Opinion
05 Civ. 7959 (SHS) (KNF).
May 31, 2007
REPORT and RECOMMENDATION
I. INTRODUCTION
Laurel Wilcox ("Wilcox") has made an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. She contends her confinement by the state of New York is unlawful because: (1) the trial court declined to permit her to offer opinion testimony concerning battered woman syndrome ("BWS"), in violation of her Sixth Amendment right to present evidence at her trial; (2) her right to due process of law, under the Fifth and Fourteenth Amendments, as well as her Sixth Amendment right to a trial by jury, were violated by the trial court's timing of its ruling barring the petitioner from offering opinion testimony at the trial and through its questioning of the petitioner, which, according to Wilcox, communicated to the jury the trial court's belief that the petitioner's defense was not credible; (3) she was prohibited from confronting and cross-examining the victim fully during the trial, in violation of the Sixth Amendment; (4) the gang assault statute, under which the petitioner was convicted, is unconstitutionally vague and, as a result, it denied the petitioner her right to due process of law; (5) the trial court precluded the petitioner from employing a justification defense, by failing to instruct the jury on that defense, thus it denied her the right to due process of law; and (6) the trial court imposed, as a sentence, the maximum period of imprisonment and, thereby, violated the petitioner's rights to due process of law and trial by jury.
The respondent opposes the petitioner's application for the writ. She contends the state court's denial of the petitioner's claim respecting the vagueness of the gang assault statute was neither contrary to nor based upon an unreasonable application of federal law as determined by the Supreme Court. The respondent also maintains the decision of the New York State Supreme Court, Appellate Division, Third Department, that: (i) the petitioner was not entitled to a jury instruction concerning justification; and (ii) the trial court acted properly when it barred the petitioner from offering opinion testimony at her trial in support of a justification defense, was neither contrary to nor based upon an unreasonable application of federal law as determined by the Supreme Court. Furthermore, according to the respondent, the petitioner's challenge to the sentence imposed upon her is an unexhausted claim which, in any event, is not cognizable on habeas corpus review. Similarly, the respondent alleges the petitioner's assertion, that the trial court asked questions during the trial, improperly, is also an unexhausted claim and one which is without merit.
II. BACKGROUND
During the evening hours of August 15, 2002, and continuing into the early morning hours of August 16, 2002, Wilcox enlisted the aid of her friend Jennifer Cimaomo ("Cimaomo"), her neighbor, Brad Miles ("Miles"), his friend, Jason Jones ("Jones"), and three teenage males whom Wilcox, Miles, Jones and Cimaomo encountered at a gas station, to help her assault her sometime boyfriend, Dennis Kostun ("Kostun"), and to retrieve from him Wilcox's cellular telephone and wristwatch. Kostun had taken those items from Wilcox during the early evening hours of August 15, 2002, during an altercation he had with her. Wilcox and Kostun had enjoyed a fractious relationship, which included several episodes of abusive behavior, by each toward the other, and instances where Kostun took and retained property belonging to Wilcox until they either entered into a pact allowing for the return of Wilcox's property or Wilcox, with the aid of another, intimidated Kostun into surrendering the property to her.
After Wilcox had assembled her team of would-be assailants, and a plan to lure Kostun from his home so that he could be assaulted and Wilcox's property retrieved had been discussed, Wilcox and the others began to walk toward Kostun's home. When they got near Kostun's home, the men hid themselves while Cimaomo stood near a traffic stop sign. Wilcox proceeded to the door of Kostun's home alone. She pounded on it until Kostun responded. Wilcox persuaded him to walk with her to the nearby traffic stop sign, where Kostun was told Cimaomo was waiting alone. As Wilcox and Kostun approached the traffic stop sign, Kostun observed someone who appeared to be hiding. He turned and began to run toward his home. Wilcox called to her accomplices, who were hiding, and directed them to "get him."
