Washington v. Schriver

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-2195
• Parties: (2nd Cir. 2001) JEFFREY WASHINGTON, Petitioner-Appellant, v. SUNNY SCHRIVER, Superintendent, Wallkill Correctional Facility, Respondent-Appellee
• Court: U.S. Court of Appeals — Second Circuit

Page 45

255 F.3d 45 (2nd Cir. 2001)

JEFFREY WASHINGTON, Petitioner-Appellant, v. SUNNY SCHRIVER, Superintendent, Wallkill Correctional Facility, Respondent-Appellee.

Docket No. 00-2195

August Term, 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: November 14, 2000

Decided: June 15, 2001

Amended: June 15, 2001

Appeal from an order of the United States District Court for the Southern District of New York (Buchwald, Judge) denying Jeffrey Washington's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). The petitioner argues that no deference is owed under AEDPA to the state court decision because the state court did not address the merits of the federal constitutional claim, and that the exclusion of expert testimony violated his constitutional right to call witnesses to present a meaningful defense. We need not decide whether deference is due under AEDPA because, under either AEDPA or pre-AEDPA standards, we must AFFIRM. [Copyrighted Material Omitted] JOHN R. CUTI, Emery Cuti Brinckerhoff & Abady PC, New York, N.Y. (Ilann M. Maazel, Paul Skip Laisure, on the brief), for Petitioner Jeffrey Washington.

NANCY D. KILLIAN, Assistant District Attorney, Bronx County, N.Y. for Robert T. Johnson, District Attorney, Bronx County (Joseph N. Ferdenzi, Assistant District Attorney, on the brief), for Respondent Sunny Schriver.

Before: CARDAMONE, CALABRESI, AND KATZMANN, Circuit Judges.

Judge Calabresi concurs in a separate opinion.

KATZMANN, Circuit Judge:

Petitioner Jeffrey Washington was convicted in Bronx County Supreme Court of raping his then five-year-old daughter while she visited him for the weekend of April 13-14, 1991. The petitioner did not deny that his daughter had been sexually abused, but contended that she had been raped by someone else and then coached by her mother, and perhaps also her godmother, to blame the crime on him. To buttress this contention, he sought to introduce expert testimony on the suggestibility of young children when subjected to certain leading and suggestive interviewing techniques. The trial court excluded the expert testimony on various grounds, including a lack of factual foundation for the testimony, the fact that the expert witness had not been qualified previously in a New York court, and a finding that the subject of the proposed testimony was not beyond the knowledge of the average juror. The petitioner argued to the trial court and subsequently to the Appellate Division that the exclusion of this testimony violated his rights under the Due Process Clause of the Fourteenth Amendment and the Compulsory Process Clause of the Sixth Amendment, both of which guarantee a criminal defendant the right to call witnesses to present a meaningful defense. This constitutional argument was apparently rejected, although neither state court specifically addressed the federal issues. The petitioner sought relief in federal court, but the district court denied the petition. See Washington v. Schriver, 90 F.Supp.2d 384 (S.D.N.Y. 2000) (Buchwald, Judge). He now appeals to this court raising two issues: (1) no deference is owed under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to the state courts' denial of his federal constitutional claim because the state courts did not address the merits of that claim, and (2) the exclusion of the expert testimony violated his constitutional right to call witnesses and present a defense. For the reasons stated below, we decline to decide whether the petitioner's federal claim was "adjudicated on the merits" within the meaning of AEDPA, because under either AEDPA or a de novo standard of review, we must affirm the denial of his application for habeas corpus relief.

BACKGROUND

1. The Evidence at Trial

Beginning on June 25, 1993, the petitioner was tried before a jury in Bronx County Supreme Court. The testimony at trial established the following:

Jane,¹ the daughter of Sally Smith and the petitioner Jeffrey Washington, was born on February 4, 1986. Her parents did not marry, and Jane rarely saw her father for the first three years of her life. In 1990, Sally Smith and the petitioner resumed a romantic relationship. At first, the petitioner would visit his daughter and her sister Natoya at the apartment where the children lived with their mother. The apartment was also occupied by Jane's godmother Clara Jamison, Ms. Jamison's daughters Gloria and Linda and their children. Ms. Smith and her two daughters lived in the living room, separated from the other parts of the apartment by a hanging curtain. Ms. Smith often left Jane in the apartment when she attended school or went to social events at night, but she testified that she always made sure that Ms. Jamison was there to take care of Jane. However, Ms. Smith admitted that when she left Jane home at night, Jane would sleep in the living room without Ms. Jamison.

