Brown v. Artuz

• Decision Date: 06 August 1997
• Docket Number: No. 1311,D,1311
• Citation: 124 F.3d 73
• Parties: James BROWN, Petitioner-Appellant, v. Christopher ARTUZ, Respondent-Appellee. ocket 96-2628.
• Court: U.S. Court of Appeals — Second Circuit

Page 73

124 F.3d 73

James BROWN, Petitioner-Appellant, v. Christopher ARTUZ, Respondent-Appellee.

No. 1311, Docket 96-2628.

United States Court of Appeals, Second Circuit.

Argued April 28, 1997.

Decided Aug. 6, 1997.

Philip S. Glickman, Rochester, NY, for petitioner-appellant.

Arthur D. Middlemiss, Asst. Dist. Atty., New York City (Robert M. Morganthau, Dist. Atty., Alan Gadlin, Asst. Dist. Atty., New York City, on brief), for respondent-appellee.

Before: MESKILL and NEWMAN, Circuit Judges, and CEDARBAUM, ^* District Judge.

JON O. NEWMAN, Circuit Judge:

This appeal presents several issues concerning a criminal defendant's constitutional right to testify at his trial, issues that arise in a case where a defendant does not testify. The specific issues are (1) whether the decision to testify is ultimately for the defendant or for trial counsel to make; (2) if the right to testify is "personal" to the defendant in the sense that only the defendant may validly relinquish it, whether an obligation to advise the defendant concerning the right to testify rests with either the trial judge or defense counsel; and (3) if the responsibility rests with defendant's counsel, what standard governs a court's consideration of a defendant's claim that trial counsel either failed to inform him that the decision to testify was ultimately his to make, or overrode his desire to testify.

These issues arise on an appeal by James Eric Brown from the July 15, 1996, judgment of the District Court for the Southern District of New York (Charles S. Haight, Jr., Judge) denying Brown's petition for habeas corpus under 28 U.S.C. § 2254 to challenge his state court conviction. The petition alleged that defense counsel prevented Brown from testifying and/or failed to inform the defendant that the ultimate decision whether to testify was his to make. We conclude that the decision whether a defendant should testify at trial is for the defendant to make, that trial counsel's duty of effective assistance includes the responsibility to advise the defendant concerning the exercise of this constitutional right, and that the two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), should be used to assess a defendant's claim that defense counsel rendered ineffective assistance by preventing him from testifying or at least failing to advise him concerning his right to testify. Because we also conclude that Brown has failed to satisfy the prejudice prong of the Strickland test, we affirm the judgment of the District Court.

Background

Brown was arrested in February 1990 by local police for the murder of Eddie Lee Barr. After waiving his Miranda rights, Brown gave a series of statements to the police concerning Barr's death. Although Brown repeatedly denied any culpability in the offense, he eventually admitted, in his fourth statement to the police, that he had shot Barr to death during an altercation. Brown's videotaped confession given on the morning after his arrest, substantially similar to his fourth statement, contains the following description of the episode.

At the time of the murder, Brown lived with his mother and brother in Apartment 6H of a building located at 20 Paladino Avenue in Manhattan. Barr, the eventual victim, lived in the Bronx but often stayed with his mother, who lived in Apartment 6G, next door to the Browns. The two families had been neighbors for more than twenty-five years, and Brown and Barr had known each other since childhood. Although the families generally got along over the years, several of the Browns, including the petitioner, suspected Barr of breaking into their apartment in January 1990 and stealing some kitchen utensils. Brown also blamed Barr for helping Brown's younger brother become addicted to crack cocaine. Brown admitted, however, that prior to 1990, he had no problems with Barr.

Around 11 p.m. on the evening of February 21, 1990, Brown, who carried a loaded, unlicensed revolver in a shoulder holster, was on his way home after visiting his girlfriend. As he walked along the sixth-floor hallway toward Apartment 6H, he noticed that Barr was leaning into Apartment 6G and speaking in a low voice with someone inside. As Brown walked past, Barr slammed his door and walked toward Brown. After the two men exchanged some initial unpleasantries, including Brown's accusation that Barr had broken into, and stolen valuables from, the Browns' apartment, an altercation ensued. At first, Barr simply walked away from Brown toward the staircase, and denied Brown's accusations. Brown pursued the victim and continued to accuse him of the burglary and theft.

