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Kates v. Moore

August 27, 2009


The opinion of the court was delivered by: Hon. Katharine S. Hayden United States District Judge


Katharine S. Hayden, U.S.D.J.

Before the Court is a petition for a writ of habeas corpus. Pro se petitioner Edward ―Eddie‖ Kates challenges his 1991 state-court conviction for, inter alia, conspiracy, robbery, aggravated manslaughter, and felony murder. As the Court explains below, the petition lacks merit and will be denied.



The following is a summary of the facts surrounding the robbery and fatal stabbing of Sylvester Martin, for which Kates and his co-defendants, Jackie Coley and Wallace ―Heavy‖ Melvin, were tried and ultimately convicted.*fn1 The facts in this brief summary are drawn from the Appellate Division's opinion affirming Kates's conviction on direct appeal. Throughout this Opinion, the Court cites Kates's opening petition, the parties' supporting briefs and exhibits- which include the trial transcripts*fn2 -and the available state-court decisions.*fn3 Where necessary, the Court will supplement its factual summary in its analysis of petitioner's individual claims for relief.

In the early hours of October 18, 1990, Wendy Caldwell and Jackie Coley were working as prostitutes in the vicinity of 20th Street and Clinton Avenue on the border of Irvington and Newark, New Jersey. Kates and Melvin were also nearby, providing the women with ―protection.‖ At approximately 2:00 or 3:00 a.m., Martin, the decedent, solicited Coley to perform a sexual act in a nearby alley. Coley agreed to this request, led him to the alley behind a local fish market, and searched him for weapons before commencing the sexual act. The interlude lasted approximately five to ten minutes, after which Martin became frightened and jumped over a fence near the market. On her way out of the alley, Coley ran into Kates, who asked her whether ―the guy had any money.‖ She told Kates that Martin had paid her $40, and she then went to join Caldwell and Melvin further down the street.

Soon thereafter, Melvin approached two police officers, Michael Daniluk and Tim Williams, who were on patrol, and reported that a man had been stabbed behind the fish market. The officers followed him and discovered Martin lying on the ground with two stab wounds to his heart. Paramedics were called and Martin was pronounced dead at the scene. Meanwhile, Caldwell, Coley, Melvin, and Kates gathered at a nearby gas station. Kates was driving a car; Melvin got into the front passenger seat and the two women sat in the rear. Kates left the Irvington/Newark area and proceeded toward a hotel on Route 1-9 in Elizabeth, New Jersey.

While en route to the hotel, Melvin exclaimed to Kates, ―You didn't have to stab the man. Why did you stab him?‖ Kates replied, ―Just shut up, you know, just shut up.‖ Kates also tossed $200 or $250 into the backseat of the vehicle and ordered Coley to ―split it up‖ between herself, Kates, and Melvin. Upon arriving at the hotel, where the four began to ―get high,‖ an argument ensued between Kates, Melvin, and Coley regarding the stabbing. During the exchange, Coley and Melvin again admonished Kates that ―[You] didn't have to stab the man,‖ and that ―you could have punched him or something, you didn't have to stab him,‖ to which Kates replied ―[J]ust shut the f*ck up, just shut the f*ck up.‖ At some point, Coley noticed a knife on the dresser of the hotel room, but no murder weapon was ever recovered.


On January 30, 1991, a Grand Jury sitting in Essex County, New Jersey returned a six-count indictment against Kates, Melvin, and Coley in the Superior Court of New Jersey, Law Division, Essex County, for crimes related to Martin's death. Specifically, the indictment contained the following charges:

(1) Second-degree conspiracy to commit robbery, in violation of N.J.S.A. §§ 2C:5-2 and 2C:15-1;

(2) First-degree robbery, in violation of N.J.S.A. § 2C:15-1;

(3) First-degree felony murder, in violation of N.J.S.A. § 2C:11-3(a)(3);

(4) First-degree purposeful or knowing murder, in violation of N.J.S.A. § 2C:11-3(a)(1)-(2);

(5) Fourth-degree possession of a knife under circumstances not manifestly appropriate for such lawful uses at it may have, in violation of N.J.S.A. § 2C:39-5(d); and

(6) Third-degree possession of a knife with the purpose to use it unlawfully against another person, in violation of N.J.S.A. § 2C:39-4(d).

