
is the following exchange on cross-examination:
Q: Do you know Mageda Sanderson?
A: No.
Q: Have you ever seen her before she testified?
A: Who is that? The lady that was here?
Q: The woman who testified.
A: There’s been a lot of people up here.
Q
: The apartment you broke into at 179
Tompkins.
A: No, I didn’t rob her apartment.
SARTORI: Objection.
THE COURT: Sustained.
(Tr. 397.)
15a
Appendix B
Morales was convicted of burglary in the second degree
in violation of New York Penal Law § 140.25(2), criminal
trespass in the second and third degrees in violation of New
York Penal Law §§ 140.15 & 140.10(a), trespass in violation
of New York Penal Law § 140.05, petit larceny in violation
of New York Penal Law § 155.25, criminal mischief in the
fourth degree in violation of New York Penal Law
§ 145.00(1), and escape in the second degree in violation of
New York Penal Law § 205.10. He was sentenced as a
persistent felony offender to sixteen years to life
imprisonment.
On appeal to the Appellate Division, Morales argued that
the trial court’s refusal to permit him to cross-examine
Simonetti concerning her knowledge of the Roth Report and
the exclusion of his proposed expert testimony was in
violation of New York law and denied him the fair trial
required by the Due Process Clause of the Fourteenth
Amendment. Morales also contended that the court had
erroneously conducted a Sandoval hearing in his absence.*
The appellate division’s written opinion only analyzed
Morales’s Sandoval claim. With respect to the arguments he
pursues in this petition, the Appellate Division stated, “The
defendant’s remaining contentions lack merit.”
4. A Sandoval hearing is a hearing through which a defendant
may obtain a prospective ruling as to the scope of his cross-
examination concerning prior criminal offenses and other
misconduct, on the basis of which he will decide to take the witness
stand. See Pewple v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849,
314 N.E.2¢ 413 €N.Y.1974).
l6a
Appendix B
Morales sought leave to appeal this decision to the New
York Court of Appeals, but leave was denied on December
1, 2003. His conviction became final ninety days later on
February 29, 2004, when the time for petitioning the Supreme
Court for a writ of certiorari expired. He filed this petition
on February 28, 2005. His petition challenges his conviction
for burglarizing the Tompkins Avenue apartment.
Discussion
28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the
merits in State court proceedings unless the
adjudication of the claim —
(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
“Clearly established Federal law” refers to the decisions of
the U.S. Supreme Court rendered prior to the time of the
relevant state-court decision. Williams v. Taylor, 529 U.S.
361, 412 (2000); Green v. Travis, 414 F.3d 288, 2005 WL
17a
Appendix B
1581265, F.3d (2d Cir.2005). A state prisoner may not
be granted habeas relief based on an unreasonable or
erroneous application of authority of a Federal Court of
Appeals. Yung v. Walker, 341 F.3d 104, 110 (2d Cir.2003).
“A state-court decision is ‘comtrary’ to established federal
law withing the meaning of § 2254(d)(1) if it is ‘diametrically
different’ from, ‘opposite in character or nature’ to, or
‘mutually opposed’ to the relevant Supreme Court precedent.
Henry v. Poole, 409 F.3d 48, 68 (2d Cir.2005) (quoting
Williams, 529 U.S. at 405). To be “contrary to” clearly
established federal law, a state court’s conclusion of law must
be opposite te a conclusion reached by the Supreme Court
or resolved differently on a materially indistinguishable set
of facts. Williams, 529 U.S. at 413.
A state court’s decision is an “unreasonable application”
of a Supreme Court holding “if the state court identifies the
correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts
of the prisoner’s case.” Williams, 529 U.S. at 413. The issue
is not whether all reasonable jurists would agree that there
was error, but rather that there was “some increment of
incorrectness beyond” mere error. Howard v. Walker, 406 F.3d
114, 122 (2d Cir.2005) (quoting Williams, 529 U.S. at 411).
“{T]he range of reasonable judgment can depend in part on
the nature of the relevant rule.” Yarborough v. Alvarado, 541
U.S. 652, 124S8.Ct. 2140, 158 L.Ed.2d 938 (2004). The more
general the rule in question, the more leeway the state court
has in making case-by-case determinations. /d. at 2149.
18a
Appendix B
State court factual findings are, in this context, presumed
to be correct. 28 U.S.C. § 2254(e)(1). This presumption can
only be rebutted by clear and convincing evidence. /d.
