Washington v. Schriver

• Decision Date: 28 March 2000
• Docket Number: No. 98 Civ. 6535(NRB).,98 Civ. 6535(NRB).
• Citation: 90 F.Supp.2d 384
• Parties: Jeffrey WASHINGTON, Petitioner, v. Sunny SCHRIVER, Superintendent, Wallkill Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

90 F.Supp.2d 384

Jeffrey WASHINGTON, Petitioner, v. Sunny SCHRIVER, Superintendent, Wallkill Correctional Facility, Respondent.

No. 98 Civ. 6535(NRB).

United States District Court, S.D. New York.

March 28, 2000.

COPYRIGHT MATERIAL OMITTED

Paul Skip Laisure, John R. Cuti, New York City, for petitioner.

MEMORANDUM AND ORDER

BUCHWALD, District Judge.

Petitioner, Jeffrey Washington ("Washington") brings this habeas petition pursuant to 28 U.S.C. § 2254 seeking to overturn his 1993 conviction in Bronx County Supreme Court for one count of rape in the first degree, N.Y. Penal Law § 130.35(3); one count of sodomy in the first degree, N.Y. Penal Law § 230.50(3); and two counts of sexual abuse in the first degree, N.Y. Penal Law § 130.65(3). In brief, petitioner was convicted of raping his then five-year-old daughter, largely on the basis of his daughter's testimony. Petitioner contends that the judge that presided over his trial denied him his federal constitutional right to call witnesses and present a defense by excluding the testimony of petitioner's proposed expert witness, who would have testified to the suggestibility of child witnesses, such as petitioner's daughter.

The Court, having received the Report and Recommendation ("Report") of United States Magistrate Judge Henry B. Pitman, dated January 27, 2000; the objections filed by petitioner ("Obj."), dated February 9, 2000; and the submission of respondent ("Resp.") dated February 25, 2000; having heard oral argument on March 10, 2000; and having conducted a de novo review of the record, accepts and adopts the Magistrate's Report, except with respect to the issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253. We write to respond to petitioner's objections and to supplement the challenged portions of Judge Pitman's analysis. Familiarity with the facts described in the Report is assumed. See, generally, Report at 2-8.

DISCUSSION

Petitioner objects to Judge Pitman's Report on two grounds. First, petitioner argues that Judge Pitman incorrectly applied a deferential standard of review under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Second, petitioner argues that Judge Pitman did not apply the correct constitutional analysis. Neither argument is availing.

A. Standard of Review

First, petitioner contends that because the state court did not rule on the evidence issue raised in this case in constitutional terms, it did not decide the issue on the "merits," and thus that the decision should be reviewed de novo to determine whether it is "contrary to" clearly established federal law, instead of being reviewed under the more deferential "reasonable application" standard. Obj. at 2-3. See also Smalls v. Batista, 191 F.3d 272, 278 (2d Cir.1999) (noting the differing applications of the two standards). In the final analysis, federal habeas review must be governed by the holding of the state court—not the form of its articulation. See, e.g., Arizona v. Evans, 514 U.S. 1, 7-8, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995) (warning against the "unsatisfactory and intrusive practice of requiring state courts to clarify their decisions" by citing to federal precedents).¹

In any event, as Judge Pitman correctly noted, the Second Circuit has not yet determined under what circumstances each standard applies and, moreover, correctly observed that it is unnecessary to weigh in on the issue, which is pending before the Supreme Court, because "petitioner has not shown constitutional error under either standard." Report at 8-9 (citing Smalls, 191 F.3d at 278).²

B. Constitutional Analysis

Petitioner challenges Judge Pitman's constitutional analysis in two respects. First, he argues that Judge Pitman "ignored overwhelming precedent throughout the country requiring admission of expert testimony on the suggestibility of childhood memory" and the "well-developed body of academic literature" documenting the phenomenon. Obj. at 6-9. Second, petitioner argues that Judge Pitman "made the very same error the state courts made" in reaching the conclusion that exclusion of the testimony did not deprive petitioner of a fair trial. Obj. at 10-12. We will address each of these objections in turn.

We are mindful that the role federal courts in habeas review is limited to determining whether a conviction violates the Constitution, laws, or treaties of the United States. See Estelle v. McGuire, 502 U.S. 62, 88, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Where the trial court's purported error centers around excluded evidence, petitioner must establish that the "omitted evidence creates a reasonable doubt that did not otherwise exist." United States v. Agurs, 427 U.S. 97, 112-113, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). The reviewing federal "court's duty on a petition for habeas corpus is to determine whether the excluded testimony was material to the presentation of the defense so as to deprive the defendant of fundamental fairness." Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir.1988).³ See also McCray v. Artuz, No. 93 Civ. 5757, 1994 WL 603057, at *2 (S.D.N.Y. Nov.3, 1994). Generally, however, an evidentiary ruling is "not a matter of federal constitutional law." Gantt v. Artuz, No. 97 Civ. 3031, 1999 WL 1206733, at *3 (S.D.N.Y. Dec.16, 1999) (citing Colon v. Johnson, 19 F.Supp.2d 112, 118 (S.D.N.Y.1998)).

