Marcel Vachet petitions for a writ of habeas corpus, challenging his convictions in state court. I held oral argument on January 7, 2005. For the reasons set forth below, the petition is denied.

BACKGROUND

The government's evidence at trial established that, in the early morning hours of July 20, 2000, several people were shot with a pellet gun in the immediate vicinity of 190 Jerome Street in Brooklyn, the building where Vachet lived. The first person shot was standing outside a gas station across the street from Vachet's building; the other victims were all shot within a one-block radius of the building. Two victims were shot in the back, one was shot in the eye, and the fourth victim was shot in the chest (and later died from this wound).

Detectives Ockovic and Corsey, among others, canvassed 190 Jerome Street later that morning. During the canvass, Vachet, who lived on the fourth floor, told Corsey that he had been at a party in Queens during the morning hours when the shootings took place. After a ten-year-old girl told Ockovic that she had previously seen a man named Marcella, who lived on the fourth floor, with a pellet gun, the police approached Vachet on the street and asked him to go to the precinct to discuss the shootings. At approximately 12:30 p.m., Vachet was placed in a small interview room within the precinct with nothing on the walls except for a small window with a two-way mirror. Without reading Vachet his Miranda rights, Ockovic told Vachet that he was investigating a pellet gun incident and had been told that Vachet had a pellet gun. Vachet denied owning such a gun, but indicated that he had two friends, Jose and Carlos, who owned pellet guns and who could be found in the neighborhood between 3:00 and 6:00 p.m.

At approximately 4:00 p.m., Vachet accompanied Ockovic and another detective to look for Vachet's friends. Ockovic told Vachet that after they searched for these friends, Vachet would be taken home. After driving around for two hours without success, Ockavic's partner was beeped, and they pulled over so he could talk to other detectives. When Ockavic's partner returned, Vachet was told that he was being taken back to the station to be reinterviewed.

Vachet was again placed in the small interview room, and was again questioned by several officers. Ockovic loudly admonished Vachet for wasting their time on a two-hour search when Vachet had been on the roof the previous night. The police told Vachet, among other things, that they knew he was involved in the shooting; that they had more information about the incident; that a witness had identified him as having a pellet gun; that witnesses stated that Vachet was not at a party in Queens; and that "[w]e know you were involved over there. Why don't you just tell us what happened and, you know, we'll take the statement." (Tr. at 115.) After approximately 20 minutes of interrogation, Vachet stated that he had been on the roof the prior night. At that point, Ockovic read Vachet his Miranda rights, which Vachet waived.

Vachet then implicated himself in the shootings. Ockavic wrote out a statement, which Vachet signed. In the statement, which was read into evidence at Vachet's trial, Vachet admitted shooting at about six people, all "crackheads" except for a "Chinese guy" at the gas station. Vachet stated that he aimed at waists or buttocks; that he shot two guys on bicycles; that he aimed at a light pole to scare someone, but the shot may have ricocheted off the pole and hit the man he was attempting to scare; and that he hid the pellet gun in his girlfriend's apartment, where he was staying. (Tr. at 692-93.) The interview ended before 7:40 p.m., at which point Vachet ate dinner.

At approximately 9:30 p.m., Vachet was questioned about how far he was able to shoot the pellet gun, and he stated that after pumping the gun seven times he could shoot as far as a block in either direction. Further, Vachet stated that he was alone on the roof that night for around two hours, and that the rest of the pellets were on the roof.

At 10:16 p.m., with Ockavic in the room, Vachet gave a videotaped statement to Assistant District Attorney Jane Morales. Prior to the start of questioning, Morales read Vachet his Miranda rights, which Vachet waived. During this videotaped statement, Vachet again implicated himself in the shootings.

Vachet was charged with murder in the second degree; manslaughter in the first degree; assault in the first degree (two counts); assault in the second degree (three counts); and unlawful possession of a firearm (two counts). He moved to suppress the statements made at the police station, arguing that he was subject to a custodial interrogation prior to being given Miranda warnings. Vachet argued that the Miranda violation required the suppression of all of his statements, even those made after the warnings were given, in light of New York's case law regarding continuous interrogation.

Following a suppression hearing, the trial court denied the motion to suppress on the ground that Vachet had not been in custody before the warnings were administered.

