Date: 07-15-2015

Case Style:

Case Number: 14‐2201

Judge: Dennis Jacobs

Court: United States District Court for the Northern District of New York (New York)

Plaintiff's Attorney: Christopher J. Pelli, Utica, New
York, for Appellant

Defendant's Attorney: Lisa Ellen Fleischmann, Assistant Attorney
General (with Barbara D. Underwood,
Solicitor General, and Nikki Kowalsi,
Deputy Solicitor General for Criminal
Matters, on the brief) for Eric T.
Schneiderman, Attorney General of the
State of New York, New York, New York,
for Appellee

Description: At the time of his arrest, Nappi and his wife had been married for 36 years,
of which time he spent 26 years in prison after his conviction for an unrelated
crime. (Trial Tr., New York v. Nappi, 09‐037, at 254 (Feb. 23, 2010) (“Trial Tr.”).)
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Upon his release, Nappi returned to live with his wife; but since they “really
weren’t that close” anymore, they slept in separate bedrooms, and hers was often
kept deadbolted. (A. 114; Trial Tr. at 300‐01, 304‐04.)
Before Nappi was released, Janice was informed by Nappi’s parole officer
that no firearms could be kept in the home as a condition of his parole. (A. 114.)
Nevertheless, Janice testified that she helped Nappi retrieve a gun from a family
home and bring it back to their residence. (Trial Tr. at 271‐72.) She maintained
that she agreed to allow the gun into the home on condition that she would store
the gun without telling Nappi where she had put it, and he would separately
keep the ammunition. (Id. at 230, 274‐76.)
Several months after Nappi’s release, parole officer Jeffrey Stewart visited
the Nappis’ home for an unannounced but routine visit, which did not cause
Stewart to raise any questions about Nappi’s compliance with the conditions of
his release. (Id. at 278‐79.) The following day, Janice called Stewart and reported
that Nappi had a weapon in the house. (Id. at 279‐81.) In a conversation between
Stewart and Janice prior to the search for the weapon and Nappi’s ensuing arrest,
Janice confirmed to Stewart that the weapon was still there. (Id. at 205.) Stewart,
according to trial testimony, “decided it would be best for [Janice] to move that
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weapon,” which she had previously stored in her bedroom, and “told her to
move it to the bed area or under the bed” in another unused bedroom. (Id. at
205‐06, 275‐76.) This decision was made purportedly for officer safety, though
Janice informed Stewart that Nappi did not know where the gun was being kept
because the Nappis had agreed that she would hide it from him. (Id. at 230, 277.)
A search of the Nappis’ home revealed a gun, located in the spare bedroom and
wrapped in a “dingy” old towel or “rag.” (Id. at 183, 215‐16, 350, 427.)
Nappi was tried in state court twice on the gun possession charge; the first
trial ended with a hung jury. During the first trial, Nappi’s defense was that
Janice had framed him because she wanted him back in prison so that she could
conduct a romantic relationship with a man named Del Dyman. As a basis for
this defense theory, counsel cross‐examined Janice about the fact that, shortly
after her husband’s arrest, she had secured Dyman’s release on $50,000 bail using
her house as collateral. The prosecution argued that Janice had no reason to
falsely implicate Nappi, as she could have revoked her permission for him to live
with her at any time, and had remained married to Nappi during his lengthy
incarceration.
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Before the second trial, the government moved to exclude any mention of
the fact that Janice arranged for a bail bond to be posted for Dyman. The trial
court declined to rule in limine on this issue but, at trial, sustained the
government’s objections to defense counsel’s attempt to cross‐examine Janice
about her relationship with Dyman, including her posting of bond for him.
Defense counsel requested an opportunity to make an offer of proof,
emphasizing to the court that “the entire defense was based on the fact that we
believed that the gun was planted by Ms. Nappi,” and that because he had been
precluded from substantiating this theory, Nappi had “been denied his
constitutional right to present a defense” and the court should “either dismiss the
charges or declare a mistrial.” (Id. at 450.)
Although the trial judge indicated that he was “not changing [his] mind,”
(id. at 311), defense counsel made the following offer of proof, which he
represented was supported by “conversations that [he] had with [his] client,” the
“research [he had] . . . done in this case,” and “circumstantial evidence”:
• He would cross‐examine Janice about whether her relationship with
