Opinion
00 CV 4642 (JG)
October 20, 2003
KIM BROWN, Bedford Hills Correctional Facility, Bedford Hills, New York, for Petitioner
RICHARD A. BROWN, District Attorney, NOREEN HEALEY, Assistant District Attorney, Kew Gardens, New York, for Respondent
MEMORANDUM AND ORDER
Petitioner Kim Brown seeks habeas corpus relief from a judgment of conviction entered after a jury trial in state court. I held oral argument by telephone conference on October 17, 2003, For the reasons set forth below, the petition is denied.
BACKGROUND
On March 29, 1994, petitioner Kim Brown shot and killed Peter Thomas — to whom Brown claimed she was engaged to be married — and Thomas's lover, Rhonda Funn. Just before the shootings, Brown had picked up Funn and brought her to Thomas's house, where Brown resided, to confront Funn and Thomas about their affair. Brown then shot Thomas and Funn each in the back of the head and also shot Thomas four more times. Following the murders, Brown called 911 and claimed that she had been attacked by the victims. She made several inculpatory statements to the police regarding the shooting and her relationship to the victims.For these acts, Brown was charged with four counts of murder in the second degree, N.Y. Penal Law § 125.25, and one count each of criminal possession of a weapon in the second degree, Id. § 265.03, and criminal possession of a weapon in the fourth degree,Id. § 265.01. See Queens County Indictment No. 1393/94.
The four counts of murder reflected the separate theories of intentional and depraved indifference homicide. The prosecution moved to dismiss the fourth-degree weapons possession count prior to the charging of the jury.
Brown thereafter moved in the Supreme Court, Queens County, to suppress her statements to the police. After a hearing, the court denied the motion. Brown then proceeded to trial before Justice Robert C. McGann of the Supreme Court, Queens County, and a jury. At the conclusion of the trial, the jury convicted her of two counts of second-degree murder (intentional) and one count of second-degree possession of a weapon.
On October 11, 1995, Brown was sentenced to consecutive terms of imprisonment of twenty years to life on each of the two murder counts, to run concurrently with a term of imprisonment of five to fifteen years on the weapon possession count.
A. State Appellate History
In August 1998, assigned appellate counsel, on Brown's behalf, filed a brief in the Appellate Division, Second Department, raising the following four claims: (1) that the trial court erred in its justification charge; (2) that the trial court erred when it failed to give an instruction on the defense of extreme emotional disturbance; (3) that the trial erred when it admitted into evidence Brown's membership in a gun club; and (4) that Brown's sentence was excessive.
In January 1999, Brown filed a supplemental pro se brief in the Second Department, raising the following four claims: (1) that the trial court erred in its intent and circumstantial evidence instructions; (2) that the prosecutor committed misconduct in its summation; (3) that the trial court erred when it precluded Brown from testifying about statements of Beatrice Simpson; and (4) that the verdict was against the weight of the evidence.
In a decision and order dated June 21, 1999, the Second Department unanimously affirmed the judgment of conviction against Brown.People v. Brown, 691 N.Y.S.2d 790 (N.Y.App.Div. 1999). The Second Department found that Brown's claim regarding the sufficiency of the evidence was unreserved for review, and, in any event, was without merit. As to her claim regarding the court's failure to give an extreme emotional disturbance charge, the court found that she had waived that right, and having done so, the court's failure to charge was not error. The court also found that Brown's sentence was not excessive, and that the remainder of her claims, including those raised in her supplementalpro se brief, were without merit. Id. at 791.
In a letter dated June 30, 1999, Brown sought leave to appeal to the Court of Appeals of New York. She enclosed the briefs filed in the Second Department and asked the court to consider and review all issues. On August 10, 1999, the Honorable Richard C. Wesley, then-Associate Judge of the Court of Appeals, denied Brown's leave application. People v. Brown, 719 N.E.2d 934 (N.Y. 1999).
B. The Petition Before This Court
In this petition for a writ of habeas corpus, filed August 9, 2000, Brown raises, by reference to her state appellate briefs, the same eight claims, listed above, that she raised in her state court appeal.
DISCUSSION
A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Id. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts."Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. Under the latter standard, "`a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.'"Gilchrist, 260 F.3d at 93 (quoting Williams, 529 U.S. at 411). Interpreting Williams, the Second Circuit has "added that although `some increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Id, (alteration in original) (quotingFrancis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated inSellan v. Kuhlman:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.261 F.3d 303, 312 (2d Cir. 2001). In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
B. Brown's Claims
By attaching copies of her attorney's brief to the Appellate Division and her own pro se supplemental brief to the Appellate Division, Brown has advanced in her petition the same claims she made unsuccessfully in the state courts. Those claims are addressed below.