The jury found Vachet guilty of manslaughter in the second degree; one count of assault in the first degree; one count of assault in the second degree; and two counts of unlawful possession of a firearm. Vachet was sentenced to consecutive terms of imprisonment of five years to fifteen years for manslaughter in the second degree; twenty years for assault in the first degree; five years for assault in the second degree; and 30 days for unlawful possession of an air pistol and an air rifle.

Through counsel, Vachet appealed to the Appellate Division, Second Department, alleging that (1) his confessions should have been suppressed because he was subject to custodial interrogation before the police administered Miranda warnings; (2) his right to confront witnesses was violated when the trial court admitted an out-of-court statement by a ten-year-old that she had previously seen Vachet with a pellet gun; and (3) his total sentence of thirty years should be reduced in the interest of justice.

The Appellate Division held that Vachet's oral and written confessions — but not his videotaped one — should have been suppressed. People v. Vachet, 773 N.Y.S.2d 455 (App.Div. 2004). The court stated that:

"[t]he defendant's initial statement that he was on the roof was the product of custodial interrogation conducted before the administration of Miranda warnings. Since there was no pronounced break between his initial statement and his subsequent oral and written statements made after he was advised of his Miranda rights, those statements should have been suppressed as well.

Id. at 457 (citations omitted). The court further held, however, that the videotaped statement, made after the readministration of the Miranda warnings, was admissible because "it was sufficiently attenuated from the initial taint." Id. Accordingly, the court held that the error of admitting the oral and written confessions was harmless. Id. The court also held that Vachet's remaining contentions were "without merit or do not warrant reversal." The Court of Appeals denied Cachet's application for leave to appeal on June 29, 2004. People v. Vachet, 3 N.Y.3d 649 (2004) (Ciparick, J.).

On June 29, 2004, Vachet filed a pro se petition for a writ of habeas corpus in the Southern District of New York, which was transferred to this Court. In his petition, Vachet raised the following grounds: (1) the state court erred in holding that the admission of his videotaped confession did not violate his rights under the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436 (1966); (2) the trial court erred by allowing the prosecution to elicit hearsay evidence in violation of his right to confront witnesses; and (3) his sentence should be reduced in the interest of justice.

Vachet has withdrawn his claim that the interest of justice warrant a reduction his in sentence. See Reply-Letter dated Oct. 26, 2004 (conceding that claim is not cognizable on habeas review).

DISCUSSION

A. The Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).

A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).

Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (quoting Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 539 U.S. at 520-521 (same). Interpreting Williams, the Second Circuit has "added that although `[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Gilchrist, 260 F.3d at 93 (ellipsis in original) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:

For the purposes of AEDPA deference, a state court

"adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.

261 F.3d 303, 312 (2d Cir. 2001).

B. Vachet's Claims

1. The Fifth Amendment Claim

Vachet claims that the Appellate Division erred when it held that his videotaped statement was properly admitted despite the Miranda violation. The state, relying on Oregon v. Elstad, 470 U.S. 298 (1985), argues that, as a matter of federal law, all of Vachet's post- Miranda statements were admissible, even the oral and written statements that the Appellate Division felt had been wrongly admitted.

a. The State Court's Finding of a Miranda Violation

Respondent persists in the claim that Vachet was not in custody when he admitted being on the roof, but I agree with the Appellate Division: Vachet was subject at that point to custodial interrogation in violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). To determine whether a suspect is in custody for Miranda purposes, courts look to whether "a reasonable person would `have felt he or she was not at liberty to terminate the interrogation and leave,'" Tankleff v. Senkowski, 135 F.3d 235, 243 (2d Cir. 1998) (quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)), and not, as the trial court seemed to suggest, whether the defendant asked to leave. See Hearing Tr. at 254. Here, prior to administering Miranda warnings, the police brought Vachet back to the station for further questioning despite having previously said that they would take him home. In the interview room, Vachet was re-questioned by several officers for approximately 20 minutes; he was loudly admonished for wasting the officers' time looking for other suspects; he was told that the police knew he was involved in the incident; and he was told to "just tell us what happened, and . . . we'll take the statement." (Hearing Tr. at 115.) Under such conditions, a reasonable person would not feel free to terminate the interview and leave, and further would have understood his freedom to have been curtailed to a degree associated with a formal arrest. See United States v. Newton, 369 F.3d 659, 672 (2d Cir. 2004).

