Opinion
No. 01-CV-6392.
April 13, 2004
DECISION AND ORDER
INTRODUCTION
Petitioner Morris Collins ("Collins") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (2004) in which he seeks to vacate his convictions in New York State Supreme Court (Monroe County) on twelve counts of rape, sodomy and sexual abuse. For the reasons that follow, the § 2254 petition is dismissed.
FACTUAL BACKGROUND
In March 1993, Collins was living with his wife, Patricia Collins, and her two daughters, A.B. and N.W. Around that time, Collins showed ten year-old A.B. pornographic movies and began engaging in sexual activity with her, which culminated in Collins raping A.B. in the basement of his house. In April of 1993, A.B.'s principal found her diary at school. Upon reading in it descriptions of sexual activity between A.B. and Collins, the principal called the police. Under pressure from her mother, however, A.B. retracted her statements that Collins had raped her. Collins submitted to a polygraph examination at that time, which he purportedly passed. Ultimately, Collins was not charged with any crime, but A.B. was removed from the household. A.B. told her sister, N.W., about the sexual abuse, but N.W. told her to "stop lying."
A little over three years later, N.W., then fourteen years-old, was discovered playing with a sexual toy which she said Collins had given her. N.W.'s mother, who had a severe drug addiction, was at a rehabilitation facility for several hours each afternoon, leaving Collins alone with N.W. during that time. N.W. said that over the period that her mother was absent, Collins showed her pornographic movies and raped her on at least three occasions. A.B. also came forward and told the police that she had been untruthful when she denied Collins' sexual abuse of her in 1993.
Collins was indicted by a Monroe County Grand Jury on seven counts of rape, one count of sodomy, and four counts of sexual abuse. He was tried before a jury in Supreme Court (Ark, J.) and convicted on all counts. On the first four counts of the indictment relating to A.B., Collins received an aggregate sentence of 7 to 21 years of incarceration. On the remaining counts, which related to N.W., Collins was sentenced to 7 to 14 years of imprisonment. The sentences for the A.B. counts were to run consecutively with the sentences for the N.W. counts.
Collins appealed to the Appellate Division, Fourth Department which unanimously affirmed his conviction on November 13, 2000. People v. Collins, 277 A.D.2d 1021 (4th Dept. 2000). The Court of Appeals denied leave to appeal on February 23, 2001. People v. Collins, 96 N.Y.2d 757 (2001). On January 20, 2000, Collins brought a motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 (1994). New York State Supreme Court (Fisher, J.) issued a written decision denying Collins' C.P.L. § 440.10 motion in its entirety. See July 31, 2000 Supreme Court Order ("7/31/00 Sup.Ct. Order"), Respondent's Appendix of Exhibits ("App.") E at 31-35.
Respondent's Appendix of Exhibits is attached to its Answer in Opposition to Petitioner's Motion for a Federal Writ (Doc. #5).
This federal habeas petition followed in which Collins asserts the following grounds for relief: (1) the prosecutor failed to disclose A.B.'s diary, which constitutes Brady material; (2) the trial court erred in refusing to allow introduction of Collins' polygraph results and certain pre-polygraph statements by him; and (3) Collins did not receive the effective assistance of counsel.
Brady v. Maryland, 373 U.S. 83 (1963).
DISCUSSION
I. Exhaustion and Procedural Default
Respondent asserts that Collins' so-called Brady claim is unexhausted because he did not present it to the appropriate state courts for review. In his habeas petition, Collins asserts that the police had custody of A.B.'s diary at one time, but then "lost" or "gave back" the journal. In not disclosing the diary to the defense, Collins contends, the prosecutor withheld evidence with which he could have impeached the school principal. Petition (Doc. #1) at 5.
The law is clear that a petitioner must exhaust all available state remedies either on direct appeal or through a collateral attack of his conviction before he may seek a writ of habeas corpus in federal court. 28 U.S.C. § 2254(b); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994). The exhaustion of state remedies requirement means that the petitioner must have presented his constitutional claim to the highest state court from which a decision can be obtained. See Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000) (citing Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991)). A claim is properly exhausted when the state court is fairly apprised of the claim's federal nature and of the factual and legal premises underlying the claim. Grey, 933 F.2d at 119-20.
A habeas petitioner has a number of ways to fairly present a claim in state court without citing "chapter and verse" of the Constitution, including "(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation." Daye v. Attorney General of New York, 696 F.2d 186, 194 (2d Cir. 1982) ( en banc); accord, e.g., Strogov v. Attorney General, 191 F.3d 188, 191 (2d Cir. 1999).
