United States District Court, E.D. New York
March 3, 2004.
NATHANIEL JAMES, Petitioner, -against- ROBERT EBERT, Respondent
The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
MEMORANDUM AND ORDER
Petitioner Nathaniel James ("James") seeks a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 following his June 18, 1999
conviction on one count each of assault in the first degree, assault in
the second degree, criminal possession of a weapon in the second degree,
and reckless endangerment in the first degree. James alleges that
testimony presented at his trial violated his constitutional rights under
Clause, and that the resulting error was not harmless. For the
reasons that follow, his petition is denied.
James' conviction arose out of an altercation between himself and an
acquaintance, Erik Gamble ("Gamble"), on November 10, 1997. This
altercation took place outside of the Hammels housing project in Far
Rockaway, Queens, where both James and Gamble then resided. It was
uncontested at trial that James shot and wounded Gamble. See
Trial Transcript ("Tr.") at 492. However, while Gamble testified that
James had been the aggressor, "running out of [his] building shooting his
gun," Tr. at 311, James testified that it had been Gamble who had
initially drawn the gun, which James had then wrestled away and fired.
See Tr. at 492.
James' father, Nathaniel James, Sr. ("James, Sr."), was also charged
for his role in the altercation; the two cases were severed before trial,
apparently because of an inculpatory statement James, Sr. had given the
police. The parties agreed that no reference should be made to his
father's statement at James' trial. See Tr. at 22, 290-91.
During the prosecution's case, Detective Dennis Gustaferri ("Detective
Gustaferri") described the early steps leading to the James' arrest.
Detective Gustaferri testified that he went to the James' apartment after
an initial neighborhood canvass had uncovered information suggesting the
perpetrator resided there. See Tr. at 372, 393. At the
apartment, Detective Gustaferri had a conversation with James, Sr.,
see Tr. at 372, the substance of which was not disclosed at
trial. After this conversation, Detective Gustaferri
interviewed Gamble at Jamaica hospital. See Tr. at 373.
Gamble told Gustaferri that James was his assailant. See Tr. at
Following his conversation with Gamble, Detective Gustaferri returned
to the James' residence. See Tr. at 373. In response to the
prosecutor's questioning, the detective described what occurred as
Q: And what did you do when you got to [the
A: I had a conversation with Nathaniel James, Sr.
Q: Again, don't tell me the substance of that
conversation. After you had this conversation with
Nathaniel James, Sr., what did you do?
A: I went back to the 100 Precinct Squad with
Nathaniel James, Sr.
Q: And what did you do with him there? Again,
don't tell me the substance of any conversations.
What did you do with him there?
A: I issued Miranda warnings.
Tr. at 374-75.
Defense counsel asked to approach, to which the Court replied:
"Sustained. No, you may not." Id. The following exchange then
Q: Did there come a time when you placed Nathaniel
James, Sr. under arrest?
Q: Now, did there come a time when you had another
suspect in this incident?
Q: And the name of that suspect?
A: Nathaniel James, also known as Nat or also
known as Nate Nathaniel James, Jr.
Tr. at 375.
Defense counsel unsuccessfully moved for a mistrial "based on the fact
that [the prosecutor] violated [an] in limine order by eliciting
from the detective that Miranda warnings were given to Nathaniel
James, Sr., therefore raising the inference that a statement was given."
Tr. at 378.
On direct appeal, James argued that Detective Gustaferri's testimony
violated his rights under the Confrontation Clause as delineated by the
Supreme Court in Bruton v. United States, 391 U.S. 123 (1968).
See Brief for Defendant-Appellant, at 13. In affirming his
conviction, the Appellate Division noted that the above line of
questioning "was improper, as it was designed to create the impression in
the jurors' minds that the codefendant had implicated the defendant."
People v. James, 735 N.Y.S.2d 180, 181 (2d Dep't 2001). The
Appellate Division determined, however, that, "in light of the
overwhelming evidence of the defendant's guilt," the error was harmless
because "there is no reasonable possibility that the erroneously admitted
evidence contributed to the conviction." Id.
Petitioner seeks habeas relief on the sole ground that the
Appellate Division's harmless error determination was an unreasonable
application of the Supreme Court's decision in Chapman v.
California, 386 U.S. 18 (1967). Respondent counters that the
Appellate Division's determination that the questioning was improper was
an unreasonable application of the Supreme Court's holding in
Bruton. Because the Court
determines that the Appellate Division's harmless error holding was
not an unreasonable application of clearly established Supreme Court
precedent, it need not determine whether Bruton was violated.
