Sheehan v. Powers, 14 CV 2898 (DLI) (CLP)

Decision Date17 October 2017
Docket Number14 CV 2898 (DLI) (CLP)
PartiesBARBARA SHEEHAN, Petitioner, v. WILLIAM POWERS, Superintendent of Albion Correctional Facility, and THE ATTORNEY GENERAL OF THE STATE OF NEW YORK, Respondents.
CourtU.S. District Court — Eastern District of New York



On May 8, 2014, petitioner Barbara Sheehan filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, alleging that a New York trial court denied her the right to present witnesses in her own defense by precluding the presentation of a vital expert witness, in violation of her Sixth and Fourteenth Amendment rights. (Pet.[1] at 4). On April 12, 2017, the petition was referred to the undersigned to prepare a Report and Recommendation.

For the reasons set forth below, it is respectfully recommended that the petition be denied.


On February 18, 2008, petitioner Barbara Sheehan shot and killed her husband, Raymond Sheehan, an ex-New York City police officer. (Pet.'s Stmntof Facts[2] at 1). According to petitioner, she had been abused by her husband for many years. (Pet., Ex. NN at 596-682). On February 18, 2008, after years of abuse, Mr. Sheehan put a gun to petitioner's head and threatened to kill her if she did not make a phone call changing their travel plans. (Id. at 677-82). She claimed that she believed he was going to kill her, so she shot him with a revolver that she had retrieved. (Id. at 687). However, after she shot him and he was on the floor screaming and reaching for his gun, she grabbed his gun first and shot him in self-defense; she never intended to use a gun unlawfully. (Id. at 688-692).

I. Pretrial Proceedings

On May 12, 2008, petitioner was indicted on one charge of murder in the second degree and two charges of criminal possession of a weapon in the second degree (the “weapons charges”). (See Pet., Ex. B).[3] One charge was based on petitioner's possession of the first gun, a revolver, and the other based on petitioner's possession of the second gun, a semiautomatic Glock pistol. (Id.) Petitioner was arraigned on June 4, 2008 and pleaded not guilty to each count. (Pet.'s Stmnt of Facts ¶ 4).

A. Petitioner's Notice of Intent to Proffer Psychiatric Testimony

New York law requires a criminal defendant who plans on presenting psychiatric evidence at trial to serve on the prosecution and file with the court a “written notice of his intention to present psychiatric evidence.” N.Y Crim. Proc. L. § 250.10(2). The notice must be served and filed “not more than thirty days after entry of the plea of not guilty to the indictment.” Id. However, a trial court, in the interests of justice and for good cause shown, may permit the notice to be served and filed “any later time prior to the close of the evidence.” Id.

On June 24, 2008, petitioner served and filed a “Notice Pursuant to CPL § 250.10 stating: “Please take notice that the defendant Barbara Sheehan supplements her oral notice given at her arraignment under section 250.10(c) of the Criminal Procedure Law to include evidence of Post Traumatic Stress Disorder.” (Pet., Ex. C). On October 27, 2008, petitioner served and filed a “Supplemental Notice Pursuant to CPL § 250.10 providing that the psychiatric evidence sought to be introduced would “include evidence of Post Traumatic Stress Disorder and Battered Woman's Syndrome caused by chronic abuse.” (Id., Ex. D). Specifically, petitioner intended to introduce the testimony of Dr. Dawn Hughes (“Dr. Hughes”), a psychiatric expert who first examined petitioner in March 2008. (Pet.'s Stmnt of Facts ¶ 4).

On June 1, 2009, petitioner served on the prosecution and filed with the trial court a supplemental “Notice Pursuant to CPL § 250.10(b), ” stating that she was supplementing her prior notices to include a notice of intent to present expert testimony regarding “a defense of extreme emotional disturbance.” (Pet., Ex. F). Specifically, [t]he expert would be expected to testify to the mental state of the defendant at the time of the offense.” (Id.)

B. Petitioner's July 28, 2009 Examination

New York Criminal Procedure Law provides that when a defendant has served a notice of intent to present psychiatric testimony pursuant to Section 250.10 of the Criminal Procedure Law, the prosecution may ask the trial court to order the defendant to submit to an examination by a psychiatrist or psychological expert designated by the prosecution. N.Y. Crim. Proc. L. § 250.10(3). Both the district attorney and the defendant's counsel have a right to be present at the examination, but [t]he role of each counsel at such examination is that of an observer, and neither counsel shall be permitted to take an active role at the examination.” Id.

