Brummel v. Capra

Filing 7

MEMORANDUM AND ORDER: Brummels petition for a writ of habeas corpus is denied. In addition, the Court finds that none of Brummels claims makes a substantial showing of the denial of a constitutional right. Therefore, a certificate of appealability will not issue. See 28 U.S.C. § 2253. Ordered by Judge Frederic Block on 8/12/2016. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------x
TEON BRUMMEL,
Petitioner,
-against-

MEMORANDUM AND ORDER
Case No. 15-CV-05028 (FB)

MICHAEL CAPRA, Superintendent of
Sing Sing Correctional Facility,
Respondent.
-------------------------------------------------x
Appearances:
For the Petitioner:
STEPHEN N. PREZIOSI, ESQ.
48 Wall Street, Fifth Floor
New York, New York 10005

For the Respondent:
KENNETH P. THOMPSON, ESQ.
District Attorney, Kings County
350 Jay Street
Brooklyn, New York 11201
By:

SETH M. LIEBERMAN, ESQ.
Assistant District Attorney

BLOCK, Senior District Judge:
Teon Brummel is currently serving a sentence of twenty-five years to life
following a conviction for second-degree murder in the Supreme Court of New York,
Kings County. He petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
arguing that he was denied his constitutional rights to due process, the effective
assistance of counsel, and to confront the witnesses against him. For the following
reasons, the petition is denied.

I
A. Trial Proceedings
The charge against Brummel stemmed from the death of his girlfriend, Natasha
Southerland, on September 20, 2004. The state presented evidence that Brummel had
repeatedly stabbed Sutherland and struck her on the head with a blunt object. She
died from those injuries.
Shortly after Southerland’s death, Brummel crashed his car into a pole. He was
hospitalized and prescribed Ativan and Haldol. Brummel was later visited in the
hospital by Detective Willam Hogan, who was investigating Southerland’s death.
Detective Hogan first spoke with the attending physician, who told Hogan that
Brummel “was not under the influence of any medications that would alter his ability
to answer [Hogan’s] questions.” Trial Tr. 6. He then spoke to Brummel and advised
him of his Miranda rights. Brummel stated that he had killed Southerland because she
had five boyfriends, and that he had crashed his car in attempt to kill himself because
he wanted to be with Sutherland. At trial, Detective Hogan testified as to both
Brummel’s confession and his doctor’s statement. The prosecution had intended to
call another doctor who had treated Brummel during his hospital stay, but learned
during trial that the doctor believed—with some reservations—that Brummel might
not have been capable of making a “reliable” statement while hospitalized. The

2

prosecution disclosed this information about a week before resting its case. Neither
side called the doctor as a witness.
The prosecution introduced the murder weapons at trial. Police had recovered
knives and pair of garden shears during their initial investigation of the crime scene,
which had been carried out with the consent of Brummel’s mother. Later, Detective
Jay Poggi obtained a warrant to search the scene again, and found a barbell that
appeared to have been the blunt object Brummel had used to strike Sutherland. Since
the prosecution had not disclosed the warrant until the trial was underway, the trial
judge allowed Brummel’s counsel to question Detective Poggi in camera. The judge
suppressed a floppy disk recovered from the scene as being outside the scope of the
warrant, but allowed the barbell to be admitted into evidence.
Brummel’s principal defense was that he was acting under an extreme
emotional disturbance (“EED”). The EED defense reduces what would otherwise be
murder to first-degree manslaughter if the defendant proves that he “acted under the
influence of extreme emotional disturbance for which there was a reasonable
explanation or excuse.” N.Y. Pen. L. § 125.25(1)(a); see also id. § 125.20(2). Both
the prosecution and the defense presented expert psychiatric testimony addressing this
defense.
The defense expert, Dr. Drob, testified that Brummel’s actions were the result
of a “catathymic event,” which he described as “an expression of emotion in which
3