On direct appeal, Collins challenged the failure to provide him with the diary solely on the basis that it violated the prosecution's disclosure mandates under Rosario to disclose all statements of witnesses. He argued that "[w]ithout seeing the diary, the defense was unable to discover if [A.B.] routinely recorded contemporaneously, or if the diary included fantasies or demonstrably false passages." Petitioner's Appellate Division Brief at 9, App. F at 49.
People v. Rosario, 9 N.Y.2d 286 (N.Y.) cert. denied, 368 U.S. 886 (1961).
In his C.P.L. § 440.10 motion, Collins again framed his claim as a Rosario violation. See Petitioner's C.P.L. § 440.10 Motion at 8-13, App. C at 13-18 ("New York established Rosario and held in essence `a right sense of justice' entitles a defendant to inspect the prior statement of a prosecution witness, prior to cross-examination, whether or not his statement vary [sic] from his testimony on the stand"). The state court denied this claim noting that "[d]efendant's moving papers reveal that he apparently did not raise [the] issue during trial or sentencing, thereby preserving the issue for review." 7/31/00 Sup.Ct. Order at 2-3, App. E at 32-33. Citing C.P.L. § 440.10(3)(a), the court found that Collins' "unjustifiable failure to do so warrants denial of his motion of this ground." Id. at 3, App. E at 33.
Section 440.10(3) of New York's Criminal Procedure Law provides that "the court may deny a motion to vacate a judgment when: (a) Although facts in support of the ground or issue raised upon the motion could with due diligence by the defendant have readily been made to appear on the record in a manner providing an adequate basis for review of such ground or issue upon an appeal from the judgment, the defendant unjustifiably failed to adduce such matter prior to sentence and the ground or issue in question was no subsequently determined upon appeal. . . ." C.P.L. § 440.10(3)(a).
The Court finds that Collins failed to exhaust his purported Brady claim because he did not fulfill any of the alternative methods for presenting his federal constitutional claim to the state courts. See Daye, 696 F.2d at 194. In the introductory section of his argument on the C.P.L. § 440.10 motion concerning the diary, Collins stated that the "prosecution has a due process obligation to disclose material, favorable, relevant and exculpatory evidence to an accused." Petitioner's C.P.L. § 440.10 Motion at 9, App. C at 14. In this sentence, it appears that Collins might be alluding to the elements of a Brady claim. See, e.g., Strickler v. Greene, 527 U.S. 263, 281-82 (1999) ("There are three components of a true Brady violation: (1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.").
However, Collins never mentioned Brady, and he did not analyze the claim as a Brady claim. It is evident that the state courts never did so either. The Appellate Division held that "[t]he People were not obligated under Rosario to produce the diary because it was not in their possession or control." See People v. Collins, 277 A.D.2d at 1021 (citations omitted). The C.P.L. § 440.10 motion court denied the claim on a state procedural ground. See 7/31/00 Sup.Ct. Order at 2-3, App. E. at 32-33. Consequently, Collins did not give the state courts a fair opportunity to rule on his federal constitutional claim, and it remains unexhausted. See, e.g., Curry v. Bennett, No. 02-CV-3655 (JBW), 03-MISC-0066 (JBW), 2003 WL 22956980 at *12 (E.D.N.Y. Oct. 17, 2003) ("To the extent that petitioner's claim may be construed as regarding a Brady violation pursuant to Brady v. Maryland, 373 U.S. 83 (1963), petitioner failed to exhaust the claim because he only challenged the alleged evidentiary violation as a Rosario violation and failed to specifically raise the claim as a Brady violation in state court."); Tor v. Duncan, No. 01 CIV. 3984 (DLC), 2003 WL 22479250 at *3 (S.D.N.Y. Nov. 4, 2003) (petitioner's "repeated citation to Rosario, a state rule, did not fairly present the federal claim to the state court").
Under People v. Rosario, a state prosecutor must disclose any statement of a witness to be called at the hearing or trial, which is in the prosecutor's possession or control and relates to the subject matter of the witness' testimony. This rule, which is codified in C.P.L. §§ 240.44(1) and 240.45(1)(a), is similar to the federal Jencks rule, see Jencks v. United States, 353 U.S. 657 (1957). However, a claim that a state prosecutor withheld material from the defense in violation of the mandates of Rosario is based upon state law and does not present a federal constitutional question upon which federal habeas corpus relief can be granted. See, e.g., Curry v. Bennett, No. 02-CV-3655 (JBW, 03-MISC-0066 (JBW), 2003 WL 22956980 at *12; Lyon v. Senkowski, 109 F. Supp.2d 125, 139 (W .D.N.Y. 2000) ( Rosario is more expansive than the requirements later defined in Brady and its progeny, holding that the prosecution must disclose any prior statement of its witness, regardless of whether it is favorable to the accused; district court held that a Rosario claim is not cognizable on habeas review); Sutherland v. Walker, 1999 W L 1140870 at *9 (S.D.N.Y. Dec. 10, 1999); Copes v. Schriver, 1997 WL 6590 96 at *4 (S.D.N.Y. Oct. 22, 1997) ( Rosario violation does not establish a constitutional violation).