Kates, Coley, and Melvin were tried in a three-day joint trial in June 1991. During opening remarks, the prosecutor once referred to Kates and Melvin as Coley and Caldwell's ―pimps‖ when describing the foursome's activity on October 18, 1990. Caldwell-who was not charged-testified with respect to, inter alia: (1) Kates's presence at the crime scene on October 18, 1990 and in the car and hotel room afterward; (2) Melvin's reprimand to Kates in the car that he ―didn't have to stab‖ Martin (and Kates's response to ―shut up‖); and (3) Coley and Melvin's similar rebuke to Kates in the hotel room (and Kates's response to ―shut the f*ck up‖). Coley took the stand and testified on her own behalf and, in doing so, implicated Kates. She corroborated Caldwell's trial testimony that Melvin had asserted in the car that Kates ―didn't have to stab‖ Martin. Melvin did not testify.

As evidence of the cause of Martin's death, the State called Dr. Phito Pierre-Louis, an Assistant Essex County Medical Examiner, who conducted an autopsy of Martin's body. Among other things, Dr. Pierre-Louis testified that Martin died of internal hemorrhages caused by two stab wounds that perforated his chest and heart. Further, he opined that the wounds were consistent with a single-blade knife. During his testimony, Dr. Pierre-Louis referred to a series of photographs, marked as Exhibits S-6, S-8, S-9, and S-10.*fn4 The first three were of Martin's body on the autopsy table, each displaying the stab wound from different a distance. The fourth was a photograph of Martin's heart after it was removed from his body, held in a hand with a pair of tweezers positioned through the bottom of it as a placeholder for the location of the stab wounds. After this testimony, the trial court heard argument about which photographs would be admitted into evidence. Of Exhibits S-6, S-8, and S-9 (the photographs of Martin's body on the autopsy table), defense counsel did not object to any one particular photograph being admitted, but objected to all three as ―duplicitous.‖*fn5 As to Exhibit S-10 (the photograph of Martin's heart), counsel objected to its admission as unduly inflammatory.

The trial court described Exhibit S-6 as a ―view of the body . . . lying on the autopsy table,‖ and that ―[t]here is blood on the chest, but it's difficult to see the actual wound, it only shows where the wounds are and the decedent.‖ 3T:24-18-22. Describing Exhibits S-8, the court stated that it depicted ―a closer view, showing the face of the [decedent] and the two wounds with . . . what appears to be a ruler down the chest, demonstrate[ing] the distance apart . . . .‖ 3T:24:23-25:1. Then, describing Exhibit S-9, the court stated that the photograph showed an even ―further closer view [that] would indicate and support the testimony of the medical examiner that the knife in question was sharp on one edge and blunt on the other,‖ and on that basis admitted all three exhibits into evidence. 3T:25:1-5. Agreeing with defense counsel, however, the court suppressed Exhibit S-10 as unduly inflammatory and without testimonial foundation.

The State also called Tonia Smith, a security guard working in the area on October 18, 1990; Police Officer Michael Daniluk, one of the officers who responded to the crime scene; and Detective Edward Aimutis, the officer who investigated Martin's homicide. Smith testified that she saw a woman take a man behind the fish market, and five or ten minutes later saw them exit. She testified that she saw two other men in the area that night: a heavy, bowlegged man and another thin man. She was unable to identify any of the people whom she had seen. Officer Daniluk testified that it was Melvin who flagged him down to alert him to the stabbing. Detective Aimutis testified that in the course of his investigation of the crime scene, he found blood trails extending in a staggered manner in the nearby vicinity; blood spots in the alley where Martin's body had lain; and a crumpled dollar bill on the ground in the area with blue denim fibers attached to it. He testified that the dead man's clothing (which had been moved into evidence) included blue denim jeans.

Kates's defense advanced two theories in support of his innocence-first, that Caldwell, Coley, and Melvin were close friends and had conspired to ―pin‖ the homicide on him as a newcomer to the group; and second, that he had an alibi. His alibi witness was Leroy Handy, who testified that he had been with Kates the day of the homicide; that he and Kates had traveled from Irvington into New York City to purchase narcotics; and that they returned to the hotel in Elizabeth at approximately 8:00 p.m. and remained in the room until midnight, when they left to purchase beer.