there’s a loss of control . . . a severe case of . . . suddenly losing control of one’s
emotions and behavior.” Trial Tr. 645-46. He attributed the event to Brummel’s
traumatic childhood, the tumultuous nature of his relationship with Southerland, and
his history of mental illness (borderline personality disorder). He testified that
Brummel’s catathymic event was “consistent with” a finding of EED. Id. at 646.
The prosecution’s expert, Dr. Bardey, described EED as “an updated notion of
the temporary insanity or heat of passion [defense]. . . and reflects the fact that the
individual, as a result of significant trauma . . . was overwhelmed with emotion, and
as a result, lost rational control over [his] behavior.” Id. at 731-32. He drew a
distinction EED and between a catathymic event: “the difference is, with catathymia,
the individual sort of lets go and chooses to give in to the emotion, as opposed to
EED, where they have no choice, they’re overwhelmed and they can’t do anything
about it.” Id. at 733. Dr. Bardey opined that Brummel’s actions were not the result of
EED. Id. at 734.
The jury found Brummel guilty of second-degree murder. As noted, he was
sentenced to twenty-five years to life.
B. Post-Trial Proceedings
On direct appeal, Brummel argued, inter alia, that the trial court had unfairly
precluded Dr. Drob from testifying that Brummel’s actions were influenced by EED.
The Second Department affirmed, holding that that claim was “unpreserved for
4

appellate review and, in any event, without merit.” See People v. Brummel, 962
N.Y.S.2d 182, 185 (2d Dep’t 2013). The New York Court of Appeals declined
review. See People v. Brummel, 21 N.Y.3d 941 (2013).
Brummel later moved for an order vacating his convictions pursuant to § 440.10
of the New York Criminal Procedure Law. He claimed violations of his constitutional
rights to the effective assistance of counsel, to confront the witnesses against him, and
to timely disclosure of exculpatory evidence. The § 440.10 court denied Brummel’s
motion in its entirety, but provided a reasoned decision only for the ineffectiveassistance claim. See People v. Brummel, 2014 NY Slip Op. 32846(U) (N.Y. Sup. Ct.
2014). The Second Department denied leave to appeal. See People v. Brummel, 2015
N.Y. Slip Op. 67956 [U] (2d Dep’t 2015).
Brummel then filed the present habeas petition. He argues:
(1)

that the trial court violated his rights under the Confrontation Clause by
allowing Detective Hogan to testify as to what his doctor said about his
lucidity following the car crash;

(2)

that the prosecution violated its obligations under the Due Process
Clause and Brady v. Maryland, 373 U.S. 83 (1963), when it did not
disclose that a treating doctor refused to opine that Brummel was capable
of making a voluntary statement to Detective Hogan until trial was
underway;

(3)

that the prosecution violated its obligation under the Due Process Clause
and Brady when it did not disclose that the barbell had been recovered
pursuant to a search warrant, and that the search warrant lacked probable
cause;

5

(4)

that the trial court deprived Brummel of his constitutional right to
present a defense by not allowing his psychiatric expert to opine that
Brummel’s actions were the result of EED.

Finally, Brummel recasts claims (1), (2) and (3)—but not (4)—as grounds for a claim
that his was deprived of his constitutional right to the effective assistance of counsel
because his trial counsel did not pursue those claims.
II
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
a habeas petitioner must first “exhaust[] the remedies available in the courts of the
State.” 28 U.S.C. § 2254(b)(1)(A). The state court’s disposition of the claim affects
the scope of federal habeas review. “A federal habeas court will not review a claim
rejected by a state court ‘if the decision of [the state] court rests on a state law ground
that is independent of the federal question and adequate to support the judgment.’”
Beard v. Kindler, 558 U.S. 53, 55 (2009) (quoting Coleman v. Thompson, 501 U.S.
722, 729 (1991)). If, however, the state court reaches the merits, the writ cannot be
granted unless the state court’s adjudication
(1) 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; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.

