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finding trial court should have permitted petitioner to elicit full results of DNA analysis, and proceeding to determine whether the error deprived him of a fundamentally fair trial
Summary of this case from Bryant v. GreinerOpinion
No. 01-CV-6215P.
February 9, 2005
DECISION ORDER
INTRODUCTION
Petitioner, Robert Rasmussen ("Rasmussen"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Genesee County Court on May 20, 1998. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b). For the reasons set forth below, Rasmussen's petition is denied.
Rasmussen's petition names Gary Filion, Superintendent of the Coxsackie Correctional Facility, as respondent and also lists Eliot Spitzer, New York State Attorney General, in the caption. The caption does not, however, name Attorney General Spitzer as a respondent, nor does the body of the petition mention him by name or refer to him in any way. In response to respondent's Answer, Rasmussen submitted a "Traverse" that does not even list Spitzer in the caption. On this record, I construe Rasmussen's lawsuit to name only Filion and not Spitzer as a respondent, noting that Spitzer, even if he had been named, is not a proper respondent in this habeas petition. See 28 U.S.C. § 2243.
This matter was originally pending before United States Magistrate Judge William G. Bauer. By Order dated April 14, 2003, this case, along with other cases that had been assigned to Judge Bauer, was transferred to the undersigned consistent with the terms of the parties' original consent. (Docket # 11). At the time this case was filed, I served as Assistant Attorney General In Charge of the New York State Attorney General's Rochester Regional Office. At that time, petitioner was held in custody in New York State's Coxsackie Correctional Facility, and respondent served as the Superintendent of that facility. As the person having custody of petitioner, Superintendent Gary H. Filion was the properly-named respondent in this action. See 28 U.S.C. § 2243 ("The writ, or order to show cause shall be directed to the person having custody of the person detained").
By statute, the New York State Attorney General's Office represents New York State employees in state and federal court civil actions and proceedings arising out of acts occurring within the scope of their employment. N.Y. Pub. Off. Law § 17; N.Y. Exec. Law § 63. The Court's original Order in this case required the Clerk of the Court to serve both respondent and myself, as Assistant Attorney General In Charge. (Docket # 3). This Order also required the Clerk to mail a copy of the Order to the District Attorney of Genesee County, whose office had prosecuted the petitioner on the charges of which he was convicted and which petitioner now challenges in this collateral proceeding. (Docket # 3).
Following that Order, this matter was handled by the Attorney General's Buffalo Regional Office because that regional office was responsible for litigation in and arising from Genesee County. ( See Docket # 5). I neither appeared in the action, nor had any direct or indirect responsibility for its defense.
Accordingly, because I neither personally participated in, nor supervised, the defense of this action, I do not believe my disqualification from this case is required. See 28 U.S.C. § 455(b)(3). In Muench v. Israel, 524 F. Supp. 1115, 1119 (E.D. Wis. 1981), the district judge determined that disqualification was not warranted under circumstances similar to this case. There, the judge, who had previously served as Attorney General for the State of Wisconsin, declined to disqualify himself from a federal habeas proceeding brought by a prisoner who had previously filed a direct appeal of his conviction in state court that had been handled by the Attorney General's Office during the time in which the judge had served as Attorney General. As the Court noted, "As Attorney General for the State of Wisconsin, this Court was obligated to formally represent the State in all matters before the Wisconsin Supreme Court. The substance of its participation, however, was principally formal, confined to having its name as Attorney General printed on the State's brief to the Wisconsin Supreme Court." Muench, 524 F. Supp. at 1118. See also Laird v. Tatum, 409 U.S. 824, 828, 837 (1972) (Supreme Court Justice's disqualification not necessary or authorized where he "never participated, either of record or in any advisory capacity, in . . . the case"; "a federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified") (citations omitted); United States v. Feldman, 1985 WL 4525, *2 (N.D. Ill. 1985) ("Arguably the United States Attorney, having supervision over the entire office, served `as counsel' on all cases handled by the Office during his tenure. However, even in that circumstance, recusal may be unnecessary if the judge did not participate in the case and his relationship to it was purely formal.").
BACKGROUND
On November 10, 1997, a Genesee County Grand Jury returned an indictment charging Rasmussen with one count of rape in the first degree (N.Y. Penal Law § 130.35(2) (McKinney 2003)) and one count of sexual abuse in the first degree (N.Y. Penal Law § 130.65(2) (McKinney 2003)). The charges stemmed from an incident on October 2, 1997, during which Rasmussen sexually assaulted a woman in her home. The victim was hosting a party that evening, and Rasmussen was one of the guests. The attack occurred in the early morning hours while the woman was asleep in her bedroom after having consumed a substantial amount of alcohol. Rasmussen's sexual assault was interrupted when the babysitter and another guest at the party walked in on him.
Rasmussen's jury trial commenced on May 15, 1998, before Genesee County Court Judge Robert C. Noonan. The babysitter, Maria Jones, testified first for the prosecution. She indicated that she had received a phone call from the victim, whom she had known for about two months, late at night on October 1, 1997. The victim requested that Jones come to her apartment and watch her children because she had been drinking. Jones testified that she had never met Rasmussen before that evening. ( See Trial Transcript ("Tr.") 167-69).
The trial transcript is included in respondent's Appendix (Docket # 6) and hereinafter will be referred to as "Tr.". The page references are to the pages of the trial transcript, rather than to the pages of the appendix.
When Jones arrived, she discovered that the victim was "very intoxicated." (Tr. 170). At the victim's request, Jones escorted her to her bedroom, helped her into bed, and pulled the covers up over her. Jones testified that the victim was fully clothed at the time. The victim's baby was sleeping in a bassinet in the victim's bedroom. Jones recounted that later that night, the baby awakened and started crying, and Rasmussen and Ramie Grice, a friend of the defendant's who also attended the party, brought the baby to Jones. (Tr. 169, 173).