On the last day of the trial, one juror asked a court attendant ―if the defendant came from a certain area.‖ 3T:3:2-4. The trial court inquired of her why she had asked the question, and she responded that it had simply been out of curiosity. 3T:5:21-25. However, the juror then stated that she lived ―right around the corner‖ from where Martin's homicide had occurred and that she believed this fact would interfere with her impartiality. The court dismissed her for cause without objection from any party. 3T:6:1-8:17. Immediately before doing so, the trial court asked the juror whether she had said anything to the other jurors about her familiarity with the area, and the juror responded that she had not. 3T:6:16-18.

During their deliberations, the jurors requested the court to re-charge on (as is relevant here) the law of robbery. The jury thereafter convicted Kates on all six counts and Coley and Melvin on the first three counts (i.e., conspiracy, robbery, and felony murder).*fn6 On July 3, 1991, the trial court sentenced Kates to life imprisonment with a thirty-year mandatory parole disqualifier. Kates timely appealed his conviction, which the Appellate Division affirmed in an unpublished opinion on July 29, 1993. State v. Kates, No. A-6328-90T4 (N.J. App. Div., July 29, 1993) (per curiam).*fn7 The New Jersey Supreme Court denied certification for review on November 4, 1993. State v. Kates, 134 N.J. 566 (1993) (table). Kates did not file a petition for a writ of certiorari in the United States Supreme Court. Thereafter, Kates, through counsel, sought post-conviction relief in the trial court, which denied the petition on the record on February 27, 1998. 7T:31:14-15. In a six-page opinion, the Appellate Division affirmed the order denying post-conviction relief on October 15, 1999 ―essentially for the same reasons expressed‖ by the trial court. State v. Kates, No. A-4237-97T1, at *6 (N.J. App. Div. Oct. 15, 1999). The New Jersey Supreme Court denied certification on February 10, 2000, States v. Kates, 163 N.J. 75 (2000), and this timely petition followed on June 5, 2000.*fn8



Kates asserts twelve grounds upon which he claims he is entitled to relief:

A. ―The trial court erred when it ruled during the Phelps [evidentiary] hearing that hearsay statements were admissible [as statements made by a co-conspirator during and in furtherance of a conspiracy], because there was no independent evidence of the conspiracy and defendant's relationship to it.‖ (Pet. at 1.*fn9

B. The trial court should have ordered a separate trial for defendant since his right to a fair trial was prejudiced by the admission of hearsay statements of co-defendants implicating defendant.‖ (Id. at 2.)

C. ―The trial court's failure to properly instruct the jury denied the defendant his right to a fair trial.‖ (Id. at 3.)

E. ―The trial court improperly allowed the prosecution to use a co-defendant's statement at trial after it had agreed that no statement would be used at trial.‖ (Id. at 5.)*fn10

F. ―The joint trial which resulted from the denial of defendant's pretrial and trial motions for severance impermissibly shifted the burden of proof, and violated defendant's right to have his guilt proven beyond a reasonable doubt by the State.‖ (Id. at 7.)

G. ―The prosecutor's Opening Statement about the defendant's [sic] was highly inflammatory and unsupported by the evidence, and such remarks were clearly prejudicial and denied defendant a fair and just trial.‖ (Id. at 8.)

H. ―The gross misleading and gruesomely horrific color photographs of the victim denied defendant a fair and just trial.‖ (Id. at 11.)

I. The State failed to present sufficient evidence to support a conviction for the crime of felony murder. Therefore, the conviction for felony murder must be reversed. . . . The State failed to establish that a homicide was committed in the course of a robbery.‖ (Id. at 13.)

J. ―When the evidence presented by the State is insufficient to establish all of the elements of the charged offenses then those charges must be dismissed.‖ (Id. at 14.)

K. ―The jury instructions on accomplice liability were erroneous and denied defendant his federal and state constitutional rights to a fair trial.‖ (Id.)

L. ―Defendant was denied the effective assistance of trial and appellate counsel in violation of his right to counsel under the State and United States Constitutions.‖ (Id. at 24.)

