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The admission of a 911 call against a man convicted in the fatal shooting of a rival drug dealer did not violate the right of the defendant to confront witnesses against him, the 2d U.S. Circuit Court of Appeals has ruled. Gutierrez v. McGinnis, No. 03-2560. Upholding the denial of a petition for a writ of habeas corpus, Judge Sonia Sotomayor, writing for the court, used the case of defendant Pedro Gutierrez to make clear the standard by which a federal judge must review a state appellate court’s analysis of whether admission of certain evidence is harmless error. The prosecution’s theory in Gutierrez’s case was that three shooters, not two, were involved. To support that contention, prosecutors offered what they described as “one of the most important pieces of evidence”: a 911 call from an anonymous driver who described three young men as the shooters. Because the call was made three minutes after the incident, the trial judge allowed the call into evidence under the exception to the hearsay rule carved out for present-sense impressions. On appeal, a New York intermediate court found the call to be sufficiently contemporaneous to be admitted under the present-sense impression exception, adding that “any error in admission of this evidence was harmless in view of the overwhelming evidence of the defendant’s guilt.” Gutierrez filed a habeas petition in New York’s Southern District, where Judge Harold Baer held that admission of the tape did not violate the Sixth Amendment’s confrontation clause because it was a “firmly rooted exception” to the hearsay rule. However, Baer granted Gutierrez a certificate of appealability on the issue. According to Sotomayor, the court “need not reach the petitioner’s complex claim that the 911 call’s admission into evidence violated the Confrontation Clause. Rather, we examine whether the purported error was harmless,” she said. “We take this opportunity to settle the question of whether the Antiterrorism and Effective Death Penalty Act . . . in amending the relevant federal habeas statute, 28 U.S.C. � 2254, has altered the inquiry into harmless error on collateral review.” The standard for harmless error on direct review, she said, was set in Chapman v. California, 386 U.S. 18 (1967), in which the U.S. Supreme Court held “that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Sotomayor said that a few years prior to the enactment of Antiterrorism and Effective Death Penalty Act (AEDPA), the high court had held that Chapman did not apply to cases on collateral review. Instead, in Brecht v. Abramson, 507 U.S. 619 (1995), the court adopted the “less onerous standard” of whether the error “had substantial and injurious effect or influence in determining the jury’s verdict.” In the aftermath of the act, the new standard for federal habeas review of state court convictions was the requirement that federal judges give state courts a measure of deference on claims that have been “adjudicated on the merits.” And Chapman “binds a state appellate court-directly reviewing a lower state court-to dispose of federal constitutional errors as harmless only if the error was harmless beyond a reasonable doubt.” “When a state court holds that a particular federal constitutional error at trial is harmless, that holding is an adjudication of a federal claim, in turn suggesting that AEDPA’s deferential standards must attach,” Sotomayor said. Therefore, the court was holding that “when a state appellate court conducts explicit harmless error analysis of a claim, a habeas court must evaluate whether that analysis was an unreasonable application of Supreme Court precedent.” In this case, the state court’s “harmlessness holding was an objectively reasonable application of Chapman.”

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