Wisdom v. Perez

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ATARA WISDOM,

Petitioner, MEMORANDUM & ORDER

20-cv-02196(KAM)

-against-

ADA PEREZ, Superintendent, Bedford

Hills Correctional Facility,

Department of Corrections and

Community Supervision,

Respondent.

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KIYO A. MATSUMOTO, United States District Judge:

Petitioner Atara Wisdom (“Petitioner”) currently incarcerated

in the custody of the New York State Department of Corrections and

Community Supervision, petitions for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. On July 10, 2014, Petitioner was

convicted after a jury trial of murder in the second degree (N.Y.

Penal Law § 125.25[1]). (See ECF No. 1, Petition for Writ of

Habeas Corpus (“Pet.”), at 1; ECF No. 5, State’s Affidavit in

Opposition (“State Opp.”), at 26.) On October 8, 2014, the trial

court sentenced Petitioner to an indeterminate prison term of 18

years to life for the murder. (State Opp. at 26.) The Petitioner

claims that (1) her custodial statements were improperly admitted

as evidence in trial, (2) the trial court violated her rights to

due process, to present a defense, and to the effective assistance

of counsel by requiring defense counsel to interview a state’s

witness in the presence of the prosecutor, (3) the trial court

violated her right to present a defense by precluding her from

admitting records and from cross-examining prosecution witnesses

on certain topics, and (4) the trial court violated her due process

right to a fair trial by admitting Anthony Wilson’s 911 call as a

hearsay exception. (Pet. at 42, 54, 60, 72.) For the reasons set

forth below, the petition is respectfully DENIED.

BACKGROUND

I. Factual Background1

At trial, the prosecution presented evidence showing that on

November 29, 2011, Petitioner stabbed Anthony Wilson to death

inside his studio apartment at 832 Bushwick Avenue in Brooklyn,

New York. (State Opp. at 2.) In March 2012, DNA evidence recovered

at the scene was found to match the DNA profile of Petitioner,

and, following a search, NYPD detectives learned in July 2012 that

Petitioner was staying at a women’s homeless shelter. (Id. at 3.)

Detectives subsequently brought Petitioner to the NYPD’s 83rd

Precinct on July 25, 2012, to conduct an interview, where the

1 Because the petitioner was convicted, the court summarizes the facts in the

light most favorable to the verdict. See United States v. Wasylyshyn, 979 F.3d

165, 169 (2d Cir. 2020) (citing Garbutt v. Conway, 668 F.3d 79, 80 (2d Cir.

2012)).

petitioner was advised of, and waived her Miranda rights and agreed

to speak with the Detective Christopher Scandole. (Id. at 3-4.)

Petitioner admitted to stabbing Mr. Wilson, claiming that she had

done so in self-defense, and was subsequently arrested after being

identified in a lineup by a witness who knew Mr. Wilson. (Id. at

5-6, 16.) Following her arrest, Petitioner made two further

statements on the evening of July 25, 2012, and gave an additional

statement to Detective Scandole the following morning, on July 26,

2012. (Id. at 16-18.)

II. Pre-trial Proceedings

A. Pre-trial Huntley/Wade Suppression Hearing

On October 30, 2013, the Kings County Supreme Court held a

Huntley/Wade hearing regarding Petitioner’s motion to suppress her

statements from July 26, 2012. (ECF No. 5-1, Exhibit 1 to State’s

Opposition (“Ex. 1”), at 9.)2 Detective Scandole provided

testimony recounting his interviews with Petitioner on July 25 and

July 26, 2012. (Id. at 10–22.) Detective Deborah Batanjany also

testified with respect to the lineup she conducted on July 25,

2012. (Id. at 27-39.)

The trial court determined that there were two issues to be

resolved in the hearing, including whether the identification of

Petitioner during the lineup was “unduly suggestive in this case,”

2 All pin citations to the record refer to the page number assigned by the

court’s CM/ECF system.

and whether the Petitioner voluntarily and knowingly waived her

Miranda rights during the interrogation. (Id. at 40–42.)

The court, after reviewing the lineup photos and Detective

Batanjany’s testimony, determined that there was no serious issue

regarding the suggestiveness of the lineup to warrant suppressing

the identification testimony. (Id. at 41.) Based on the

documented Miranda form, the written statement read to and signed

by Petitioner, and a video statement where the Detective provided

Petitioner with another set of Miranda warnings on July 25, 2012,

the court ruled on October 30, 2023, that Petitioner knowingly and

voluntarily waived her rights to remain silent and agreed to speak

with the police. (Id. at 41–42.) The court denied Petitioner’s

motion to suppress in full. (Id. at 42.)

B. Second Huntley Hearing

On July 1, 2014, during trial, defense counsel made an oral

motion for a mistrial arguing that the testimony of a prosecution

witness regarding the use of Mr. Wilson’s Electronic Benefits

Transfer (EBT) card was inadmissible for its prejudicial effect.

(ECF No. 5-4, Exhibit 4 to State’s Opposition (“Ex. 4”), at 160.)

The defense counsel made an alternative request to strike the

witness’s testimony. (Id. at 162.) The trial court denied the

application for a mistrial and to strike the testimony regarding

the use of the EBT card but granted a separate second Huntley

hearing to determine the admissibility of Petitioner’s July 26

statements, in which Petitioner stated, among other things, that

she did not use Mr. Wilson’s benefits card. (Id. at 162-67.)

During the second Huntley hearing before the trial court,

Detective Scandole testified that on the morning of July 26, 2012,

he reminded Petitioner that she had waived her Miranda rights the

previous day, and asked if she would be willing to speak with him

further. (Id. at 165.) Detective Scandole further testified that

Petitioner agreed to speak with him and provided further details

regarding her actions on the night of Mr. Wilson’s death. (Id. at

165-67.) The trial court also questioned Detective Scandole

regarding how Petitioner was advised of her Miranda rights, and

how Petitioner’s interview on the evening of July 25, 2012,

concluded. (Id. at 168-70.) Defense counsel cross-examined

Detective Scandole and asked if Petitioner stated on July 25 that

“she didn’t want to speak anymore,” to which Detective Scandole

answered: “Correct.” (Id. at 173.) Upon redirect questioning by

the prosecution, Detective Scandole clarified that Petitioner

never asked for a lawyer and did not say anything about not wanting

to speak with Detective Scandole on the morning of July 26, 2012.

(Id. at 175.)

The prosecution argued at the close of the hearing that

Petitioner’s statements were admissible because she had

acknowledged that Detective Scandole provided her with Miranda

warnings on July 25, she did not refuse to speak with Detective

Scandole when he reminded her of the Miranda warnings given on

July 25 and asked on the morning of July 26 to follow up with more

questions, and because the police did not “force[] her to talk.”

(Id. at 176.) The prosecution also argued that the video of

Petitioner’s statement on the evening of July 25, 2012, showed

that Petitioner was “visibly upset,” which was the reason that the

Assistant District Attorney present asked if she wanted to stop

the interview at the time. (Id.) The court read in the relevant

portion of the video transcript to the record, which was as

follows:

[A.D.A’s ]QUESTION: You okay? You want to take a

minute? You want us to stop for a second or do you

want to continue? You want to stop for a second?

[Petitioner]: All right.

A.D.A. Purce: We're just going to hold out here for a

little bit. You just take your time, all right?

[Petitioner]: All right.

[A.D.A. Purce: ]You know what, I think we're going to-

we're going to stop now, and if you want to continue,

we'll talk in a second, okay.

You want us to stop right now?

[Petitioner’s] ANSWER: Yeah.

A.D.A. Purce: All right, just stop the tape for now.

There will be no further questions until we resume the

tape.

(Id. at 178-79.) The trial court noted that the next day, July

26, Detective Scandole reminded Petitioner of her rights and asked

if she wanted to continue, and that a full recitation of the

Miranda rights again was not required. (Id. at 179.) Accordingly,

the trial court ruled that Petitioner voluntarily, knowingly, and

intelligently made statements on July 26, 2012, to the police,

thereby rendering the statements admissible at trial. (Id. at

181.)