It is clear, however, that Collins is procedurally barred from returning to state court in order to exhaust the claim. He has already used the one appeal to the New York Court of Appeals to which he is entitled. See New York Court Rule § 500.10(a). Although Collins is not limited to only one C.P.L. § 440.10 application, raising this issue on a further motion to vacate would be futile since the state court already denied the claim due to Collins' failure to follow a state procedural rule. Thus, Collins' alleged Brady claim is "deemed exhausted." See Grey v. Hoke, 933 F.2d at 120-21.
By relying on C.P.L. § 440.10(3)(a), the state court invoked a state procedural rule which constitutes an adequate and independent state ground for rejecting the claim. See, e.g., Cameron v. People of the State of N.Y., No. 01Civ. 9988BSJGWG, 2002 WL 31898076 at *7 (S.D.N.Y. Dec. 30, 2002) ("CPL § 440.10(3)(a) likewise constitutes an adequate and independent state ground that prevents a federal court from reviewing the merits of the claim."); Aguilera v. Walsh, 2001 WL 123154 at *5 (S.D.N.Y. Oct. 17, 2001) (citing § 440.10(3)(a) as one of New York's "procedural default" rules barring federal habeas review of the claim).
The Court is precluded from considering this procedurally defaulted claim unless Collins "can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989) (citations and internal quotations omitted); see also Schlup v. Delo, 513 U.S. 298, 321 (1995) (a fundamental miscarriage of justice requires a showing of "actual innocence"). Collins does not allege cause or prejudice, nor does he attempt to show that a fundamental miscarriage of justice will occur should this Court decline to review his claim. Indeed, the Court finds no basis on this record for overlooking the procedural default. Therefore, it is precluded from habeas review.
In any event, the Court finds Collins' alleged Brady claim to be without merit. Collins cannot demonstrate actual or constructive possession of the diary by the prosecutor, a necessary element of a Brady claim. Even assuming that there was a withholding within the meaning of Brady, Collins cannot fulfill the remaining prongs of the test. With regard to the prejudice requirement, the prosecutor's inadvertent nondisclosure of impeachment or exculpatory evidence requires reversal of a conviction only if the evidence is "material," i.e., "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, (1985) (opinion of Blackmun, J.); see also id. at 685 (opinion of White, J.). Because Collins never saw the diary, he merely surmises that it actually contained evidence having exculpatory or impeachment value. In light of the graphic description of sexual activity summarized in the diary excerpt, see note 7, supra, and the fact that the diary's contents caused the school principal to contact Child Protective Services and file a report, see Tr. at 283, the Court cannot find that there is a "reasonable probability" that the diary contained material, favorable evidence such that "the result of the proceeding would have been different" had the diary been disclosed. Collins' defense thus did not suffer constitutional prejudice by the nondisclosure of the diary.
At the time that A.B. was questioned in 1993, Investigator Kelly of the Rochester Police Department apparently summarized the contents of the diary before it was returned to A.B. It appears that Investigator Kelly's report was provided to defense counsel as part of the People's pretrial discovery. See Trial Transcript ("Tr.") at 158. At trial, the prosecutor read an excerpt from Investigator Kelly's report, which stated that "`[t]he diary had an entry in it which detailed an incident in which the suspect made the victim remove her underwear and then he rubbed his penis against the victim's vaginal area. Also placed his penis in the victim's mouth and told her he wanted to eat her.'" Tr. at 159.
II. Standard of Review
To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
III. Merits of the Petition
A. Erroneous Preclusion of Polygraph Evidence
Collins asserts that he is entitled to habeas review on the basis that the trial court abused its discretion in failing to admit allegedly favorable results of a polygraph examination and certain statements made to the police prior to the administration of the test. On direct appeal, the Fourth Department concluded that the trial court "properly excluded evidence of self-serving statements made by defendant during an interview preceding the polygraph examination, as well as the results of the examination." People v. Collins, 277 A.D.2d at 1021 (citations omitted).