The petitioner's relationship with Ms. Smith was apparently somewhat rocky. Ms. Smith testified that they would fight when the petitioner questioned her daughters about what she (Ms. Smith) did and about who came and went from her apartment; they also argued about issues related to the children. The petitioner testified that they argued about his romantic attachments with other women; men being in the apartment where Ms. Smith lived with her daughters; the way Ms. Smith spent money that the petitioner had given her to use for the children; and what he perceived to be the children's poor hygiene.

Sometime after the petitioner reinitiated a relationship with his daughter, Jane and Natoya began to spend weekends with the petitioner at the apartment he shared with his mother. On Thursday April 11, 1991, Jane arrived to spend the weekend with the petitioner; Natoya arrived the next day. Jane and Natoya typically slept in a room with their three cousins, the petitioner's nieces. But Jane testified that on the last night she was there, the night of April 13, her father had her sleep in the living room with him. Jane further testified that during that night, the petitioner put his penis in her vagina and her mouth, and put his fingers in her vagina. According to Jane, the petitioner told her not to tell anyone and threatened hurt her and her mother if she did. The petitioner took the stand and denied the accusations against him.

Ms. Smith testified that the day after Jane returned home, she complained of a stomach ache and a sore throat. She also testified that starting a week after that, Jane was more withdrawn and aggressive than usual, and appeared uncomfortable around her father.

Jane's godmother, Ms. Jamison, testified that on April 29, 1991 Jane told her that she "had been raped." Ms. Jamison did not describe the exact words Jane used, and did not testify that Jane named her father as the rapist. Because Jane admitted that her mother taught her the word "rape" after the incident, Ms. Jamison's testimony must be presumed to be a paraphrase of whatever Jane actually said. Ms. Jamison was not asked whether she questioned Jane either before or after her report of abuse.

On the night of April 30, the day after Jane made her statement to Ms. Jamison, Ms. Smith took her daughter to the police precinct to report the abuse. Ms. Smith testified that she informed the police that her daughter had told her of the incident the day before, on April 29. However, the parties stipulated that a police officer would have testified, had he been called, that Ms. Smith told him on April 30 that she had only learned of the abuse that day. At the precinct, Jane was interviewed by an unknown number of police officers.

After leaving the precinct on the 30th, Ms. Smith took her daughter to Mount Sinai Hospital to be examined. The doctor who conducted the examination was not called to testify, but the medical report was entered into evidence. The April 30 report did not mention any damage to the hymen such as tearing, scarring or thinning, but did note that Jane had "mild red erythema," a term meaning redness, around the vaginal opening. The prosecution's medical witness testified that such redness was "nonspecific," meaning that it was associated with sexual abuse but could also be explained by other factors such as irritation from soap or poor hygiene.

On May 1, 1991, Jane was again interviewed by a police officer. During that day, Jane was also interviewed by Myriam Moreno, an Assistant District Attorney, and told the ADA that the incident had occurred while her sister was at school, in other words, during the daytime. However, Moreno testified that during a later interview Jane said the incident occurred at 2 a.m. Also on May 1, the petitioner was arrested for raping Jane and held in jail because he could not make bail.

On May 2, Ms. Smith took Jane to see Fredericka Tolbert, a case worker at the Bureau of Child Welfare. Although Jane denied this on cross-examination, Ms. Tolbert testified that when she first asked Jane whether anyone had touched her, she said "nobody," and when she asked her a second time, "[s]he said mommy touched me." In response to questioning by the prosecutor, Ms. Tolbert testified that, in her experience, when young children say that mommy touched me, they mean "she wiped me... she bathed me." Jane testified that later in the interview, when Ms. Tolbert asked her specifically whether her father Jeffrey had touched her, she said that he had. The police investigation was closed on May 2.

On May 3, 1991, a second physician at Mount Sinai examined Jane. The prosecution did not call this physician to testify either. The physician's report was entered into evidence, and the prosecution's doctor testified on cross-examination that the report specifically noted that although there was some redness in the vaginal area and a notation of "slight thinning" on the left side of the hymen, there were "no hymenal tears." The hymen orifice measured five millimeters.

On June 4, 1991, more than...