Where the trial court provides a reason for rejecting the
claim, and the state appellate court summarily affirms, federal
courts employ a rebuttable presumption that the state
appellate court’s “later unexplained orders upholding [the
trial court’s] judgment ... rest upon the same ground” as
the trial court’s. Serrano v. Fischer, 412 F.3d 292, 2005 WL
1427298,-F.3d-(2d Cir.2005) (quoting Yist v. Nunnemaker,
$01 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)).
The trial court did not explicitly identify the state
evidentiary rule pursuant to which the questioning of
Simonetti was curtailed or pursuant to which Morales’s
expert was excluded. It is, however, apparent from the
transcript that the evidence was excluded because the danger
of prejudice outweighed the evidence’s slight probative value.
New York evidentiary law on this subject mirrors federal
law. See People v. Scarola, 71 N.Y.2d 769, 530 N.Y.S.2d 83,
525 N.E.2d 728 (N.Y.1988). To be admissible, expert
testimony must be relevant to the issues of fact of the
individual case. People v. Smith, 784 N.Y.S.2d 923
(N.Y.Sup.Ct.2004); People v. Veloz, 298 A.D.2d 213, 748
N.Y.S.2d 554 (N.Y.App.Div.2002). New York law permits a
court to limit cross-examination to relevant matters. People
v. Straniero, 17 A.D.3d 161, 162, 792 N.Y.S.2d 466
(N.Y.App.Div.2005); People v. Ashner, 190 A.D.2d 238, 246,
597 N.Y.S.2d 975 (N.Y.App.Div.1993). An expert may not
be impeached using publications that she neither used in
19a
Appendix B
preparing her opinion nor considers authoritative Lipschitz
v. Stein, 10 A.D.3d 634, 635, 781 N.Y.S.2d 773
(N.Y.App.Div.2004). The admission of such publications or
testimony about their contents constitutes introduction of
impermissible hearsay. /d. Here there was no indication that
either experts in fingerprint identification relied on the Roth
Report, that Simonetti had considered it, or that she
considered it authoritative. Absent this foundation,
questioning concerning the Report was of minimal probative
value. As the state trial judge noted, there was no evidence
that the fingerprint at issue in this case was lifted and planted.
Introduction of Morales’ expert’s testimony about planting
fingerprints or questioning concerning the Report created
substantial risk of jury speculation that the prosecution’s
proof was similarly tainted. Cf People v. Davis, 43 N.Y.2d
17, 400 N.Y.S.2d 735, 371 N.E.2d 456 (N.Y.1977) (evidence
that statement by potential prosecution’s witness, who was
not called, was made under duress was properly excluded
because it would suggest that testimony that was presented
was also obtained under duress).
Morales contends that the expert’s testimony was
relevant on the issue of the Investigating Officer Michael
Curtis’ credibility, particularly after the officer testified that
the fingerprint found at the scene of the crime was not
photographed before it was collected and the glass on which
it was found was not preserved in evidence.’ But there was
no evidence that the failure to photograph or preserve the
champagne glass was a deviation from standard police
5: Morales does not argue that the failure to preserve the glass
denied him due process. Nor was such an argument presented to the
State courts.
20a
Appendix B
practice. Even considering the testimony relevant on this
issue, its probative value outweighed its prejudicial potential
Although the state court’s evidentiary rulings were within
the bounds of a trial court’s discretion as a matter of state
(and federal) evidentiary law, the question on habeas review
is whether the rulings were contrary to the United States
Constitution. Accordingly, I consider whether the ruling was
contrary to clearly established federal law, and whether it
was an unreasonable application of that law.
Morales contends that the trial court’s exclusion of expert
testimony concerning the ability to plant fingerprint and the
limitation on his ability to cross-examine Simonetti
concerning the Roth Report were in violation of clearly
established federal law. Although he does not state precisely
what Supreme Court authority he relies upon, he cites several
cases for the proposition that a defendant has the right to
present a meaningful defense and to cross-examine witnesses
against him, including Washington v. Texas, 388 U.S. 14, 87
S.Ct. 1920, 18 L.Ed.2d 1019 (1967), Chambers v.
Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297
(1973), Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13
L.Ed.2d 923 (1965), and Crane v. Kentucky, 476 U.S. 683,
106 S.Ct. 2142, 90 L.Ed.2d 636 (1986).
The state court’s decision at issue here is not contrary to
any of the cases cited by Morales since each is readily
distinguishable. Pointer involved the introduction of
transcripts of testimony at a pretrial hearing at which the
defendant was not represented by counsel. Morales was
represented by counsel, and no transcripts of testimony were
2la
Appendix B
introduced. Washington and Chambers concerned the
introduction of evidence and testimony of confessions,
bearing substantia! indicia of reliability, by others who
claimed to have committed the crime in question. No
confessions or testimony of witnesses with personal
knowledge are at issue in this case. Nor did Morales’s trial
involve the introduction of his own confession or the
circumstances surrounding the interrogation that produced
it, unlike Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142,
90 L.Ed.2d 636 (1986). In short, none of the cited cases
concern the exclusion of testimony because the defendant
failed to lay a foundation for its admission or because the
trial judge concluded that it was substantially more
prejudicial than probative. The state court’s decision was,
accordingly, not “contrary to” Chambers, Crane, Pointer, or
Washington. Nor, did the state court unreasonably apply the
holdings of those cases.