Federal habeas corpus relief will not issue to remedy errors of state constitutional, statutory, or procedural law unless a federal constitutional issue is also presented. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court "is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States"; it is not the province of a federal habeas court to reexamine state court determinations of state law). Thus, the Court is limited to considering whether the challenged ruling was an error of constitutional magnitude. In other words, to be cognizable on habeas review, the error must have deprived Collins of a fundamentally fair trial. Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988) (citing Chambers v. Mississippi, 410 U.S. 284, 294 (1973)). Alleged errors of state evidentiary law, such as the one presented here, rarely rise to this level.
Collins has presented no Supreme Court or other federal authority for the proposition that he is constitutionally entitled to the admission of his polygraph results at trial. Neither the Supreme Court nor the Second Circuit has ever held that evidence of polygraph results are admissible as a matter of law. Indeed, the "traditional rule" in the Second Circuit is that polygraph results are inadmissible. See United States v. Rea, 958 F.2d 1206, 1224 (2d Cir. 1992) ("This court has intimated in the past that the results of polygraph examinations are not admissible in this Circuit, see, e.g., United States v. Bortnovsky, 879 F.2d 30, 35 (2d Cir. 1989) (compiling cases)"; finding no abuse of discretion in district court's ruling that it did not believe polygraph tests were sufficiently reliable to warrant the admission of the results in evidence); United States v. Messina 131 F.3d 36, 42 (2d Cir. 1997) ("In view of the fact that we have not decided whether polygraphy has reached a sufficient state of reliability to be admissible under Rule 702 of the Federal Rules of Evidence, see United States v. Kwong, 69 F.3d 663, 668-69 (2d Cir. 1995), cert. denied, 517 U.S. 1115 (1996), we cannot say that the district court clearly erred in finding that the polygraph evidence actually presented was unworthy of credit."). Having shown no violation of a federal constitutional right, Collins is not entitled to habeas relief on the basis that the trial court erroneously excluded his self-serving pre-polygraph statements or his supposed passing results on the examination itself. This claim is denied.
B. Ineffective Assistance of Trial Counsel
Collins sets forth a number of "errors" on the part of trial counsel which allegedly denied him of constitutionally effective representation. Specifically, Collins claims that counsel was ineffective because he (1) failed to seek discovery of complainant A.B.'s diary; (2) failed to fully explore Officer Sennett's role in the criminal investigation; (3) failed to seek a stipulation that defendant's pre-polygraph testimony should be admitted at trial; (4) failed to investigate with regard to Patrice Womack, an allegedly favorable witness; (5) failed to object to the People's failure to call certain witnesses; (6) failed to object to the court's refusal to give an adverse inference charge regarding the diary; and (7) failed to object to several items of "bolstering" and other improper evidence.
To prevail on a claim of ineffective assistance of counsel, Collins' burden is extremely high: He must show both that counsel's representation was unreasonable under "prevailing professional norms," Strickland v. Washington, 466 U.S. 668, 688 (1984), and that he was prejudiced by that representation, id. at 691, 694. Prejudice occurs where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . . A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. With this legal standard as the backdrop, the Court turns to Collins' specific claims of attorney ineffectiveness.
1. Failure to seek discovery of complainant's diary
Collins asserted this claim in support of his C.P.L. § 440.10 motion. As the state court observed, Collins' claim that counsel made no attempt to discover the location of the diary was belied by his acknowledgment that the district attorney informed counsel that the diary had been lost by the complainant after she first was interviewed by the police in 1993. 7/31/00 Sup.Ct. Order at 4, App. E at 34. The state court further found that "[d]efendant [made] no factually supported allegations as to how, if at all, his attorney failed to make further attempts to find and review that diary." Id. Because Collins has failed to show that his counsel was defective in this regard, the Court need not consider the second prong of the standard, which is whether he suffered prejudice. See Strickland, 466 U.S. at 697 ("In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies."). Id. In any event, Collins' conclusory assertions that the diary would have provided a basis on which to impeach complainant A.B. are wholly unconvincing, and the Court finds that Collins suffered no prejudice in this regard.
2. Failure to investigate Officer Sennett
Collins argues that defense counsel erred in failing to investigate prior to trial evidence that Officer Sennett of the Rochester Police Department "could have offered in the petitioner's defense; and to what extent he could have testified." Petitioner's Memorandum of Law ("Pet'r Mem.") (Doc. #3) at 10. Collins claims that Officer Sennett would have helped his case because Officer Sennett was present during the pre-polygraph interview and the examination itself. This claim was raised on the C.P.L. § 440.10 motion, but the state court did not address it specifically in denying Collins' application.