M. ―The cumulative effect of all the errors below mandates a reversal in this case.‖ (Id. at 26.)


The Antiterrorism and Effective Death Penalty Act of 1996 (―AEDPA‖), Pub. L. No. 104-132, 110 Stat. 1214 (1996), codified in relevant part at 28 U.S.C. §§ 2244 and 2254, states:

(d) 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. 28 U.S.C. § 2254(d).*fn11 Under the statute, only considerable errors of law warrant relief, for ―habeas corpus is generally available only to protect against a fundamental miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure.‖ United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989), cert. denied, 496 U.S. 939 (1990) (citing Hill v. United States, 368 U.S. 424, 428, reh'g denied, 369 U.S. 808 (1962)). As Kates's claims were denied on the merits in the state courts, this Court must first ―inquire whether the state court decision was ‗contrary to' clearly established federal law, as determined by the Supreme Court of the United States; second, if it was not, the . . . [C]court must evaluate whether the state court judgment rests upon an objectively unreasonable application of clearly established Supreme Court jurisprudence.‖ Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 880 (3d Cir. 1999). A decision is not ―contrary to‖ a Supreme Court decision if a petitioner's ―interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome.‖ Id. at 888; see also McMullen v. Tennis, 562 F.3d 231, 236 (3d Cir. 2009) (citing Jacobs v. Horn, 395 F.3d 92, 100 (3d Cir. 2005) (―A state court decision . . . fails the ‗contrary to' prong of [the] AEDPA if the state court reaches a conclusion opposite to the Supreme Court's own conclusion on a question of law or decides the case differently where the Supreme Court was confronted by a set of materially indistinguishable facts.‖). A state court judgment is ―objectively unreasonable‖ if it ―resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent.‖ Id. at 890. The ‗clearly established' language ‗refers to the holdings, as opposed to the dicta, of [the] United States Supreme Court's decisions as of the time of the relevant state-court decision.'‖ McMullen, 562 F.3d at 236 (quoting Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (in turn quoting Williams v. Taylor, 529 U.S. 362, 412 (2000))).*fn12


As stated, Kates challenges the validity of his sentence on twelve grounds. Reading the pro se petition liberally, as the Court must, see Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998), Kates's claims can be divided into six general categories: (1) inadmissibility of hearsay evidence and related hearsay issues; (2) other unduly prejudicial evidence; (3) erroneous jury instructions; (4) insufficient evidence for conviction; (5) ineffective assistance of counsel; and (6) cumulative effect of errors.


Kates presents four related claims regarding the admissibility of hearsay evidence, couching them in terms of state evidentiary law. But ―errors of state courts are not considered to be of constitutional proportion, cognizable in federal habeas corpus proceedings, unless the error deprives a defendant of fundamental fairness in his criminal trial.‖ Bisaccia v. Attorney Gen. of N.J., 623 F.2d 307, 312 (3d Cir. 1980) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 642-43 (1974)), cert. denied, 499 U.S. 1042 (1980); see also Kontakis v. Beyer, 19 F.3d 110, 120 (3d Cir.) (reaffirming that for ―the admission of evidence in a state criminal proceeding to rise to the level of constitutional error, the petitioner must show ‗fundamental unfairness' in violation of due process'‖) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)), cert. denied, 115 S.Ct. 215 (1994)). To the extent Kates ―argues that the state court violated the New Jersey evidentiary law as determined by the New Jersey Supreme Court in State v. Phelps, 96 N.J. 500 (1984)‖ and other cases, this Court is only concerned with ―whether the admission of this testimony violated the ‗Constitution or laws or treaties of the United States.'‖ Lambert v. Arvonio, No. 93-4127, 1995 U.S. Dist. LEXIS 13090, at *20-21 (D.N.J. Sept. 5, 1995) (Wolin, J.) (citing 28 U.S.C. § 2254(a)). Thus, it analyzes Kates's hearsay claims under federal, not state, law. See id. at 21.

As the Court described earlier, both Caldwell and Coley testified as to certain out-of-court statements that Melvin and Coley made in the car and hotel room after the stabbing. Specifically, Caldwell testified as to the following out-of-court statements: (1) Melvin's statements to Kates in the car that he ―didn't have to stab the man,‖ and ―[w]hy did you stab him?‖; (2) Melvin and Coley's nearly identical statements to Kates in the hotel room; and (3) Kates's repeated responses to ―shut up‖ and to ―shut the f*ck up.‖ Coley also testified with respect to Melvin and Kates's out-of-court statements made in the car on the way to the hotel. It is these statements that Kates challenged on direct and collateral review in the state courts, and upon which he now urges this Court to set aside his conviction.*fn13