Jones testified that at one point Grice left the party. When he returned about ten minutes later, he asked Jones where Rasmussen had gone. Jones pointed to the victim's bedroom and said that he was inside. (Tr. 174-75).
Jones stated that when Grice opened the door, the two walked into the room, and she saw the victim curled on her side in bed, but the covers were pulled down. The victim's pants were pulled down around her knees. Jones recalled seeing Rasmussen "[p]retty snug up to her body," "having sexual intercourse" with the victim "[f]rom behind." (Tr. 176). Jones testified that it took Rasmussen a moment to notice that she and Grice were in the room. On cross-examination, Jones testified that she knew Rasmussen was having intercourse with the victim because he "had his left leg up and you could see plainly." (Tr. 182). Jones recounted that she was able to see that Rasmussen was not using any "protection." (Tr. 185).
When Rasmussen finally noticed them, Jones testified, he "rolled off the bed real fast" and "pulled up his pants and said, I'm sorry, you caught me, I have to go find my wife." (Tr. 177). Rasmussen gave a "quick pull" to the victim's pants, but they were still down when he left. (Tr. 186). Jones testified that she was able to see the incident clearly because the light was on in the adjoining bathroom.
According to Jones, the victim was asleep during the assault. Jones testified that after about fifteen to twenty minutes of attempting to rouse the victim, she was finally able to wake her. (Tr. 178). Jones related to the victim what had happened, but the victim did not believe her and got up to go to the bathroom. At that point, the victim told Jones that her underwear was wet, and she removed them. Jones testified that the victim became angry at her and then "kicked [her] out" of the apartment. (Tr. 184).
Grice, a friend of Rasmussen's for about eleven years, testified that he lived in the apartment downstairs from the victim. He recalled that on the night of October 1, 1997, Rasmussen left the victim's party at one point to look for his wife, Amy. (Tr. 189). Grice testified that Rasmussen had been drinking and was upset because his wife had left the party. Id. When Rasmussen returned, he asked Grice to look for his wife. Grice testified that he did so, but was unable to find her. (Tr. 189-90).
Grice further related that upon returning to the party, he was approached by Jones, who expressed concern because Rasmussen had been in the victim's bedroom for a while. Jones also requested that Grice accompany her in entering the bedroom. (Tr. 194). Upon entering the room, Grice observed that Rasmussen "rolled off the edge of the bed and he was fumbling around on the floor like he was doing up his pants." (Tr. 190). Grice recounted that Rasmussen said, "[M]an, I just fucked up," and "I hope Amy doesn't find out." (Tr. 191). According to Grice, Rasmussen also added, "I think them kids would think I was fucking her." (Tr. 191).
Grice testified that he did not have an unobstructed view of Rasmussen and the victim because Jones, who was taller than he, was standing slightly in front of him in the doorway. (Tr. 197). However, he saw that the victim's pants were down between her ankles and her knees. (Tr. 203).
The victim testified at trial that she had given a birthday party for herself on October 1, 1997. She related that she was friends with Rasmussen's wife, Amy. She denied having any recollection of Rasmussen having sex with her that night. The victim testified that the first thing she remembered was waking up and hearing Jones informing some of the guests in the living room that she and Rasmussen were in the bedroom having sex. Upon hearing this, the victim became upset and asked Jones to leave. (Tr. 207-08). On cross-examination, the victim testified that she was surprised to learn that her underwear was wet because she had not given anyone permission to have intercourse with her that evening. (Tr. 213-15).
Darryl Sehm, a Detective with the Batavia Police Department, testified concerning several statements made by Rasmussen following the events of October 1, 1997. Specifically, he testified that on October 2, 1997, Rasmussen voluntarily accompanied him to the police station where Detective Sehm informed Rasmussen of his Miranda rights. (Tr. 217-18). After being advised of his rights, Rasmussen made statements concerning the events of the preceding night. According to Detective Sehm, Rasmussen claimed that when he entered the victim's bedroom, she was fully clothed. (Tr. 218). Rasmussen told Detective Sehm that he knelt on the floor beside her bed and attempted to wake her up, stating that he had not gotten on the bed. He denied having had sexual intercourse with the victim and also denied consuming any alcoholic beverages. (Tr. 218).
At that point, Detective Sehm informed Rasmussen that Jones and Grice had given statements about what they had observed. (Tr. 219). Rasmussen then provided another statement, which Detective Sehm typed on a computer and printed for Rasmussen to read and sign. This written statement differed in some respects from his previous oral statements to Detective Sehm, namely, that Rasmussen stated he had pulled the victim's pants down and had thought about waking her to try to have sex with her. (Tr. 219, 226). Detective Sehm testified that Rasmussen read the statement, said it was accurate and signed it.
Rasmussen's statement read, in relevant part, as follows:
On Wednesday October 1, 1997[,] I arrived at my friend's home Ramie Grice [sic] located on [redacted] Batavia, New York at about 9:30 p.m. . . . I went upstairs where my wife was visiting [the victim]. When I got to the upstairs apartment there was my wife, [the victim], Eugene [the victim's boyfriend], and a couple other guys hanging out listening to music and drinking beers. . . . Most of the people except Amy were drunk. Ramie and I left to go to Tops. . . . We went back to the party and my wife was gone. I left to go look for Amy. Not finding her I went back to where the party was. Amy was not there and I asked Ramie if he would go look for her. He said he would and he left. I heard a baby crying. Both Eugene and [the victim] were sleeping. [The victim] was in a bedroom in a bed sleeping and Eugene was on a couch. She was fully clothed and I went in to tell her that the baby was crying. I tried to wake her up several times without success. I had an idea that I was going to wake her up and try to have sex with her. I pulled her pants down some and I realized that I was doing something wrong so I stopped myself from doing a shameful, bad thing. I was still fully dressed and I was kneeling on the floor next to the bed. Ramie and a female came into the bedroom and the girl picked up the baby. I took the baby from the girl and held the baby for a few minutes and then I gave the baby back to the girl and went to look for my wife. . . . I did not rape the girl. I did not have sexual intercourse with her.
