Cotto v. Herbert (331 F.3d 217, 2003)

STRAUB, Circuit Judge.

Shortly before 8:00 p.m. on November 28, 1992, at the corner of East 103rd Street and Second Avenue in Manhattan, Steven Davilla was shot. He died at the hospital four hours later. After approximately a year, petitioner-appellant Richard Cotto was arrested and charged with Da-villa’s murder. In the months before Cotto’s trial began in March 1996, Anthony Echevarria, a neighborhood resident who knew both Cotto and Davilla, told law enforcement officers that he saw Cotto shoot Davilla. When interviewed by detectives shortly after the shooting, Echevarria had given a false name and stated, both orally and in writing, that he could not identify the shooter.

A few days before trial, the lead prosecutor informed the defense that Echevar-ria would be called as an eyewitness, scheduled to testify on Monday, March 18th. However, Echevarria called the prosecutor on Sunday, March 17th, stating that he feared for the safety of his family, and would not identify Cotto as the shooter if called upon to testify. The prosecutor called Echevarria to the stand anyway, and indeed Echevarria testified on direct examination that he did not see the shooter. After a Sirois hearing, held outside the presence of the jury, in which the prosecution set forth evidence that Cotto had intimidated Echevarria into changing his story, the police officers were permitted to testify about Echevarrias statements inculpating Cotto the week before, and Cotto was convicted. Echevarria was the only eyewitness to the shooting to testify at trial.

In his summation, the prosecutor described Echevarria’s taking of the stand, and, seeking to explain the discrepancies between Echevarria’s in-court testimony and prior out-of-court statements, said: “The defendant is here, he is confronted by the defendant.” Although the prosecutor used the term “confronted” in the physical sense, the question presented by this case is whether Cotto was able to confront Echevarria in the constitutional sense, as guaranteed by the Sixth Amendment.

Due to the number of issues involved in this case, we set out the following table of contents:

CONTENTS

BACKGROUND.225

I. The Trial.225

A. The Sirois Hearing.226

B. Remainder of Trial.227

II. Procedural History.227

DTSCTTSSTON.229

I. Legal Standards . to fO CD

A. Confrontation Clause. W tO

B. § 2254 Analysis. M £0 ZD

II. The Admission of Echevarria’s Out of Court Statements CO

A. Was the determination that Cotto “procured” Echevarria’s unavailability an “unreasonable determination of the facts in light of the evidence presented”? .■. to 00 to

B. Was the determination that Cotto forfeited his Confrontation Clause and hearsay objections to the out-of-court statements an “unreasonable application” of clearly established Supreme Court law? CO CO