1. Sufficiency of the Evidence
The Appellate Division held that Brown's challenge to the sufficiency of the evidence to establish her guilty of intentional murder in the second degree was both unpreserved for appellate review and lacking in merit. Brown, 691 N.Y.S.2d at 790-91. The former conclusion constitutes an adequate and independent state ground for the state court's judgment. A claim defaulted in the state court will be considered on habeas review only upon a showing of cause and prejudice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Teague v. Lane, 489 U.S. 288, 298 (1989). A petitioner may establish cause by showing "that the factual or legal basis for a claim was not reasonably available to counsel, or that some interference by officials made compliance impracticable." To satisfy the prejudice requirement, the alleged error must have worked to the petitioner's "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Torres v. Senkowski 316 F.3d 147, 152 (2d Cir. 2003) (internal quotation marks omitted). If the petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim, i.e., "that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citing Schlup v. Delo, 513 U.S. 298, 321 (1995)).,
Brown has not alleged the existence of circumstances that would support a finding that her failure to challenge the sufficiency of the evidence was caused by the unavailability of the factual or legal basis necessary for such a request. There is also no indication that an official of the state interfered with counsel's ability to alert the court to a concern that the evidence was insufficient. Even if counsel had been prevented in some manner from raising Brown's concern with the court, it would still be necessary to demonstrate that the failure to press the claim caused an "actual and substantial disadvantage" to Brown's case or produced a fundamental miscarriage of justice. Brown offers no basis for drawing either conclusion.
In any event, the sufficiency claim has no merit. A petitioner "challenging the sufficiency of the evidence bears a very heavy burden."Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997) (internal quotation marks omitted). A state criminal conviction will be upheld if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). In making this assessment, a court may neither "disturb the jury's findings with respect to the witnesses' credibility," United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989), nor "make credibility judgments about the testimony presented at petitioner's trial or . . . weigh conflicting testimony."Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (citingUnited States v. Zabare, 871 F.2d 282, 286 (2d Cir. 1989)). Thus, under this "rigorous standard," a "federal habeas court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994) (quoting Jackson, 443 U.S. at 326).
Brown cannot meet that heavy burden here. She admitted that she was the shooter of Thomas and Funn. Based on the number of gunshots — and particularly the fact that each victim had been shot in the back of the head — and the evidence that Brown had joined a gun club to learn how to use handguns just 17 days before the murders, it cannot be said that the jury's finding that the murders were intentionally committed by Brown was irrational. At the very least, it cannot be said that the state court's finding that the evidence was sufficient was an unreasonable application of federal law.
2. The Jury Instruction Claims
a. Extreme Emotional Disturbance
Brown asserts that her due process rights were violated by the trial court's failure to instruct the jury on the defense of extreme emotional disturbance, a defense Brown claims was viable on the facts of the case. There is no dispute that Brown specifically chose to submit to the jury a self-defense case, not a case of extreme emotional disturbance, and she explicitly waived this issue after direct questioning of her by the trial judge. (See Tr. 1804-05.) On her direct appeal, she sought to invoke the appellate court's "interest of justice" jurisdiction in her effort to obtain a new trial by challenging the absence of the instruction. (Brown's Brief on Appeal at 35.) The Appellate Division declined, and specifically held that the issue was waived by Brown at trial. Brown, 691 N.Y.S.2d at 791.
As set forth above, Brown's procedural default precludes habeas review unless she establishes cause and prejudice for the default, or that a failure to review the claim will result in a miscarriage of justice. She has failed to make (or even attempt) any such showing, and accordingly her claim is rejected.
b. Justification
Brown claims that the trial court's jury instructions regarding her defense of justification were deficient in two respects: (1) The instructions failed to instruct the jury "that a withdrawing initial aggressor can recover her right to use deadly physical force" (Brown's Brief On Appeal at 29), and (2) the instructions failed to state that Brown had no duty to retreat in her own home.