(Tr. 225-27).
Detective Sehm testified that Rasmussen, in the presence of his attorney, provided a third statement on November 3, 1997. This time, Rasmussen stated that he wanted to change some of his previous statements, and he related that when he entered the victim's bedroom, he discovered that her pants were pulled down. He attempted unsuccessfully to wake her and told Grice when Grice entered the room that he was sick and was "fucked up." (Tr. 228).
Finally, Detective Sehm testified that the victim's clothing and vaginal swabs obtained during her physical examination at the hospital, as well as blood samples obtained from Rasmussen, were submitted to the Monroe County Public Safety Laboratory for analysis. Detective Sehm related that, as a result of that DNA analysis, there was nothing "that indicated that the defendant had had sexual intercourse with the victim." (Tr. 243). Defense counsel was precluded from eliciting testimony that DNA was recovered from semen on the victim's underwear that did not match the defendant's DNA. (Tr. 238-41).
Rasmussen testified on his own behalf at trial. He stated that he and Grice left Grice's apartment at approximately 10:30 p.m. and went upstairs to the victim's apartment. Rasmussen asserted that he was going to look for his wife and that Grice was planning to ask the victim to turn the music down. (Tr. 280). When Rasmussen's wife refused to leave the party, however, he became upset. (Tr. 304, 312-13). Rasmussen admitted that he had three or four beers at the party and that when he told Detective Sehm that he had had nothing to drink that night, he lied because he was on probation following an arrest for driving while intoxicated.
According to Rasmussen, he wanted to leave the party because he was worried about his children. He testified that his two teenage children were watching his four younger children, but that it was not the first time they had been home alone. Rasmussen recalled that the victim and his wife, Amy, were going in and out of the bathroom, laughing. (Tr. 283). Rasmussen testified that his wife was intoxicated at the party. (Tr. 312).
A short time later, Rasmussen and Grice went to the supermarket to purchase beer. When they returned, Rasmussen found that his wife had left the party. This upset him, he testified, and he left to look for her. (Tr. 314). Unable to locate her, at approximately 1:30 a.m., Rasmussen returned to the victim's apartment. Upon hearing the victim's baby crying, Rasmussen said that he went into the victim's bedroom to attend to the infant. (Tr. 285). He testified that the baby stopped crying after about a minute. He then looked around the room and saw the victim lying on the bed, curled on her side, with her pants pulled down to her thighs. (Tr. 286). Rasmussen said that she was uncovered and that he tried to wake her up. According to Rasmussen, he felt sick so he "kneeled on the floor away from her so maybe [he] wouldn't throw up on her." (Tr. 286). Rasmussen testified that he felt ill because he had only had a hot dog for dinner and had taken several codeine pills because of a back problem. (Tr. 289-90).
It was at that point, Rasmussen testified, that Grice walked into the room with Jones. Rasmussen told Grice that he "felt fucked up," and heard Jones "started saying that [he] was on the bed fucking her." (Tr. 287). Rasmussen denied that he was having sex with the victim or that his pants were undone at any time. (Tr. 287). Rasmussen testified that he then handed the baby to Jones and left the apartment to go look for his wife again. When he returned at approximately 2:30 a.m., he heard the victim yelling at everyone to get out of her house. (Tr. 287-88).
Rasmussen claimed during trial that Detective Sehm's transcription of his statement on October 2nd was inaccurate in several respects. First, Rasmussen testified that he did not tell Detective Sehm that he had pulled the victim's pants down, but rather that her pants were already down when he walked into the room. (Tr. 293-94). Also, Rasmussen claimed that he did not tell Detective Sehm that he had thought about waking the victim to try to have sex with her. Instead, Rasmussen testified, the "thought" of having intercourse with her had "crossed [his] mind," but he had "control of [him]self." (Tr. 293-94). Rasmussen claimed that he had pulled the victim's pants up and had thrown a blanket over her. (Tr. 293-94).
Following the trial testimony, the jury returned a verdict finding Rasmussen guilty on both counts. Rasmussen was sentenced on July 23, 1998, to determinate, concurrent sentences of ten years on the rape conviction and five years on the sexual abuse conviction.
Represented by new counsel, Rasmussen appealed his conviction to the Appellate Division, Fourth Department. He raised three grounds on appeal: (1) the trial court improperly excluded the DNA evidence; (2) the court's jury charges on interested witnesses and lesser included offenses were prejudicial; and (3) the prosecutor committed misconduct. On September 29, 2000, the Fourth Department unanimously affirmed Rasmussen's conviction. People v. Rasmussen, 275 A.D.2d 926 (4th Dept. 2000). The Court of Appeals denied leave to appeal on December 29, 2000. People v. Rasmussen 95 N.Y.2d 968 (2000).
Rasmussen filed the instant petition for a writ of habeas corpus, seeking review of his conviction on the following grounds: (1) the trial court erroneously excluded the DNA evidence; (2) the court's interested witness charge was prejudicial; and (3) prosecutorial misconduct denied him a fair trial. In his answer, respondent asserts the affirmative defenses of failure to exhaust state remedies and procedural default. Respondent relies exclusively on these procedural defenses and does not address the merits of Rasmussen's claims for habeas relief.
The better course would have been for the respondent to address the merits as well. To do so ensures that respondent's position on the merits of the claims is before the court in the event that the court does not agree that the claims are procedurally barred.
DISCUSSION
I. ExhaustionBefore seeking a writ of habeas corpus in federal court, a petitioner must exhaust all available state remedies either on direct appeal or through a collateral attack. 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 275 (1971); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). In other words, before requesting federal habeas relief, Rasmussen must have presented his constitutional claim to the highest state court from which a decision may be obtained. See Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir.) (citing Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990)), cert. denied, 531 U.S. 819 (2000). To properly exhaust a claim, Rasmussen must have fairly apprised the state court of the claim's federal nature and of the factual and legal premises underlying the claim. Grey, 933 F.2d at 119-20.