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), habeas relief may not be granted for claims that
were adjudicated on their merits by the state court unless the state
court decision (1) was "contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States," or (2) was "based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding." 28 U.S.C. § 2254(d). "A state-court decision
is `contrary to' [the Supreme Court's] clearly established precedents if
it `applies a rule that contradicts the governing law set forth in [the
Supreme Court's] cases' or if it `confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [Supreme Court]
precedent.'" Early v. Packer, 123 U.S. 362, 365 (2002) (quoting
Williams v. Taylor, 529 U.S. 362, 405 (2000)). Factual
determinations made by the state court "shall be presumed to be correct"
and the presumption can be overcome only by "clear and convincing
evidence." 28 U.S.C. § 2254(e)(1); see also Shabazz v.
Artuz, 336 F.3d 154, 161 (2d Cir. 2003).
To conduct the harmless error analysis here, the Court must first
briefly delineate the nature of the alleged Bruton violation. It
is well-established that "to
implicate the defendant's confrontation right, the statement need
not have accused the defendant explicitly but may contain an accusation
that is only implicit." Mason v. Scully, 16 F.3d 38, 42-43 (2d
Cir. 1994). The violation found in Mason is instructive in this
regard, as the Second Circuit found the following testimony constituted a
Q: And, after this conversation with
[co-defendant], were you looking for somebody?
A: Yes, I was.
Q: And, who were you looking for?
A: [The defendant].
Mason at 40.
While the testimony given by Detective Gustaferri bears a surface
resemblance to that in Mason, there are significant differences.
First, the only indication that James, Sr. made any statement is
that Detective Gustaferri issued a Miranda warning to him. The
detective's testimony did not indicate whether James, Sr. then made a
statement or chose instead to exercise his right to remain silent.
Furthermore, unlike in Mason, where the co-defendant's statement
first brought the defendant to the police's attention, Detective
Gustaferri's testimony established that he already had other compelling
reasons to suspect James. Indeed, the detective had spoken with the
victim, who had identified James as his assailant, prior to issuing
Miranda warnings to James, Sr. Any Bruton violation
here, therefore, would be far more attenuated than that in
Even accepting, arguendo, that there was a Bruton
violation, the Court concludes that the Appellate Division's
determination that the resulting error was harmless was reasonable. "The
Supreme Court has held that violations of the Confrontation Clause are
subject to harmless error analysis [,]" United State v. Dhinsa,
243 F.3d 635, 656 (2d Cir. 2001). The Second Circuit has not resolved
which of two harmless error standards applies in this Circuit to
post-AEDPA cases. The first is the "Brecht standard," in which
error is considered harmless "if it did not result in `actual prejudice,'
that is, it did not have a `substantial and injurious effect or influence
in determining the jury's verdict.'" Ryan v. Miller,
303 F.3d 231, 254 (2d Cir. 2002) (quoting Brecht v. Abrahamson,
507 U.S. 619, 637 (1993)). The second is the "mixed AEDPK/ Chapman
standard," which is a combination of Chapman v. California,
386 U.S. 18, 24 (1967) (error is harmless if beyond a reasonable doubt it did
not contribute to the verdict) and AEDPA ("whether the state court's
decision was `contrary to, or involved an unreasonable application of
Chapman"). Ryan, 303 F.3d at 254. The Second Circuit has
consistently declined to resolve this issue, holding under the facts of
the particular case that the result would be the same under either
standard. See, e.g., Brown v. Keane, 335 F.3d 82, 91 (2d Cir.
2004). Because this Court concludes that its determination here would
also be the same under either standard, it will also decline to decide
In assessing whether the erroneous admission of evidence was harmless,
the principal factors to be considered are the importance of the witness'
wrongly admitted testimony, and the overall strength of the prosecution's
case. See generally Brecht v.
Abrahamson, 507 U.S. at 639. In assessing the importance
of wrongly admitted testimony, the Court considers whether the testimony
concerned "an issue that is plainly critical to the jury's decision."
Hynes v. Coughlin, 79 F.3d 285, 291 (2d Cir. 1996), and "whether
that testimony was material to the establishment of the critical fact or
whether it was instead corroborated and cumulative." Wray v.
Johnson, 202 F.3d 515, 526 (2d Cir. 2000). "The more tangential the
issue to which the wrongly admitted evidence pertains, the less likely it
is that the evidence was a substantial factor in determining the jury's
The testimony here was plainly tangential to the jury's decision, as
well as corroborated and cumulative. Both Gamble and James testified at
trial that James shot Gamble. What was in dispute was whether that
shooting was justified as an act of self-defense. The alleged
Bruton violation was thus completely extraneous to the issue of
self-defense, and therefore the Appellate Division's holding that the
error was harmless because "there is no reasonable possibility that the
erroneously admitted evidence contributed to the conviction,"
fames, 735 N.Y.2d at 181, was reasonable under either
Brecht or Chapman.
James's petition for a writ of habeas corpus is denied. The
determines that a certificate of appealability will not be issued
since James has failed to make a substantial showing of the denial of a
federal right. See 28 U.S.C. § 2253(c)(2).
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