Ruben Campaneria v. Theodore Reid, Superintendent, Fishkill Correctional Facility, Robert Abrams, Attorney General of the State of New York , 891 F.2d 1014 ( 1989 )

KEARSE, Circuit Judge,

dissenting:

I respectfully dissent from so much of the majority’s decision as concludes that the improper admission in evidence of the tape recorded interrogation, conducted in violation of petitioner Ruben Campaneria’s constitutional rights, see Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S.Ct. 321, 326-27, 46 L.Ed.2d 313 (1975); Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 1627-28, 16 L.Ed.2d 694 (1966), was harmless error.

In order to disregard an error of constitutional dimension, we must be convinced that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). In Chapman, the Supreme Court noted that an error in admitting evidence that was plainly relevant “cannot ... be conceived of as harmless” if it “possibly influenced the jury adversely.” Id. at 23-24, 87 S.Ct. at 828. When a statement taken in violation of the defendant’s Miranda rights has been admitted in evidence, the burden is on the prosecution to show beyond a reasonable doubt that “there is no ‘reasonable possibility that the evidence complained of might have contributed to the conviction.’ ” United States v. Gotay, 844 F.2d 971, 977 (2d Cir.1988) (quoting Chapman, 386 U.S. at 24, 87 S.Ct. at 828).

The State of New York did not meet its burden in this ease; it did not even try. Its brief to this Court contains no semblance of any suggestion that Campaneria’s manslaughter conviction is sustainable on a harmless error basis. Likewise at oral argument, even after an extended colloquy between Campaneria’s attorney and the Court on this subject during which counsel pointed out that the State had not argued harmless error, the State still did not take the position that any error was harmless.

The State’s silence on this issue is understandable since the trial record reveals such a highlighting of the tape recording as to make the harmless error argument untenable. In the State’s opening statement, the prosecutor stated that he would prove Campaneria’s guilt by Campaneria’s own words; he referred generally to both the taped interrogation and the earlier unrecorded statements. In his summation, however, he barely mentioned the unrecorded interviews that were properly admitted, undoubtedly because, notwithstanding the majority’s view that the taped statements were “substantively identical” to the unrecorded statements, the impression conveyed by the tape was potentially far more damning. Whereas the officers testified to the unrecorded statements in which Campaneria suggested that after Sanchez (a/k/a “Morro”) stabbed him, he chased Sanchez into the hall and shot him in the heat of battle from a distance of two feet or five feet, the taped description of the shooting — which consisted almost entirely of one-word affirmative answers to leading questions from the assistant district attorney — stated repeatedly that Sanchez “was running away from the room” and was “still” running down the hall when Campaneria “stepped out of the room” and shot him from a distance of 20 feet. Given the difference in flavor, it is perhaps not surprising that in his summation the prosecutor thought it more telling to emphasize the tape.

And emphasize it he did. The prosecutor began his summation by reminding the jury of his opening statement that guilt would be proven “from the defendant’s very mouth.” In the rest of his summation, which covered only some 14 transcribed pages, he directed the jury’s attention to the tape at least a dozen times. For example, he stated that Campaneria’s trial testimony should be rejected because Campane-ria was “faced with a statement he cannot take back — why? Because it’s on the tape .... ” Again, the prosecutor argued:

Now he starts shooting, according to the statement in the tape. He chases Morro after Morro tried to run away. He said he killed him.

I won’t play the tape for you because I played it for you this morning. Was he in imminent fear of deadly force? Meaning the defendant, at the point the knife is behind him. Sanchez is running away. He’s got this gun in his hand. He follows him outside the door, on the statement, on the tape—

And again: “on the tape he said he shot the deceased in the head.” And again:

If you have any doubts of what I am saying, and being correct, I played the tape once this morning. I was going to play it again but I think that you heard it clearly this morning.

The prosecutor advised the jury that it had the option of asking to listen to the tape again.

The jury did ask to hear the tape again during its deliberations. And though it also asked for certain other items of evidence, the record does not show any request for a rereading of the testimony of the police officers. Insofar as Campane-ria’s statements were concerned, the jury asked only for the inadmissible tape.

When the improperly admitted evidence has been incessantly emphasized by the prosecutor in his summation and has been repeated for the jury pursuant to its express request during its deliberations, I do not believe we can reasonably conclude that there is “no ‘reasonable possibility that the evidence complained of might have contributed to the conviction.’ ”

I would reverse the decision of the district court denying the petition for habeas corpus.