Dyman motivated her to plant the gun that formed the basis for Nappi’s
prosecution;
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• He would call Dyman, who “would be able . . . to personally answer the
question as to whether or not he had a romantic relationship [at] any time”
during Nappi’s incarceration;
• He expected that if Janice testified that she did not have a romantic
relationship with Dyman, that Dyman’s testimony would “contradict her”;
• He would introduce evidence that Janice mortgaged her “only house” to
raise Dyman’s $50,000 bail; and
• Janice sought information from an attorney “about how to go about bailing
Del Dyman out, but . . . she wanted it to remain completely secret.”2
(Id. at 458‐59.) Counsel explained that he would have used these suggestive
pieces of information to support Nappi’s only defense at trial: Janice planted the
gun to put her husband back in prison, which she was motivated to do because of
her relationship with Dyman.
The state took the position that “[t]here should be no reference to any other
male friends or boyfriends that she may or may not have had,” because the
2 Defense counsel also sought to impeach Janice by introducing evidence that
she had engaged in acts of prostitution. (Trial Tr. at 459‐60.) The state and
district courts rejected any challenge to Nappi’s conviction based on the ruling
precluding this line of cross‐examination and preventing Nappi from calling a
witness on this subject.
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defense evidence was “[c]learly collateral . . . and immaterial to why we’re here.”
(Id. at 451) As the state blandly explained, Janice had “already testified [to] what
her motive was for coming forward to the police here. She testified her motive
was that she was afraid for her life, and there’s no other motive of record or in
existence.” (Id.) The trial court agreed. (Id. at 461.)
Nappi was convicted and the Appellate Division affirmed. In rejecting
defendant’s Confrontation Clause challenge, the Appellate Division concluded
that the trial court acted within its discretion to limit cross‐examination on
collateral matters. People v. Nappi, 922 N.Y.S.2d 669, 671‐72 (N.Y. App. Div. 4th
Dep’t 2011). In considering Nappi’s petition for a writ of habeas corpus, the
district court regarded the exclusion of evidence relating to Janice’s relationship
with Dyman as a “close[] issue,” and recognized that this Court has “cautioned
that the preclusion of motive evidence may present a strong argument that a
constitutional violation has occurred.” Nappi v. Yellach, No. 12‐cv‐01193‐JKS,
2014 WL 2434805, at *14 (N.D.N.Y. May 30, 2014) (internal quotation marks
omitted). The district court nevertheless concluded that the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) “preclude[d] . . . granting habeas
relief on this claim.” Id. at *15.
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DISCUSSION
Under AEDPA’s deferential standard for evaluating state court decisions,
Nappi’s application for a writ of habeas corpus may only be granted if the state
court’s ruling denying his opportunity to cross‐examine his wife about her
relationship with Dyman “resulted in a decision that 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). We consider
here whether the state court’s ruling was contrary to clearly established
Confrontation Clause jurisprudence.
“The phrase ‘clearly established federal law, as determined by the Supreme
Court of the United States’ refers to the holdings . . . of the Supreme Court’s
decisions as of the time of the relevant state‐court decision. A state court decision
is contrary to such clearly established federal law if it applies a rule that
contradicts the governing law set forth in the Supreme Court’s cases.” Lewis v.
Conn. Comm’r of Corr., ‐‐‐ F.3d ‐‐‐, 2015 WL 3823868, at *8 (2d Cir. June 22, 2015)
(some internal quotation marks, citations, and alterations omitted). “Moreover,
for habeas to be warranted, the trial court’s denial must not have been harmless,
that is, it must have had a substantial and injurious effect or influence in
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determining the jury’s verdict.” Alvarez v. Ercole, 763 F.3d 223, 230 (2d Cir.
2014) (concluding Confrontation Clause violation contravened clearly established
law and was not harmless, observing “trial court’s decision need not teeter on
‘judicial incompetence’ to warrant relief under § 2254(d),” and affirming grant of
habeas relief).
Upon de novo review of the district court’s denial of Nappi’s application
for habeas relief, see Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001), we conclude
that the state court’s ruling‐‐that cross‐examination as to Janice’s motive was a