Respondent argues that Rasmussen failed to exhaust his claim that the trial court erroneously excluded DNA evidence that allegedly would have exonerated him as the victim's rapist. Respondent concedes that Rasmussen raised this argument on direct appeal, but argues that he did not "alert the state court to the constitutional nature of his claims" because appellate counsel cited only state law in support of this claims and the Appellate Division referred exclusively to state law in its decision affirming his conviction. (Docket # 4 at 5-6).
A habeas petitioner fairly may present a claim in state court without citing "chapter and verse" of the Constitution by "(a) rel[ying] on pertinent federal cases employing constitutional analysis, (b) rel[ying] on state cases employing constitutional analysis in like fact situations, (c) assert[ing] the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) alleg[ing] 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), cert. denied, 464 U.S. 1048 (1984); accord, e.g., Strogov v. Attorney General of New York, 191 F.3d 188, 191 (2d Cir. 1999) (citing Daye, 696 F.2d at 194). The more specific the description of the federal right in question that the state court has before it, the more reasonable it is to conclude that the issue was "fairly presented." Daye, 696 F.2d at 193. As the court in Daye explained,
[t]he greatest difficulty arises when in the state court the petitioner has described his claim in very broad terms, such as denial of a "fair trial." The concept of fairness embraces many concrete notions, ranging from such fundamental matters as the right of the defendant to know the charges against him, to such lesser interests as his right to have each count of the indictment charge him with no more than one criminal violation. . . . Obviously not every event in a criminal proceeding that might be described as "unfair" would be a violation of the defendant's rights under the Constitution.Id. (citations omitted).
The mere invocation of a constitutional "catchphrase" such as "fair trial" or "due process" before the state court does not necessarily alert the court to the federal nature of the claim. Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir. 1984) (state court not apprised of double jeopardy claim where petitioner contended that introduction of certain evidence "deprived him of fair trial [ sic] and due process of law"). Similarly, the Second Circuit has observed that "[i]t is simply not enough that the policy concerns at issue in the state cases cited to the state courts were similar to the policy concerns supporting the federal constitutional claim that the habeas petitioner seeks to assert." Grady v. LeFevre, 846 F.2d 862, 865 (2d Cir. 1988).
On the other hand, the Second Circuit has held that reference to the federal constitutional provision allegedly contravened does satisfy the Daye "fair presentment" standard. See Gonzalez v. Sullivan, 934 F.2d 419, 423 (2d Cir. 1991). In Gonzalez, the Second Circuit concluded that the petitioner "arguably complied with the exhaustion requirements set forth in Daye" by merely citing to the Fourteenth Amendment as legal authority for his prosecutorial misconduct claim. Id.; see also Harris v. Scully, 779 F.2d 875, 878 (2d Cir. 1985) (petitioner exhausted state court remedies where factual issues in state and federal court were the same, and petitioner cited the Fifth and Fourteenth Amendments and alleged that the trial court had committed constitutional error by refusing his requested instruction).
Here, Rasmussen argued on direct appeal to the Appellate Division that the DNA evidence was properly admissible under an exception to New York's Rape Shield Law allowing introduction of a victim's prior sexual conduct if the evidence is relevant and its admission would serve the interests of justice. See N.Y. Crim. Proc. Law § 60.42(5) (McKinney 2003). His argument contained citations only to New York state cases interpreting the Rape Shield Law, a state law for which there is no federal analog. In his closing paragraph on this point in his appeal brief, Rasmussen argued: the trial court's refusal to permit Appellant to prove that DNA evidence established that [the victim] had been raped by someone else who left her partially undressed, and that Appellant was not the source of her wet underpants, deprived Appellant of his state and federal constitutional rights to present a defense, to confront his accusers and to due process and a fair trial.
(Docket # 6 at 555) (emphasis added). While he did not cite a particular constitutional provision, Rasmussen did identify specific federal constitutional guarantees that he claims were abridged during his trial, namely, guarantees under the Fifth and Sixth Amendments. See Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (a defendant's right to present evidence at his criminal trial is a matter of due process); see also Washington v. Schriver, 255 F.3d 45, 56 (2d Cir. 2001). Additionally, Rasmussen explained in his brief that the factual premise of his argument was that he was denied the right to present a full defense. On this record, I find that Rasmussen complied with — albeit barely — Daye's requirement that the state court be alerted to the constitutional implications of his claims. Because I conclude that Rasmussen has exhausted his state remedies, I will proceed to consider the merits of his evidentiary claim.
II. Procedural Default
Respondent asserts that Rasmussen's remaining two claims (that the trial court's interested witness charge was prejudicial and that prosecutorial misconduct denied him a fair trial) are procedurally barred because the Appellate Division found that they had not been preserved for review. In affirming his conviction, the state court disposed of these claims as follows:
Defendant's contention that the jury charge concerning interested witnesses was unbalanced and prejudicial to defendant is not preserved for our review ( see, People v. Harding, 266 A.D.2d 310 [2d Dept. 1999], lv. denied 94 N.Y.2d 920 [2000]). In any event, the charge on interested witnesses, which substantially conformed to 1 CJI (N.Y.) 7.03 and 7.04, was properly balanced.
* * *
The contentions of defendant that he was denied a fair trial by prosecutorial misconduct when he was cross-examined and on summation are likewise unpreserved for our review ( see, People v. Brinson, 265 A.D.2d 879 [4th Dept. 1999], lv. denied 94 N.Y.2d 860 [1999]), and we decline to exercise our power to review them as a matter of discretion in the interest of justice ( see, CPL 470.15(6)(a)).People v. Rasmussen, 275 A.D.2d at 927 (certain citations omitted).
