The State of New York appeals from an order of the United States District Court for the Southern District of New York (Whitman Knapp, J.) entered April 28, 1987, 658 F. Supp. 1408, granting Willie Rosario's petition for a writ of habeas corpus and ordering the state to release him unless it afforded him a new trial.
Kaufman and Altimari, Circuit Judges, and Tenney,*fn* District Judge.
At about 6:15 in the evening of October 12, 1974 two men held up the Jiminez grocery store at 161 Graham Avenue between Messerole and Montrose Streets in the Williamsburg section of Brooklyn, New York City. At the time the men entered the store the proprietor Julio Jiminez was standing before the cash register, and his helper Louis Camacho, a 12 year old boy, was close by, stooped behind the counter preparing shopping bags for the two or three customers present in the store. Camacho heard the men announce that it was a hold up and when Camacho started to stand up shots were fired. Camacho was shot over the left eye but not seriously wounded, and when he recovered moments later saw Jiminez, clutching his chest, run from the store. Camacho followed Jiminez out of the store where the latter collapsed on the sidewalk. Jiminez later died in a hospital from a gunshot wound in the neck.
Early the following morning a detective assigned to investigate the robbery-homicide responded to a call of an attempted break-in at 148 Messerole Street around the corner from the scene of the holdup. He observed that a ladder had been placed up to the window of a vacant second floor apartment in an apparent attempt to enter the building from the roof of a furniture store below. A latent fingerprint was removed from the freshly painted windowsill by a police forensic unit.
On October 20, 1974, eight days after the Jiminez homicide, Victor Cartagena was arrested for an unrelated robbery and, wanting "to make a bargain" and avoid the arrest, told the arresting officer that he had witnessed and could identify the men involved in the Jiminez robbery-homicide. The attempt to avoid arrest did not succeed. Cartagena was indicted for robbery in the first degree and was confined to jail in Brooklyn until he made bail in January or February 1975.
This was not Cartagena's first encounter with New York's system of justice. Cartagena had been convicted of robbery in the second degree in 1969 and sentenced to seven years in prison. He had been released on parole after serving approximately five years. On April 13, 1975 he was arrested in Manhattan for possession of a weapon. Cartagena had unsuccessfully attempted to avoid arrest for gun possession. He explained such possession by the claim that he had been the victim of a hold up shortly before but had disarmed his assailant. He was convicted and sentenced to 1 1/2 to 3 years in prison.
While incarcerated on Rikers Island Cartagena became worried because a warrant had been issued for his failure to appear in Brooklyn on the October 1974 robbery indictment. Sometime in the spring of 1975 he received a visit from a detective investigating the Graham Avenue robbery-homicide, who inquired whether Cartagena had talked about that homicide to the Brooklyn police after his arrest for robbery in October or November 1974. After hearing Cartagena's story, a meeting was arranged with an Assistant District Attorney in Brooklyn and on June 2, 1975 Cartagena bargained for a plea conditioned on his cooperation. The Assistant District Attorney agreed to allow him to plead to an E felony and to recommend a sentence of 1 1/2 to 3 years on the first degree robbery indictment to run concurrently with the 1 1/2 to 3 year sentence he was serving on the gun possession conviction, compared to a 12 1/2 to 25 year sentence he could receive under the first degree robbery indictment. This bargain was to be in exchange for Cartagena's cooperation in the Jiminez murder case.
