Appeal from an order of the United States District Court for the Southern District of New York, Louis L. Stanton, Judge, conditionally granting petition for a writ of habeas corpus. Vacated and remanded.
Lumbard, Timbers, and Kearse, Circuit Judges.
Respondents Phillip Coombe, Superintendent of Eastern Correctional Facility, and Robert Abrams, Attorney General of the State of New York (collectively, the "State"), appeal from an order of the United States District Court for the Southern District of New York, Louis L. Stanton, Judge, granting the petition of Timothy Reddy for a writ of habeas corpus on the ground that the evidence of attempted robbery presented at his state-court trial for felony murder was insufficient to sustain his conviction. On appeal, the State contends that the evidence was sufficient to support Reddy's conviction. For the reasons below we agree, and we vacate the decision of the district court and remand for further proceedings.
Reddy and his codefendant Cheryl Christenson were tried together in New York State Supreme Court on charges of felony murder arising out of a homicide committed on April 4, 1978, in the course of conduct that the prosecution asserted was an attempted robbery. The State presented its case principally through testimony of law enforcement personnel, testimony of witnesses who had seen or talked with the defendants on April 4, and statements given by Reddy and Christenson to investigators. The jury was instructed not to consider any of either defendant's statements as evidence against the other. The defendants neither testified nor called any witnesses on their own behalf. The following description of the events comes largely from Reddy's statements in response to questioning by an assistant district attorney ("ADA") on April 5, 1978, the transcript of which was read to the jury.
On the afternoon of April 4, 1978, Reddy received a telephone call from Christenson, who asked him to meet her at a bar on Eighth Avenue between 48th and 49th Streets in Manhattan. When Reddy arrived at the bar, Christenson told him that she and Reddy "were going to go down to rip off this guy, John," a man Christenson had been dating. Reddy and Christenson then waited at the bar until a friend of Christenson's arrived, bringing Christenson a gun. In Reddy's words, "We were going to scare [John] with the gun because we figured he had about fifteen hundred dollars on him . . . . She was going to go in because she knows him. She was going to ask to let me use the bathroom then we were going to come out and scare him. Then tie him up, take the money." The ADA asked, "Weren't you afraid that [John] might call the police after the two of you ripped him off, since he would know her?" Reddy replied, "Of course." The ADA pressed, "And you still decided that's what you were going to do?" Reddy replied, "Yes, because we needed the money."
After Christenson received the gun, she and Reddy walked to 531 West 48th Street, where John lived on the top floor. Christenson pressed the downstairs buzzer, but there was no answer. The two walked to the top floor and knocked on John's door, but again there was no answer. They waited a short time, then started back downstairs.
On their way down, they saw a man whom Reddy did not know, later identified as Ivan Zapata Enau, coming out of a second-floor apartment. Christenson spoke briefly with Enau. Reddy was on the second floor with them, but not close enough to hear their conversation. Enau did not speak English, so Christenson began to use sign language. Without speaking to Reddy or giving him any kind of signal, Christenson left the building with Enau and the couple walked to the corner grocery store, with Reddy following a half-block behind. Reddy waited on the street while they were in the store, then followed them back to Enau's building. He waited on the stoop as the couple went upstairs to Enau's apartment, then followed, and waited outside Enau's door. Reddy thought Christenson "probably would have tried" to get Enau to pay her for sexual acts and "[p]robably" was going to rob Enau.
The ADA asked Reddy, "When you talked about ripping off John did you talk about if you couldn't find him maybe seeing there [sic] was another mark?" His response was, "No, we didn't talk about it. This other guy just came out of his apartment."
After Christenson had been in Enau's apartment for ten minutes or less, the door opened, and Reddy saw Enau trying to push Christenson out and close the door. Reddy pushed the door open, struck Enau, and wrestled him to the floor of the kitchen. Enau got up, went to the sink, and picked up a large knife. With knife in hand, Enau moved toward Christenson who was standing by the door holding the gun. Reddy threw his arms around Enau's neck and dragged him to the floor. As Enau was getting up, Christenson shot him in the face, killing him. Reddy hastily departed; Christenson followed.
Reddy was found guilty of felony murder, i.e., murder in the second degree by reason of causing, during an attempted robbery, the death of a person other than a participant in the attempted robbery. See N.Y. Penal Law § 125.25 (McKinney 1987). He was sentenced to an indeterminate prison term of 18 years to life.
On appeal to the Appellate Division, Reddy argued, inter alia, (1) that the evidence was insufficient to prove that he had formed the specific intent to rob Enau, and that the State thus had failed to establish the felony of attempted robbery, which underlay and was essential to Reddy's conviction of felony murder; (2) that his statement to the ADA should have been suppressed because it had been obtained pursuant to an illegal arrest; and (3) that statements made by Christenson should not have been admitted in a trial to which he was a party. His conviction was affirmed without opinion, People v. Reddy, ...