Respondent argues this claim is refuted by the record, given that defense counsel subpoenaed Officer Sennett to testify at trial. During an on-the-record court colloquy, the trial judge determined it would not allow Officer Sennett to testify concerning the substance of Collins' pre-polygraph statements or whether he believed that Collins was being truthful. See Tr. at 425-29. As the trial record reveals, counsel made reasonable preparations to secure the witness and argued that the investigator's testimony was relevant and admissible. Counsel cannot be found ineffective because the trial judge did not agree with his arguments for admitting Officer Sennett's testimony.
3. Failure to seek evidentiary stipulation
Collins argues that counsel was defective in failing to "seek a stipulation when the police department itself had administered the test, with the police and prosecution, that it [ i.e., the polygraph] might be admitted at trial." Pet'r Mem (Doc. #3) at 10. According to Collins, the polygraph results were his "best evidence." Id.
Counsel cannot be faulted for failing to pursue a trial strategy which most certainly would have failed. First of all, as respondent notes, New York law clearly holds that polygraph results are inadmissible at trial as well as in grand jury proceedings. See, e.g., People v. Leone, 25 N.Y.2d 511, 516-18 (1969); People v. Shedrick, 66 N.Y.2d 1015, 1018 (1985); People v. Angelo, 88 N.Y.2d 217, 223 (1996); see also People v. Scott, 88 N.Y.2d 888, 891 (1996) (polygrapher's opinions regarding a witness' veracity are not admissible). Secondly, no reasonable prosecutor would agree to the admission of a defendant's selfserving statements, made in connection with a polygraph of dubious validity. Thus, there is no merit to this aspect of Collins' ineffective assistance claim.
4. Failure to investigate Patrice Womack
Collins claims that counsel was ineffective in failing to explore Patrice Womack, the sister of the two complainants and the daughter of Collins' wife, as a potential witness. According to Collins, Womack "was present during very important discussions involving the accusations against petitioner," Pet'r Mem. (Doc. #3) at 10, the substance of which might have exonerated him. Collins asserts that Womack "was also aware that the petitioner admitted molesting no-one[.]" Id. In rejecting this claim, the C.P.L. § 440.10 court noted that "[d]efendant has not set forth factual allegations outlining how this testimony would likely have resulted in a more favorable outcome at trial for him had defense counsel interviewed her." 7/31/00 Sup.Ct. Order at 4, App. E at 34.
Respondent notes that Collins has offered no proof that Womack would have testified differently than other family members present who claimed that Collins made admissions at the meeting about his "sick" behavior. See, e.g., Tr. at 363-64, 394. According to Kimora Womack, the sister of the complainants, the meeting became "very heated" when Collins admitted that he "sexually molested" and "touched" his stepdaughters. See id. Collins has adduced nothing to support his contention that Patrice Womack would have supported his claim that he never admitted to engaging in sexual activity with his step-daughters. In all likelihood, Womack would have testified consistently with the rest of the family members present at the meeting, and these witnesses' testimony was not helpful to Collins' case.
Confronted with defense counsel's request for a missing witness charge, the prosecutor informed the court that Patrice Womack "would have said the same thing as Kim[ora] Womack said." Tr. at 483. Counsel cannot be faulted for failing to call a witness who almost certainly would not have assisted the defense, and very likely would have been detrimental to Collins' case. Under these circumstances, the Court finds that defense counsel's strategy in seeking a missing witness charge with regard to Patrice Womack was a reasonable one, and that it was not poor lawyering to refrain from pursuing her as a defense witness.
5. Failure to object to prosecution's failure to produce all material witnesses
Collins claims that his counsel erred in not objecting on the basis that the People failed "to call material witnesses consisting of, [sic] any or all of the investigating officers in this case." Pet'r Mem. (Doc. #3) at 11. The only witnesses whom Collins mentions in his habeas memorandum are Officer Sennett and Patrice Womack. See id.
Defense counsel asked the court whether there was going to be a missing witness charge with regard to three police officers who were named but not called. Tr. at 474, 481. The prosecutor informed the court that none of them were material witnesses. The trial court observed that "the alleged transactions were before [sic] each of the two victims and the defendant" and that "there was no evidence taken by any police officers" with regard to the alleged instances of sexual abuse. Id. at 482-83. Defense counsel argued that Patrice Womack, who happened to be an employee of the Monroe County Sheriff's Department, "could have clarified . . . one way or the other" what occurred at the family meeting. Id. at 483. However, defense counsel did not know what Patrice Womack's testimony would be. Defense counsel withdrew his request for the charge when the trial raised the issue that the prosecutor should be allowed to explain the failure to call any such witnesses, which would result in a reopening of the evidence. Id. at 485. At the prosecutor's request, the trial court precluded defense counsel from commenting on the missing witnesses during his summation. Id.