As a general matter, challenges like Brown's, which relate to a defense provided by state law, are not cognizable on habeas review. For an error in the jury charge to give rise to federal habeas corpus relief, a petitioner must carry a heavy burden. "The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154 (1977). The petitioner must show
not merely that the instruction is undesirable, erroneous, or even "universally condemned," but that it violated some right which was guaranteed to the defendant under the Fourteenth Amendment. . . . [T]he question is not whether the trial court failed to isolate and cure a particular ailing instruction, but rather whether the ailing instruction itself so infected the entire trial process that the resulting conviction violates due process.Cupp v. Naughten, 414 U.S. 141, 146-47 (1973); see also Estelle v. McGuire, 502 U.S. 62, 72 (1991). In making this determination, a court "must consider the challenged portion of the charge not in `artificial isolation,' but rather `in the context of the overall charge.'" Justice v. Hoke, 45 F.3d 33, 34 (2d Cir. 1995) (quoting Cupp, 414 U.S. at 146-47).
Even if they qualified for relief on habeas review, Brown's claims fail because they have no merit. Read as a whole, the charge fairly informed the jury of New York's "initial aggressor" principle, that is, that an initial aggressor cannot avail herself of the justification defense. Moreover, the state court could reasonably have concluded that there was insufficient evidence that Brown withdrew from her altercation with Thomas and Funn to warrant the charge she sought.
As for the no-duty-to-retreat charge, Brown complains that the jury was not informed of an exception to the duty-to-retreat principle for persons who are attacked in their homes. However, since the duty to retreat was not included in the jury charge, it was unnecessary to tell the jury about the exception to it. Brown contends that the jury might have thought, mistakenly, that Brown had a legal duty to retreat in her own home. I disagree, and conclude that the charge was fair.
c. Intent and Circumstantial Evidence
The trial court instructed the jury as follows with respect to the element of intent:
Now intent: Intent or to act knowingly is a critical and material element in determining the character of many of the acts charged in this indictment The question which you will naturally ask yourselves is how can you determine what any person's intent was in a particular occasion.
Generally speaking, intent or to act knowingly is the state of mind that accompanies an act. But since intent or to act knowingly is formed by a mental operation, its only outward sign is the action taken by the person in whose mind the intent was formed. And so it is in accordance with the knowledge of and the experience of human nature to judge any individual's intent or whether anyone acted knowingly in light of their conduct at the time of the incident. Indeed, that's the safe method by which the intent or knowledge may be tested in this case.
In deciding the question of intent or knowledge, you may look to the evidence of the defendant's conduct; from whatever you may be convinced by both direct and circumstantial evidence beyond a reasonable doubt that she — that she did, and you will decide what, if any, inferences are just under all of the circumstances in the case, whether the defendant acted with any intent at all or whether the defendant acted knowingly, and if so, what was her intent?
Needless to say, you may not justly infer an intent or knowledge from the defendant's conduct where the facts, as you find them, preclude the existence of any such intent or knowledge. And, of course, any reasonable doubt as to the existence or nature of intent or knowledge must be resolved in the defendant's favor by a finding of not guilty as to all of those charges in the indictment.
(Tr. 1932-34.) Brown claims that those instructions deprived her of due process by suggesting that a person intends the natural consequences of her actions, and failed adequately to instruct the jury that the People were required to prove she actually had an intent to kill.
I disagree. The charge apprised the jury that the People were required to prove that Brown intended to kill Thomas and Funn Id. 1945), and, as quoted above, that a reasonable doubt that she harbored such intent would require a finding of not guilty. That the jury was told that an intent to murder may be inferred from all the circumstances, including the acts of Brown, did not relieve the People of their burden to prove intent. The jury was never informed that it could presume that Brown intended the natural consequences of her actions, and thus Brown's reliance on Sandstrom v. Montana, 442 U.S. 512 (1979), is misplaced. See United States v. Russo, 302 F.3d 37, 47 (2d Cir. 2002) ("you may infer" language in intent charge poses no constitutional problem where context suggests to the jury only a permissible inference).
3. The Evidence That Brown Belonged to a Gun Club
Over Brown's objection, the trial court admitted the testimony of Ernest LeMelle, the owner of Queens Village Pistol and Rifle, Inc., a gun club. LeMelle testified that Brown had (1) applied for membership to the club on March 12, 1994, 17 days before the murders; (2) taken a firearms course there; and (3) practiced shooting at the range there. (Tr. 1224, 1230-33, 1236-37, 1240, 1247, 1250.) The firearms course included instructions on how to load and shoot handguns. (Id. at 1230-32, 1240.) The trial court concluded that the evidence was relevant to Brown's general knowledge of weapons. (Id. at 1221.)