6

28 U.S.C. § 2254(d). Under those standards, “[a] state court’s determination that a
claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could
disagree’ on the correctness of the state court's decision.” Harrington v. Richter, 562
U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
All the claims raised in Brummel’s habeas petition were raised in state court.
The Confrontation Clause, Brady and ineffective-assistance claims were all raised in
Brummel’s § 440.10 motion. Although the § 440.10 court did not did not provide a
reasoned decision for all of those claims, it denied them without invoking an
independent state ground. Therefore, they were all disposed of on the merits. See
Harris v. Reed, 489 U.S. 255, 263 (1989) (state court must “clearly and expressly”
invoke state-law procedural bar); Jimenez v. Walker, 458 F.3d 130, 144 (2d Cir. 2006)
(unreasoned disposition on the merits “focus[es] our review on the state court’s
ultimate decision”).
The claim regarding Dr. Drom, by contrast, was raised on direct appeal.
Brummel raised this claim in Point II of his brief to the Second Department. The
appellate court’s disposition—that the claim was “unpreserved for appellate review
and, in any event, without merit,” Brummel, 962 N.Y.S.2d at 185—imposes a
procedural bar. “[W]hen a state court says that a claim is ‘not preserved for appellate
review’ but then rules ‘in any event’ on the merits, such a claim is procedurally

7

defaulted.” Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005) (quoting Glenn v.
Bartlett, 98 F.3d 721, 725 (2d Cir. 1996)).
A. Confrontation Clause
The Sixth Amendment’s Confrontation Clause bars the admission of
“testimonial statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant . . . had a prior opportunity for
cross-examination.” Crawford v. Washington, 541 U.S. 36, 55 (2004). The state does
not argue that Brummel’s doctor’s out-of-court statement was not “testimonial,” or
that its admission satisfied the requirements of Crawford. Instead, it argues that any
error was harmless.
In the habeas context, error is harmless unless “it had substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.
619, 631 (1993) (citation and internal quotation marks omitted). That standard applies
“whether or not the state appellate court recognized the error and reviewed it for
harmlessness.” Fry v. Pliler, 551 U.S. 112, 121-22 (2007).
The Court agrees that admission of the statement, assuming it was erroneous,
was harmless. Although Brummel claims that it vitiated his EED defense, the doctor’s
statement addressed Brummel’s mental state after being hospitalized and medicated,
not at the time of Southerland’s death three days earlier. The statement was relevant
to the voluntariness of Brummel’s statement to Detective Hogan—an issue property
8

before the jury under New York law—but both the Second Department and the §
440.10 court noted overwhelming other evidence of guilt, and this Court finds no
reasonable probability that the jury would have come to a different verdict had the
statement been excluded. Indeed, while Brummel’s counsel continued to dispute the
voluntariness of his client’s statement to Detective Hogan, he conceded at oral
argument that the substance of the statement—that Brummel had killed
Southerland—was undisputed at trial.
B. Brady: Medical Testimony
Prosecutors have a clearly established duty to disclose all material, exculpatory
evidence to the defendant. See Brady, 373 U.S. at 87. But “there is never a real
‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable
probability that the suppressed evidence would have produced a different verdict.”
Strickler v. Greene, 527 U.S. 263, 281-82 (1999). This prejudice inquiry defines the
required time for disclosure: “no later than the point at which a reasonable probability
will exist that the outcome would have been different if an earlier disclosure had been
made.” United States v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001). In other words,
“Brady material must be disclosed in time for its effective use at trial.” Id.
Brummel claims that the prosecution violated its Brady obligations when it did
not disclose his treating physician’s opinion about his statement to Detective Hogan
until trial was underway. The § 440.10 court briefly addressed this argument, finding
9

that “[t]he People adequately provided the defendant with information regarding the
doctor who believed the defendant was not in a position to make a voluntary statement
when questioned by a detective at the hospital.” People v. Brummel, 2014 NY Slip
Op. 32846(U), at 5. This was neither an unreasonable application of the requirement
that defense counsel must have sufficient time to make effective use of Brady
material, nor an unreasonable determination of fact, given that defense counsel had
at least a week to process the information before deciding not to call the doctor as a
defense witness.
C. Brady/Fourth Amendment: Search Warrant
Brummel further claims that the prosecution’s disclosure, during trial, that the
barbell had been recovered pursuant to a search warrant violated Brady. The § 440.10
court did not supply its reasoning for denying this part of the motion, but, as with the
Confrontation Clause claim, there is no evidence that it relied on an independent state
ground.
As with the prior Brady issue, defense counsel learned of the search warrant in
plenty of time to investigate it. He was allowed to question Detective Poggi about
circumstances that might have called the warrant into question. He was then able to
raise those issues before the trial judge, who allowed the barbell into evidence, but
suppressed another piece of evidence because it was outside the scope of the warrant.