The federal law identified by Morales, which is common
to the holdings in Crane, Chambers, Pointer, and
Washington, is that a court may not arbitrarily and irrationally
apply evidentiary rules in a mechanical fashion to exclude
material, reliable, exculpatory evidence. This holding states,
however, the sort of general rule, the meaning of which
emerges through application over time. Evidentiary rulings
of the type made by the state court judge here by their nature
require a balancing of competing interests. Reconciling
evidentiary rulings and the Constitution in specific cases calls
for “‘a substantial element of judgment.” Yarborough, 124
S.Ct. at 2149. The substantial degree of judgment required
by the decisions that Morales challenges means tnat AEDPA
provides a state court with a greater degree of leeway than it
22a
Appendix B
would otherwise enjoy when applying more specific legal
rules. See Serrano v. Fischer, 412 F.3d 292, 2005 WL
1427298, — F.3d __, (2d Cir.2005) (“In such circumstances,
where the governing rule remains so roughly defined, we
are less likely to conclude that a given interpretation or
application of Supreme Court law is ‘contrary to’ or an
‘unreasonable application of Supreme Court precedent. . .”).
In this case, the trial court foreclosed additional
questioning of Simonetti about the Roth Report after she
testified that she was unfamiliar with its contents. The witness
had testified that she lacked knowledge of the report. There
was no evidence that she relied on the Roth Report in forming
her opinions or considered it an authoritative source. An
expert cannot testify concerning a matter to which she has
no knowledge. Because she lacked knowledge about the
Report, the trial court’s preclusion of additional “repetitive
or only marginally relevant” questioning that lacked
foundation was not an unreasonable application of Supreme
Court precedent.®
6. At oral argument, Morales’ counsel relicd on the Second
Circuit’s recent opinion in Howard v. Walker, 406 F.3d 114 (2d
Cir.2005). Howard was convicted of murder in the second degree
when the occupant of a house he and two accomplices were
burglarizing died. After their arrest, Howard’s accomplices told police
that Howard grabbed the elderly victim and placed her in a chair
and would not give her medicine that she requested. She thereafter
had a heart attack and died. /d. at 117. The trial court excluded the
co-defendants’ confessions from their joint trial pursuant to Bruton
v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)
(holding that admission of co-defendant’s confession in joint trial
violates the Confrontation Clause because of defendant’s inability
(Cont’d)
23a
Appendix B
Exclusion of Expert Testimony
The trial judge refused to allow Morales to call an expert
witness on lifting and planting fingerprints in the absence of
any foundation that the fingerprint in question had been
planted. Morales contends that this evidence was relevant to
impeach the credibility of Simonetti, who had testified that
to her knowledge fingerprints could not be moved, and to
prove that Morales’ fingerprint had, in fact, been lifted and
planted.
Morales claim fails because he cannot establish that the
state court mechanically or arbitrarily excluded reliable
evidence. First, contrary to Morales’ assertion the evidence
was not admissible to impeach Simonetti. On direct
examination, Simonetti testified that the fingerprint in
question matched Morales’. It was only on cross-examination
that Morales elicited from her the statement that, to her
knowledge, fingerprints could not be moved. It is well
established that extrinsic evidence is not admissible to
impeach a witness on collateral matters. See Fed. R. Civ.
(Cont'd)
to cross-examine co-defendant). The trial court did, however, permit an
expert witness called by the prosecution to rely on these statements in
forming his opinion as to the cause of death. The trial court then ruled
that if Howard cross-examined the expert concerning the basis for his
opinion, he would “open the door” to the admission of his co-defendants’
confessions. The Second Circuit ruled that this required Howard to make
the constitutionally impermissible choice between his right to cross-
examine the opposing witness or his right to exclude the unreliable
hearsay of a co-conspirator. /d. at 129. Morales was not presented with
such a constitutionally impermissible choice.
24a
Appendix B
Pro. 608(b); United States v. Antonakeas, 255 F.3d 714, 724
(9 Cir.2001). The Supreme Court has not interpreted the
Confrontation Clause “to encompass the right to impeach an
adverse witness by putting on a third-party witness.”