C. Admissibility of the 911 Call

On June 30, 2014, the prosecution submitted a Molineux

application to admit a 911 call made by Mr. Wilson at 12:37 A.M.

on the early morning of the stabbing. (ECF No. 5-2, Exhibit 2 to

State’s Opposition (“Ex. 2”), at 2.) The 911 call was determined

to be 26 seconds long, and contained only the following statement

by Mr. Wilson: “I got this girl in my house and I don't know what's

wrong with her, she's acting all crazy and I want her out of my

house.” (Ex. 4 at 131; Ex. 2 at 2-3). The prosecutor argued that

the audio recording of Mr. Wilson’s 911 call was admissible under

the present sense impression or the excited utterance exception to

the hearsay rule. (Ex. 2 at 3.) Defense counsel objected to the

inclusion of the evidence, arguing that the prejudice to Petitioner

outweighed the probative value. (Id. at 3.) Defense counsel

further argued that there was uncertainty about the context of the

911 call – whether the call referred to the stabbing or a different

matter. (Id.)

The prosecution responded by arguing that phone records

showed that, shortly after the 911 call, Petitioner used Mr.

Wilson’s cell phone, including to call an individual that the

prosecution planned to call as a witness. (Id. at 4–5.) The court

admitted the 911 call recording under the present sense impression

exception. (Id. at 6.)

III. Trial

Jury selection for the trial against Petitioner began on June

26, 2014, and concluded on June 30, 2014, at which point the trial

began. (ECF No. 5-1, Exhibit 1 to State’s Opposition (“Ex. 1”),

at 43; Ex. 2 at 292.) Petitioner’s trial defense was based upon

justification under N.Y. Penal Law § 35.15 Subsection 2B, relating

to the justified use of deadly force when a person reasonably

believes that the person they kill is “committing or attempting to

commit a kidnapping, forcible rape, forcible criminal sexual act

or robbery.” (ECF No. 5-7, Exhibit 7 to State’s Opposition (“Ex.

7”), at 25.)

A. The Testimony of Prosecution Witness Matthew Shepard

During the trial, on July 9, 2014, the prosecution obtained

a material witness order to compel Matthew Shepard to testify at

trial. (Id. at 32.) Prior to Mr. Shepard testifying, the trial

court granted defense counsel’s request to confirm with Mr. Shepard

that the prosecutor had accurately represented Mr. Shepard’s

unwillingness to speak with defense counsel. (Id. at 30.) Defense

counsel subsequently spoke with Mr. Shepard but objected to the

presence of a detective and the prosecutor during the conversation.

(Id. at 31.) Defense counsel asked the trial court to direct the

prosecutor to permit a closed-door conversation with the witness,

however, the prosecutor objected, stating that defense counsel was

not Mr. Shepard’s lawyer, and Mr. Shepard was the prosecutor’s

witness pursuant to a material witness order signed by the trial

court the previous day. (Id. at 32.) The trial court ultimately

decided to allow the prosecutor to be present for defense counsel’s

conversation with Mr. Shepard. (Id. at 34.) Defense counsel

objected to the condition and the trial court acknowledged the

objection. (Id.)

Mr. Shepard testified at the trial following the dispute over

defense counsel being able to speak with him alone. (Id. at 37.)

Mr. Shepard testified that Petitioner called him a few days after

Thanksgiving in the early morning hours from Mr. Wilson’s cell

phone number. (Id. at 45-46.) Mr. Shepard testified that later

that day, following the call, he met Petitioner on DeKalb Avenue

in Brooklyn. (Id. at 45–47.) Mr. Shepard testified that

Petitioner arrived with three or four bags and explained to Mr.

Shepard that she and Mr. Wilson had an altercation and that she

was “not going to pay rent and fuck him too,” and that she had

“poked” him. (Id. at 47–48.) Mr. Shepard testified that he was

“almost sure” Petitioner “had a swelling up on her face, a little

bit,” but did not see any blood on her. (Id. at 50.) Mr. Shepard

testified that he had had no further contact with Petitioner after

she left his apartment. (Id. at 51.)

B. Trial Court’s Exclusion of Victim’s Medical Records

Also during the trial, on July 1, 2014, the trial court held

a Molineux hearing to discuss various evidentiary issues raised by

the parties. (Ex. 4, at 2.) Defense counsel explained that he

wanted to admit a certified copy of Mr. Wilson’s mental health

medical records into evidence and to call Mr. Wilson’s physician

to testify about the use of Seroquel (which was not detected in

Mr. Wilson’s toxicology report) and alcohol and their effects on

hallucinations. (Id. at 13-20.) Defense counsel explained that

Mr. Wilson’s medical records would be used to establish that Mr.

Wilson had experienced hallucinations in the past and was

prescribed Seroquel. (Id. at 15-16.) The trial court reviewed

the records and declined to admit the medical records, noting that

that Mr. Wilson was being treated for depression and not psychosis,

that there was no evidence that Mr. Wilson’s reported

hallucinations were violent, that Mr. Wilson was not hearing

voices, that there was no evidence that Seroquel was prescribed to

Mr. Wilson for hallucinations or that failure to take Seroquel

caused Mr. Wilson to harm or want to harm Petitioner, and that

defense counsel was attempting to “dirty the victim” with the

evidence. (Id. at 13-17-20.) The trial court found that Mr.

Wilson was treated for depression and that the defense theory was

speculative, and that Petitioner never told police that Mr. Wilson

had been hallucinating. (Id. at 15-20.)

C. Defense Counsel’s Motion to Dismiss

At the close of the prosecution’s case, defense counsel moved

to dismiss the case, arguing that the prosecution failed to

substantiate the crime of intentional murder in the second degree.

(Ex. 7, at 92–94.) The court denied the defense counsel’s motion

to dismiss. (Id. at 96.)

IV. Verdict and Sentence

On July 10, 2014, the jury found Petitioner guilty of murder

in the second degree. (Ex. 7, at 220.) On October 8, 2014,

Petitioner was sentenced to 18 years to life in prison for second-

degree murder. (ECF No. 5-6, Exhibit 6 to State’s Opposition (“Ex.

6”), at 13.)

PROCEDURAL HISTORY

I. State-Murder Conviction Direct Appeal

Petitioner, represented by counsel, appealed her conviction

to the Appellate Division, Second Department, arguing that (1) the

verdict was against the weight of the evidence; (2) the trial court

violated Petitioner’s right to due process, to present a defense,

and to the effective assistance of counsel in its decision to allow

the prosecutor to be present during defense counsel’s interview of

Mr. Shepard; (3) the trial court violated Petitioner’s right to

present a defense by declining to admit Mr. Wilson’s medical

records and medical testimony in evidence; (4) the trial court

erred in admitting Mr. Wilson’s 911 call; (5) the trial court erred

by refusing to suppress Petitioner’s July 26, 2012, statement; and

(6) the prosecutor’s summation violated Petitioner’s right to a

fair trial. (ECF No. 1-2 (“App. Div. Appellant Brief”), at 3-4.)

On August 29, 2018, the Appellate Division unanimously

affirmed the judgment of conviction and sentence. People v.

Wisdom, 82 N.Y.S.3d 97 (2d Dep’t 2018). First, the Appellate

Division concluded that the prosecution’s case was legally

sufficient to disprove the defendant’s justification defense

beyond a reasonable doubt and to establish the defendant’s guilt

of murder in the second degree beyond a reasonable doubt. Id. at

98. Second, the Appellate Division agreed with the trial court’s

decision to deny suppression of Petitioner’s July 26, 2012,

statement:

After waiving her Miranda rights (see Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694),

the defendant freely and voluntarily made a videotaped

statement at the police station on July 25, 2012,

beginning at approximately 9:00 p.m. The interview ended

after approximately 30 minutes, not because the

defendant unequivocally invoked her right to remain

silent, but rather, to allow her to compose herself. The

idea for ending the interview and stopping the videotape

was that of the Assistant District Attorney (hereinafter

ADA) conducting the interview. The ADA said, “Let's stop

the tape for now,” and “there will be no further

questions until we resume the tape.” Questioning resumed

the following morning at approximately 10:00 a.m., at

which time the defendant was reminded of the rights she

had been read the previous day, and the defendant agreed

to continue answering more questions. During that

session, the defendant stated that after she stabbed the

victim, she took the victim's cell phone, keys, and

wallet. The wallet contained the victim's welfare

benefit card, but the defendant specifically denied ever

using the card.

. . . The suppression hearing testimony of a detective

who, in response to questions by defense counsel that

the defendant did not want to talk anymore during the

prior evening's videotaped interview, answered, “Right,”

and in another instance said, “Correct,” does not

require a different result. This testimony does not

change the fact that there was no unequivocal invocation

of the defendant's right to remain silent at that time.

The suggestion that the detective's answers refer

instead to an unrecorded communication by the defendant,

despite the colloquy on the videotape that there would

be no further questioning until the tape is resumed, is

mere speculation and conjecture that reads into the

record information that simply is not present, and

provides no basis for concluding that the defendant's

10:00 a.m. statement should have been suppressed.