On July 23, 2009, the prosecution filed a motion seeking to set the conditions of petitioner's examination, which was scheduled for July 28, 2009. (Pet., Ex. M at 2). The prosecution claimed that petitioner's counsel would not consent to the examination proceeding pursuant to the Queens District Attorney's Office practice of conducting the examination in a room with a one-way mirror, with the district attorney and defense attorney watching and listening to the examination from outside the room. (Id.) Petitioner's counsel argued that petitioner's right to have an attorney present at the examination encompassed the right to sit next to or in the same room as petitioner. (Id. at 3). The prosecution requested that counsel be required to be in a separate room during the examination. (Id.) The trial court denied the prosecution's request. (Id.) However, the trial court ordered that “defense counsel refrain from communicating with defendant or discussing the interview with her during brief recesses that occur during the day of the interview(s).” (Id. at 4).

Accordingly, on July 28, 2009, the prosecution's expert, Dr. Kathy Yates, commenced her examination of petitioner. (See Pet., Exs. R-Z). The examination proceeded for most of the day but was not completed. (Id.)

During a hearing before the trial court two (2) days later, on July 30, 2009, the prosecution again sought an order requiring petitioner's counsel to observe the continued examination from a separate room, and instructing petitioner and her counsel not to confer during recesses in the examination. (Id., Ex. N at 2). The prosecution argued that petitioner's counsel was “dramatic and insidious in his interruptions” during the July 28, 2009 examination and had interfered with the examination in three ways. (Id. at 3). First, counsel “verbally interrupted the examination with questions or comments during the course of the examination in the room, ” including in the middle of Dr. Yates' questions and before petitioner could answer. (Id. at 3-4). Second, Dr. Yates had arranged the room so that petitioner would be facing a one-way glass and a camera that would have captured petitioner's facial expressions, perspiration, and eye movements. (Id. at 5). Petitioner's counsel “interfered by repeatedly rearranging the room, the [petitioner's] positioning, the seating arrangement and arguing those arrangements with the psychologist.” (Id. at 4). Third, petitioner's counsel “repeatedly compromised the examination by inciting the [petitioner] during recesses” and by acting “with extreme, unprovoked hostility and aggression in [petitioner's] presence” toward Dr. Yates, the Assistant District Attorney, and even toward the Court's law secretary, who was there to observe the proceedings. (Id. at 6). For example, after Dr. Yates asked counsel and petitioner not to confer during breaks, counsel “began to scream at Dr. Yates in [petitioner's] presence that [the prosecution was] trying to violate his [client's] Sixth Amendment right to counsel.” (Id. at 7).

In response, petitioner's counsel told the trial court that his client became distressed during the examination based on certain actions taken by the assistant district attorney. (Id. at 13-14). He further claimed that he had asked the room to be rearranged so that he would not be on camera, because “I thought that I should be an observer rather than someone on camera during the proceedings.” (Id. at 14). Additionally, he claimed that his client “appeared to be physically ill and mentally stressed and emotionally distraught, ” causing him to raise the matter with Dr. Yates. (Id.) Counsel stated that he did not discuss the examination with his client during breaks in the examination, but rather that he asked her how she was feeling because he was concerned about her well-being. (Id. at 15). Petitioner's counsel further noted that the trial court had instructed the parties that, if there was a problem during the examination, the parties should notify the court during the examination, but that the prosecution did not raise any objections to the court. (Id. At 29).

After hearing the parties' arguments, the trial court issued the following ruling from the bench:

[I]t has come to the Court's attention that defense counsel, in fact, spoke out during the examination on at least one occasion demanding that the psychologist ask defendant questions about how she was feeling and engaged in behavior that served to disrupt the flow of the examination and resulted in defendant becoming emotionally upset and hostile and ultimately caused the stoppage of the session. It should be noted that a representative of the Court was present and made observations during part of the examination. Under the circumstances, the Court is satisfied that defense counsel's presence in the same room with defendant during the examination interferes with and compromises the examination.

(Id. at 37-38).

The Court then ordered that defendant's psychiatric examination...

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