As Kostun tried to retreat to his home, he collided with one of the teenagers who had accompanied Wilcox and the others from the gas station. This gave Miles an opportunity to seize Kostun and to place him in a wrestling hold. Miles lifted Kostun from his feet and then forced him to the ground, head first. The impact rendered Kostun a quadriplegic. When Wilcox and the others who had been chasing Kostun arrived at the spot where Kostun and Miles were, Wilcox took Kostun's wallet. According to Wilcox, she wanted to use it as collateral, until her property was returned to her by Kostun. Wilcox demanded that Kostun tell her where her telephone could be located. Kostun advised Wilcox that her property was in his home. Wilcox entered Kostun's home with Cimaomo, but they were unable to find her property. However, Wilcox recalled that, while searching Kostun's home for her telephone and wristwatch, she found telephone numbers which belonged to other women. Angered by that, Wilcox returned to where Kostun remained immobile on the ground. She examined his wallet and discovered additional women's telephone numbers. Wilcox began to kick Kostun about the area of his ribs. Wilcox confronted him with the telephone numbers she had discovered, called him names, threatened to kick him in the groin, demanded that he tell her accomplices that Kostun was her "bitch," spit on him and demanded that he tell her where her telephone could be located. Kostun advised Wilcox again that her property was in his home. She reentered Kostun's home and was able to locate her cellular telephone and her wristwatch.
Kostun recalled that, as he lay on the ground injured, he asked Wilcox to summon an ambulance for him. Wilcox believed Kostun was faking his injuries; she did not accede to his request. Neighbors of Kostun and a motorist passing by, who observed Wilcox and her accomplices surrounding Kostun while he was on the ground, asked if he was in need of assistance. They were advised by Wilcox and her accomplices that Kostun was merely intoxicated and did not need their assistance. Thereafter, Wilcox and her accomplices left Kostun on the ground, returned to Wilcox's car and departed.
A Broome County grand jury returned an indictment against Wilcox and Miles charging them, inter alia, with acting in concert to commit first and second-degree gang assault, in violation of New York Penal Law (" PL") §§ 20.00, 120.07 and 120.06. Wilcox was also charged with fourth-degree grand larceny, in violation of PL § 155.30, for stealing Kostun's wallet. Wilcox elected to proceed to trial before a jury. However, prior thereto, in August 2003, during a pretrial hearing, the court was made aware that Wilcox intended to offer evidence concerning BWS during the course of the trial. Thereafter, in September 2003, the prosecution made a motion in limine to preclude the petitioner from introducing testimony that she suffered from BWS. In October 2003, the prosecution, in a writing addressed to the trial court, made an offer of proof about certain rebuttal testimony the prosecution would seek to offer at the trial if Wilcox were to be permitted to present evidence that she suffered from BWS. No resolution of the prosecution's motion was made before the trial commenced.
Wilcox was tried separately from her co-defendant, Miles.
During the trial, after the petitioner had testified about her tumultuous relationship with Kostun, she sought to present testimony from an opinion witness, an expert in the area of domestic violence and BWS. The prosecution "renewed" its previously-made motion to preclude the petitioner from presenting such evidence at the trial. The trial court granted the prosecution's motion. It explained that, under New York law, BWS is not a defense to a criminal act. Rather, it is evidence of a person's state of mind or may be evidence that is relevant to a specific defense that is proffered by a criminal defendant. Therefore, the court reasoned, before evidence concerning BWS would be deemed relevant and admissible at a trial, a specific defense a criminal defendant wanted to assert would have to have been presented to the trier of facts.