Kates argues in Claim A that the trial court erred by admitting Melvin and Coley's hearsay statements made in the car and hotel into evidence. Rule 801(d)(2)(E) provides in relevant part that ―a statement is not hearsay if . . . [it] is offered against a party and is . . . a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.‖ Fed. R. Evid. 801(d)(2)(E); see also Bourjaily v. United States, 483 U.S. 171, 173 (1987). In Bourjaily, the Supreme Court held that ―a court, in making a preliminary factual determination under Rule 801(d)(2)(E), may examine the hearsay statements sought to be admitted.‖ 483 U.S. at 181. The Court reserved on the issue of whether trial courts may rely solely upon the hearsay statement sought to be admitted in determining whether a conspiracy existed and whether the statement was made during the course and in furtherance of it. Id. In 1997, Congress amended the rule-after Kates's direct appeal had been exhausted-adding that ―[t]he contents of the statement shall be considered but are not alone sufficient to establish . . . the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). Fed. R. Evid. 801(d)(2). Even assuming the amended version of Rule 801(d)(2) applies here,*fn14 Kates is not entitled to relief.

In order for an out-of-court statement by a co-conspirator to be admissible, a court must find by a preponderance of evidence that: (1) a conspiracy existed; (2) the declarant and the party against whom the statement is offered were members of the conspiracy; (3) the statement was made in the course of the conspiracy; and (4) the statement was made in furtherance of the conspiracy. United States v. McGlory, 968 F.2d 309, 333 (3d Cir. 1992)(citing Bourjaily, 483 U.S. at 175)). As respondents correctly indicate, the predicate proof does not have to be overwhelming, but need only meet a preponderance threshold: The standard ―simply requires the prosecution to present sufficient proof leading the trial judge to find ‗that the existence of the contested fact is more probable than its nonexistence.'‖ United States v. Ammar, 714 F.2d 238, 250 (3d Cir. 1983) (quoting United States v. Trotter, 529 F.2d 806, 812 n.8 (3d Cir. 1976)), cert. denied sub nom., Stillman v. United States, 464 U.S. 936 (1983); see also McGlory, 968 F.3d at 333-34.

Kates argues that during the Phelps hearing ―there was no evidence independent of the hearsay of the existence of the conspiracy and [petitioner's] relationship to it. Pet. at 1. He argues further that the statements were made ―after the alleged conspiracy to commit robbery [had] ended,‖ and thus were inadmissible under the rule. Id. On direct appeal, the Appellate Division found that there was substantial independent evidence of a conspiracy, and that Melvin and Coley's statements were made during and in furtherance of that conspiracy:

[Kates] and Melvin served as ―lookouts‖ for Coley [on the night in question] while she engaged in prostitution. Moreover, [Kates's] questioning of Coley after she had returned from behind the fish market regarding whether Martin ―had any money‖ constituted a substantial step in furtherance of their plan to rob Martin which, in fact, came to pass. Therefore, it is clear that [independent evidence of a conspiracy was admitted].

As to the statement made in the automobile in which [Kates], Melvin[,] and Coley fled the scene, we are equally satisfied that the [statement satisfied the ―in furtherance‖ and ―during the course of‖ prongs]. A conspiracy is presumed to continue as to each member of it until [the] object of the conspiracy has been established [or] there is proof of an affirmative act of withdrawal as to one or more of the members thereof. . . . Here the statements made in the automobile by Melvin were made before the division of the proceeds of the robbery and while [Kates], Melvin[,] and Coley were in the process of fleeing the scene of the crime and determining what further action was required to avoid apprehension.

Likewise, the statement made in the hotel, although a closer question, also passes muster. The murder weapon was in the hotel room with the perpetrators of the robbery where Coley saw it on a dresser. The challenged statement about the killing took place at that time. Again [Kates], Melvin[,] and Coley were still in the process of tying up the loose ends of their crime and attempting to suppress the evidence of it at the time the challenged statement was made. As such, the trial judge correctly ruled that both statements were made during and in furtherance of a conspiracy. Further, even if the statement in the hotel was not properly admitted, it can have constituted nothing more than harmless error in light of the fact that it came on the heels of the nearly identical accusation in the car[,] which was plainly admissible.

State v. Kates, No. A-6328-90T4, slip. op. at *9-11 (N.J. App. Div., July 29, 1993) (per curiam) (internal citations omitted).