Harrington v. Jackson, | Fed.Appx. 367 (6 Cir.20u1).
The Supreme Court has similarly recognized that a state
has a legitimate interest in preventing mini-trials on collateral
issues. United States v. Scheffer, 523 U.S. 303, 314, 118 S.Ct.
1261, 140 L.Ed.2d 413 (1998). The Constitution provides
states with “broad latitude ... to establish rules excluding
evidence from criminal trial ... so long as they are not
‘arbitrary’ or ‘disproportionate to the purposes they are
designed to serve.” ’ Scheffer, 523 U.S. at 308. Precluding
testimony concerning the ability to move fingerprints merely
to impeach Simonetti’s credibility falls well within
Constitutional bounds. See United States v. Walker, 930 F.2d
789, 791-92 (10 Cir. 1991) (no constitutional violation where
trial court prevented defendant from calling witness merely
to impeach another witness’s testimony); K/emp v. Renico,
04-CV-71862, 2005 WL 1076249, at *14-15 (E.D.Mich.
Apr.19, 2005) (no constitutional violation where trial court
prevented defendant from impeaching witness on a collateral
matter).
Morales next contends, that the expert’s testimony should
have been admitted because it was relevant to whether the
fingerprint at issue was planted. The trial court excluded the
testimony on the grounds that Morales fatled to lay a
foundation that the fingerprint in question had been lifted
and planted. The trial court determined that expert testimony
25a
Appendix B
that such a process was possible was only relevant had
Morales offered some evidence it had in fact occurred.’
Contrary to Morales’ claim, the cases he cites to do not
stand for the proposition that a defendant’s due process rights
are violated any time a state court excludes evidence that the
defendant believes is relevant to his defense. Instead, they
merely prohibit arbitrary rules that mechanically exclude
evidence. See Alley v. Bell, 307 F.3d 380, 395 (6 Cir.2002);
Janet C. Hoeffel, The Sixth Amendment's Lost Clause, 2002
Wis. L.Rev. 1275, 1289 (2002) (“[{I]f the evidentiary rule
has a rational basis-namely a concern for trustworthy or
reliable evidence-then the Constitution goes no further’).
Requiring a defendant to lay a foundation for the admission
of evidence is not the sort of mechanical exclusion of
evidence prohibited by Chambers or Washington.
See Chambers, 410 U.S. at 302 (observing that defendant
“must comply with established rules of procedure and
evidence designed to assure both fairness and reliability’’).
Indeed, the right to introduce evidence in defending against
7. Morales’ defense theory that his fingerprints that were on
file were planted on the champagne glass is not particularly
persuasive. According to the Roth Report, there was no need for the
police to plant a fingerprint on the champagne glass because they
could have just as easily taken one of Morales’s prints from their
file and provided it to Simonetti, without the need for planting it on
a glass that was not, in any event, preserved as evidence. See Roth
Report 5-6. Presentation of this more plausible theory would not
have required an expert on planting fingerprints because it does not
assume that any print was actually planted. See, e.g., Roth Report
66, 71, 80, 90, 102-06, i08-10 (discussing various cases involving
fabrication of latent fingerprints from ink fingerprints on file).
26a
Appendix B
a criminal charge is subject to reasonable restrictions. United
States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140
L.Ed.2d 413 (1998); Taylor v. Illinois, 484 U.S. 400, 410,
108 S.Ct. 646, 98 L.Ed.2d 798 (1988). Those restrictions do
not violate the Constitution so long as they are not arbitrary
or disproportionate to the purpose they are designed to serve.
Scheffer, 523 U.S. at 308.
It was not an unreasonable application of Supreme Court
precedent to conclude that the application of the evidentiary
rule in this case was not disproportionate, arbitrary, or
mechanical. The trial court imposed no blanket, per se
exclusion of evidence. Instead it considered the proffered
evidence individually to determine if an adequate foundation
had been laid. Nor was it arbitrarily applied in an
asymmetrical fashion; it limited both the prosecution and
defense alike. Cf. Washington, 388 U.S. at 24 (Harlan, J.,
concurring) (noting that the evidentiary rule at issue in that
case would not have barred the prosecution from presenting
the same testimony). Finally, requiring that a foundation be
laid prior to the admission of evidence 1s not disproportionate
to the confusion and speculation that could potentially result.