Id. at 98–99. Third, the Appellate Division agreed with the trial

court’s determination to “admit evidence of a prior uncharged crime

involving [Petitioner’s] theft and use of certain property that

belonged to the victim, as it completed the narrative and provided

circumstantial evidence of the date of the victim's death.” Id.

at 99. The Appellate Division found that the “probative value of

the evidence outweighed its prejudicial effect and the court's

limiting instruction was sufficient to avert any potential

prejudice.” Id. (citation omitted). Fourth, the Appellate

Division found that Petitioner’s contention that she was denied a

fair trial by the admission of the 911 call was “unpreserved for

appellate review” under N.Y. Crim. Proc. Law § 470.05, but was

nonetheless “without merit.” Id. Fifth, the Appellate Division

found Petitioner’s contention that certain comments made by the

prosecutor during summation deprived her of a fair trial was

partially unpreserved for appellate review, but that “to the extent

that the prosecutor exceeded the bounds of permissible rhetorical

comment or made other improper remarks during summation, the

remarks were not so egregious as to have deprived the defendant of

a fair trial, and any other error in this regard was harmless.”

Id. at 100. Sixth, the Appellate Division found that “it was

improper for the Supreme Court to condition her ability to

interview a prosecution witness upon the interview occurring

either in the presence of the prosecutor or a detective” but that

“the error was harmless.” Id. Finally, the Appellate Division

noted that Petitioner’s remaining contention was “without merit.”

Id.

On February 14, 2019, the New York Court of Appeals denied

Petitioner’s application for leave to appeal, in which she raised

the same arguments and incorporated her briefs submitted to the

Appellate Division. People v. Wisdom, 122 N.E.3d 1140 (N.Y. 2019)

(Rivera, J.).

II. Habeas Corpus Petition

On May 14, 2020, Petitioner filed this petition, raising a

subset of the claims she raised on appeal: first, that the trial

court erred in refusing to suppress her July 26 statement and that

the use of the statement prejudiced her in trial, (Pet. at 42);

second, that the trial court violated her right to due process and

to the effective assistance of counsel by conditioning defense

counsel’s ability to interview Mr. Shepard on the presence of

either a detective or prosecutor, (id. at 54); third, that the

trial court violated her right to present a defense by declining

to admit Mr. Wilson’s medical records, (id. at 60); fourth, that

the trial court violated her right to due process by improperly

admitting Mr. Wilson’s 911 call at trial, (id. at 72.).

On November 12, 2020, Respondent filed a memorandum of law in

opposition to the petition. (State Opp. at 1.) On January 13,

2021, Petitioner filed a reply brief in support of her petition.

(ECF No. 7 (“Pet. Reply”), at 1.)

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) requires a federal court reviewing a state prisoner's

habeas petition to give deference to a state court's decision on

the merits. 28 U.S.C. § 2254(d). A federal court may not issue

a writ of habeas corpus unless the state court's decision was

“contrary to, or involved an unreasonable application of, clearly

established Federal law” or was “based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.” Id.; see also Johnson v. Williams,

568 U.S. 289, 292 (2013); Chrysler v. Guiney, 806 F.3d 104, 116-

17 (2d Cir. 2015).

For the purposes of federal habeas review, “clearly

established law” means “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). A state court decision is “contrary to” or an

“unreasonable application of” clearly established law if the

decision: (1) is contrary to Supreme Court precedent on a question

of law; (2) arrives at a conclusion different than that reached by

the Supreme Court on “materially indistinguishable” facts; or (3)

identifies the correct governing legal rule but unreasonably

applies it to the facts of the petitioner's case. Id. at 412-13.

The court reviews the last reasoned state court decision. Ylst v.

Nunnemaker, 501 U.S. 797, 804 (1991); Jones v. Stinson, 229 F.3d

112, 118 (2d Cir. 2000). The state court's factual determinations

are presumed to be correct, and the petitioner bears the burden of

rebutting that presumption by clear and convincing evidence. 28

U.S.C. § 2254(e)(1).

“In all cases in which a state prisoner has defaulted his

federal claims in state court pursuant to an independent and

adequate state procedural rule, federal habeas review of the claims

is barred unless the prisoner can demonstrate cause for the default

and actual prejudice as a result of the alleged violation of

federal law, or demonstrate that failure to consider the claims

will result in a fundamental miscarriage of justice.” Coleman v.

Thompson, 501 U.S. 722, 750 (1991).

A petitioner can seek federal habeas corpus relief only after

she exhausts state court remedies and gives the state courts a

fair and full opportunity to review the merits of the claim. 28

U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842

(1999). In other words, a petitioner must present “the essential

factual and legal premises of [her] federal constitutional claim

to the highest state court capable of reviewing it.” Jackson v.

Conway, 763 F.3d 115, 133 (2d Cir. 2014) (quoting Rosa v. McCray,

396 F.3d 210, 217 (2d Cir. 2005)).

DISCUSSION

I. Refusal to Suppress the July 26 Statement

Petitioner renews her claim that the trial court should have

suppressed her statement made on July 26, 2012, because she invoked

her right to remain silent, and the questioning detective

subsequently failed to fully readminister her Miranda rights.

(Pet. at 42.) The Appellate Division’s decision rejecting

Petitioner’s claim that the July 26, 2012, statements should have

been suppressed is entitled to AEDPA deference, and Petitioner

must show that the state court’s decision was either “contrary to,

or involved an unreasonable application of, clearly established

Federal law” or 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).

For the foregoing reasons, this Court finds that the Appellate

Division’s decision was consistent with clearly established

federal law and was based on a reasonable determination of the

facts in light of the evidence presented, specifically, from the

video transcript of Petitioner’s questioning on the evening of

July 25, 2012. (Ex. 4 at 176-78.)

A. Invoking the Fifth Amendment

It is well-settled law that when an individual in custody has

shown that they intend to invoke their Fifth Amendment right to

remain silent, the interrogation must cease. Michigan v. Mosley,

423 U.S. 96, 100 (1975) (citing Miranda v. Arizona, 384 U.S. 436,

473-74 (1966)). This right is invoked when the individual

indicates in any manner, at any time prior to or during

questioning, that they wish to remain silent. Id. In a parallel

line of cases, the Supreme Court held that an individual must

unambiguously and unequivocally invoke their right to counsel to

prevent further police questioning. Davis v. United States, 512

U.S. 452, 462 (1994) (explaining that an individual in custody

merely stating, "[m]aybe I should talk to a lawyer,” is not a

request for counsel.) Subsequently, in Berghuis v. Thompkins, 560

U.S. 370 (2010), the Supreme Court clarified that this unambiguous

standard applies both to the invocation of an individual’s right

to counsel and their right to remain silent. Id. at 381-82

(holding that had the petitioner stated “that he wanted to remain

silent or that he did not want to talk with the police . . . either

of these simple, unambiguous statements [] would have invoked his

right to cut off questioning”).

Even prior to the Supreme Court’s holding in Berghuis,

however, the Second Circuit Court of Appeals had consistently

required an unambiguous assertion of the right to remain silent in

cases where a defendant sought to suppress statements made while

in custody. In United States v. Ramirez, 79 F.3d 298 (2d Cir.

1996), the Second Circuit found that the defendant did not

unambiguously invoke his right to remain silent because he

continued to answer questions by interrogating officers after

previously refusing to answer questions by those officers. Id. at

303. In United States v. Plugh, 648 F.3d 118 (2d Cir. 2011), the

only statements that the defendant made to the interrogating

officers were: “I am not sure if I should be talking to you," and

"I don't know if I need a lawyer.” Id. at 121. In both cases,

the Second Circuit found that the statements did not expressly

invoke the defendant’s right to counsel or right to remain silent

in a manner sufficient to cut off all further questioning. Id. at

126; Ramirez, 79 F.3d at 303.

Further, a court will assess the entire context of the

situation, including anything said by the Petitioner before or

after the statement that the petitioner alleges invoked their right

to remain silent. See Bradley v. Meachum, 918 F.2d 338, 342 (2d

Cir. 1990) (finding that there was not an unambiguous invocation

where the petitioner stated he did not want to talk about the

alleged crime but continued to speak, denying the officer’s

allegations and proffering explanations of his whereabouts).

