          09-3679-pr
         McBee v. Burge
         09-3679-pr


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER 

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.                  CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY        1, 2007,      IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF ApPELLATE
     PROCEDURE    32.1   AND THIS COURT'S         LOCAL RULE      32.1.1.      WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT    FILED   WITH     THIS   COURT,   A   PARTY    MUST   CITE   EITHER   THE   FEDERAL   ApPENDIX   OR   AN
     ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER") • A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COpy OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 6th     day of October , two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                BARRINGTON D. PARKER,
 9                PETER W. HALL,
10                         Circuit Judges.
11
12                                                                     - - -X
13       JERRY McBEE,
14
15                        Petitioner-Appellant,
16
17                        -v. ­                                                       09-3679-pr
18
19       SUPERINTENDENT JOHN BURGE,
20
21                        Respondent-Appellee.
22                                                      - - - - - - -X
23       APPEARING FOR APPELLANT:                         Diane Mirabile Rafal (Daniel J.
24                                                        Goodstadt, Brendan M.
25                                                        Palfreyman, and Ursala Bentele
26                                                        on the brief), BLS Legal
27                                                        Services, Inc., Brooklyn, NY.
28
29       APPEARING FOR APPELLEE:                              Lori Glachman (Leonard Joblove
30                                                            on the brief), for Charles J.
 1                               Hynes, District Attorney, Kings
 2                               County, Brooklyn, NY.
 3
 4       Appeal from a judgment of the United States District
 5   Court for the Eastern District of New York (Irizarry, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Petitioner-appellant Jerry McBee appeals from a
12   judgment of the United States District Court for the Eastern
13   District of New York (Irizarry, J.), denying McBee's
14   petition for a writ of habeas corpus and granting a
15   certificate of appealability. We assume the parties'
16   familiarity with the underlying facts, the procedural
17   history, and the issues presented for review.
18
19        We assume without deciding that McBee's rights under
20   the Confrontation Clause of the Sixth Amendment -- as
21   interpreted in Crawford v. Washington, 541 U.S. 36 (2004)
22   were violated by the admission at trial of the statements
23   made by David Tyson and Lamont Beasley.
24
25        Such an error is reviewed for harmlessness. See
26   Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
27   Specifically, this court evaluates whether the (assumed)
28   error "had substantial and injurious effect or influence in
29   determining the jury's verdict.II Brecht v. Abrahamson, 507
30   U.S. 619, 637 (1993) (internal quotation marks omitted) i see
31   also Fry v. Pliler, 551 U.S. 112, 121 (2007) (applying the
32   Brecht standard to "assess the prejudicial impact of
33   constitutional error in a state-court criminal trial") i
34   Brinson v. Walker, 547 F.3d 387, 395 (2d Cir. 2008)
35   (applying the Brecht standard to assess harmlessness in the
36   context of a Confrontation Clause violation). In so doing,
37   "the court looks to the record as a whole," evaluating,
38   inter alia, "the overall strength of the prosecution's case,
39   the importance of the improperly admitted evidence, and
40   whether the evidence was emphasized at trial.II  Brown v.
41   Keane, 355 F.3d 82, 92 (2d Cir. 2004) i see also Van Arsdall,
42   475 U.S. at 684 (explaining that relevant "factors include
43   the importance of the witness' testimony in the
44   prosecution's case, whether the testimony was cumulative,
45   the presence or absence of evidence corroborating or
46   contradicting the testimony of the witness on material

                                   2

 1   points, the extent of cross-examination otherwise permitted,
 2   and, of course, the overall strength of the prosecution's
 3   case").   "No one factor is disposi ti ve," but "the strength
 4   of the prosecution's case is probably the single most
 5   critical factor." United states v. Reifler, 446 F.3d 65, 87
 6   (2d Cir. 2006) (internal quotation marks and alteration
 7   omi tted). At the same time, "the mere fact that the
 8   properly admitted evidence, standing alone, would have been
 9   sufficient to support the conviction is not determinative of
10   whether the improperly admitted evidence had a substantial
11   and injurious effect." Wray v. Johnson, 202 F. 3d 515, 526
12   (2d Cir. 2000).
13
14        We have no trouble concluding that the (assumed) error
15   is harmless. No evidence contradicts Tyson and Beasley's
16   statements in issue, and they are corroborated by McBee's
17   admissions and Ebony Lilly's testimony, as well as other
18   evidence. The overall strength of the prosecution's case
19   outweighs any factors favoring McBee.
20
21        We reject McBee's three primary arguments to the
22   contrary. First, although the prosecutor referred to
23   Beasley's statements in her opening and both Tyson and
24   Beasley's statements in her summation, the references were
25   brief, especially relative to the emphasis on other
26   important evidence. See Gutierrez v. McGinnis, 389 F.3d
27   300, 309 (2d Cir. 2004). Second, although McBee's two
28   previous mistrials may be considered as evidence of the
29   weakness of the prosecution's case, these prior hung juries
30   are not determinative, see United States v. Newton, 369 F.3d
31   659, 680 (2d Cir. 2004), especially given the presentation
32   of Lilly's testimony for the first time in the third trial.
33   Third, whatever grounds existed for the jury to doubt
34   Lilly's credibility, her testimony reinforced the
35   prosecution's theory of the case. Cf. United States v.
36   Payne, 591 F.3d 46, 60 (2d Cir. 2010) (in the context of a
37   sufficiency challenge, explaining that "[a]ssessments of
38   witness credibility . . . lie solely within the province of
39   the jury") .
40
41       We have considered all of McBee's contentions on this
42   appeal and have found them to be without merit.
43   Accordingly, the judgment of the district court is hereby
44   AFFIRMED.
45
46                               FOR THE COURT: 

47                               CATHERINE O'HAGAN WOLFE, CLERK 


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