This analysis is neither contrary to nor an unreasonable application of clearly established federal law. The evidence cited by the Appellate Division easily establishes by a preponderance of evidence the existence of an agreement among Coley, Melvin, and Kates to rob Martin. The hearsay statements themselves also support a finding of an agreement to commit robbery. On the evidence presented-that Kates was acting as a ―lookout‖ for Coley, that he thereafter queried whether Martin ―had any money on him,‖ and that in the car he ordered Coley to ―split up‖ the robbery proceeds-the trial court reasonably determined, for purposes of applying the co-conspirator exception to the hearsay rule, that a conspiracy had been formed.

Furthermore, the state courts did not unreasonably err in finding that the hearsay statements made in the car were made during the course of and in furtherance of the conspiracy. The criminal agreement to rob Martin was still going on when Kates divvyed up the robbery proceeds, which happened after the hearsay statements were made and during the getaway. And the statements need not have ―actually facilitate[d]‖ the conspiracy, so long as they were generally ―'intended to promote the conspiratorial objectives.'‖ United States v. Weaver, 507 F.3d 178, 184 (3d Cir. 2007) (quoting United States v. Reyes, 798 F.2d 380, 384 (10th Cir. 1986) (emphasis in Weaver). The state courts found that the statements made in the car were made in an effort to conceal the conspiracy and determine the group's next course of action. This factual finding-that the statements were made during a heated exchange that served both to alert Coley (the other member of the conspiracy) about the seriousness of the criminal enterprise and to help formulate a getaway plan-was not unreasonable.*fn15

Kates also challenges the admission of the statements made in the hotel room-which essentially repeat the conversation in the car-on the basis that they were made after the conspiracy had concluded. ―A conspiracy is presumed to continue until its objective is achieved.‖ Ammar, 714 F.2d at 253 (citing United States v. Corallo, 413 F.3d 1306 (2d Cir. 1969), cert. denied, 396 U.S. 958 (1969)). Assuming that the conspiracy's object was only robbery, in the course of which the victim was murdered, the hearsay statements made in the presence of the murder weapon, advanced the goal of avoiding detection and hiding the trio's guilt. Even were this Court to disagree that the conspiracy was still ongoing in the hotel room, given the immediate temporal proximity of the crime and the getaway, the Appellate Division's factual conclusion otherwise was certainly not unreasonable. Its conclusion is therefore entitled to deference. The state courts did not contravene clearly established federal law, and as a consequence, Claim A fails.


Kates next asserts that the introduction of Melvin and Coley's out-of-court statements entitled him to a trial separate from Melvin and Coley.


Kates argues in Claim B that the Sixth Amendment and Bruton v. United States, 391 U.S. 123 (1968) required his trial to be severed from Melvin and Coley's based on the same hearsay statements that implicated him in the stabbing. The Appellate Division specifically held that Bruton did not apply because the statements were admissible as a statement made by a co-conspirator. Because this conclusion was a correct statement of federal law and was not unreasonably applied, Kates's claim fails.

In Bruton, the Supreme Court held that the Sixth Amendment requires separate trials of two co-defendants where an out-of-court inculpatory statement of one non-testifying co-defendant also inculpates the other. See Bruton, 391 U.S. at 123-26, 136-37. But Bruton's holding is sharply circumscribed to a statement that was otherwise inadmissible under the rules of evidence:

We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence, . . . the problem arising only because the statement was . . . admissible against the declarant. . . . There is not before us, therefore, any recognized exception to the hearsay rule insofar as petitioner is concerned and we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause.

Id. at 129 n.3 (internal citations omitted).