b. The Consequences of the Violation

Under federal law, pre- Miranda custodial interrogation does not necessarily require that subsequent, post- Miranda statements be suppressed. See Oregon v. Elstad, 470 U.S. 298, 318 (1985) ("a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings."). Thus, to the extent Vachet is arguing that the Appellate Division's finding of custody, in and of itself, warranted suppression of all of his statements under federal law, he is incorrect.

New York law and federal law diverge on the admissibility of a suspect's inculpatory statements when they are made both before and after Miranda warnings, and New York law is more favorable for defendants. See Tankleff, 135 F.3d at 246 (explaining that the New York Court of Appeals has declined to follow the Elstad rule on state constitutional grounds). Under New York law, the admissibility of the post- Miranda statements is conditioned on whether there is a "definite, pronounced break between the statements which preceded Miranda warnings and the additional statements which the defendant made." See People v. Rifkin, 289 A.D.2d 262, 263 (N.Y.App.Div. 2001) (citing People v. Bethea, 67 N.Y.2d 364 (1986) (per curiam)). It was the finding of such a break in this case that produced the state court's determination that Vachet's videotaped confession was properly admitted. As a habeas court, I do not review the Appellate Division's application of New York law, but look only to whether the admission of any of Vachet's inculpatory statements violated federal law. See 28 U.S.C. § 2254(a) (writ of habeas corpus available solely for violations of the Constitution or laws or treaties of the United States); Estelle v. McGuire, 502 U.S. 62, 67 (1991) ("federal habeas corpus relief does not lie for errors of state law.") (internal quotation omitted). There are two possibilities in this regard. First, if Vachet's initial, pre- Miranda admission that he was on the roof was involuntary, Elstad did not authorize the use of the subsequent statements. Second, Missouri v. Seibert, 124 S. Ct. 2601 (2004), established a limitation on the government's ability to resort to Elstad in circumstances where a pre- Miranda confession is followed by post- Miranda statements. I address both of those possibilities below.

(i). The Involuntariness Claim

Under Elstad, the admissibility of post- Miranda statements where there was pre- Miranda custodial interrogation depends on whether the circumstances during the pre- Miranda interrogation were "so coercive as to prevent [a suspect] from making a subsequent knowing and voluntary waiver of his rights." See Tankleff, 135 F.3d at 244. The level of coercion required to render a post- Miranda statement inadmissible is greater than the baseline coercion inherent in any custodial situation. Cf. id. ("[s]erious pressures inherent in custodial interrogation will inevitably be present in any case under Elstad"). In determining coerciveness, courts examine the totality of the circumstances of the interrogation, including (1) the accused's characteristics; (2) the conditions of the interrogation; and (3) the conduct of the police. See Parsad v. Greiner, 337 F.3d 175, 183 (2d Cir. 2003) (citation omitted).

In Tankleff, for example, a seventeen-year-old defendant was interrogated for six hours prior to the administration of the warnings. 135 F.3d at 240. For the last two hours of the interrogation, he was subject to increasingly hostile questioning, during which the police told him falsely, among other things, that the victim had woken up from a coma and accused the defendant. Id. at 241. Only after the defendant said "Could I have blacked out and done it?" and "[I]t's coming to me" did the officers give the Miranda warnings. Id. The defendant subsequently confessed. Id. The Second Circuit held that though it was a close question, the inculpatory statements made by the defendant after he was given the Miranda warnings were admissible under Elstad. Id. at 245. The Court stated that:

the interrogation that took place before the reading of the Miranda warnings barely did not entail the degree of coercion that would irredeemably taint [defendant's] . . . Mirandized confession. Furthermore, and crucially important, there is no indication in the record that [defendant] did not understand his rights once he was given the warnings or that his subsequent waiver of those rights was anything but knowing and voluntary.

