McManus v. Vann
| Decision Date | 09 August 2019 |
| Docket Number | No. CV-18-3800 (JFB),CV-18-3800 (JFB) |
| Parties | STEVEN MCMANUS, Petitioner, v. SUPERINTENDENT MARY VANN, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Steve McManus ("petitioner") petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his convictions in New York State Court. On June 15, 2015, following a jury trial in the Supreme Court of New York, Nassau County (the "trial court"), petitioner was convicted of sexual abuse in the first degree (N.Y. Penal Law ("NYPL") § 130.65[1]), and criminal obstruction of breathing or blood circulation (NYPL § 121.11). Petitioner was sentenced to seven years' imprisonment, with a concurrent sentence of one year incarceration, followed by fifteen years of post-release supervision.
Petitioner challenges his convictions on the single ground of prosecutorial misconduct during summation. Specifically, petitioner claims that the prosecutor (1) referenced matters not in evidence; (2) vouched for the witnesses; (3) acted as an unsworn witness; (4) attempted to shift the burden; (5) attacked petitioner's trial counsel rather than the evidence; and (6) mischaracterized the evidence. (Pet. 6, ECF No.1)
For the reasons discussed below, petitioner's request for a writ of habeas corpus is denied in its entirety.
The following facts are adduced from the petition, respondent's answer and memorandum in opposition, and the underlying record.
On the evening of August 29, 2013, Mary Doe1 entered Jack Duggan's Pub in Floral Park with a small group of friends. (T. 641-45.)2 Shortly thereafter, Mary went to the ladies' restroom. (T. 648-49.) The restroom was divided by a door into two areas: the sink area and the toilet area. (T. 650.) Mary entered the sink area where she waited and began texting on her phone. (Id.) Moments later, petitioner entered the ladies' room. (T. 653.) When petitioner entered the sink area, he began to sing, make small talk, and kiss Mary. (Id.) Believing he was drunk, Mary pushed petitioner aside and told him he was confusing her for someone else. (T. Id.) According to Mary, petitioner became aggressive and continued to kiss her on the neck. (T. 654.) Mary began to scream. (T. 655.) Her phone was knocked out of her hand and fell between the doorway and the sink. (T. Id.) Petitioner then grabbed her by the neck, covering Mary's mouth, and pushed her into the toilet area. (T. 654-55.) Once inside, petitioner pulled Mary's dress straps down. (T. 670.) He then groped her breasts and continued to try to kiss her neck. (T. 654, 658.) According to Mary, petitioner raped her at this time. (T. 654-55.)
Svetlana Chirokikh, a friend of Mary's, testified that, during this time, Mary's friends became concerned about how long she had been in the restroom and enlisted the bar's co-owner, who used a butter knife to unlock the door to the ladies' room. (T. 932-33.) Once the door began to open, petitioner dropped Mary and walked passed Chirokikh on his way out the bathroom. (T. 934.) Chirokikh noticed that he was "fiddling" with either his fly or belt. (Id.) Chirokikh then entered the toilet area and saw Mary, crouched on the floor, crying. (T. 935.) Chirokikh then told the owner and another individual to apprehend petitioner. (Id.) After returning to Mary's side, Mary, in a state of shock, told Chirokikh that petitioner had sexually assaulted her and that she thought she was going to die. (Id.) John Duggan, the owner of Jack Duggan's Pub (T. 474-75), testified that he saw the petitioner exit the ladies' room and head toward the back door (T. 540-41). Duggan also saw Mary, with her blouse open, crying on the floor in the bathroom (T. 545), before following one of Mary's friends, Evan Triantafilis, out the back door in pursuit of petitioner (T. 542). Duggan and Triantafilis then found petitioner hiding in the bushes, buckling his belt. (T. 548-51.) They then kept him from leaving the area until the police arrived. (T. 553-54.)
Mary was questioned by Nassau County Detective Susan Entenmann who observed no visible injuries. (T. 986.) She was transported to the hospital and examined by Theresa Dillman, a Sexual Assault Nurse Examiner ("SANE" nurse). (T. 806.) The exam revealed that Mary's injuries included three tears to her vagina (T. 829-33), redness on both sides of her neck, and abrasions on her upper buttocks and the back of her arms. (T. 819-20). Petitioner's DNA was found on Mary's neck. (T. 1024-25.)