Recently, a district court in the Eastern District of New York

applied the Berghuis standard to a statement made by a defendant

while in custody: "I don't want to talk and get myself into more

trouble, man.” See United States v. Ross, No. 21-CR-571 (BMC)

(LB), 2023 WL 6160436, at *10 (E.D.N.Y. July 31, 2023), report and

recommendation adopted, 2023 WL 6158840 (E.D.N.Y. Sept. 21, 2023).

The court noted that such a statement could have been considered

an unambiguous invocation of the right to remain silent when

considered alone, but that the defendant continued to speak,

stating: “But I got a lot of stuff going on. I don't know what the

fuck is going on. My whole life is fucked up.” Id. The court

reasoned that the defendant’s subsequent statements turned what

may have been an unequivocal statement into an ambiguous one. Id.

As a result, the court found that the defendant’s statements were

insufficient to invoke his Fifth Amendment rights. Id. at *11.

When an individual in custody unambiguously and unequivocally

invokes the right to remain silent, the admissibility of statements

obtained by questioning officers after this invocation depends on

whether their "right to cut off questioning" was "scrupulously

honored.” Mosley, 423 U.S. at 104. After the invocation of that

right, however, there is no “per se proscription of indefinite

duration upon any further questioning by any police officer on any

subject” with that individual.3 Id. at 102-03. Accordingly, the

Second Circuit has held that when a person has invoked the right

to remain silent, questioning can resume after new Miranda warnings

have been administered and the right to remain silent is otherwise

scrupulously honored. Perkins v. Herbert, 596 F.3d 161, 174 (2d

Cir. 2010).

B. Whether Petitioner Invoked the Fifth Amendment

In contending that her July 26, 2012, statements should be

suppressed, Petitioner argues that she invoked her Fifth Amendment

right to remain silent when, on July 25, 2012, she “agreed during

the [ADA’s] videotaped interview about the stabbing that she wanted

to ‘stop right now.’” (Pet. at 42.) Petitioner refers to language

from Miranda v. Arizona, 384 U.S. 436 (1966), cited in Mosley,

which states that the invocation of the right to remain silent can

be done “in any manner, at any time prior to or during

questioning.” (Pet. at 44.) Petitioner contends that her

invocation was sufficient because she “did not remain mute or

express uncertainty about wanting to stop” or “merely request a

break.” (Id. at 44-45.) Petitioner also argues that because she

invoked her right to remain silent, the investigators were

3 The Supreme Court in Mosley reasoned that instituting a categorical prohibition

of voluntary statements after someone has invoked their right to remain silent

would transform the Miranda safeguards into “wholly irrational obstacles to

legitimate police investigative activity, and deprive suspects of an opportunity

to make informed and intelligent assessments of their interests.” Mosley, 423

U.S. at 102.

accordingly “required to re-read her rights before questioning her

again.” (Id. at 46.)

This Court finds Petitioner’s argument that she invoked her

right to remain silent unpersuasive. The statements Petitioner

made on July 25, 2012, cannot be read in isolation from the actual

context of the interrogation. The video transcript4 referenced by

the trial court reflects the following conversation after

Petitioner became emotional:

QUESTION: You okay? You want to take a minute? You

want us to stop for a second or do you want to

continue? You want to stop for a second?

[Petitioner]: All right.

A.D.A. Purce: We're just going to hold out here for a

little bit. You just take your time, all right?

[Petitioner]: All right.

You know what, I think we're going to-we're going to

stop now, and if you want to continue, we'll talk in a

second, okay.

You want us to stop right now?

[Petitioner’s] ANSWER: Yeah.

A.D.A. Purce: All right, just stop the tape for now.

There will be no further questions until we resume the

tape.

(Ex. 4 at 178-79.)

Courts in this District have previously found an individual’s

invocation of the Fifth Amendment to be ambiguous where they merely

display reticence to answering questions, they remain silent, they

equivocate in exercising their rights, or they indicate that they

may not want to continue speaking, but nevertheless continue

4 This court also reviewed the video of the interrogation, provided as

Petitioner’s Exhibit G, and finds it consistent with the transcript utilized by

the trial court.

speaking and answering questions. See Lopez v. Keyser, No. 19-

CV-2655 (ARR), 2020 WL 6873427, at *6 (E.D.N.Y. Nov. 23, 2020)

(determining that under Berghuis, the petitioner’s reticence to

answer questions did not invoke his right to remain silent); see

also Festus v. Noeth, No. 17-CV-3941 (JMA), 2020 WL 7042666, at

*11 (E.D.N.Y. Nov. 30, 2020) (reasoning that a petitioner’s silence

did not invoke his Fifth Amendment rights, especially in light of

the fact that the petitioner had already waived his Miranda

rights); Plugh, 648 F.3d at 125 (finding that although the

petitioner refused to sign a waiver of his Miranda rights, his

concurrent statements, such as "I am not sure if I should be

talking to you,” were too ambiguous to cut off further

questioning); Ross, 2023 WL 6160436, at *10-11 (finding that

although the petitioner may have invoked his right to silence, his

actions in continuing to speak with the questioning officers after

doing so rendered his invocation ambiguous). The Court finds that

such ambiguity also exists here.

In this case, Petitioner waived her Miranda rights in writing

prior to speaking to officers during the July 25, 2012,

questioning. (Ex. 4 at 168.) Further, Petitioner at no point

explicitly stated that she did not wish to speak to the questioning

officers any further. Rather, Petitioner agreed with the ADA’s

suggestion to take a break and resume questioning at a later time.

(Id. at 178.) When the ADA told Petitioner that “there will be no

further questions until we resume the tape,” Petitioner did not

object to continued questioning later. (Id. at 175.) The next

day, the questioning officer reminded Petitioner of her Miranda

rights and asked if she wanted to continue. (Id. at 175.)

Petitioner agreed and continued to answer questions. (Id. at 176.)

Furthermore, Petitioner does not suggest that she subsequently

invoked her Fifth Amendment rights at any point on July 26, 2012.

Based on Petitioner’s mere acquiescence to suggestions to

pause questioning by the ADA, the fact that she did not initiate

the cessation in questioning herself, and that after being reminded

of her Miranda rights administered the day before, she continued

answering questions the next day, a reasonable officer would have

understood only that the Petitioner agreed to the ADA’s suggested

break from questioning at that moment on July 25, 2012, and that

it would resume at a later time, not that she was unambiguously

invoking her right to remain silent. See Ramirez, 79 F.3d at 303

(when a suspect has “waived [her] right to remain silent and has

answered some questions . . . [s]he must articulate [her] desire

to cut off questioning with sufficient clarity that a reasonable

police officer in the circumstances would understand the statement

to be assertion of the right to remain silent”) (internal quotation

marks and citation omitted). Consequently, this Court finds that

the Petitioner did not unambiguously invoke her right to remain

silent on July 25, 2012, and that the Appellate Division was

correct in finding no error in the trial court’s decision to admit

the statement Petitioner made on July 26, 2012. Because

Petitioner’s Miranda claim fails, it cannot be the basis of federal

habeas relief, and the Court therefore denies habeas relief on

this ground.

II. The Trial Court’s Ruling Conditioning Defense Counsel’s

Ability to Interview a Witness During Trial

Petitioner asserts that the trial court erred when it “refused

to allow defense counsel to interview [Witness Matthew Shepard]

alone.” (Pet. at 54.) Petitioner contends that this interference

violated “[her] rights to due process, to present a defense, and

to the effective assistance of counsel.” (Id.) The Appellate

Division held that “it was improper for the [trial court] to

condition [Petitioner’s] ability to interview a prosecution

witness upon the interview occurring either in the presence of the

prosecutor or a detective.” People v. Wisdom, 82 N.Y.S.3d 97, 100

(2d Dep’t 2018). Despite the fact that the condition was improper,

however, the Appellate Division found the error to be harmless.

Id. As such, the Appellate Division’s merits-based decision

rejecting the claim is entitled to AEDPA deference and Petitioner

must show that the decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law” or

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. Conditions on Access to Witnesses

Second Circuit precedent clearly establishes that

“constitutional notions of fair play and due process dictate that

defense counsel be free from obstruction, whether it come from the

prosecutor [or other officials]” in their interviews of

“prospective prosecution witness[es].” Int'l Bus. Machines Corp.

v. Edelstein, 526 F.2d 37, 44 (2d Cir. 1975) (citing Coppolino v.