Id. Compare Quartararo v. Mantello, 715 F. Supp. 449, 455-456, 460-61 (E.D.N.Y. 1989) (on habeas review, finding initial pre- Miranda confession involuntary where fifteen-year-old defendant was subject to four hours of incommunicado interrogation, was told that another participant had already confessed to the murder and implicated defendant, and was told that nothing would happen to defendant because he was a juvenile).

It was not until Vachet's reply-letter to the state's opposition to his petition, and again at oral argument, that Vachet articulated such a claim in this case. See Vachet's reply-letter dated Oct. 26, 2004 at 1-2 ("The state appellate court ruled that the police had coerced petitioner to make an incriminating [sic] then elicited a waiver of his Miranda rights"; "[s]ince the state court concluded that the police had deliberately employed coercive tactics to elicit the first incriminating statement from petitioner, then solicited [sic] a waiver, both the state court's own precedent and federal law required that the subsequent video statement be suppressed."). As a result, Vachet's claim — that his pre- Miranda inculpatory statement (and subsequent waiver) was involuntary — was not fairly presented during his state proceedings. Indeed, Vachet's able appellate counsel in state court did not contend that Vachet's statements were coerced in violation of the Fifth Amendment. Rather, the coercive actions of the police were cited in support of Vachet's (successful) argument that he was in custody when he admitted being on the roof, not that he was forced to make involuntary statements. See, e.g., Vachet's Brief to the Appellate Division at 24 ("When Ockovic entered the room, he berated appellant by telling him to stop wasting the detectives['] time and to tell them what happened. Ockovic admitted that his tone was strong and loud. Under such circumstances, no reasonable person would have felt free to leave.").

Although Vachet's claim of coercion is thus unexhausted, and no doubt procedurally defaulted as well, I need not address those threshold issues because, having reviewed the transcript of the suppression hearing, I have no doubt that the claim lacks merit. First, Vachet's characterization of the Appellate Division's holding is wrong. The Court did not conclude that Vachet's statements were coerced; instead, it concluded that Vachet was subject to custodial interrogation. See People v. Vachet, 773 N.Y.S.2d 455, 457 (App.Div. 2004) ("[c]onsidering all the relevant factors, we find that an innocent person in the defendant's position would not have believed he was free to leave when he was returned to the precinct after the canvass."). The Appellate Division made no finding as to coercion, no doubt because Vachet's counsel never made such a contention.

Second, measured against the standard set forth above, and particularly against the facts of cases like Tankleff, it simply cannot be said that any of Vachet's statements were made involuntarily. I have reviewed the testimony from the state court proceeding. Though Vachet was in the company of the detectives for nearly six hours before he made the incriminating statement that he was on the roof (after which he was read his Miranda rights), it is clear that during most of that period — until after the canvass of the neighborhood — Vachet was treated like a witness, not a suspect. While that clearly changed upon the return to the interview room, the period of time during which Vachet was exposed to vigorous interrogation as a suspect was quite short — a matter of minutes. Moreover, the interrogation was simply not conducted in a manner that raised even the slightest risk that Vachet's statements were involuntary.

(ii). The Missouri v. Seibert Claim

Vachet's other possible avenue of relief from the rule of Oregon v. Elstad lies in the principle announced in Missouri v. Seibert, 124 S. Ct. 2601 (2004). In his direct appeal, Vachet's brief stated the argument as follows:

Here, after three hours of questioning at the precinct and one and a half hours of canvassing[,] appellant was involuntarily returned to the precinct where Detective Ockovic induced appellant to confess that he was present on the roof, then interrupted him long enough to read him his rights, after which appellant proceeded with his statement. Thus, it is clear that the detective made a calculated decision to withhold Miranda warnings, hoping to force a confession and administer warnings only when he was assured of accomplishing his mission. [citing Miranda, 384 U.S. at 496.] Accordingly, because appellant was in custody and was subjected to interrogation without the benefit of Miranda warnings his statement must be suppressed.

Defendant's Brief at 27 (emphasis added). Although the Supreme Court had not yet decided Seibert when Vachet's counsel submitted that brief, the brief (at 26) cited the Missouri Supreme Court's decision in the case and fairly raised the claim that the Supreme Court upheld last year. It is less clear that Vachet has sufficiently raised the claim on this petition, but I need not explore that issue because I conclude that the claim has no merit.

