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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


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 the Confrontation Page 2 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 Page 3 interviewed Gamble at Jamaica hospital. See Tr. at 373. Gamble told Gustaferri that James was his assailant. See Tr. at 394-96.

  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 follows:

Q: And what did you do when you got to [the apartment]?
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 took place:

Q: Did there come a time when you placed Nathaniel James, Sr. under arrest?
A: Yes.
Q: Now, did there come a time when you had another suspect in this incident?
A: Yes.
  Q: And the name of that suspect? Page 4


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 Page 5 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 Page 6 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 Bruton violation:

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 Mason. Page 7

  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 the issue.

  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. Page 8 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 verdict." Id.

  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 Court further Page 9 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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