The court noted that, in Wilcox's case, the jury had learned, from her testimony — and that of Kostun — about their tempestuous relationship. Furthermore, Wilcox had testified that during the late evening hours of August 15, 2002, and the early morning hours of August 16, 2002, she intended only to recover her property from Kostun and did not intend that Kostun be injured in any way. The trial court found that the issues about which Wilcox had testified were not beyond the knowledge and understanding of the jury. Consequently, since opinion testimony would be proper only in a circumstance where the testimony is needed to clarify an issue involving professional or technical knowledge beyond the ken of an average juror, and having found no such issue to have been raised at Wilcox's trial, the court determined that no need to present opinion testimony to the jury existed. In addition, the trial court found that, although BWS might be relevant in a circumstance where the defense of justification or self-defense was being mounted at a trial, neither self-defense nor justification could reasonably be asserted by Wilcox because she was not defending herself at the time Kostun suffered his paralyzing injury at the hands of her accomplice, Miles.
The jury returned a verdict finding Wilcox guilty for gang assault in the second degree and grand larceny. Thereafter, she was sentenced to consecutive terms of 15 years imprisonment and 4 years imprisonment on the respective convictions.
Wilcox appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, Third Department. In that court, the petitioner urged that her conviction be upset because: (a) insufficient evidence respecting her specific intent to commit gang assault in the second degree was presented to the jury or, alternatively, the jury verdict, on that charge, was against the weight of the evidence; (b) the petitioner's conviction for grand larceny was based on insufficient evidence and was against the weight of the evidence; (c) the trial court erred when it denied the petitioner's request, that the jury be instructed on the defense of justification; (d) the trial court erred when it precluded the petitioner from presenting opinion evidence on BWS; (e) the trial court erred when it permitted hearsay to be presented to the jury and limited the petitioner's direct testimony concerning instances of battering perpetrated by Kostun; (f) the prosecutor's closing argument was inflammatory; (g) the trial court denied the petitioner due process of law through its improper questioning of witnesses, including the petitioner; (h) PL § 120.06, as applied to the facts proven by the prosecution at the trial, was rendered unconstitutionally vague because the trial court rejected the petitioner's assertion that the prosecution needed to show that two persons who aided and were actually present when the offense was committed had the specific intent to cause physical injury to Kostun; and (i) the sentence imposed by the trial court was excessive and harsh.
The Appellate Division affirmed the petitioner's conviction unanimously. It found the verdict was neither legally insufficient nor against the weight of the evidence. The court found further that the trial court's exclusion of the opinion testimony the petitioner sought to offer concerning BWS was proper. The Appellate Division explained that BWS is not itself a defense to a crime, rather, it is relevant in the context of a claim of self-defense. In the circumstance of the petitioner's case, the court noted that self-defense was unavailable as a defense because the petitioner was the initial aggressor. As a consequence, according to the Appellate Division, the trial court acted properly when it determined that no basis existed for permitting Wilcox to present evidence concerning BWS to the jury. The Appellate Division indicated that it had considered all the petitioner's remaining contentions and found them to be lacking merit or, with respect to those with merit, amounting to harmless error. See People v. Wilcox, 14 A.D.3d 941, 788 N.Y.S.2d 503 (App.Div. 3rd Dep't 2005).
Wilcox sought leave to appeal to the New York Court of Appeals. In doing so, she asked that court to consider three issues:
(1) [w]hether gang assault under New York Penal Law § 120.06 as construed by the courts below is unconstitutionally vague and further denies [the petitioner] due process of law, in that the language "actually present" was construed as less than requiring three people to be in a position where they were acting with the requisite degree of intent to cause physical injury and the ability to aid in a joint assault that inflicted the injury. In this regard, mere presence that is legally insufficient becomes the predicate for conviction without requiring [the prosecution] to demonstrate that the [petitioner] and two other persons intended to and did engage in a joint assault that caused the injury;
(2) [w]hether or not the courts below denied the [petitioner] due process of law and the right to trial by jury in that she was precluded from using the defense of justification under § 35.25 of the New York Penal Law that allows the use of limited physical force to retrieve property such as the victim admitted he had stolen from her, since the defense is crucial to and would: (a) negate the element of specific intent to cause physical injury required by the gang assault law, inasmuch as justification renders the use of force lawful; and (b) negate the inference she was the "initial aggressor" so that she could rely [on] the battered woman syndrome to show that she was acting with the intent to protect herself from potential abuse while retrieving her property;
(3) whether or not the preclusion of the justification defense was further unconstitutional because the lower court implied an emergency or hot-pursuit element into § 35.25 of the New York Penal Law when the plain language of the statute provides a person may use physical force other than deadly physical force to prevent or terminate larceny of property, especially where, as here, the victim had indicated he had the [petitioner's] stolen property on his person and would exchange it for money at the location where he was injured.