collateral matter‐‐was contrary to clearly established law and not harmless.
I
The Sixth Amendment’s confrontation right, which applies equally to
defendants in state prosecutions, “means more than being allowed to confront
the witness physically.” Davis v. Alaska, 415 U.S. 308, 315 (1974). It includes a
right of cross‐examination, which provides “the principle means by which the
believability of a witness and the truth of his [or her] testimony are tested.” Id. at
316; see also Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (explaining
Confrontation Clause right is “designed to prevent improper restrictions on the
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types of questions that defense counsel may ask during cross‐examination”). To
be sure, a trial judge has discretion to limit or preclude inquiry into collateral,
repetitive, or “unduly harassing” subjects. Davis, 415 U.S. at 316. But this
discretion has limits and “the exposure of a witness’ motivation in testifying is a
proper and important function of the constitutionally protected right of crossexamination.”
Id. at 316‐17.
The state court’s conclusion that cross‐examination of the state’s main
witness’ motive for testifying was a collateral matter was contrary to clearly
established Supreme Court precedent. See Delaware v. Van Arsdall, 475 U.S. 673,
679 (1989) (ruling that preventing cross‐examination on a subject the “jury might
reasonably have found furnished the witness a motive for favoring the
prosecution in his testimony” violated the defendant’s Confrontation Clause
right); Brinson v. Walker, 547 F.3d 387, 392 (2d Cir. 2008) (“It is a clearly
established principle of Supreme Court jurisprudence that the Confrontation
Clause requires that a criminal defendant be afforded a meaningful opportunity
to cross‐examine witnesses against him in order to show bias or improper motive
for their testimony.” (citing cases)).
12
In Olden v. Kentucky, defendants were prosecuted for, among other
things, rape; the defense was consent and that the victim had a motive to lie to
conceal her extramarital relationship. 488 U.S. 227, 228‐30 (1988) (per curiam).
The state court prevented defendant from exposing this alleged motive to lie, but
the Supreme Court concluded that this ruling “failed to accord proper weight to
petitioner’s Sixth Amendment right to be confronted with the witnesses against
him.” Id. at 231 (internal quotation marks omitted). Here, as in Olden, the
testimony of a witness whose motive was at issue was “central, indeed crucial, to
the prosecution’s case.” Id. at 233.
“If the purpose of cross‐examination is to explore more than general
credibility, the subject of inquiry is not collateral.” Dunbar v. Harris, 612 F.2d
690, 693 (2d Cir. 1979). “The question is whether the defendant’s inability to
examine the witness precludes defendant from testing the truth of the witness’s
direct testimony, or the whether answers solicited might have established
untruthfulness with respect to specific events of the crime charged.” Id. (internal
citations and quotation marks omitted). The testimony at issue cannot be
deemed collateral or immaterial: As defense counsel argued before the trial
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court, it was Nappi’s “entire defense,” (Trial Tr. at 450), and was “designed to
show a prototypical form of bias” against Nappi, Van Arsdall, 475 U.S. at 680.
II
In evaluating whether the limitation of Nappi’s cross‐examination was
harmless error, we consider (i) the strength of the state’s case, (ii) the importance
of Janice’s testimony, (iii) whether the excluded testimony would have been
cumulative, (iv) the presence of evidence that would have corroborated the
testimony, and (v) the extent of the cross‐examination that was permitted. See
Van Arsdall, 475 U.S. at 684 (listing factors to determine whether state court’s
exclusion of evidence was harmless error); see also Alvarez, 763 F.3d at 233.
Janice’s testimony was all in all at trial. The gun was located in their
shared home after her report to Nappi’s parole officer, and the state’s case rose
and fell on her credibility. At the earlier trial, defense counsel was permitted to
raise questions about Janice’s motive for calling Nappi’s parole officer, reporting
the gun, and testifying against him. That trial ended in a hung jury. Moreover,
the motive testimony might well have raised questions for the jury about the
inferences it should draw from (for example) Janice’s testimony that she brought
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the gun to the Nappis’ home; that she had the gun in her bedroom, which she did
not share with Nappi, and often kept locked; and that she moved the gun after
alerting Stewart to its presence.