Helpern, 266 F. Supp. 930, 935 (S.D.N.Y. 1967)); see also United

States v. Hyatt, 565 F.2d 229, 232 (2d Cir. 1977) (“[W]e shall not

tolerate the view that the government has some special right or

privilege to control access to trial witnesses.”). Similarly,

“New York State courts have consistently held that prosecutors may

not refuse defense counsel requests for interviews with

prosecution witnesses, and that courts will enable these

interviews if necessary.” Schulz v. Marshall, 528 F. Supp. 2d 77,

98 (E.D.N.Y. 2007), aff'd sub nom. Schulz v. Marshal, 345 F. App'x

627 (2d Cir. 2009) (citing several New York appellate and trial

court decisions in support).

However, this right is not without limit, as courts are

permitted to, for example, limit the disclosure of the identity or

address of a confidential informant pre-trial, unless their

testimony is “material to [the] defense.” United States v. Saa,

859 F.2d 1067, 1073 (2d Cir. 1988); see also United States v.

Heatley, 994 F. Supp. 483, 489 (S.D.N.Y. 1998) (ordering the

government to disclose the identities of informants and

cooperators to the court a week before trial and make them

available for interviews as needed). Further, while not binding

authority from this Circuit, Respondent cites to a case from the

Eastern District of Pennsylvania in which a court, confronted with

facts similar to the instant case, stated:

Here, [defendant] does not allege that the prosecution

told [the witness] not to talk to [defendant’s] counsel

or in any other way denied [defendant] access to

witnesses. Neither does [defendant] allege that the

Court in any way prevented or limited his access to [the

witness] before or during trial, except at the moment

she was arriving to testify. Therefore, [defendant’s]

argument that he was prevented from having a fair

opportunity to interview [the witness] is unpersuasive.

United States v. Kemp, 379 F. Supp. 2d 690, 714 (E.D. Pa.

2005), aff'd, 500 F.3d 257 (3d Cir. 2007) (trial court’s limitation

on defense counsel’s access to a witness by requiring an FBI agent

to be present to protect the witness from harassment did not

violate defendant’s constitutional rights). As such, not all

limitations on access to a witness prior to or during a trial

necessarily constitute a constitutional violation.

B. Harmless Error

On federal habeas review, unless the “error ‘had substantial

and injurious effect or influence in determining the jury's

verdict’”, a violation of a petitioner’s federal rights during her

state criminal proceeding is harmless. Brecht v. Abrahamson, 507

U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S.

750, 776 (1946)). As compared to direct review, a showing of

harmlessness on collateral review requires “more than a

‘reasonable possibility’ that the error was harmful.” Davis v.

Ayala, 576 U.S. 257, 268 (2015) (quoting Brecht, 507 U.S. at 637).

However, if a “conscientious judge [remains] in grave doubt about

the likely effect of an error on the jury's verdict” — that is,

“in the judge's mind, the matter is so evenly balanced that [the

judge] feels ... in virtual equipoise as to the harmlessness of

the error,” — then “the uncertain judge should treat the error,

not as if it were harmless, but as if it affected the verdict

(i.e., as if it had a ‘substantial and injurious effect or

influence in determining the jury's verdict’).” O'Neal v.

McAninch, 513 U.S. 432, 435, (1995) (quoting Brecht, 507 U.S. at

623). “[I]n [section] 2254 proceedings[,] a [federal] court must

assess the prejudicial impact of constitutional error in a state-

court criminal trial under the ‘substantial and injurious effect’

standard set forth in Brecht, ... whether or not the state

appellate court recognized the error and reviewed it for

harmlessness under the ‘harmless beyond a reasonable doubt’

standard” generally applicable on direct review. Fry v. Pliler,

551 U.S. 112, 121–22, (2007) (quoting Chapman v. California, 386

U.S. 18, 24 (1967)).

However, “[w]hen a state court holds that a federal

constitutional violation tainted a defendant's trial but that the

violation as harmless” the analysis of harmless error becomes more

complicated, as “the state court has adjudicated a constitutional

claim on the merits.” Wilson v. Capra, No. 15-CV-6495 (MKB), 2020

WL 10506052, at *21 (E.D.N.Y. Oct. 12, 2020), aff'd, 2023 WL

7179268 (2d Cir. Nov. 1, 2023) (internal quotation marks and

citation omitted). Accordingly, the AEDPA prohibits habeas relief

unless the state court’s adjudication on the merits was “contrary

to, or involved an unreasonable application of, clearly

established Federal law” or 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 [finding a federal constitutional violation

harmless] is not unreasonable if ‘fairminded jurists could

disagree on [its] correctness.’” Ayala, 576 U.S. at 269 (quoting

Harrington v. Richter, 562 U.S. 86, 101 (2011)). A federal court

“may not grant [a petitioner's] habeas petition, however, if the

state court simply erred in concluding that the errors were

harmless; rather, habeas relief is appropriate only if the [state

court] applied harmless-error review in an ‘objectively

unreasonable’ manner.” Mitchell v. Esparza, 540 U.S. 12, 18 (2003)

(per curiam) (quoting Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).

“While a federal habeas court need not formally apply both Brecht

and AEDPA/Chapman, AEDPA nevertheless sets forth a precondition to

the grant of habeas relief.” Ayala, 576 U.S. at 268 (internal

quotation marks omitted) (citing Fry v. Pliler, 551 U.S. 112, 119-

120, (2007)).

C. Defense Counsel’s Attempted Interview

Petitioner argues that because “the [trial] court refused to

allow defense counsel to interview [Mr. Shepard] alone,” her

counsel “was unable to effectively prepare to defend Petitioner

and attacked [Mr.] Shepard’s credibility before [Mr.] Shepard

unexpectedly revealed petitioner’s outcry.” (Pet. at 54.) The

Court finds that the trial court’s condition on defense counsel’s

access to the witness just prior to testimony was harmless error

and did not have a “substantial and injurious effect or influence

in determining the jury's verdict.” Brecht, 507 U.S. at 623

In Petitioner’s case, Mr. Shepard had been disclosed as a

witness and thus was not a surprise witness, defense counsel was

not restricted by the court or prosecutor from contacting the

witness prior to trial, and Petitioner does not allege that the

prosecutor did anything to dissuade Mr. Shepard from speaking with

defense counsel. (State Opp. at 55; Pet. at 54.) Rather, defense

counsel sought to speak to Mr. Shepard after he had been held on

a material witness order to testify, and the trial court granted

defense counsel’s request to interview Mr. Shepard. (Ex. 7 at

30.) Defense counsel stated that Mr. Shepard was willing to speak

with him, but defense counsel objected to the presence of a

detective in the room. (Id. at 31.) Defense counsel acknowledged

“there is a matter of security” but stated he should be able to

interview Mr. Shepard alone due to the fact that the room had

“three detectives standing outside” and was “on the 21st floor of

a building which you can only get down in the elevators.” (Id.)

The prosecution objected to defense counsel interviewing Mr.

Shepard without a detective in the room on the grounds that defense

counsel was “not [Mr. Shepard’s] lawyer.” (Id. at 32.)

Ultimately, the trial court ruled that a detective should “stand

outside with the door open so he can hear what you do and say.”

(Id. at 32.) Defense counsel again objected after being prevented

from speaking with Mr. Shepard with the door closed, and the Court

again denied the defense request, and stated that the prosecutor

could be present if she desired. (Id. at 34.) Ultimately, defense

counsel again returned to Mr. Shepard and stated to the witness

that he was not allowed to speak to him privately and that they

would “speak on the stand.” (Id. at 35.) Defense counsel told

the court that he “think[s] it’s objectionable and I would move

for a mistrial.” (Id.) The trial court responded that defense

counsel “may be right” regarding the legal principle regarding

access to a witness but nonetheless proceeded with the trial. (Id.

at 35-36.)

Petitioner is correct in contending that courts do “not

tolerate the view that the government has some special right or

privilege to control access to trial witnesses.” United States v.

Hyatt, 565 F.2d 229, 232 (2d Cir. 1977). It is also true, however,

that a court may exercise discretion to protect witnesses from

harassment immediately prior to testimony, see United States v.

Kemp, 379 F. Supp. 2d 690, 714 (E.D. Pa. 2005), or issue a court

order preventing contact with a witness by a defendant to prevent

harassment and intimidation, see United States v. Soape, 169 F.3d

257, 270–71 (5th Cir. 1999).

It is not clear from the record why the trial court in the

instant case required the presence of a detective or the prosecutor

during a defense interview with Mr. Shepard, or whether the trial

court was motivated to prevent intimidation of a witness who had

required a material witness order to secure his testimony.