The petitioner's application for leave to appeal to the New York Court of Appeals was denied. See People v. Wilcox, 4 N.Y.3d 837, 796 N.Y.S.2d 592 (2005). The instant application for a writ of habeas corpus followed.
III. DISCUSSION
Exhaustion
Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies. See 28 U.S.C. § 2254(b) and (c). To satisfy the exhaustion requirement, a habeas corpus petitioner must "fairly present" his or her claim to the highest state court from which a decision can be rendered.See Dave v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc). A claim is fairly presented if the state court was informed of the factual and legal premises of the claim being asserted in federal court. See id. If material factual allegations or legal doctrine are presented in a federal habeas corpus petition that were not presented to the state court, the state court has not had a fair opportunity to rule on the claim.See id. at 191-92. Once a claim is fairly presented, "and having been denied relief, the petitioner must have utilized all available mechanisms to secure appellate review of the denial of that claim." Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981) (citations omitted).In the case at bar, Wilcox asked the New York Court of Appeals to consider only three of the issues that she had presented to the Appellate Division as grounds for upsetting her conviction. However, Wilcox has resurrected, as grounds for habeas corpus relief, issues raised in the Appellate Division which she abandoned when she petitioned the New York Court of Appeals for leave to appeal to that court from the determination of the Appellate Division. Wilcox maintains — notwithstanding her statement to the New York Court of Appeals that she "seeks leave in order to raise three issues that . . . are reviewable and leave-worthy" — her subsequent transmittal to that court of the briefs that had been filed with the Appellate Division alerted the New York Court of Appeals that Wilcox was not asking the court to consider only three issues but rather, was asking the New York Court of Appeals to consider every issue raised in the briefs filed with the Appellate Division. As a result, according to Wilcox, "failure to exhaust is not applicable to her petition for a writ [of habeas corpus]."
Wilcox is wrong. By arguing at length to the New York Court of Appeals that only three issues should be reviewed by it, Wilcox signaled her abandonment of the other issues that she had urged the Appellate Division to consider. Wilcox's subsequent submission to the New York Court of Appeals, of the briefs that had been filed with the Appellate Division, did not fairly apprise that court of the issues, if any, beyond the three highlighted in her letter application for leave to appeal, that Wilcox now claims she wanted the court to review. See Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991); Jordan v. LeFevre, 206 F.3d 196, 199 (2d Cir. 2000); Ramirez v. Attorney General of the State of New York, 280 F.3d 87, 97 (2d Cir. 2001). Without explicitly identifying for the New York Court of Appeals each claim, in addition to the three identified above, that she was raising, Wilcox failed to present those additional claims fairly to New York's highest court. Thus, with respect to those additional claims, Wilcox failed to satisfy the exhaustion requirement that attends in a federal habeas corpus proceeding.
Consequently, Wilcox's claims, that her right to due process of law, under the Fifth and Fourteenth Amendments, and her right to a trial by jury under the Sixth Amendment were violated, when the trial court questioned her and curtailed her cross-examination of Kostun, and her claim that her rights to due process of law and to trial by jury were violated when the trial court sentenced her to the maximum period of imprisonment, are unexhausted claims for the purpose of the instant writ.