In Seibert, the defendant was questioned for 30 to 40 minutes, during which she confessed to her role in a murder. 124 S. Ct. at 2606. After a 20-minute break, she was advised of her Miranda rights, which she waived, and she was questioned again. Id. In the second interrogation, she was confronted with, and directed to reiterate, her prewarning statements. Id. The Supreme Court held that the technique of intentionally withholding Miranda rights to obtain a confession, only to subsequently read the Miranda rights and continue the interrogation, was unconstitutional. Id. at 2613. It held that the State's reliance on Elstad "disfigure[d]" that case. 124 S. Ct. at 2611. The Court explained that " Elstad rejected the `cat out of the bag' theory that any short, earlier admission, obtained in arguably innocent neglect of Miranda, determined the character of the later, warned confession . . .; on the facts of that case, the Court thought any causal connection between the first and second responses to the police was `speculative and attenuated.'" 124 S. Ct. at 2612 (quoting Elstad, 470 U.S. at 313). In Seibert, by contrast, the unwarned statements were complete and detailed, and the second (post-warning) interrogation both overlapped in content with the first and appeared to be continuous with it. Id.

Vachet's claim fails because, first, it does not allege that the state court's decision was contrary to, or an unreasonable application of, clearly established federal law.

Seibert was handed down after the Appellate Division's decision, and thus its gloss on Elstad was not clearly established at the time of the decision. See 28 U.S.C. 2254(d)(1) (habeas relief available only if state court decision was contrary to, or involved an unreasonable application of, "clearly established Federal law as determined by the Supreme Court"); Williams v. Taylor, 529 U.S. 362, 412 (2000) ("clearly established" federal law refers to Supreme Court holdings as of the time of the relevant state-court decision).

As for the merits, Vachet's case is considerably more like Elstad than Siebert. This is not a case where the police procured a detailed confession before giving Miranda warnings, only to have Vachet repeat those statements after the warnings were given. As soon as Vachet made one incriminating statement — that he was on the roof on the night of the shootings — the warnings were given. The police did not elicit a detailed confession to the shootings (or any confession at all, for that matter) before giving the warnings. It was only after the voluntary waiver of his rights that Vachet gave the detailed statements implicating himself in the crimes under investigation. While it would have been preferable for the police to give Vachet his rights immediately upon returning to the interview room, I conclude that in these circumstances, the Miranda warnings presented a "genuine choice" to Vachet whether to follow up on his admission to being on the roof. Seibert, 124 S. Ct. at 2604. Accordingly, the rule of Elstad applied, and the statements admitted at Vachet's trial do not afford him a basis for habeas relief.

2. The Confrontation Clause Claim

Vachet argues, as he did on direct appeal, that his right to confront witnesses under the Sixth Amendment was violated when the trial court allowed in a statement that Vachet contends was functionally equivalent to hearsay. This claim is without merit, and thus no habeas relief available is available.

The Sixth Amendment's Confrontation Clause provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." Hearsay is defined as an out-of-court statement offered to prove the truth of the matter asserted. See Fed.R.Evid. 801(c). A defendant's right of confrontation may be violated by the admission of hearsay evidence because the defendant has no opportunity to confront or cross examine the hearsay declarant. See White v. Illinois, 502 U.S. 346, 352-53 (1992); see also United States v. Reyes, 18 F.3d 65, 69 (2d Cir. 1994) ("[t]he principal vice of hearsay evidence is that it offers the opponent no opportunity to cross examine the declarant on the statement that establishes the declared fact."). A statement does not implicate the Confrontation Clause, however, unless it is offered for the truth. See, e.g., Tennessee v. Street, 471 U.S. 409, 414 (1985). A gray area exists, however, where a statement could technically be non-hearsay, but would likely be considered by a jury for the truth of the matter; that is, the statement would be "functionally indistinguishable from hearsay." See Reyes, 18 F.3d at 69. Whether such functional hearsay evidence may be received turns both on the delivery of a limiting instruction by the trial court and on the balancing of the probative value against the potential prejudice of the evidence. Id. at 69-70; see also Ryan v. Miller, 303 F.2d 231, 247-53 (2d Cir. 2002) (applying the Reyes balancing test in the habeas context). The greater the likelihood of prejudice resulting from the jury's misuse of the statement, the greater the justification needed to introduce the statement for its non-hearsay purpose. Reyes, 18 F.3d at 70. As part of this balance, courts should consider whether the needed explanation can be provided to the jury by less prejudicial methods. Id. at 70. For example, courts may consider whether the statement can be edited to reduce the risk of jury misuse without detracting from the purpose for which the statement was introduced. See generally Bruton v. United States, 391 U.S. 123, 134 n. 10 (1968)).

