Grotto v. Herbert
| Decision Date | 14 January 2003 |
| Docket Number | Docket No. 02-2343. |
| Citation | 316 F.3d 198 |
| Parties | Louis GROTTO, Petitioner-Appellee, v. Victor HERBERT, Superintendent, Collins Correctional Facility, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Alex Smith, Middletown, NY (Robert N. Isseks, Middletown, NY, on the brief), for Petitioner-Appellee.
Eric A. Johnson, Assistant Solicitor General, Albany, NY (Eliot Spitzer, Attorney General of the State of New York, Caitlin J. Halligan, Solicitor General, Daniel Smirlock, Deputy Solicitor General Robin A. Forshaw, Assistant Solicitor General, Albany, NY, on the brief), for Respondent-Appellant.
Before: KEARSE, McLAUGHLIN, and SOTOMAYOR, Circuit Judges.
Respondent Victor Herbert, superintendent of New York State's Collins Correctional Facility (the "State"), appeals from a judgment of the United States District Court for the Northern District of New York, David N. Hurd, Judge, granting petitioner Louis Grotto ("Grotto") a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the ground that the state trial court deprived him of due process when it denied his motion, after he had rested his case, for permission to reopen and for a continuance in order to present additional evidence. The district court ordered the State to release Grotto unless it granted him a new trial. On appeal, the State contends that the trial court's denial of Grotto's motion for a continuance and permission to reopen his case was not an unreasonable application of Supreme Court precedent. For the reasons that follow, we agree, and we therefore reverse the judgment granting the writ.
From about 1986 to 1993, Grotto lived in Ulster County, New York, with his girlfriend Kimberly O'Brien, their daughter A.G., and O'Brien's daughter from a previous relationship, J.C. In May 1993, O'Brien told her mother that she planned to leave Grotto that summer. J.C., who was then 12 years of age, urged O'Brien not to delay, saying, " (Trial Transcript ("Tr."), at 76.) J.C. also said that Grotto had sexually abused J.C. when she was 10-11 years old.
At Grotto's state-court trial, O'Brien testified that in that May 1993 conversation, A.G., who was then six years old, confirmed J.C.'s statement that Grotto had been abusing A.G. A.G. told O'Brien that Grotto had been touching her in ways she did not like and, in particular, that he had had sexual intercourse with her at the townhouse of Grotto's sister Linda Grotto Noe ("Linda") on Linda's wedding day, August 22, 1992.
Grotto was indicted in 1993, and tried in 1994, on charges of first-degree rape, first-degree sexual abuse, incest, and two counts of endangering the welfare of a child. He denied all accusations and sought to show that he was not even present at Linda's Highland, New York townhouse on August 22, 1992, the place and date of his alleged intercourse with A.G. The jury found Grotto guilty on all counts, and he was sentenced to a total of 6-18 years in prison. The principal focus of this appeal is the proceedings with regard to evidence as to whether Grotto was present at Linda's townhouse on August 22, 1992.
The prosecution's principal trial witnesses with respect to the events on Linda's wedding day were O'Brien and A.G. O'Brien testified, inter alia, that Grotto, as a wedding gift to his sister, had agreed to serve as the wedding photographer. The wedding ceremony was to be performed in judicial chambers. O'Brien testified that on the morning of August 22, Grotto left their Wallkill, New York home at about 7:00 a.m. with his camera, taking A.G. with him. Grotto told her he was leaving early in order to take pictures at Linda's home, and that he would take pictures in the judge's chambers and later at the reception.
A.G. testified that Grotto had begun touching her genitals when she was five years of age. He sometimes touched her only with his hand and sometimes placed his penis in her vagina. She testified that on the morning of Linda's wedding, she and Grotto went to Linda's townhouse, where other members of the Grotto family had convened in preparation for the wedding, and that Grotto took pictures before the family left for the wedding ceremony. A.G. testified that when the other members of the family had gone, Grotto took her into the guest bedroom, undressed himself and her, and engaged in sexual intercourse with her.
Grotto then took A.G. into the bathroom and washed her genital area. They then got dressed and went to the wedding ceremony.
The prosecution's other witnesses included a physician who examined A.G. after her accusations about Grotto in May 1993. The doctor testified that A.G.'s hymen had been perforated and that only remnants of her hymenal tissue remained. That condition was consistent with A.G.'s report of penetration, although it could instead have been caused by vigorous physical activity such as bicycling or horseback riding.