Similarly, the trial court did not state whether the presence of

a detective was necessary for the safety of defense counsel, or to

prevent flight by the witness. Nonetheless, even though the

Appellate Court found, and this Court agrees, that the trial

court’s conditions were improper, this Court does not find that

the trial court’s condition on defense counsel’s ability to

question Mr. Shepard had a substantial and injurious effect or

influence in determining the jury’s verdict, Brecht, 507 U.S. at

623, and does not find that the condition rises to the level of a

constitutional violation. The Appellate Division’s conclusion

that the trial court’s condition was improper but a harmless error,

People v. Wisdom, 82 N.Y.S.3d 97, 100 (2d Dep’t 2018), is not “an

unreasonable application of[] clearly established Federal law”

and, as such, is entitled to AEDPA deference, 28 U.S.C. § 2254(d).

Accordingly, assuming that the condition was improper, this Court

will turn to the Appellate Division’s conclusion that any error

was harmless under the standard set out by People v. Crimmins, 326

N.E.2d 787, 791 (N.Y. 1975) (explaining the New York state

appellate standard of review for constitutional errors—which

mirrors Chapman's beyond a reasonable doubt standard—and non-

constitutional errors—which requires a showing of a “significant

probability” of acquittal by the jury had it not been for the

error).

The Court agrees with the Appellate Division that the trial

court’s condition on defense counsel’s interview of Mr. Shepard

was harmless error, to the extent it was error. The prosecution

disclosed Mr. Shepard’s grand jury testimony to Petitioner prior

to trial, and listed Mr. Shepard as a witness at the beginning of

trial. (State Opp. at 55.) As such, defense counsel knew that

Mr. Shepard would be testifying, and what the contents of his

testimony would likely be. Furthermore, defense counsel conducted

an extensive and successful cross-examination of Mr. Shepard,

which elicited Mr. Shepard’s statement that Wilson “tried to take

it, tried to force his self on [Petitioner].” (Ex. 7 at 62-63.)

Petitioner argues here, as she did before the Appellate Division,

that defense counsel “may have been able to elicit additional

exculpatory evidence, such as [P]etitioner’s exact words to [Mr.]

Shepard, given a fair and meaningful opportunity to interview [Mr.]

Shepard.” (Pet. at 58; see also App. Div. Appellant Brief at 54.)

However, Petitioner does not proffer any further “additional

exculpatory evidence” that Mr. Shepard might have provided, or

explain how Mr. Shepard’s “exact words” would have made a

meaningful difference in proving her justification defense.

Petitioner also argues that defense counsel “surely would

have done things differently” and would have refrained from

impeaching [Mr.] Shepard’s credibility if defense counsel had

known [Mr.] Shepard would state Wilson had tried to “force” himself

on Petitioner. (Pet. at 59.) As noted by Petitioner, defense

counsel elicited Mr. Shepard’s criminal history and reminded Mr.

Shepard that he told “[the D.A.] that you weren’t paying attention

to what [Petitioner] was telling you.” (Ex. 7 at 57-61.) However,

defense counsel’s cross-examination of Mr. Shepard was not focused

solely on impeaching Mr. Shepard, but was also focused on eliciting

evidence supporting Petitioner’s justification defense. Shortly

after impeaching Mr. Shepard, defense counsel asked “[Petitioner]

did tell you she was hit by Anthony [Wilson], right?” (Id. at

61.) Subsequently, defense counsel asked if “[Petitioner told]

you that Anthony [Wilson] tried to rape her at that time?” (Id.

at 62.) Defense counsel clearly intended to use-and did use-his

cross-examination not just to impeach Mr. Shepard, but also to

elicit information that would be helpful to Petitioner’s

justification defense. Immediately afterward, defense counsel

appeared quite pleased with the result of that cross-examination,

as well, noting that “based upon the testimony we heard this

morning . . . [Petitioner] has decided not to testify.” (Id. at

91.) Defense counsel continued, stating that “[w]e felt that [Mr.

Shepard] was a very strong witness for [Petitioner].” (Id.)

In light of the facts of this case, the Court finds that the

Appellate Division was not unreasonable in deeming any error

related to defense counsel’s access to Mr. Shepard harmless.

Defense counsel was able to elicit information helpful to

Petitioner on cross-examination, and there is no evidence that

further helpful information might have been uncovered in a private

interview of Mr. Shepard just prior to his testimony. Furthermore,

any strategic error regarding impeachment of Mr. Shepard was

harmless. Though Mr. Shepard did offer testimony helpful to the

defense, he also offered testimony that corroborated the

prosecution’s version of events, stating that “[Petitioner] said,

I’m not paying rent and fucking him . . . [s]he said she poked

him.” (Id. at 48.) As such, a decision by defense counsel not to

impeach Mr. Shepard would also have carried strategic risks, given

his importance to the prosecution’s case. Taken together, the

Court finds that to the extent there was an error in conditioning

defense counsel’s access to Mr. Shepard on the day of trial, it

did not have a “substantial and injurious effect or influence in

determining the jury’s verdict.” Brecht, 507 U.S. at 623.

Accordingly, the Appellate Division’s holding was not

unreasonable, and is entitled to AEDPA deference.

III. The Trial Court’s Decision to Admit the 911 Call and

Preclude Use of Mr. Wilson’s Medical Records

Petitioner contends that the trial court deprived her of her

right to a fair trial and to present a defense by preventing

defense counsel from admitting Mr. Wilson’s medical records

relating to his mental health. (Pet. at 60-62.) Petitioner argues

she was entitled to present evidence showing Mr. Wilson was

“quarrelsome, vindictive, or violent” to demonstrate her state of

mind. (Id. at 61.) She also argues that she was entitled to

introduce documentary evidence-Mr. Wilson’s medical records-

proving Mr. Wilson was exhibiting aberrant behavior sufficient to

cause fear and warrant a forceful response. (Id. at 62.) Finally,

Petitioner argues that by preventing her counsel from cross-

examining the medical examiner, Mr. Wilson’s sister, and Mr.

Wilson’s friend about Mr. Wilson’s psychiatric prescription and

substance abuse, her right to confrontation was “improperly

curtailed.” (Id. at 67.)

Petitioner also contends that the state court violated her

right to a fair trial by improperly admitting Mr. Wilson’s

statements made in a 911 call under the present sense impression

exception to the rule against hearsay. (Id. at 72.) Petitioner

argues that the call was inadmissible for lack of contemporaneity

and corroboration as required under New York State Law, and further

alleges that the admission of the call into evidence removed

reasonable doubt that would have otherwise existed on the record,

resulting in the deprivation of a fundamentally fair trial. (Id.

at 73-78.)

The Appellate Division dismissed Petitioner’s claims

regarding the admission of medical records and cross-examination

of witnesses as “without merit.” People v. Wisdom, 82 N.Y.S.3d

97, 100 (2d Dep’t 2018). Regarding the admission of the 911 call,

the Appellate Division found the contention “unpreserved for

appellate review” but nonetheless agreed with the trial court’s

“determination to admit the recording under the present sense

impression” exception to the hearsay rule on the merits.5 Id. at

99. The Appellate Division’s merits-based decision rejecting both

5 As noted in the State’s Affidavit in Opposition, the state “did not argue

before the Appellate Division that the claim was unpreserved, nor is that an

argument now being raised in response to [Petitioner’s] habeas petition.”

(State Opp. at 71.) Petitioner argues that there is no indication that “perfect

compliance” with state procedural rules in the objection to the 911 call “would

have made a difference [], since the trial court clearly understood and decided

the legal question presented.” (Pet. at 86) (citing Lee v. Kemna, 534 U.S.

362, 387 (2002)). The Court agrees with Petitioner and, in light of the

Appellate Division’s alternative merits-based decision, will address

Petitioner’s claim on the merits.

claims is entitled to AEDPA deference, and as such, Petitioner

must show that the decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law” or

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. Review of Trial Court Evidentiary Rulings Under AEDPA

In reviewing a habeas petition pursuant to the AEDPA, courts

in this Circuit have found that the “unreasonable application of

the law” prong cannot be satisfied by showing a ruling was “merely

. . . incorrect or erroneous.” Delancy v. Lee, No. 15-CV-891 (RRM)

(CLP), 2019 WL 9051134 at *14 (citing Williams v. Taylor, 529 U.S.

362, 409-411 (2000)). Rather, the ruling must be so unreasonable

that it is impossible for fair-minded jurists to disagree that it

was in violation of Supreme Court precedent. Harrington v.