Typically, a habeas corpus petitioner may not obtain relief from a federal court on an unexhausted claim. See 28 U.S.C. § 2254(b)(1). However, when a claim has not been presented to a state court for adjudication, a federal court reviewing a habeas corpus petition may deem the claim exhausted "if it is clear that the unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be futile."Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001).
It appears that New York procedural rules bar Wilcox from presenting, to the New York Court of Appeals, the claims challenging the trial court's questioning of her and its sentencing decision because she already sought leave to appeal to that court, which was denied. See People v. Hernandez, 253 A.D.2d 683, 680 N.Y.S.2d 74 (App.Div. 1st Dep't 1998) ("Denial of the application for permission to appeal by the judge or justice first applied to is final and no new application may thereafter be made to any other judge or justice."). Furthermore, where an appeal may be taken only by permission, pursuant to New York's Criminal Procedure Law ("CPL") § 460.20, the application for leave to appeal must be made within 30 days after service upon the prospective appellant of the order from which the appeal is taken. See CPL § 460.10(5)(a). Although a court may extend the time for taking an appeal after the prescribed period expires, an application for such relief must be made not more than one year after the time prescribed for taking an appeal has expired. See CPL § 460.30(1). In addition, collateral review of these two claims in the trial court is barred because the Appellate Division has previously rejected the claims on the merits. See CPL § 440.10(2)(a). Therefore, the Court finds that, since the three claims have been procedurally forfeited, because Wilcox has no available remedies in the state court, the claims can be deemed exhausted.
A procedural default may be excused by a court if a habeas corpus petitioner can show cause for the default and prejudice resulting from it, or that the court's failure to consider the federal claim will result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2565 (1991). To establish cause, a petitioner must demonstrate that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 2645 (1986). Objective factors that constitute cause include,inter alia, "some interference by officials" that made compliance with the applicable state procedural rule impracticable or "a showing that the factual or legal basis for a claim was not reasonably available to counsel." Id.
Wilcox, believing that the three above-noted claims were exhausted, has not attempted to show cause for her procedural default. Moreover, the petitioner does not assert that the court's failure to consider the three pertinent claims will result in a fundamental miscarriage of justice. Therefore, a review of the three claims is not warranted.
With respect to Wilcox's sentencing claim, it is also worth noting that "no federal constitutional issue is presented where . . . the sentence [imposed] is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Wilcox's sentence is within the range prescribed by New York's Legislature. See PL §§ 70.02(3) and 70.00(2)(e). Accordingly, her sentencing claim does not raise a federal constitutional issue, a prerequisite to obtaining habeas corpus relief. See 28 U.S.C. § 2254(a). Wilcox's allegation of judicial vindictiveness and her reliance upon Pabon v. Hake, 763 F. Supp. 1189 (E.D.N.Y. 1991), a case in which the disparity between the sentence received after trial and that which was offered to the criminal defendant during plea bargaining sessions, to support her vindictiveness allegation, are curious and of no avail. The record contains no evidence of any sentence recommended for her through plea bargaining or the relationship of any such sentence to the post-trial sentence.
Statute Unconstitutionally Vague
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition only if the state court's adjudication resulted in a decision that: (1) was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state-court proceedings. See 28 U.S.C. § 2254(d).