At issue here is a statement made to the police by a ten-year-old girl who allegedly stated that on a prior occasion, she had seen Vachet with a pellet gun. Outside of the presence of the jury, in response to defense counsel's objection that such a statement would be hearsay, the prosecutor stated that: "If the People elicited that testimony, we would not be doing it for the truth of the matter asserted, which would be hearsay, it is merely to explain the officer's subsequent actions in making efforts to interview Marcello Vachet." (Tr. at 650.) The trial court allowed the statement into evidence "not for the truth of the matter asserted but only to show the sequence of events leading up to the re-interviewing of Marcello Vachet." (Tr. at 650.)

During his direct examination, the prosecutor elicited from Detective Ockovic that the ten-year-old he interviewed during a canvass of the building's tenants told him "that she knew a male named Marsala who lived up on the fourth floor and had seen him with a pellet gun in the past." (Tr. at 667.) Directly after this testimony was given, the trial court instructed the jury:

Jurors, the statement of this person to the police is being allowed into evidence only to show why the police took the following actions that they did and not for the truth of the matter asserted in the statement. You may not consider such statement for the truth of its contents.

(Tr. at 668.)

Despite respondent's protestations to the contrary, some editing on the trial judge's part could have provided the desired explanation without including the substance of the girl's alleged statement. The detective could have testified that, after a conversation with the girl, the officers focused their attention once again on Vachet. It was unnecessarily prejudicial to also relay that the girl, who Vachet had no opportunity to confront, had stated that she saw Vachet with the type of weapon used in the crimes.

Still, I conclude that the statement was not so prejudicial that I should reject the presumption that a jury follows a court's instructions. In Reyes, for example, where the Second Circuit found that the limiting instruction would not likely be effective, the evidence in question had "determinative significance for the only important issue in the trial." Id. at 72. There, a customs agent's testimony included out-of-court statements that directly implicated the defendant in the crime. Id. at 67-68; cf. Quartararo v. Hanslmaier, 186 F.3d 91, 98-99 (2d Cir. 1999) (no confrontation clause violation where statement was not an implicit accusation of defendant). Further, the prosecutor in Reyes made numerous references to the accusatory statements in her summation. Reyes, 18 F.3d at 67-68. The statement at issue here, while prejudicial, is not accusatory. In addition, the prosecutor did not belabor the substance of the statement in his summation. See Tr. at 1445, 1447 ("the detective got some information from a girl in the building"; the police got "one good lead and they followed [it]."). While the trial court could have avoided this issue entirely, the challenged testimony was not so prejudicial that a jury could not follow the trial court's instructions. I find, therefore, that there was no violation of the Confrontation Clause.

In any event, if the statement was erroneously admitted, the error was harmless under both the Brecht standard (an error is harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict") and the Chapman standard (error must be harmless "beyond a reasonable doubt."). See Zappulla v. New York, 391 F.3d 462, 466-67 (2d Cir. 2004) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), and Chapman v. California, 386 U.S. 18, 24 (1967), respectively. Vachet's statement — that he had concealed pellet guns in his girlfriend's apartment (where they were later found) — was cumulative of the girl's statement that she had once seen Vachet with a pellet gun. The jury also considered testimony from victims, police officers, and medical examiners, and of course heard Vachet's detailed confession to the shootings. I find, therefore, that the girl's statement, if admitted in error, did not have a substantial and injurious effect or influence in determining the jury's verdict, and it was harmless beyond a reasonable doubt. Accordingly, Vachet cannot prevail on this ground of relief.

CONCLUSION

For the foregoing reasons, the petition is denied. Because Vachet has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.

So Ordered.

Vachet v. West

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Vachet v. West

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Vachet v. West

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Vachet v. West

Vachet v. West

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