Richter, 562 U.S. 86, 101 (2011). This is an intentionally high

standard, as the purpose of habeas relief is to “guard against

extreme malfunctions in the state criminal justice systems, not a

substitute for ordinary error correction.” Id. at 102 (internal

quotation marks and citation omitted).

Where a petitioner alleges an incorrect evidentiary ruling at

trial, this Court must first ascertain whether the state court

ruling was proper under state law; if the ruling correctly applied

the state evidentiary rule, there is no constitutional violation.

Delancey, 2019 WL 9051134, at *17. Second, if this Court finds

the evidentiary ruling was made in error, it must determine whether

the error violated a constitutional right. Id. For a ruling to

rise to such a level, the error must have deprived petitioner of

a fundamentally fair trial. Collins v. Scully, 755 F.2d 16, 18

(2d Cir. 1985). Courts have clarified that such deprivation occurs

when the error in question has removed reasonable doubt that was

otherwise present in the context of the entire record. Rosario v.

Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988) (citing United States v.

Agurs, 427 U.S. 97, 112-13 (1976)).

B. Admissibility of a Decedent’s Mental Health Records

Under New York evidence law “a defendant, in a prosecution

for homicide, may introduce evidence that the deceased had a

reputation as a ‘quarrelsome, vindicative or violent’ person,

provided that the defendant was aware of this reputation at the

time of the incident.” People v. Miller, 349 N.E.2d 841, 845 (N.Y.

1976). However, this is only applicable to the admission of

medical records when it can be shown the accused had knowledge of

the decedent’s psychiatric history at the time of confrontation.

People v. Trivette, 572 N.Y.S.2d 85, 87 (3d Dep’t 1991). Without

establishing that the medical records are relevant to the

defendant’s state of mind at the time of the confrontation, medical

records relating to the mental health of the decedent are

inadmissible. People v. Adams, 708 N.Y.S.2d 766, 767 (4th Dep’t

2000). This applies to other forms of documentary proof as well;

“[e]vidence of a conviction for a violent act is, of course,

acceptable documentary evidence that would support the defendant's

contention, provided he was aware of the conviction at the time of

the incident.” Miller, 349 N.E.2d at 848. An exception to this

rule exists for toxicology reports of the decedent showing use of

intoxicants at time of death, which are admissible regardless of

the accused’s knowledge. People v. Chevalier, N.Y.S.2d 508, 509

(1st Dep’t 1996), aff'd, 681 N.E.2d 1292 (N.Y. 1997).

C. The Trial Court’s Preclusion of Mr. Wilson’s Medical

Records

At trial, defense counsel sought to admit evidence of Mr.

Wilson’s psychiatric health and past substance abuse, requesting

to:

“put a certified copy of [Mr. Wilson’s medical] records

into evidence which will show what he said to the

doctor... if I don't have that physician, I want to put

on my expert, Dr. Siegel, he will -- who can talk about

psychosis. I can ask him what drugs are given for

psychosis and he would undoubtedly say he gives some of

them and Seroquel.”

(Ex. 4 at 13, 14). The trial court denied counsel’s request,

calling counsel’s argument “an inference and then an inference

upon an inference”. (Id. at 14). The trial court further

disagreed with defense counsel’s suggestion that the medical

records showed that Mr. Wilson was psychotic, finding after court

review of the medical records that Mr. Wilson’s diagnosis was

“depressive.” (Id. at 15.) Defense counsel subsequently argued

that it was possible that Mr. Wilson’s failure to take Seroquel

might have caused him to have hallucinations, or to attack

Petitioner. (Id. at 16). The trial court again found defense

counsel’s argument to be speculative and stated that Mr. Wilson’s

medical records did not show any evidence of violence or violent

hallucinations. (Id. at 16-17.) Ultimately, the trial court ruled

that defense counsel had “no evidence at all that the failure to

take the Seroquel caused [Mr. Wilson] to harm or want to harm

[Petitioner]” and thus the medical records were not admissible.

(Id. at 20).

Under New York law, the only proper purpose for which the

records in question could be admitted by the trial court would

have been to illustrate an underlying condition that Petitioner

was aware of, and the impact of that awareness on Petitioner’s

state of mind. See People v. Miller, 349 N.E.2d 841, 845 (N.Y.

1976). Accordingly, what is pertinent is whether Petitioner had

actual knowledge of Mr. Wilson’s psychiatric history. This court

finds no evidence in the record indicating as much. Petitioner

argues that Mr. Wilson kept prescription bottles in plain view,

asserting that “[Petitioner] undoubtedly was [] aware of Wilson’s

psychiatric issues, given that she had been living with him for

about a month . . . .” (Pet. at 63). This argument, however,

falls short of the required factual support in the record; no

evidence was presented to the trial court that Petitioner observed

Mr. Wilson’s medication or medical records, much less researched

the information on the bottles to ascertain the myriad of

psychiatric conditions Seroquel is prescribed to treat.

Furthermore, evidence admitted at trial showed that the ”pill

bottles [] were recovered from under the bed,” as opposed to being

in plain sight. (Ex. 2 at 180.) Similarly, Petitioner’s statement

to police that Mr. Wilson was saying “crazy shit,” (id.), is not

sufficient to show prior knowledge of Mr. Wilson’s psychiatric

history, both because it generally refers to Mr. Wilson’s

statements during the altercation as opposed to beforehand, and

because it is ambiguous enough that it simply indicates Mr. Wilson

was saying things Petitioner found disagreeable, rather than

reflective of an abnormal mental state.

Petitioner asserts in the alternative, that the trial court

should have admitted Mr. Wilson’s psychiatric records into

evidence in order to impeach his character, claiming that the State

put his character at issue when relying on Mr. Wilson’s statements

made during his call to emergency services. (Pet. at 65). Upon

review of the trial record, this court cannot identify any point

at which the argument regarding impeaching Mr. Wilson’s character

was raised, and as such this argument was not properly preserved

under C.P.L. § 470.05(2). However, the Appellate Division plainly

stated its intention to address the argument on its merits

regardless. See People v. Wisdom, 82 N.Y.S.3d 97, 100 (2d Dep’t

2018) (“The defendant's remaining contention is without merit.”).

This court is therefore obliged to contend with the substance of

the Petitioner’s argument, rather than finding it procedurally

barred. See Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000)

(“[W]e follow the presumption established by the Supreme Court and

ask not what we think the state court actually might have intended

but whether the state court plainly stated its intention.”). In

evaluating the merits of the argument regarding use of the medical

records for impeachment, this court finds that the Appellate

Division was correct in finding no error in the trial court’s

decision to exclude Mr. Wilson’s mental health records.

Under New York law, it is recognized that mental health

history, including evidence of a history of delusions, is

particularly probative of a witness’ credibility. People v.

Rensing, 199 N.E.2d 489, 491 (N.Y. 1964). However, the party

seeking to admit such evidence must have a “good faith basis for

believing that the witness’ mental condition affected a material

issue in the case, for example, [the witness’] ability to perceive

or remember.” People v. Knowell, 464 N.Y.S.2d 525, 529 (2d Dep’t

1983). New York state courts typically only find an abuse of

discretion in precluding evidence of a witness’ mental health

history when there is substantial, undisputed, documentation of a

testifying witness’ mental illness, such as multiple

hospitalizations, diagnosis as paranoiac or schizophrenic, or

involuntary commitment. See Rensing, 199 N.E.2d at 491 (court,

in reversing conviction and granting a new trial, held that the

jury should have been made aware that a key witness experienced,

inter alia, “visual and auditory hallucinations with marked memory

defect” and had been diagnosed with “Paranoid Schizophrenia”); see

also People v. Knowell, 512 N.Y.S.2d 190, 192 (2d Dep’t 1987)

(finding that a court erred in refusing to conduct an in camera

inspection of psychiatric records of a witness who “had a lengthy

history of psychiatric problems, had been confined in mental

hospitals on several occasions in the recent past and had been

diagnosed as paranoiac”). These circumstances simply do not exist

in the instant case.

Mr. Wilson’s medical records, reviewed by the trial court,

spanned a three-month period – from September 6, 2011, through

November 26, 2011. (ECF 1-7 (“Pet. Ex. H”) at 11, 22.) Mr. Wilson

was originally referred for substance abuse treatment but was given

a psychiatric evaluation as part of his intake to the Chemical

Dependency program. (Id. at 11-14.) As later noted by the

medical provider who examined him, Mr. Wilson was diagnosed with

“Major Depressive Disorder” and was taking “Seroquel, Benadryl,

and Prozac while enrolled in [the] clinic.” (Id. at 23.) The

medical provider also stated in her notes from her psychiatric

evaluation that Mr. Wilson “[n]otes hallucinations to harm self or

others.” (Id. at 14). However, the medical provider also noted

that Mr. Wilson had “no gross cognitive deficits, [d]enie[d] both

suicidal and homicidal ideation, [and was] alert and oriented to

time, place, and person.” (Id.) Mr. Wilson was not diagnosed

with a mental illness such as paranoid schizophrenia, and no other

annotations regarding delusions, violence, or his ability to

accurately perceive events are present in his medical records.