The prosecution also introduced photographic evidence that it had received from Grotto in response to a pretrial discovery demand for "[p]hotographs taken by the defendant on the 22nd day of August, 1992, in the course of Linda Grotto's wedding[, and] all of the negative [sic] of photos taken by the defendant at the wedding." (Prosecution's Demand dated November 15, 1993.) These exhibits included two strips of photographic negatives, People's Exhibits 11 ("PX 11") and 12 ("PX 12"). PX 11 contained four exposures, numbered 9, 10, 11, and 12, the first three of which showed scenes at Linda's townhouse; the fourth, negative # 12, showed the outside of the New Paltz, New York courthouse in which the wedding ceremony took place. Linda later testified that the picture shown in negative # 12 had been taken in front of the courthouse in order to memorialize where she and Kenneth Noe ("Kenneth") were about to be married. Linda testified that she believed that picture was taken by Grotto.
PX 12 contained four exposures, numbered 13, 14, 15, and 16, all of which were taken at the wedding ceremony. Kenneth later testified that he believed Grotto had taken those pictures. Another defense witness, Lisa VanOyan, testified that she had not seen anyone other than Grotto taking pictures at the ceremony.
Grotto testified in his own behalf and called as his principal witnesses his mother Jean Grotto ("Jean"), his brother Ralph Grotto ("Ralph"), his sister Linda, and Kenneth. All of these witnesses testified that on August 22, neither Grotto nor A.G. had been at Linda's townhouse before the wedding.
Linda and Kenneth testified that the only family members at the Highland townhouse on the morning of August 22 before the wedding were themselves, Linda's parents who lived in Florida, and Ralph with his wife Rochelle Grotto ("Rochelle") and young son Philip, all of whom lived in Rochester, New York. Shortly before 10 a.m., Linda, Ralph, their father, and Kenneth drove to New Paltz for the wedding ceremony, leaving Jean, Rochelle, and Philip at the townhouse; Jean and Rochelle were to prepare the house for a celebratory brunch that would precede the reception that was to be held that afternoon at the Officers' Club at Stewart International Airport. Linda, Ralph, and Kenneth testified that neither Grotto nor A.G. had been at the townhouse that morning but arrived at the courthouse in New Paltz 5-10 minutes after Linda, Ralph, and Kenneth.
On cross-examination, Ralph was asked about what photographs had been taken during the wedding day. He did not recall that any pictures had been taken at the townhouse before the ceremony. When shown PX 11, however, he testified that ## 9-11 appeared to have been taken at the townhouse and that # 12 appeared to have been taken at the ceremony. Ralph did not know who took those pictures.
Jean Grotto, mother of Grotto, Ralph, and Linda, testified that she had spent the night of August 21 at Linda's townhouse. On the morning of August 22, Jean was at the townhouse until her husband, Linda, Kenneth, and Ralph left for the ceremony in New Paltz. Then Jean and Rochelle (taking young Philip with them) went shopping for food, drink, and flowers for the brunch. At no time did Jean see Grotto at the townhouse on August 22.
Grotto testified that he was not at the townhouse at all on August 22. He stated that he and A.G. left their Wallkill home at about 9:30 a.m. that day and went directly to New Paltz, arriving at the courthouse at about 10 a.m. to attend the wedding ceremony. After the ceremony, A.G. went to the townhouse; Grotto, who was dressed informally, went home to Wallkill to change his clothes. Both Grotto and A.G. attended the wedding reception that afternoon.
Kenneth testified that he and Linda had previously arranged for Grotto to be their wedding photographer. Grotto "was the one who was supposed to take the photographs for [the] wedding" (Tr. 397); "[w]e had asked him to do this" (id.; see also Linda's testimony at Tr. 323 ()). Grotto testified that he had considered himself the official photographer for the wedding and had taken many pictures of the festivities. He was unable, however, to identify any particular picture as having been taken by him. He and his witnesses also testified that he was not the only person taking pictures on August 22. Ralph, and possibly others, had taken photographs at the townhouse, the courthouse, and other sites.
At approximately 7:00 p.m. on the third day of trial testimony, having presented his witnesses and introduced several photographs in evidence, Grotto rested his case. The trial judge then explained to the jury that it had now heard all of the testimony and that the attorneys would make their closing...
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