10

Even though the § 440.10 court did not provide its reasoning, its ultimate decision to
deny this claim was not an unreasonable application of Brady and its progeny.
To the extent Brummel means to relitigate the search warrant’s validity under
the Fourth Amendment, Stone v. Powell, 428 U.S. 465 (1976), bars his path: “Where
the state has provided an opportunity for a full and fair litigation of the Fourth
Amendment claim, the Constitution does not require that a state prisoner be granted
federal habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial.” Id. at 481-82. As the
Court’s analysis of the Brady aspect of the claim makes clear, the trial court gave
defense counsel a full and fair opportunity to challenge the warrant.
D. Fair Trial: EED
“[T]he Constitution guarantees criminal defendants a meaningful opportunity
to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (internal
citations omitted). Brummel argues that he was deprived of that right because his
psychiatric expert, Dr. Drob, did not testify, in so many words, that Brummel’s actions
were the result of EED. He argues that the error was compounded because the
prosecution’s expert, Dr. Bardey, testified that his actions were not the product of
EED and erroneously defined EED.
Brummel gives no reason why the Court should review his claim
notwithstanding the default.
11

Even if the Court were to address the claim, it would conclude that the Second
Department’s alternative ruling on the merits was not unreasonable. The record does
not reflect that Dr. Drob was precluded from testifying that Brummel’s actions were
the result of EED. Rather, he merely recognized that EED was a legal concept, not
a psychological term, and then testified that the psychological concept that Brummel
had, in his opinion, exhibited—a “catathymic event”—was “consistent” with EED.
Trial Tr. at 646-47. Dr. Bardey predictably disagreed and offered his opinion of the
difference between the two. He also felt comfortable discussing EED as a legal
concept, but defined it—according to Brummel—incorrectly. However, the trial judge
sensibly allowed Dr. Bardey’s testimony “because it would assist in terms of how he
made his evaluation,” and promised to “explain to [the jury] the appropriate law at the
appropriate time.” Id. at 729-30. She kept her promise and correctly defined EED in
her instructions.1 Given these circumstances, the Court is satisfied that Brummel was
allowed a meaningful opportunity to present his EED defense.

1

“Under our law, it is an affirmative defense to a charge of Murder in the
Second Degree that the defendant acted under the influence of extreme emotional
disturbance for which there was a reasonable explanation or excuse. The
reasonableness of that explanation or excuse is to be determined from the viewpoint
of a person in the defendant’s situation under the circumstances as the defendant
believed them to be.” Trial Tr. 910.
12

E. Ineffective Assistance of Counsel
The clearly established law governing Brummel’s claim that he was deprived
of his constitutional right to the effective assistance of counsel is set forth in
Strickland v. Washington, 446 U.S. 668 (1984): “When a convicted defendant
complains of the ineffectiveness of counsel's assistance, the defendant must show that
counsel's representation fell below an objective standard of reasonableness.” Id. at
687-88. Then, “[t]he defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. In addition, since the § 440.10 court
addressed the claim on the merits, it is subject to AEDPA’s stringent standard of
review.
As noted, Brummel’s ineffective-assistance claim incorporates his other claims
for habeas relief. The Court has concluded that none of those claims warrant such
relief, either because the state court’s disposition was not an unreasonable application
of Supreme Court precedent, or because any error was harmless. In other words, the
claims Brummel argues his trial court should have made either would not have
prevailed or, even if they had prevailed, would not have changed the outcome of the
trial. As a result, Brummel cannot satisfy Strickland’s prejudice prong.

13

III
Brummel’s petition for a writ of habeas corpus is denied. In addition, the Court
finds that none of Brummel’s claims makes a substantial showing of the denial of a
constitutional right. Therefore, a certificate of appealability will not issue. See 28
U.S.C. § 2253.
SO ORDERED.

/S/ Frederic Block____________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
August 12, 2016

14