The Supreme Court has made clear that the "adequate and independent state ground doctrine" applies on federal habeas review, and that "an adequate and independent finding of procedural default" will bar consideration of a federal habeas petitioner's claim, unless the petitioner "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). Even where the state court also has ruled in the alternative on the merits of the federal claim, habeas review is still precluded as long as the court "expressly relied on a procedural default as an independent and adequate state ground" to deny the claim. Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
Under New York law, Rasmussen was required to preserve for appellate review his claims relating to the jury charge and the prosecutor's alleged misconduct by objecting to the alleged errors at trial. See N.Y. Crim. Proc. Law § 470.05(2). The Supreme Court has held that the failure to object at trial when required by New York's "contemporaneous objection" rule constitutes an adequate and independent state ground. See, e.g., Murray v. Carrier, 477 U.S. 478, 485-92, 497 (1986); Fernandez v. Leonardo, 931 F.2d 214, 216 (2d Cir.) (noting that failure to object at trial constitutes adequate procedural default under N.Y. Crim. Proc. Law § 470.05(2)), cert. denied, 502 U.S. 883 (1991). Because Rasmussen failed to object to these alleged errors, his procedural default constitutes an adequate and independent ground for the state court's rejection of the claims. Thus, consideration of Rasmussen's jury charge and prosecutorial misconduct claims on habeas review is curtailed as result of the Appellate Division's explicit invocation of a state procedural bar. See Velasquez, 898 F.2d at 9; Harris, 489 U.S. at 264 n. 10.
Rasmussen has not alleged, let alone demonstrated, either cause or prejudice to excuse this procedural default. Even were Rasmussen able to demonstrate cause for the default, he plainly has failed to demonstrate prejudice resulting from the challenged interested witness instruction and alleged prosecutorial misconduct. Indeed, the court's interested witness charge, which emphasized the defendant's interest in the outcome of the case, also instructed the jury:
You should not[,] however[,] reject the testimony of the defendant merely because of his interest. It is your duty[,] as in the case of all witnesses[,] to accept such testimony of the defendant you believe to be truthful and reject only such testimony you believe to be false.
(Tr. 388). While the charge would have been more balanced had it instructed the jury that the defendant's interest in the outcome is not inconsistent with his ability to testify truthfully, I cannot conclude that the instruction given — judged against similar charges deemed adequate by the Second Circuit — was either erroneous or prejudicial. See, e.g., United States v. Rucker, 586 F.2d 899, 903-904 (2d Cir. 1978); United States v. Floyd, 555 F.2d 45, 47 n. 4 (2d Cir.), cert. denied, 434 U.S. 851 (1977); United States v. Martin, 525 F.2d 703, 706 n. 3 (2d Cir.), cert. denied, 423 U.S. 1035 (1975).
The prosecutor's challenged comments during summation, by contrast, were plainly improper. Specifically, the prosecutor argued, "[The defendant] may not be the type of sexual predator that uses physical force to overcome the will of a woman. He's the kind that chooses a victim who can't even fight back." (Tr. 364). These remarks, calculated to raise the jury's ire against Rasmussen, were plainly improper. See, e.g., United States v. Young, 470 U.S. 1, 7 n. 5 (1985) ("The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury"); United States v. Modica, 663 F.2d 1173, 1180 (2d Cir. 1981) ("It is fundamental to sound procedure in federal criminal prosecutions that counsel refrain from appeal wholly irrelevant to any facts or issues in the case, the purpose and effect of which could only be to arouse passion and prejudice") (quoting United States v. Hayward, 420 F.2d 142, 146 (D.C. Cir. 1969) (internal quotation marks omitted).
Even accepting that such comment was improper, it does not justify habeas relief; it constituted an isolated, aberrant incident of prosecutorial misconduct in an otherwise fair proceeding. See, e.g., United States v. Elias, 285 F.3d 183, 191 (2d Cir.) ("the severity of the misconduct is mitigated if the misconduct is an aberration in an otherwise fair proceeding"), cert. denied, 537 U.S. 988 (2002); United States v. Biasucci, 786 F.2d 504, 514 (2d Cir.) ("although the prosecutor's disparaging remarks about defense counsel certainly were improper and have no place in any court, they were inconsequential, isolated aberrations in a lengthy trial"), cert. denied, 479 U.S. 827 (1986)).
Finally, there is no merit to Rasmussen's argument that he was deprived of a fair trial as a result of the prosecutor's cross-examination of him in such a way as to suggest, contrary to the facts, that his blood sample was taken over his objection, rather than by agreement between the defense and the prosecution. The question the prosecutor asked was whether the sample was provided pursuant to a court order, to which Rasmussen answered, "Right." (Tr. 326). On summation, the prosecutor made only one reference to the issue, stating, "he willingly gave it after the court ordered him to and[,] secondly[,] he knew he didn't have to worry because he didn't ejaculate." (Tr. 363). The prosecutor's isolated question — which Rasmussen inexplicably answered in the affirmative — and lone reference to it on summation cannot be said to have deprived him of a fair trial.
In sum, upon review of the record, I find that Rasmussen has satisfied neither prong of the cause and prejudice test. Furthermore, Rasmussen has made no showing of actual innocence. See Lucidore v. New York State Div. of Parole, 209 F.3d 107, 114 (2d Cir.) (demonstration of actual innocence in a collateral proceeding requires petitioner to present "`new reliable evidence that was not presented at trial' and `show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt'") (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)), cert. denied, 531 U.S. 873 (2000). Because Rasmussen cannot overcome the procedural default, his jury charge and prosecutorial misconduct claims are barred from habeas review. III. Merits of the Petition
Returning to his first claim, Rasmussen asserts that he is entitled to habeas corpus relief because the state court erroneously excluded exculpatory DNA evidence at trial. (Docket # 1). 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 the merits 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). "For purposes of AEDPA deference . . ., a state court `adjudicates' a state prisoner's federal claim on the merits when it `(1) disposes of one claim `on the merits,' and (2) reduces its disposition to judgment . . . even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.'" Gutierrez v. McGinnis, 389 F.3d 300, 304 (2d Cir. 2004) (quoting Sellan v. Kuhlman, 261 F.3d 303, 310-11 (2d Cir. 2001)).