Although respondent does not raise the failure to exhaust as a defense with regard to this claim, the Court notes that an exhaustion issue is presented. Collins argued on direct appeal that the People's failure to call all possible witnesses was erroneous, and that the trial court should have issued a missing witness charge. See Petitioner's Supplemental Appellate Brief at 1-7, App. I at 94-100. The Fourth Department held that "[d]efendant withdrew his request for a missing witness charge and thus failed to preserve for our review his contention that the court erred in failing to give such a charge." People v. Collins, 277 A.D.2d at 1021 (citations omitted). Collins did not argue on direct appeal or in his C.P.L. § 440.10 motion that defense counsel was ineffective for failing to pursue a missing witness charge. Having failed to present the claim to the state courts for review, Collins has not fully exhausted it.
It is clear, however, that the claim is procedurally barred since Collins has used the one appeal to the Court of Appeals to which he is entitled. See New York Court Rule § 500.10(a). Furthermore, because the claim could have been raised on direct appeal, it would be denied on a C.P.L. § 440.10 motion as procedurally barred. See C.P.L. 440.10(2)(c). Thus, the claim is "deemed exhausted" as a result of the state procedural bar. See Grey v. Hoke, 933 F.2d at 120-21. Cause and prejudice does not exist to excuse the default, and Collins has not demonstrated that a fundamental miscarriage of justice would occur if the Court were not to review it. See Harris v. Reed, 489 U.S. at 262.
"[T]he court must deny a motion to vacate a judgment when . . . (c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's . . . unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him[.]" C.P.L. § 440.10(2)(c).
In any event, the claim is without merit. The Court notes that the trial judge likely would not have issued a missing witness charge in this case. First of all, the prosecutor announced her readiness to reopen the case and call each of the missing witnesses who was present at the family meeting to testify about what was said, whether their testimony was "cumulative or not." Tr. at 484. Even had the prosecutor not called the missing witnesses upon re-opening the proofs, Collins was not entitled to the charge as a matter of state law.
Under New York law, the party seeking the missing witness charge must show "that the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him; and that the witness is available to such party." People v. Gonzalez, 68 N.Y.2d 424, 427 (1986); accord, e.g., People v. Macana, 84 N.Y.2d 173 (1991). The burden then shifts to the opposing party "to account for the witness' absence or otherwise demonstrate that the charge would not be appropriate. This burden can be met by demonstrating that the witness is not knowledgeable about the issue, that the issue is not material or relevant, that although the issue is material or relevant, the testimony would be cumulative to other evidence, that the witness is not `available,' or that the witness is not under the party's `control' such that he would not be expected to testify in his or her favor." Id. See also Graves v. United States, 150 U.S. 118, 121 (1893) ("The rule . . . in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.").
Upon the present record, it is clear that Collins fails to meet the relevant standard for the grant of a missing witness charge with regard to Patrice Womack or Officer Sennett. As discussed above, the trial judge ruled that Officer Sennett's proposed testimony would be inadmissible. With regard to Womack, Collins has not shown that she would have provided noncumulative, favorable testimony. The only evidence in the record is that her testimony would have been cumulative. See Tr. at 483. Furthermore, neither witness was peculiarly within the control of the prosecution. A missing witness charge, if requested, would in all likelihood have been denied by the trial court. Collins cannot show under these circumstances that he was prejudiced by counsel's failure to pursue such a request.
6. Failure to seek adverse inference charge with regard to diary testimony
Collins asserts that defense counsel "failed to object to the court's failure to give an adverse inference charge upon the prosecutor's violation of the court [sic] previous ruling that, [sic] the contents of the alleged victim [sic] diary were inadmissible." Id. This claim was raised on direct appeal, but the Appellate Division did not address it specifically when it denied relief on Collins' ineffective assistance claim.
Respondent argues that an adverse inference charge was not warranted because the prosecutor did not disregard the trial court's ruling limiting the scope of the testimony by the school principal who discovered the diary. On direct examination, the school principal, Graciela Perez ("Perez") testified that she found A.B.'s journal, that she read portions of it, and that as a result of this, she called A.B. to her office. See Tr. at 283. Perez recounted that she and A.B. "talked about what was in her diary, in her journal, what she had written about and whether what she wrote was true." Id. Perez did not testify as to the substance of what was written in the diary. In light of these circumstances, the trial court almost certainly would have denied counsel's request for an adverse inference charge. Thus, Collins cannot demonstrate that he was prejudiced as a result of counsel's omission.