Where such a statement is admissible under the rules of evidence, however-as is the case for statements made by co-conspirators in furtherance of a conspiracy-Bruton does not apply. See, e.g., United States v. Ward, 793 F.2d 551, 556 (3d Cir. 1986); United States v. Carson, 455 F.3d 336, 365 (D.C. Cir. 2006) (―Statements satisfying the coconspirator non-hearsay rule under Federal Rule of Evidence 801(d)(2)(E) may be admitted against co-defendants without violating the Confrontation Clause.‖); United States v. Shores, 33 F.3d 438, 442 (4th Cir. 1994) (―We have held . . . that the Bruton rule does not apply if the non-testifying co-defendant's statement is admissible against the defendant under the co-conspirator exception to the hearsay rule set forth in Federal Rule of Evidence 801(d)(2)(E)); United States v. Saks, 964 F.2d 1514, 1525-26 (5th Cir. 1992); United States v. Coco, 926 F.2d 759, 761 (8th Cir. 1991) (We have explicitly held that Bruton is not violated where the hearsay statement is otherwise admissible under Rule 801(d)(2)(E) . . . . The Confrontation Clause is satisfied when the out-of-court statement in question comes within a firmly rooted hearsay exception.‖); United States v. McCown, 711 F.2d 1441, 1448-49 (9th Cir. 1983); United States v. Cox, 449 F.2d 679, 688-89 (10th Cir. 1971); see also Harris v. Moore, No. 03-5847, 2005 U.S. Dist. LEXIS 29265, at *21 n.4 (D.N.J. Nov. 22, 2005) (Linares, J.) (in § 2254 petition, rejecting assertion that Bruton applies to statements otherwise admissible as under co-conspirator exception).*fn16 On this authority in these circumstances, the Sixth Amendment did not entitle Kates to a trial separate from Coley and Melvin under Bruton. Claim B therefore fails.


Kates argues in Claim F that, irrespective of any Bruton issues, his conviction should be overturned because the joint trial impermissibly shifted the burden of proof to him on the basis of his co-defendants' supposed mutually antagonistic defenses. Pet. at 7-8. The state courts did not specifically address this argument either on direct appeal or post-conviction review.

Addressing it now, as a matter of federal law, ―defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials.‖ United States v. Zafiro, 506 U.S. 534, 540 (1993) (citing United States v. Martinez, 922 F.2d 914, 922 (1st Cir. 1991); United States v. Manner, 887 F.2d 317, 324 (D.C. Cir. 1989), cert. denied, 493 U.S. 1062 (1990)). Moreover, ―‗there is a preference in the federal system for joint trials of defendants who are indicted together,'‖ and a trial court is vested with broad discretion to decide a motion to sever. United States v. Voigt, 89 F.3d 1050, 1094 (3d Cir. 1996), cert. denied, 519 U.S. 1047 (1996) (citing Zafiro,506 U.S. at 537). ―Such joint trials promote efficiency in the courts and serve the interests of justice by preventing ‗the scandal and inequity of inconsistent verdicts.'‖ Id. (quoting Zafiro, 506 U.S. at 537 (in turn quoting Richardson v. Marsh, 481 U.S. 200, 209 (1987))). Consequently, only where ―‗there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence,'‖ should a court grant a defendant's severance request. Id. (quoting Zafiro, 506 U.S. at 539). Such a risk may arise where co-defendants assert ―mutually exclusive‖ defenses. Id. Even where such antagonistic defenses exist, however, severance is not mandatory absent prejudice. Id. (citing Zafiro, 506 U.S. at 538). ―To obtain a reversal of [a] conviction for failure to sever where co-defendants assert mutually antagonistic defenses, a defendant ‗must demonstrate clear and substantial prejudice resulting in a manifestly unfair trial.'‖ Id. (quoting United States v. Reicherter, 647 F.2d 397, 400 (3d Cir. 1981)).

In Voigt, the Third Circuit described the contours of mutually exclusive defenses as follows:

Although precise articulations may differ, courts agree that ―mutually exclusive defenses . . . exist when acquittal of one co-defendant would necessarily call for the conviction of the other.‖ United States v. Tootick, 952 F.2d 1078, 1081 (9th Cir. 1991). This type of situation arises ―when one person's claim of innocence is predicated solely on the guilt of a co-defendant.‖ United States v. Harris, 9 F.3d 493, 501 (6th Cir. 1993). In determining whether mutually antagonistic defenses exist such that severance may be required, the court must ascertain whether ―the jury could reasonably construct a sequence of events that accommodates the essence of all appellants' defenses.‖ United States v. Perez-Garcia, 904 F.2d 1534, 1548 (11th Cir. 1990). While mutually antagonistic defenses have been much discussed in theory, only rarely have courts found that they exist in practice. See Zafiro, 506 U.S. at 538; see also Tootick, 952 F.2d at 1078 (finding mutually antagonistic defenses warranting reversal where two defendants charged with assault both defended themselves by arguing that the other committed the assault alone). Far more ...

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