During opening statements, petitioner's counsel described the encounter betweenpetitioner and Mary as consensual. (T. 425-26.) Counsel explained that, when petitioner entered the toilet area of the bathroom, he found Mary sitting on the toilet. (T. 426.) Petitioner excused himself and re-entered the sink area. (T. 426.) After Mary was done, she rejoined petitioner in the sink area and began to dance with petitioner. (T. 426.) According to petitioner's counsel, this is when petitioner and Mary began kissing. (T. 426.) Counsel told the jury that Mary slapped petitioner after he commented on her weight. (Id.) In his affidavit in support of the petition, petitioner's counsel states that he mentioned these details from petitioner's written statement in the opening because he had anticipated that the detective who took the statement would be called as a witness during trial to admit this statement. (Aff. at 15, ECF No. 10.) However, the detective was not called as a witness, the statement was not admitted, and petitioner failed to produce evidence to support these claims made during opening.
Theresa Dillman, the SANE nurse, testified during direct examination that she administered medication to Mary to prevent her from contracting a sexually transmitted disease. (T. 818.) Dillman testified that SANE nurses are required to conduct blood work tests for Hepatitis B, Hepatitis C, Human Immunodeficiency Virus ("HIV"), and syphilis. (T. 815.) She further testified it is also part of procedure to administer preventive treatments for gonorrhea, chlamydia, and trichomonas. (T. 815.) Dillman also explained that the hospital is obligated to ask any patient between the ages of 13 and 64 if they want to be tested for HIV to "reduce the instances of HIV." (T. 816.) If the patient is HIV-positive, it would indicate that the patient contracted HIV prior to the assault and required a different medication regimen. (T. 816-17.) If the blood work shows the patient is negative, the patient is "prophylactically" treated and put on a 30-day medication regimen. (T. at 817.)
DNA specialist Christopher Chillseyzn testified that he initially screened several articles of petitioner's clothing for the presence of blood (T. 1018), before further testing found that petitioner's DNA, collected from his shorts and T-shirt, was consistent with the DNA found on Mary's neck, (T. 1024-25). On cross-examination, Chillseyzn testified that he was primarily looking for blood on petitioner's clothing in order to test for human DNA and that, while he determined there was human DNA on petitioner's clothes, he could not say conclusively where that DNA came from (i.e., from skin or from sexual contact with Mary). (T. 1037-39.) Petitioner's counsel also questioned Chillseyzn regarding the lack of Mary's DNA on petitioner's shorts or pants. (T. 1038-39.) On redirect, Chillseyzn testified that, in the hypothetical posed by petitioner's trial counsel, DNA specialists do not test for skin cells because, (T. 1041.)
In the beginning of her summation, the prosecutor asked the jury to take into consideration Mary's composure during cross-examination and direct examination. (T. 1132-35.) For instance, the prosecutor told the jury that the way Mary answered the questions was significant because it showedthat she was not defensive or evasive and was respectful. (T. 1134-35.) The prosecutor pointed to Mary's continued answers despite the fact that it was uncomfortable for her, even when petitioner's trial counsel asked Mary an "offensive" question (T. 1135). Moreover, the prosecutor argued that Mary had no motive to lie. (T. 1136-37.) The prosecutor also pointed out that, although petitioner's trial counsel had suggested the encounter was consensual, there was no evidence in the trial record to support that. (T. 1139.) In doing so, she reminded the jury that "what defense counsel says, what I say is not evidence." (T. 1139.) The prosecutor also pointed to evidence demonstrating the encounter was not consensual. For example, Duggan, the owner of the bar, had testified that after petitioner was arrested, he found Mary's phone in the garbage pail near the sink area of the bathroom. (T. 559.) During summation, the prosecutor argued that Duggan's testimony indicates that there was a struggle between Mary and the petitioner because "no 22-year-old girl is throwing her phone into the garbage pail in a bar." (T. 1164.)
Later in the summation, the prosecutor mentioned petitioner's trial counsel's opening in which he suggested, in detail, that the encounter was consensual. (T. 1189.) The prosecutor reiterated that there was "no evidence that this was consensual" between petitioner and Mary. (Id.) Trial counsel objected when the prosecutor began to rebut the version of the facts referenced in the opening by petitioner's counsel - namely, that upon the petitioner entering the bathroom, Mary asked him to stay. (Id.) When petitioner's trial counsel pointed out that there was no evidence of that version of the facts (although he opened on it), the court then stated, ...
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