On the basis of Cartagena's information Willie Rosario and Rafael Cruz were thereafter indicted and went to trial on May 6, 1976. There was only one identifying witness, Cartagena, who claimed that he had seen the two men commit the robbery-homicide. Cartagena testified that he was with his girlfriend, Eva Lopez, and another woman named Maria when he observed the robbery-homicide. Rosario and Cruz were found guilty of murder in the second degree and of two counts of criminal possession of a weapon in the second degree, and sentenced to concurrent terms of imprisonment of 20 years to life on the murder count and 0 to 15 years on each of the possession counts. On June 25, 1979, the Appellate Division, Second Department, reversed Rosario's conviction on Bruton grounds*fn1 and ordered a new trial. People v. Rosario, 70 A.D.2d 956, 417 N.Y.S.2d 767 (2d Dep't 1979), aff'd, 51 N.Y.2d 889, 434 N.Y.S.2d 973, 415 N.E.2d 962 (1980). The basis for the reversal was that the state had introduced into evidence at the trial an unredacted confession, purportedly made by Cruz, implicating Rosario. The same court also reversed Cruz's conviction on the ground that his postindictment confession had been obtained in violation of his right to counsel, and it suppressed the confession and ordered a new trial. Thus the jury had the benefit of Cartagena's testimony that he had witnessed the crime while he was with his girlfriend, Eva Lopez, and her friend Maria. People v. Cruz, 72 A.D.2d 549, 420 N.Y.S.2d 721 (2d Dep't 1979).
The second trial of Cruz commenced in April 1980, over four years after the original joint trial. Rosario could not be tried at that time as his appeal was pending before the New York Court of Appeals. In the meantime Cartagena had died of gunshot wounds in an unrelated matter. The state introduced into evidence his perpetuated testimony from the joint trial. The defense called a young woman named Irma Coreano to impeach Cartagena's prior testimony. Coreano testified that Cartagena did not meet Lopez until some months later. Cruz was acquitted.
In June 1981 Rosario went to trial. As in the prior Cruz trial the perpetuated testimony of Cartagena was received in evidence. This was the sole identification evidence against Rosario. However, when the defense asked that Coreano's impeaching testimony at the Cruz trial be received in evidence, the court refused on the ground that the defense had not made a diligent effort to locate Coreano under the provisions of N.Y. Crim. Proc. Law § 670.10 (McKinney 1984).*fn2
The defense rested without introducing any evidence. Rosario was convicted and sentenced on July 23, 1981 to concurrent terms of 20 years to life for murder and 0 to 15 years for possession of a weapon.
Rosario appealed his conviction to the Appellate Division, Second Department on the grounds that the trial court's refusal to receive in evidence the perpetuated testimony of Coreano had deprived him of his due process rights to a fair trial and to present a defense. U.S. Const., amends. VI, XIV; N.Y. Const., art. I, § 6. The state in its brief argued that: (1) the defense had not demonstrated a good faith effort to locate Coreano; (2) Coreano's testimony dealt with the credibility of Cartagena on a collateral matter; (3) the exclusion of Coreano's testimony did not preclude the defense from proving that Lopez was not with Cartagena on the night of the murder; (4) Coreano's testimony was equivocal and "suspect"; and (5) the defense should have called Lopez as a witness.
The Appellate Division affirmed Rosario's conviction without opinion on December 5, 1983. People v. Rosario, 98 A.D.2d 998, 469 N.Y.S.2d 831 (2d Dep't 1983). The New York Court of Appeals denied leave to appeal on March 21, 1984. People v. Rosario, 62 N.Y.2d 623, 476 N.Y.S.2d 1037, 464 N.E.2d 496 (1984).
Rosario filed a petition for a writ of habeas corpus in the district court arguing, as he had in the state courts, that the trial court's refusal to admit Coreano's testimony into evidence had deprived him of his due process rights to present a defense and to have a fair trial. Again the state raised the same arguments as it had in the state courts while conceding that Rosario had exhausted his claim in the state courts. The state further argued that no federal question was presented and that if there was error, it was harmless.
The district court granted the writ on April 21, 1987. 658 F. Supp. 1408. It dismissed the state's argument that the defense had failed to demonstrate a good faith effort to locate Coreano. Id. Furthermore, it held that Coreano's testimony was material as a constitutional matter and termed the state's argument that it was immaterial as "simply frivolous," id. at 1413, holding further that the materiality of the testimony had been established by its admission into evidence in the trial of Cruz. The district court also rejected the argument that the defense was able to put before the jury the question of Lopez's presence at the scene of the crime and noted that there was no evidence in the record to indicate that Lopez was available as a witness at Rosario's trial. Id. at 1415.
The district court concluded that the exclusion of Coreano's testimony denied Rosario the right to present "highly relevant and probative evidence in violation of the Sixth and ...