Evidentiary rulings of this sort, even if erroneous, generally do not rise to the level of constitutional violations upon which a federal court may issue a writ of habeas corpus. See Jenkins v. Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987). However, the Due Process Clause of the Fourteenth Amendment is violated where "the evidence in question `was sufficiently material to provide the basis for conviction or to remove reasonable doubt that would have existed on the record without it.'"Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992) (quotingCollins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985)). The erroneously admitted evidence must be "crucial, critical, [and] highly significant." Collins, 755 F.2d at 19. In this regard, petitioner bears a "heavy burden." Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y. 1993), aff'd, 71 F.3d 406 (2d Cir. 1995) (unpublished table decision).
The admission of the evidence challenged by Brown was well within the discretion of the trial court. In the context of a double homicide committed by firing a hail of bullets, it is not unreasonable to conclude that the defendant's experience with and knowledge of guns — and the fact that she recently took steps to acquire both — made it more probable than not that she intentionally committed the murders. Viewed under the abuse-of-discretion standard that would apply on a direct review of a conviction, the challenged ruling would not be erroneous. Under the even more deferential standard of review accorded to state court judgments under AEDPA, Brown's claim must be rejected.
4. The Prosecutor's Summation
Brown contends that the prosecutor's references in summation to (1) a bullet that entered Thomas's scrotum; (2) the injuries found on the bodies of Thomas and Funn; (3) the trajectory of the bullet lodged in the floor; (4) Brown's claim that she found the gun lying open in Thomas's study; (5) Thomas's condition after the first shot; (6) Brown being a "marksman"; (7) Brown's 911 call being an act; and (8) Brown's testimony about a fight with Thomas and Funn as a fabrication, deprived her of a fair trial. I disagree.
Habeas relief based on a claim of prosecutorial misconduct during summation is unavailable unless the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). A petitioner "must demonstrate that he suffered actual prejudice because the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict."Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994). In making this determination, the habeas court should consider the severity of the prosecutor's conduct, the measures, if any, that the trial court took to remedy any prejudice, and the certainty of conviction absent the prosecutor's remarks. See id.
I have reviewed all of the challenged aspects of the prosecutor's summation. There was in fact a bullet wound to Thomas's scrotum. That it was caused by a bullet that entered his rear left thigh (see Tr. 891-92) made the prosecutor's argument that Brown shot Thomas in his "private part" less persuasive, but the argument was based on the evidence and not made in an inflammatory way (see id. 1897). The other challenged aspects of the summation either constituted reasonable inferences from the evidence or fair responses to the defense summation, or both. The state court's rejection of Brown's claim was not an unreasonable application of federal law governing prosecutorial misconduct in summation.
That a prosecutor's summation survives habeas scrutiny does not mean it was appropriate. In this case, for example, the prosecutor's repeated references to Brown as a woman who was "pissed off at Thomas (Tr. 1870-72), and the argument that "Hell hath no fury like a woman scorned," do not reflect well on the prosecutor.
5. The Preclusion of Simpson's Testimony
In her pro se supplemental brief to the Appellate Division, Brown contended that a new trial was warranted because the trial court improperly precluded the testimony of Beatrice Simpson-Brown (referred to here, as in Brown's testimony, as "Beatrice"). Brown's brief is bereft of record citations on the issue, but she is apparently referring to pages 1410 through 1412 of the trial transcript, where the trial court sustained objections that sought to elicit statements made by Beatrice to Brown shortly before the murders. Although the trial record does not include an offer of proof, Brown contended on appeal that, if permitted, she would have testified that Beatrice told her to be careful in dealing with Thomas, that Thomas had a bad temper and could become violent if pushed, and that Thomas did not like his privacy violated. (Brown's Supplemental Brief at 17.) Brown claims that Beatrice's statements should have been admitted because they were probative of Brown's state of mind. (Id.)
The argument has no merit. Even if the trial court had been apprised of the non-hearsay purpose for which Brown now claims the statements were offered, it would have been well within its discretion to preclude them. Because the crux of the trial was a factual dispute as to who was the initial aggressor, the statements were only marginally probative, if probative at all. Put another way, in determining whether the murders (1) followed a vicious, around-the-house assault of Brown by Thomas and Funn, or (2) were an intentional execution by Brown, it mattered little whether or not Beatrice told Brown that Thomas might become violent if pushed.
6. The Sentence
Brown contends that her sentence was excessive. As raised in the state court, the argument relied solely on New York law, and did not raise a federal constitutional claim. In any event, the consecutive 20-year-to-life sentences fall within the maximum sentence authorized by New York law for intentional murder, and they therefore do not qualify for consideration as excessive under the Eighth Amendment.See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) ("No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.").
CONCLUSION
For the foregoing reasons, the petition is denied. Because Brown has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.