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, 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). Applying these well-settled principles, this Court is limited to considering whether the challenged ruling was an error of federal constitutional magnitude and, if so, whether the error was harmless. A. Decision Limiting DNA Evidence : Rasmussen asserts that the trial court erroneously precluded him from offering the complete results of DNA testing that concluded that DNA belonging to someone other than the defendant was present in the victim's vagina and on her underwear. The trial judge determined such evidence to be inadmissible under N.Y. Crim. Proc. Law § 60.42, New York's Rape Shield Law. That law provides:
[E]vidence of a victim's sexual conduct shall not be admissible in a prosecution for an offense or an attempt to commit an offense [of sexual assault] unless such evidence "(1) proves or tends to prove specific instances of the victim's prior sexual conduct with the accused; or (2) proves or tends to prove that the victim has been convicted of [prostitution] . . .; or (3) rebuts evidence introduced by the [P]eople of the victim's failure to engage in sexual . . . contact during a given period of time; or (4) rebuts evidence introduced by the [P]eople . . . that the accused is . . . the source of semen found in the victim; or (5) is determined . . . after an offer of proof . . . or such hearing as the court may require, and a statement by the court of its findings of fact . . . to be relevant and admissible in the interests of justice."
N.Y. Crim. Pro. Law § 60.42(1) — (5).
Rasmussen's trial counsel argued that the complete DNA analysis should be admissible under the fifth exception of the Rape Shield Law — that it was relevant and admissible in the interests of justice. The trial court rejected such argument, allowing the defense to demonstrate only that "the victim was examined and that such examination developed no physical or scientific evidence connecting [Rasmussen] to the crime." (Tr. 237). However, the court also limited Rasmussen to eliciting the evidence in such a way "that does not disclose any evidence indicative of prior sexual contact with any other person." (Tr. 238). Simply stated, Rasmussen was permitted to prove to the jury that the DNA evidence obtained from the victim did not implicate him, but he was not allowed to show that DNA evidence conclusively belonging to someone else was present in the victim's vagina and on her underwear.
Considering Jones's testimony, offered in response to direct questioning by the prosecution, that the victim was surprised to find that her underwear was wet (Tr. 184, 186, 213-15), the failure of counsel or the trial court to address the fourth exception to the Rape Shield Law is curious. Whether the DNA evidence should have been admitted under the fourth exception, however, is a question of state law insulated from federal collateral review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Recognizing that the state court's interpretation of New York's Rape Shield Law is beyond the purview of this Court's review, this Court must limit its inquiry to the question whether the trial court's DNA ruling deprived Rasmussen of a fundamentally fair trial. In other words, even if the state trial court's interpretation of state law (specifically, the New York Rape Shield Law) were correct, its decision to limit the admissibility of the DNA results nonetheless may have amounted to an error of federal constitutional magnitude. See Washington v. Schriver, 255 F.3d 45, 56 (2d Cir. 2001) ("state evidentiary rules cannot be inflexibly applied in such a way as to violate fundamental fairness"). Where, as here, the question is "whether the exclusion of testimony violated [a defendant's constitutional] right to present a defense," the answer turns upon "whether `the omitted evidence [evaluated in the context of the entire record] creates a reasonable doubt that did not otherwise exist.'" Justice v. Hoke, 90 F.3d 43, 47 (2d Cir. 1996) (quoting United States v. Agurs, 427 U.S. 97, 112 (1976)). See also Crane v. Kentucky, 476 U.S. 683, 690 (1986) ("the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense") (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)); Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000). Rasmussen contends that he should have been permitted to show that DNA from someone else was found in the victim's vagina and on her underwear in order to rebut the suggestion ineluctably raised by the evidence that he was the source of her wet underwear. The trial court's decision preventing him from doing so, he argues, abridged his right to present a complete defense in violation of the Due Process Clause.
To assess his claim properly, it is necessary to review the evidence which Rasmussen contends gives rise to the suggestion that he was the source of the wet underwear. On direct examination, Jones testified that upon walking into the victim's bedroom, she observed Rasmussen "snug up" to the victim's body, "having sexual intercourse" with her "from behind." (Tr. 176). According to Jones it was clear that Rasmussen was having intercourse with the victim because he "had his leg up and you could see plainly." (Tr. 182). From her vantage point, Jones observed that Rasmussen was not wearing a condom. (Tr. 185). The prosecution ended its direct testimony of Jones with the following colloquy:
Q: And did you finally awaken her?
A: Yes.
Q: Okay. And did you tell her what you had just observed?
A: Yes.
Q: And what response did you get?
A: She said she had to go to the bathroom and she didn't believe me.
Q: Okay. Did she go to the bathroom?
A: Yes.
Q: And were you with her when she went to the bathroom?
A: Yes.
Q: Did she then come out of the bathroom?
A: Yes.
Q: And what did she do?
A: She took her pants off because she said they were wet.
Q: Okay, and what did she do with them?
A: She laid them on her floor next to her bed I think.
(Tr. 178-79).
Following the testimony of Jones and Grice, the victim testified. On direct examination, she testified that she had passed out and did not remember going into the bathroom with Jones or how her pants ended up by the bed. (Tr. 207-208). On cross-examination, the victim testified that she was surprised that her underwear was wet (Tr. 213), after which the following exchange occurred:
Q: You stated you were surprised at the wet condition of your panties?
A: Yes.
Q: Is that because you had never given permission for anybody to have sex with you that evening?
A: I had never given anybody permission that evening.
Q: Would it be a safe presumption then that the wetness came from somebody that had raped you?
A: Yeah.
(Tr. 214-15).
Following the court's ruling as to the admissibility of the DNA test results, the prosecution elicited the following testimony concerning those results:
Q: Detective Sergeant Sehm, as part of the investigation into this matter was the victim['s] clothing and other items collected at the hospital submitted to the Monroe County Public Safety Laboratory for analysis?
A: Yes, sir.
Q: And as a result of that analysis was there anything that indicated that the defendant had had sex with the victim?