While the two men were standing on the sixth-floor landing of the staircase, Barr put his hands on Brown's chest and made a "grabbing motion." Brown responded by seizing Barr by his wrists. Scuffling, the two men eventually made their way down the stairs to the fifth-floor landing, all the while maintaining their grips on one another. As they reached the fifth-floor landing, Brown pushed Barr away from him. While separated from Brown by a few feet, Barr noticed that Brown was carrying a pistol under his jacket. Barr then "went for" the gun and managed to get two or three fingers on the end of its handle. Brown realized, however, that Barr could not remove the gun from its holster, even if he had had a better grip on the weapon, because the holster had to be unsnapped for the gun to be removed. Brown then decided to reach for the gun himself and quickly overcame Barr's hand on the weapon. Brown swiftly unsnapped the holster and pulled the revolver out.

Brown pushed Barr's hand away and Barr moved one step back. Brown then took two steps back, holding the gun pointed at Barr. Barr then made a move toward Brown. Brown aimed at "about chest level" and fired one shot at Barr. Struck by the bullet, Barr moaned, took several steps back, and "hit the wall with his back."

At this point, the two men were approximately three or four steps apart. Brown fired again. After this second shot, Barr was still standing, but beginning to fall to the floor. As Barr fell, letting out a deep moan, Brown fired again. After each shot, Barr "bounced" a bit and moaned. In all, Brown fired five shots at Barr's chest and leg areas, four of which hit the victim.

Brown "panicked," quickly fled the building, and spent the evening at his girlfriend's house. Barr, meanwhile, crawled back to his mother's apartment on the sixth floor. He eventually identified Brown as the shooter to his family, to the emergency medical service team that took him to the hospital, and to a police officer who arrived on the scene soon after the shooting. Barr died shortly after arriving at the hospital. Brown gave himself up to the police the following day.

At Brown's trial for murder and criminal possession of a weapon, the prosecution established that Barr was unarmed during the incident in question, that Brown did not believe that Barr possessed a weapon, and that at least three of the four bullets that struck Barr were fired while the victim was already lying prone on the ground. The jury saw Brown's videotaped confession. The defense case relied on the defense of justification, and consisted solely of the testimony of Brown's mother. She stated that while she generally got along with Barr's family, she suspected Barr of having broken into and stolen items from her apartment shortly prior to his death. Brown did not testify.

The jury convicted Brown of murder in the second degree and criminal possession of a weapon in the second and third degrees. N.Y. Penal Law §§ 125.25(1), 265.03 & 265.02(4) (McKinney 1987, 1989). Brown's direct appeal challenged his conviction and sentence on several grounds, including a claim that the prosecution had not disproved his justification defense beyond a reasonable doubt, as required by New York law. ¹ The Appellate Division affirmed the conviction and ruled that "defendant's justification defense was disproved beyond a reasonable doubt by evidence showing that defendant could have retreated with complete safety, and the number of shots fired into the victim. Nor did defendant testify that he feared for his life." People v. Brown, 187 A.D.2d 312, 312, 589 N.Y.S.2d 448, 449 (1st Dep't 1992) (emphasis added) (citations omitted). Leave to appeal to the Court of Appeals was denied. People v. Brown, 81 N.Y.2d 837, 595 N.Y.S.2d 736, 611 N.E.2d 775 (1993).

In March 1993, Brown moved to vacate the conviction in the state trial court pursuant to N.Y. Crim. Proc. Law § 440.10(1)(h) (McKinney 1994). Seizing upon the Appellate Division's observation that he had not testified that he feared for his life, Brown claimed for the first time that ineffective assistance of trial counsel had prevented him from testifying. He alleged that his attorney had "taken it upon himself to waive [Brown's] fundamental right to testify," despite Brown's repeated "insistence" that he wanted to testify, and had failed to inform him that the ultimate decision whether to testify belonged to him. Brown further alleged that, had he taken the stand, he would have testified that he had a "true, real, and well founded fear" of Barr based upon their numerous prior altercations, Barr's prior threats against Brown, and Brown's previous observations of Barr's "violent temper" and "acts of violence." Such testimony would have contradicted Brown's statements in the videotaped confession that he had not had any prior negative encounters with Barr. The state trial court denied Brown's motion, ruling that (i) Brown's purported dissatisfaction with counsel's performance came "[o]nly through the convenience of hindsight," and that (ii) counsel's decision not to call Brown as a witness was reasonable, because the videotaped confession played to the jury sufficiently set forth the elements of the justification defense and because, had he taken the stand, Brown would have been...