Much of petitioner's objections are concentrated on establishing the "undisputed weakness of the People's case" and he liberally cites to Judge Pitman's descriptions of these limitations. Obj. at 3-6. Although details of the evidence adduced at trial are certainly probative of whether the trial court's evidentiary ruling deprived petitioner of "fundamental fairness," our analysis focuses on whether the exclusion (a) "was an error of constitutional dimension" and, if so, (b) "whether the constitutional error was harmless." Rosario, 839 F.2d at 924. See also Smalls, 191 F.3d at 282-82 (noting that an evidentiary ruling is considered "trial error" subject to harmless error analysis).⁴

1. Constitutional Requirements

Petitioner cites an array of cases in which expert testimony comparable to his proposed expert's was found to be admissible, as well as a litany of academic literature in support of it admissibility. Obj. at 6-9. In spite of all the cases petitioner cites finding childhood suggestibility testimony to be admissible, he is unable to point to any that find a failure to do so to be constitutional error.⁵ Moreover, in oral argument before this Court, petitioner's counsel was again unable to cite federal precedent supporting the proposition that an exclusion of this kind of testimony is constitutional error. Tr.⁶ at 8-9. Thus, petitioner simply fails to refute Judge Pitman's conclusion that "[n]either my research, nor the parties', has disclosed any case in which the exclusion of expert testimony similar to the testimony in issue here has been found to rise to the level of constitutional error." Report at 12. In addition, it must be recalled that a defendant's right to present "expert testimony is limited by the requirements of relevancy and by the trial court's traditional discretion to prevent prejudicial or confusing testimony." Agard v. Portuondo, 117 F.3d 696, 704-05 (2d Cir.1997).⁷ As such, we can make no finding that the exclusion of the proffered testimony in this case is, as a matter of law, erroneous.

2. Overall Fairness

Petitioner's attack on Judge Pitman's (and the Appellate Division's) assessment that petitioner received a fair trial focuses on two aspects. First, petitioner takes issue with Judge Pitman's concurrence with the trial court's determination that the proposed expert testimony concerns matters within the province of the jury. Second, petitioner accuses Judge Pitman of confusing the issues of whether the proposed evidence was offered to impeach the witness' credibility or her reliability. Again, neither is availing.

a. The Province of the Jury

As a general matter, it is within the range of permissible discretion for a trial court to exclude expert testimony concerning matters of common sense or matters within the province of the jury. See United States v. Onumonu, 967 F.2d 782, 786 (2d Cir.1992); United States v. Nersesian, 824 F.2d 1294, 1308 (1987). Accord People v. Fratello, 92 N.Y.2d 565, 572, 684 N.Y.S.2d 149, 152, 706 N.E.2d 1173 (1998). See also United States v. Serna, 799 F.2d 842, 850 (2d Cir.1986) (finding expert testimony to be properly excluded in cases where the proposed testimony "basically consisted of general pronouncements about the lack of reliability of eyewitness identification" or contained "conclusions [that] coincided with common sense") abrogated on other grounds United States v. DiNapoli, 8 F.3d 909, 914 n. 5 (2d Cir.1993); United States v. Luis, 835 F.2d 37, 41 (2d Cir.1987) (finding that a district court may properly address the dangers of unreliable eyewitness identification testimony by giving a jury charge appropriate to the circumstances of the case); Levy v. Abate, No. 93 Civ. 0258, 1993 WL 267421, at *5 (S.D.N.Y. July 9, 1993) (finding it "wholly reasonable for the trial court to refuse to allow expert psychiatric testimony regarding the effects of ... simple fasting, seclusion and fear").

Here, the trial court made a specific finding that "the area of credibility of this witness and any suggestivity [sic] based on prior questions are areas of common knowledge well within the jury's realm without need for expert opinion." Trial Transcript ("Tr.") 78-79. The Appellate Division ratified this conclusion. People v. Washington, 238 A.D.2d 263, 264, 657 N.Y.S.2d 24, 25 (1st Dep't 1997) ("This subject was not beyond the knowledge of the jurors."), appeal denied, 90 N.Y.2d 944, 664 N.Y.S.2d 762, 687 N.E.2d 659 (1997). We cannot find that this determination, which is based in a mixture of fact and law, is either "unreasonable" or "contrary to" federal precedent.

Moreover, the trial court in...