A: No, sir.
(Tr. 243). On cross-examination, defense counsel clarified that the "analysis" had included an analysis of the defendant's blood, as well as the victim's bed clothing and items collected at the hospital. (Tr. 243-45). He asked Detective Sehm, "And was the analysis of that blood included in your taking into consideration in your statement that there was no indication that the defendant had sex with the victim." Sehm answered, "Yes." (Tr. 245). Following objections to a line of questions concerning the reliability of the tests, defense counsel was permitted to inquire whether "there were any more appropriate tests [that] could have [been] ordered." (Tr. 253). Sehm affirmed that there were not. (Tr. 293).
Rasmussen testified that he went into the victim's bedroom at approximately 1:30 a.m., because he had heard her baby crying. He discovered that the victim was lying on her bed on her side with her pants pulled down to her thighs or knees. After he attempted unsuccessfully to wake her, he felt sick and knelt down so as not to vomit on the victim. (Tr. 286). It was at that point, according to Rasmussen, that Jones and Grice entered the room. (Tr. 287). He testified that he neither raped, nor sexually assaulted the victim. (Tr. 298). Rasmussen also testified that he had provided a blood sample at a hospital for the purpose of "DNA testing." (Tr. 297).
On summation, the defense argued that Rasmussen had had no sexual contact with the victim that evening. He emphasized that the victim had stated that her underwear was wet as a result of a rape and that the results of "the best scientific tests available" on the underwear did "not implicate the defendant." (Tr. 352). The defense's theory, in short, was that the victim had been raped by someone else before Rasmussen entered her room, and that Jones and Grice's testimony implicating the defendant should not be credited.
The prosecution on summation emphasized Jones's unequivocal testimony about her observations when she entered the victim's room. (Tr. 261). Indeed, the prosecutor did not argue that Rasmussen was the source of the victim's wet underwear; rather, he contended that Rasmussen knew he did not need to be concerned about the scientific testing because he knew that he had not ejaculated, having been interrupted in the act of rape by Jones and Grice. (Tr. 363).
Had the trial court prohibited the defense from eliciting any testimony concerning the DNA testing, the jury most likely would have concluded that Rasmussen was the source of the wetness on the victim's underwear. The trial court did not do so, of course; rather, the court attempted to strike the appropriate balance between the defense's right to introduce evidence favorable to him and the victim's general right to privacy concerning her sexual relationships. I conclude, however, that the ruling did not achieve the proper balance and was erroneous. The testimonial references to the victim's wet underwear and her surprise in discovering it highlighted for the jury the question of the source of the wetness. Because Rasmussen was observed sexually assaulting the victim, the jury could have concluded that he was the most likely source of the wetness found on her underwear. While the DNA analysis excluded this possibility, Rasmussen was permitted only to demonstrate that the DNA tests did not connect him to the crime. Such an explanation left open the possibility that some jurors may have inferred that the DNA tests were merely inconclusive, and that while they did not confirm Rasmussen's involvement, he still could have been the source of the wetness. In reality, however, the DNA tests not only excluded Rasmussen as the source, but also revealed that another person must have had sexual contact with the victim — which, according to the victim, would have been without her permission had it taken place that evening.
On this record, I find that the trial court should have permitted Rasmussen to elicit either the full results of the DNA analysis or, at the very least, the fact that they conclusively demonstrated that his DNA was not found in the victim or on her clothing. Having concluded the trial court's ruling was error does not, however, end the analysis. Rather, this Court must now determine whether the ruling deprived Rasmussen of a fundamentally fair trial.
B. The Gravity of the Error : Discerning the appropriate standard to apply in making such a determination is not an easy task. The usual framework through which to analyze trial errors on collateral review does not readily obtain in this case: namely, was an error committed; if so, was that error of constitutional dimensions; if so, was it harmless. Here, where the question is whether the error deprived the petitioner of a fundamentally fair trial, the second and third queries seem related, if not conflated. See, e.g., Jones v. Stinson, 229 F.3d 112 (2d Cir. 2000).
As previously stated, whether the trial court's erroneous decision to preclude evidence amounts to a constitutional violation "depends upon whether `the omitted evidence [evaluated in the context of the entire record] creates a reasonable doubt that did not otherwise exist.'" Justice v. Hoke, 90 F.3d 43, 47 (2d Cir. 1996) (quoting United States v. Agurs, 427 U.S. 97, 112 (1976)). Here, where the constitutional claim was raised in the state appellate court and the court concluded (apart from its interpretation of the Rape Shield Law) that the DNA evidence evaluated in the context of the other evidence admitted was irrelevant and thus properly excluded — that conclusion constitutes an adjudication of Rasmussen's claim on the merits and is thus entitled to deference under the AEDPA. In other words, the operative inquiry on collateral review is whether the appellate court's determination that Rasmussen's right to present a defense was not abridged was contrary to or involved an unreasonable application of Supreme Court precedent. See Jones v. Stinson, 229 F.3d 112, 121 (2d Cir. 2000) ("[a]s a habeas court . . . our review [of petitioner's claim that he was deprived of a fair trial by the state court's ruling limiting his testimony] is limited to whether the appellate division's ruling was objectively reasonable, not whether it was correct") (applying 28 U.S.C. § 2254(d)(1)). If I conclude that it was — that is, that the excluded evidence "would so certainly have created new ground for reasonable doubt that the appellate division's decision was objectively unreasonable," Jones, 229 F.3d at 120 — such conclusion surely is tantamount to a finding that the error was not harmless.