7. Failure to object to bolstering evidence
Collins also argues that the Appellate Division "erred when it decided not to review counsel's many errors because counsel failed to preserve his errors consisting of: (a) Defense counsel's failure to protect the petitioner from severely prejudicial and inadmissible here-say [sic] evidence which improperly bolstered the credibility of the alleged victim." Pet'r Mem (Doc. #3) at 11.
Although this statement is included under Collins' ineffective assistance of counsel argument, it is separate from the list of six errors which he alleges were committed by his trial attorney. Respondent did not address this aspect of Collins' ineffective assistance claim in its answer to the habeas petition.
On direct appeal, Collins pointed to several instances of alleged "bolstering" testimony by A.B., N.W. and others and asserted that defense counsel should have objected to them. Collins also argued that "[t]o the extent that defense counsel failed to assert proper arguments [regarding the inadmissibility of evidence relating to the diary], this court should either reach those issues in the interest of justice (CPL 470.15[6]), or hold that defense counsel's failure, which served no tactical advantage, supports a finding that defendant was denied effective assistance of counsel." See Petitioner's Appellate Division Brief at 15, App. F. at 55.
The Fourth Department held that
[d]efendant's contentions that the testimony concerning the diary improperly bolstered the testimony of the victim and her identification of defendant and constituted improper opinion evidence are not preserved for our review ( see, CPL 470.05[2]), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see, CPL 470.15[6][a]).People v. Collins, 277 A.D.2d at 1021. The Fourth Department did not specifically address the ineffective assistance claim, merely stating that it "reject[ed] the contention that defendant was denied effective assistance of counsel." Id.
a Failure to object to diary testimony on the basis that it constituted prior identification and opinion evidence and bolstered the victim's testimony
Collins theorizes that the principal's testimony that, after reading the diary, she called Child Protective Services rather than Collins or his wife, conveyed a message to the jury that the diary implicated Collins in the sexual abuse of A.B. Collins complains that he was prejudiced by this testimony because it impermissibly bolstered A.B.'s identification of him.
At the outset, the Court notes that identification was not an issue in this case; rather, the sole issue for the jury to resolve was whether a crime in fact had been committed. Secondly, it is at best speculative to assume that the jury would conclude that since the principal contacted the authorities, Collins was identified in the diary as A.B.'s abuser. The Court notes that this argument is undercut by the fact that Child Protective Services subsequently allowed A.B. to return to Collins' home.
Collins' argument that defense counsel should have objected on the basis that the principal's testimony constituted opinion evidence is unpersuasive. Collins asserts that the jury would have concluded that A.B. was so reliable that her diary warranted the principal taking official investigative action. This argument is speculative at best. Furthermore, any possible weight given to the principal's testimony is undermined by the fact that Child Protective Services and the Rochester Police Department subsequently refused to take any further action in regard to the allegations of sexual abuse in the diary.
Lastly, the Court does not find that the diary was ever offered as a prior consistent statement of A.B. Neither the principal, Graciela Perez, nor A.B. testified that the diary contained allegations that Collins had been sexually abusing A.B. At one point, A.B. testified that while the abuse was occurring, she kept a diary. However, she did not reveal the contents of the diary at trial. Thus, the testimony concerning the diary offered at trial was within the bounds of the court's ruling, and any objection by defense counsel most likely would have been overruled.
In light of the trial record, the Court cannot find that defense counsel was professionally unreasonable in failing to object to the diary on the foregoing grounds, much less that Collins was impermissibly prejudiced in this regard. The record reveals that defense counsel fought to keep any evidence of the diary's existence out of the trial and presented compelling arguments to the court. See Tr. at 144-59, 239-48. In the end, the court granted defense counsel's application to the extent that it precluded any testimony regarding the contents of the diary.
b. Failure to object to "bolstering" testimony
Collins faults defense counsel for failing to object to "bolstering" testimony by N.W. and Patricia Collins that A.B. disclosed to them that petitioner had sexually abused her. However, testimony that A.B. disclosed the abuse to her mother was necessary to lay a foundation as to how and why A.B. initially recanted her allegations of sexual abuse three years prior to trial.
As to N.W.'s testimony that A.B. told her that Collins had molested her, those were prior consistent statements, but they were admissible to rebut the inference created by defense counsel during his cross-examination of A.B. that she might have fabricated her trial testimony. See, e.g., People v. McClean, 69 N.Y.2d 426, 428 (1987) ("[I]f the cross-examiner seeks to impeach the witness by evidence tending to show that his testimony is of recent invention, given under motives of interest or bias, the party calling the witness, in order to rebut that inference, may show that the witness made statements similar to his trial testimony at some earlier time when he was free from the alleged bias.") Defense counsel elicited from A.B. that she had problems lying and stealing in the past, and that she still would lie at the present time, "if necessary." Tr. at 315; see also id. at 305, 307. Any objection by defense counsel to this testimony most likely would have been overruled.