The testimony that was the subject of defense counsel’s offer of proof was
not cumulative. This was not a case in which Janice’s motive to lie was, in any
event, evident. Cf. Corby v. Artus, 699 F.3d 159, 167 (2d Cir. 2012) (concluding
“state trial court did not abuse its discretion in limiting [defendant’s] crossexamination”
because the defendant was otherwise “able to show that [the
witness] had a motive to lie to deflect the investigators’ attention from herself”).
To the contrary, perhaps made cautious by the earlier hung jury, the state elicited
testimony intended to show that Janice had no such motive because she took
steps to try to expedite Nappi’s release from incarceration for his prior
conviction. (Trial Tr. at 191.) If anything, a jury would view a spouse as partial
to the defendant.
Such cross‐examination of Janice as was permitted (on other topics) was
not an “opportunity for effective cross‐examination,” Delaware v. Fensterer, 474
U.S. 15, 20 (1985) (per curiam) (emphasis added and omitted), because the trial
15
court’s ruling “deprived [Nappi] of evidence essential to his primary defense,”
Alvarez, 763 F.3d at 233.3
If defense counsel had been permitted to elicit testimony establishing that
Janice had a motive to implicate Nappi in the illegal possession of a weapon‐‐
which she knew was a violation of his parole‐‐this would have been “of
significant importance,” and the exclusion of this evidence “could certainly have
rendered the verdict questionable.” Justice v. Hoke, 90 F.3d 43, 48 (2d Cir. 1996).
“The central concern of the Confrontation Clause is to ensure the reliability
of the evidence against a criminal defendant by subjecting it to rigorous testing in
3 This is not to say‐‐especially under AEDPA’s deferential standards‐‐that
because she was the state’s star witness, the trial court was required to permit
any attempt to impeach Janice or risk running afoul of the Confrontation Clause.
Quite to the contrary, it is well‐settled that a trial judge has broad discretion to
prevent a defendant from calling witnesses for impeachment purposes on
collateral matters, and also to limit cross‐examination on subjects that are, for
example, “only marginally relevant” or intended to harass a witness. Van
Arsdall, 475 U.S. at 679. Defense counsel’s proposed inquiry into Janice’s alleged
acts of prostitution was unquestionably collateral, and it was a proper exercise of
discretion to bar this line of questioning and to prevent defense counsel from
calling a witness to testify on this subject. See Corby, 699 F.3d at 166. Moreover,
this line of questioning would not have been probative of Nappi’s theory of the
case; it would not have illuminated Janice’s motive for testifying against him. Cf.
Fuller v. Gorczyk, 273 F.3d 212, 221 (2d Cir. 2001) (finding no Confrontation
Clause violation based on state court’s “fail[ure] to guess a theory of relevance
that was not argued”).
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the context of an adversary proceeding before the trier of fact.” Lilly v. Virginia,
527 U.S. 116, 123‐24 (1999) (internal quotation marks omitted). But here the trial
court accepted the state’s untested arguments that Janice had already testified as
to her motive, and that the defense theory raised a collateral matter. As a result,
counsel was “unable to make a record” to support Nappi’s sole defense. Davis,
415 U.S. at 318.
Because we “cannot say, with fair assurance, . . . that the judgment was not
substantially swayed by the error,” we cannot deem the constitutional violation
harmless. Kotteakos v. United States, 328 U.S. 750, 765 (1946) (explaining that the
“inquiry cannot be merely whether there was enough [evidence] to support the
result” but is rather “whether the error itself had substantial influence”); see also
Fry v. Pliler, 551 U.S. 112, 121‐22 (2007) (affirming that the standard articulated in
Kotteakos remains the appropriate one in a § 2254 proceeding).

For the foregoing reasons, we reverse and remand the case to the district
court. The court shall issue a writ of habeas corpus to Nappi by the thirtieth
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calendar day after the issuance of our mandate unless the state has, by that time,
taken concrete and substantial steps to retry Nappi. The mandate shall issue in
ten days.
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Outcome: For the foregoing reasons, we reverse and remand the case to the district
court. The court shall issue a writ of habeas corpus to Nappi by the thirtieth
calendar day after the issuance of our mandate unless the state has, by that time, taken concrete and substantial steps to retry Nappi. The mandate shall issue in ten days.

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