Where, as here, the appellate court did not engage in a harmless error review, the question of the proper standard to be applied on collateral review remains unsettled in this Circuit. See, e.g., Cotto v. Herbert, 331 F.3d 217, 253-54 (2d Cir. 2003); Santana-Madera v. United States, 260 F.3d 133, 140-41 (2d Cir. 2001), cert. denied, 534 U.S. 1083 (2002); see also Rosa v. McCray, 2005 WL 174488, *13 (2d Cir. 2005) (dissenting opinion) ("This Court has not yet decided what harmless error standard applies when a constitutional error is being evaluated for harmlessness for the first time on federal habeas review of a state court conviction"). One view is that the standard articulated in Brecht v. Abrahamson applies: whether the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). The other view is that the deference built into the Brecht standard is unwarranted because the state court did not in fact make a determination that the error was harmless. Under this view, the proper standard is that articulated in Chapman v. California for direct review of trial errors: whether the reviewing court can "declare a belief that [the error] was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24 (1967).
As the Second Circuit itself has done on numerous occasions, I decline to attempt to resolve that open question, finding instead that the result is the same under Brecht or Chapman. See, e.g., Cotto, 331 F.3d at 253-54; Santana-Madera, 260 F.3d at 140; Washington v. Schriver, 255 F.3d 45, 55 (2d Cir. 2001). In sum, I conclude for the reasons discussed below that the trial court's error was harmless and did not deprive Rasmussen of a fundamentally fair trial.
C. Harmless Error : At trial, the prosecution was required to prove that Rasmussen engaged in sexual intercourse with a person who was incapable of consent by reason of being physically helpless (rape in the first degree) and that he subjected the victim to sexual contact when she was similarly incapable of consent (sexual abuse in the first degree). N.Y. Penal Law §§ 130.35(2) and 130.65(2). The most critical evidence was that offered by the babysitter, Jones, who had no apparent bias and whose testimony clearly established each of the elements required of the prosecution. Specifically, she testified that upon walking into the bedroom, she observed Rasmussen on the bed with the victim, "snug up to her body." (Tr. 176). At first, according to Jones, Rasmussen did not notice that anyone had entered the room. During this time, Jones testified, she observed Rasmussen having sexual intercourse with the victim. (Tr. 176). Jones was standing at the foot of the bed and light was entering the room through the doorway to the living room and through the adjoining bathroom. (Tr. 177). Once Rasmussen realized someone had entered the bedroom, he rolled off the bed onto the floor, pulled up his pants and said, "I'm sorry, you caught me, I have to go find my wife." (Tr. 177). The victim was asleep throughout the encounter and Jones attempted to wake her for the following fifteen to twenty minutes. (Tr. 178).
When questioned on cross-examination, Jones testified that she determined Rasmussen was having sexual intercourse with the victim because "he had his left leg up and you could see plainly." (Tr. 182). Jones further testified that she was able to see so clearly that she could determine that Rasmussen was not wearing a condom. (Tr. 185).
In addition to Jones's testimony, the prosecution also called Rasmussen's long-time friend, Ramie Grice. While Grice testified that he had not observed the sex act because he was standing behind Jones, who was taller than he, he testified that he observed Rasmussen roll off the edge of the bed and fumble around on the floor, "like he was doing up his pants." (Tr. 190). According to Grice, Rasmussen stated, "[M]an, I just fucked up," and "I hope Amy doesn't find out." (Tr. 191). Shortly thereafter, Rasmussen also stated, "I think them kids would think I was fucking her." (Tr. 191).
Taken together, Jones's and Grice's testimony provided compelling testimony that Rasmussen sexually assaulted the victim. This was not a case of disputed identity, as may have been the case had the perpetrator hastily fled through the bedroom window when Jones and Grice entered the bedroom. Rather, Rasmussen was identified not just by Jones, but by his friend Grice, and both testified to incriminating statements he made when he was surprised by them.
Furthermore, the prosecution introduced three inconsistent statements provided by Rasmussen to Detective Sehm. Initially, Rasmussen stated to Sehm that he had only knelt next to the victim's bed and attempted to wake her, but denied having sexual intercourse with the victim and denied having consumed any alcoholic beverages. (Tr. 218). Upon being confronted with statements provided by Jones and Grice, however, Rasmussen offered a second statement admitting that he had pulled the victim's pants down and considered trying to wake her in order to have sex with her, but stopped himself "from doing a shameful, bad thing." (Tr. 219, 226).
Approximately one month later, Rasmussen, while in the presence of his attorney, offered a third statement. At this time, Rasmussen indicated that when he entered the bedroom, the victim's pants were already pulled down and the he was merely attempting to wake her when Jones and Grice entered the room. Rasmussen further stated that he was felling ill that night from eating hot dogs, drinking beers and taking medication for his back. It was because of this condition that Rasmussen recalled stating to Grice, "I'm fucked up." (Tr. 228).
In convicting Rasmussen, the jury plainly credited Jones's testimony because it was the only testimony that established the elements of penetration (for rape) and sexual contact (for sexual abuse in the first degree). Her testimony was unequivocal and its clarity was not diminished on cross-examination. A DNA analysis demonstrating that the victim had been subjected to another sexual assault that evening, or participated is some consensual sexual activity, would simply have had no bearing on Jones's eyewitness testimony that Rasmussen raped the victim — especially in light of the prosecution's theory that Rasmussen raped the victim, but did not ejaculate.
Judged on this record, I find that the trial court's decision limiting the DNA evidence was harmless under either Brecht or Chapman. In addition, I find that the omitted evidence, judged against the entire record, would not have created a "reasonable doubt that did not otherwise exist," Justice v. Hoke, 90 F.3d at 47, and thus its preclusion did not deprive Rasmussen of a fundamentally fair trial. Accordingly, Rasmussen's petition for a writ of habeas corpus on the grounds that the trial court erroneously limited the DNA evidence is denied.
CONCLUSION
For the reasons stated above, Robert Rasmussen's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the petition is dismissed. However, the Court grants a certificate of appealability limited to the first ground of relief argued in Rasmussen's habeas petition, that is, whether the state court erroneously excluded exculpatory DNA evidence at trial. See Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir.) (certificate of appealability may be granted "if the issues involved in the petition are debatable among jurists, or could be resolved in a different manner, or are adequate to deserve encouragement to proceed further"), cert. denied, 531 U.S. 873 (2000).
IT IS SO ORDERED.