Collins also argues that defense counsel was deficient in failing to object to the follow exchange between the prosecutor and A.B.:
Q: How long after Morris did these things to you did you meet me?
A: Probably three or four years.
Q: And did I contact you or did you contact me?
A: You contact [sic] me.
Q: Did you tell me the truth?
A: Yes.
Q: Why is it you told me the truth but not the police?
A: Because he had did [sic] to [N.W.], and I ain't [sic] want him to go out like that. I ain't [sic] want him to be free. And he did that to me, and he did that to her. And [N.W.] is my friend.
Tr. at 299-300. Defense counsel objected on the basis that he did not know what "to her" meant. Id. at 300. The prosecutor responded, "These are her reasons we're asking for." Id. The court overruled the objection. Id. Although Collins characterizes this objection as "meaningless," he does not set forth the basis upon which defense counsel should have objected. In any event, it appears that the testimony merely was sought to explain to the jury how and why A.B. agreed to cooperate with the district attorney in the prosecution of Collins in 1996, and any further objection likely would not have been sustained. In all probability, any objections by defense counsel to these items of testimony would not have been successful, and Collins was not prejudiced by his attorney's failure to object.
Collins further argues that defense counsel failed to object to testimony by N.W. that she told her mother about Collins' sexual abuse. Collins claims that this did not fall within the "prompt complaint" exception and therefore was inadmissible hearsay. Under New York state law, "[w]hether the complaint is sufficiently prompt depends upon whether it was made at the first `suitable opportunity', a determination that is based on the length of the delay, whether the victim had a prior opportunity to make the complaint, and whether threats, fear or other circumstances prevented her from making an immediate or earlier outcry." People v. Kornowski, 178 A.D.2d 984, 984-85 (1st Dept. 1991) (some citations omitted), appeal denied, 89 N.Y.2d 1096 (1997). N.W. testified that Collins told her not to tell anyone about what happened between them, and that she did not want her natural father to find out it because she was afraid of what he would do to Collins. In light of those factors, combined with N.W.'s young age, her unstable family structure, and her continuing affection for Collins, the complaint was sufficiently prompt, and there was no basis for a defense objection.
Collins also complains that counsel did not object when Patricia Collins' counselor, Carole Kohler ("Kohler"), testified that when she called Collins to set up a family meeting, Collins did not deny the allegations of sexual abuse. According to Collins, defense counsel should have objected because the prosecutor did not lay a proper foundation by establishing that Collins understood what Kohler said on the phone when she discussed counseling options. These concerns, however, went to the weight to be afforded to the testimony, not to its admissibility. Moreover, this evidence of pretrial silence was not improper under federal or state constitutional law. See Jenkins v. Anderson, 447 U.S. 231, 235 (1980) (allowing evidence of testifying petitioner's pre-arrest silence; "[i]mpeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial. We conclude that the Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendant's credibility.") (citing Griffin v. California, 380 U.S. 609, 614 (1965); People v. Conyers, 52 N.Y.2d 454, 474 (1981) (absent "special circumstances" not present, defendant's pretrial silence before arresting police officers not admissible for impeachment purposes under New York's State evidentiary law; the court explicitly stated that its decision did not rest upon either state or federal constitutional considerations); People v. DeGeorge, 73 N.Y.2d 614, 618 (1989) (reiterating that such use of a defendant's pretrial silence is governed by New York's "common-law rules of evidence"). On habeas review, only errors of Federal constitutional magnitude are cognizable. See Estelle v. McGuire, 502 U.S. at 67-68.
Even if the foregoing items of testimony were, in fact, erroneously admitted, which the Court specifically does not find to be the case, any error presented does not rise to the level necessary to present a federal habeas claim. Collins was not prejudiced by defense counsel's failure to object to the complained-of testimony.
As discussed above, the alleged errors of counsel were not really errors at all. Taken singly or together, the claimed omissions do not amount to deficient lawyering. The Court finds that Collins received constitutionally effective assistance of counsel at his trial. This claim accordingly is dismissed.
ORDER
For the foregoing reasons, it is hereby ORDERED that Petitioner's Petition for habeas corpus under 28 U.S.C. § 2254 is DENIED, and the proceeding is DISMISSED.
FURTHER, that the Clerk of the Court is directed to enter judgement in favor of respondent and against petitioner.
IT IS SO ORDERED.