Instead, the court merely required Morales to establish that
the evidence was relevant by laying a sufficient factual
predicate for its admission. Such a foundation might have
been laid by evidence that Simonetti had been presented with
a fabricated fingerprint card, that the police did not follow
standard procedures in lifting the print, that the glass from
which the print had been lifted had been wiped clean prior
to the police discovering a print on it, or testimony of an
expert witness that aspects of this print suggested that it had
been planted. Requiring such a foundation cannot be said to
27a
Appendix B
be an unreasonable application of Pointer, Crane, Chambers,
or Washington. Cf. Tafoya v. Tansy, 9 Fed.Appx. 862 (10
Cir.2001) (unpublished) (counsel not ineffective for failing
to call expert witness on planting fingerprints, absent any
evidence that the defendant’s fingerprints were planted);
Dell v. Straub, 194 F.Supp.2d 629, 651 (E.D.Mich.2002)
(same).* The trial court could reasonably conclude that the
8. Morales relies in on the pre-AEDPA decision Ronson v.
Commissioner of Correction of the State of New York, 604 F.2d 176
(2d Cir.1979). In Ronson, the defendant sought to present expert
psychiatric testimony relevant toe an insanity defense. /d. at 177. He
did not, however, comply with a state procedural rule requiring that
notice be given to the prosecution when an insanity defense will be
presented so that the state may have the defendant examined by its
own doctors. Accordingly, the testimony was excluded, and Ronson
was convicted. /d. at 177-78. The Second Circuit, applying the pre-
AEDPA standard of review, held that the failure to grant a
continuance so that the state could examine the defendant and the
expert testimony presented violated Ronson’s Sixth Amendment
rights. The Second Circuit explicitly noted that the excluded
testimony was “relevant and material.” The state’s interest in
receiving notice of the defense could have been adequately
accommodated and the indisputably relevant evidence admitted had
a continuance been granted. The testimony that Morales sought to
i@troduce was only conditionally relevant. The legitimate state
interest in limiting trials to the presentation of relevant evidence
could not have been accommodated by a continuance, or anything
short of a foundation for the evidence Morales sought to introduce.
Finally, Ronson applied the pre-AEDPA de novo standard of review.
The Court did not ask whether the state court’s application of clearly
established federal law was unreasonable.
Morales also cites a post-AEDPA decision, Noble v. Kelly, 89
F.Supp.2d 443 (S.D.N.Y.2000), aff'd 264 F.3d 93. Noble was charged
(Cont'd)
28a
Appendix B
opposite ruling would have invited the jury to speculate
concerning the existence of evidence that the fingerprint in
this case was, in fact, tampered with.
Certificate of Appealability
Federal Rule of Appellate Procedure 22(b)(1) requires a
habeas petitioner to obtain a certificate of appealability
(“COA”) before taking an appeal from the dental of his
petition. To be entitled to a COA, a petitioner must make a
“substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). Such a substantial showing is made
where jurists of reason would find it debatable whether the
petition states a denial of a constitutional right. Slack v.
McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d
(Cont'd)
with a shooting outside of a bar. At trial, he sought to introduce the
testimony of one of the bar’s patrons to the effect that Noble was
inside the bar with him playing a video game. /d. at 448. The trial
court excluded this testimony because Noble had not provided notice
of his intent to rely on an alibi defense as required by state law. /d.
at 449. The federal district court found this to be an unrcasonable
application of the Supreme Court decision Taylor v. I/linois, 484
U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), which pertains to
the exclusion of exculpatory evidence as a discovery sanction.
Id. at 454. The evidence in Noble was directly relevant to the
defendant’s guilt or innocence. The case at bar, involves evidence
that was only conditionally relevant upon the showing of an adequate
foundation. No evidence was excluded as a discovery sanction. The
holding of Noble has subsequently limited by Wade v. Herbert, 391
F.3d 135 (2d Cir.2004) (declining to grant habeas relief where state
court declined to permit evidence of an alibi defense because of
defendant’s late notice).
29a
Appendix B
542 (2000). The COA, if issued, must indicate which specific
issue satisfies the statutory standard. 28 U.S.C. § 2253(c)(2).
Although | have concluded that the exclusion of Morales’
expert witness is not an unreasonable application of Supreme
Court precedent, the conclusion is sufficiently debatable to
justify the issuance of a COA with respect to the issue
whether the exclusion of Morales’ expert witness and the
limitations placed on his cross-examination of Simonetti
were unreasonable applications of federal law.
Conclusion
For the foregoing reasons, the petition for habeas corpus
is denied and a certificate of appealability is granted.
The Clerk is directed to furnish a filed copy of the within
to all parties and to enter judgment denying the petition.
SO ORDERED.
Dated: Brooklyn, New York
September 29, 2005
By: /s/ Charles P. Sifton (electronically signed)
United States District Judge
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