Furthermore, Petitioner does not offer any evidence to suggest

that Mr. Wilson exhibited any hallucinatory behavior in the month

she lived with him, or on the night when he called 911 on November

29, 2011, or that she was aware of his psychiatric evaluation.

Accordingly, the instant case is distinguishable from precedent

cited by Petitioner and noted above. As such, this court cannot

find that the trial court acted unreasonably in excluding evidence

of Mr. Wilson’s mental health records for purposes of impeachment.

Considering Petitioner’s claim under the standards set out by the

AEDPA, the Court finds that the Appellate Division's rejection of

this claim on appeal was not an objectively unreasonable

application of existing federal constitutional principles, and

Petitioner’s claim regarding her right to present a defense is

denied.

D. New York State’s Present Sense Impression Exception

For hearsay to be admissible under the present sense

impression exception under New York state evidence law, a statement

must be (1) “made while the declarant was perceiving the event or

condition, or immediately thereafter” and must be accompanied by

(2) “some independent verification of the declarant's descriptions

of the unfolding events.” People v. Vasquez, 670 N.E.2d 1328,

1334 (N.Y. 1996). The New York Court of Appeals has emphasized

that the level and nature of the corroboration required “will

depend on the particular circumstances of each case and must be

left largely to the sound discretion of the trial court.” People

v. Brown, 610 N.E.2d 369, 374 (N.Y. 1993). The inquiry must

determine “whether the corroboration offered to support admission

of the statement truly serves to support its substance and

content.” Vasquez, 670 N.E.2d at 1335. Brown serves as an

example, where apprehension of a suspect matching a description in

a 911 call was found to be sufficient corroboration to admit the

underlying 911 call. 610 N.E.2d at 374. New York courts have

observed that “[t]he ‘present sense impression’ exception has been

utilized mainly to introduce 911 calls made by either the victim

or witnesses while they observe events as they are unfolding.”

People v. Semple, 666 N.Y.S.2d 900, 902 (Sup. Ct. 1997) (citing

People v. Hughes, 645 N.Y.S.2d 493 (2d Dep’t 1996) and People v.

Cook, 632 N.Y.S.2d 193 (2d Dep’t 1995)).

Once a New York trial court finds that the hearsay statement

qualifies for admission under the present sense impression

exception, it retains discretion to refuse to admit the evidence

if “its probative value is substantially outweighed by the danger

that it will unfairly prejudice the other side or mislead the

jury.” People v. Scarola, 525 N.E.2d 728, 732 (N.Y. 1988). As

such, the decision to admit evidence that satisfies the present

sense impression exception to hearsay is also reviewable by the

Appellate Division for abuse of discretion. People v. Smith, 5

N.E.3d 972, 974 (N.Y. 2013) (stating that a court retains

discretion regarding excluding otherwise admissible evidence “when

it reasonably finds that evidence to be more prejudicial than

probative”).

E. The Trial Court’s Ruling during the Molineux Hearing

Defense counsel objected to the admission of the 911 call

during a Molineux hearing on the basis that it failed to satisfy

both requirements of the present sense impression exception under

New York State law, and that its prejudicial effect would outweigh

its probative value. (Ex. 2 at 3, 6.) Specifically, defense

counsel argued:

“During the evening of this call we actually don't

know when this man is killed. Time of death was never

set, the date itself was never set. We don't know what

it refers to, whether it refers to this incident or

something else, and so absent any background or

testimony, it is just this man calling. We don't know

if there's an upsetment, an intervening event, things

calm down and something happened. It's significant,

there’s nothing on the call like look out or ouch or

hearing anything, it essentially just cuts off with

that . . .”

(Id. at 3-4). The prosecutor responded that both medical

evidence and Mr. Wilson’s phone records indicated that the call

was made shortly before his death, and that phone records also

showed Petitioner began using Mr. Wilson’s phone shortly after the

911 call was made. (Id. at 4-5.)

Specifically, the prosecution argued that Mr. Wilson’s phone

was used to call a witness, Matthew Shepard, following the 911

call, and that when Mr. Shepard answered the call, expecting Mr.

Wilson, it was Petitioner calling. (Id. at 4.) The prosecution

further argued that Petitioner subsequently made “third-party

admissions” to Mr. Shepard that she was not going to give Mr.

Wilson money and have sex with him, and subsequently “poked” Mr.

Wilson as a result. (Id. at 4-5.) Continuing, the prosecutor

noted that the medical examiner would be able to corroborate that

the time of death was close in proximity to the time of the 911

call. (Id. at 5.) After further argument from defense counsel

that there may have been intervening actions between the call and

the stabbing, the trial court ultimately ruled that Mr. Wilson’s

call was admissible hearsay under the present sense impression

exception. (Id. at 6.)

This Court finds that the trial court was not unreasonable in

its determination that Mr. Wilson’s statements were adequately

contemporaneous and corroborated. First, the trial court properly

considered extrinsic evidence that established the time of the

call in relation to Mr. Wilson’s stabbing based on the proffered

medical examiner’s evidence, as well as subsequent phone calls

from Mr. Wilson’s phone that matched the petitioner’s pattern of

phone calls from her own cell phone in establishing the

contemporaneity of the statements. (Id. at 4-5). Furthermore,

based on the prosecution’s characterization of Mr. Wilson’s word

choices in describing the perceived behavior on the 911 call as

occurring while he was speaking, the trial court admitted the 911

call as a present sense impression exception to the hearsay rule.

(Id. at 2-4.) The record sufficiently establishes that Mr.

Wilson’s statements were made while the described event was taking

place.

With respect to corroboration of the call’s substance, the

trial court properly considered petitioner’s later statements to

Mr. Shepard, in which she acknowledged that an argument took place

between her and Mr. Wilson. (Id. at 4-5.) Mr. Shepard’s later

testimony on the stand confirmed that this corroboration occurred.

(Ex. 7 at 47-48.) Moreover, Petitioner admitted during her July

26, 2012, interview that she took Mr. Wilson’s cell phone after

she stabbed him. (Ex. 4 at 165-66.) This totality of evidence

adequately corroborates Mr. Wilson’s statements through

independent means, as required under New York law regarding the

present sense impression.

Finally, this court does not find persuasive Petitioner’s

claims that Mr. Wilson’s statements were overly prejudicial and

should have been excluded. Once properly admitted under the

present sense impression exception to hearsay, Mr. Wilson’s

statements would have been admissible for the truth of the matter

asserted. Whether or not Petitioner was indeed “acting crazy”

shortly prior to Mr. Wilson’s death would have been highly

probative of the veracity of her justification defense.

Furthermore, the fact that Mr. Wilson, the declarant, was

unavailable weighs in favor of admissibility of the statement.

See People v. Buie, 658 N.E.2d 192, 195 (N.Y. 1995) (holding that

“the present sense impression exception does not require a showing

of the declarant's unavailability as a sine qua non to

admissibility,” although the trial judge may weigh the declarant's

availability in the “traditional probativeness versus undue

prejudice calculus” for determining admissibility).

Based on the foregoing, this Court finds that the trial

court’s decision to admit Mr. Wilson’s 911 call was a correct

evidentiary ruling under New York State’s present sense impression

exception to hearsay. Accordingly, the Appellate Division’s

decision upholding the trial court’s ruling was not an objectively

unreasonable application of existing federal constitutional

principles and Petitioner’s due process claim is denied.

CONCLUSION

For the foregoing reasons, Petitioner’s Section 2254 petition

is respectfully denied and dismissed in its entirety. Because

Petitioner has not made a substantial showing of the denial of a

constitutional right, a certificate of appealability shall not

issue. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (discussing

certificate of appealability standard); Rules Governing Section

2254 and 2255 Cases, Rule 11 (“The district court must issue or

deny a certificate of appealability when it enters a final order

adverse to the applicant.”).

The Clerk of Court is directed to enter judgment in favor of

Respondent, and close this case.

SO ORDERED

Dated: December 6, 2023 b = YY,

Brooklyn, New York f? we

) i oe te

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

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