The Supreme Court has interpreted "the contrary to" and "unreasonable application" clauses of 28 U.S.C. § 2254(d)(1) as having independent meaning. See Williams v. Taylor, 529 U.S. 362, 404-05, 120 S. Ct. 1495, 1519 (2000). A state-court decision is "contrary to" the Supreme Court's precedent: (i) "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law;" or (ii) "the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite" to that reached by the Supreme Court. Id. at 405, 120 S. Ct. at 1519. A state-court decision is based on an "unreasonable application" of clearly established federal law, as determined by the Supreme Court, if: (a) "the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case;" or (b) "the state court either unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407, 120 S. Ct. at 1520. If a state prisoner's federal claim was adjudicated on the merits, a federal court must presume any determination of a factual issue made by a state court to be correct and a habeas corpus petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
Wilcox contends PL § 120.06, as applied by the trial court, is unconstitutionally vague. According to Wilcox, the statute does not express clearly whether each person who is part of the "gang" is actually required to participate in assaulting the victim physically and causing the injury on which the second-degree gang assault charge is based or whether the statute requires only that persons be present either "watching or menacing" in order to establish the elements of the crime as explained above. Where, as here, a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254(d) makes it incumbent upon the petitioner to establish that the decision reached by the state court is either contrary to or involved an reasonable application of clearly established federal law as determined through Supreme Court jurisprudence or that the state-court decision is based on an unreasonable determination of the facts in light of the evidence that was presented in the state-court proceeding. With respect to the instant claim, that PL § 120.06 is unconstitutionally vague, Wilcox has made no effort to satisfy the burden imposed upon her by 28 U.S.C. § 2254(d). She has not shown how, if at all, the Appellate Division's determination on this claim ran afoul of either Supreme Court precedent or was based on an unreasonable determination of the facts based upon the record it reviewed. Therefore, Wilcox is not entitled to habeas corpus relief based on her allegation that PL § 120.06 is unconstitutionally vague.
Failure to Instruct Jury on Justification Defense
"A jury charge in a state trial is normally a matter of state law and is not reviewable on federal habeas corpus absent a showing that the alleged errors were so serious as to deprive defendant of a federal constitutional right." United States ex rel. Smith v. Montanye, 505 F.2d 1355, 1359 (2d Cir. 1974). "Before a federal court may overturn a conviction resulting from a state trial in which an erroneous instruction was used, or a properly requested instruction was not given, it must be established not merely that the instruction is undesirable, erroneous, or even universally condemned but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Norwood v. Artis, No. 04 CV 6023, 2007 WL 1219415, at *10 (W.D.N.Y. April 26, 2007) (internal quotation marks and citation omitted). This is so because "it is not the province of a federal habeas court to reexamine state-court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treatises of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 479-80 (1991). While habeas corpus relief may not be granted merely because of an error of state law, "a finding that the petitioner was erroneously deprived of a jury instruction to which he was entitled under state law is the first step in the determination whether that error violated the petitioner's federal due process rights. Accordingly, courts have granted habeas relief for a failure to charge justification where the evidence supported a justification charge under state law and where the erroneous failure to give such a charge was sufficiently harmful to make the conviction unfair." Davis v. Strack, 270 F.3d 111, 123-24 (2d Cir. 2001).
In Davis, the Second Circuit explained that three questions must be answered in the petitioner's favor before habeas corpus relief could properly be granted for a failure to charge justification where the evidence supported such a charge: "First, was the justification charge required as a matter of New York state law? Second, if so, did the failure to give the requested charge violate the standard set out in Cupp [?] Third, if so, was the state court's failure of such a nature that it is remediable by habeas corpus, given the limitations prescribed by 28 U.S.C. § 2254?" Davis, 270 F.3d at 124.
Cupp v. Naughten, 414 U.S. 141, 94 S. Ct. 396 (1973).
"In determining whether a petitioner was entitled to a defense under state law, federal courts must of course defer to state-court interpretations of the state's laws, so long as those interpretations are themselves constitutional." Davis, supra, at 123 n. 4. The role of a federal court "is not to interpret New York's law of justification, but to determine whether the evidence was sufficient to warrant a justification charge under that law." Id. The first question highlighted above is addressed below.
Was a Justification Jury Instruction Required as a Matter of State Law
The applicable justification statute is found at PL § 35.25. It provides as follows:
A person may use physical force, other than deadly physical force, upon another person when and to the extent that he reasonably believes such to be necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission by such other person of larceny or of criminal mischief with respect to property other than premises.
In New York, justification is a defense, but is not an affirmative defense. Therefore, when the defense is raised on a proper evidentiary record, the prosecution bears the burden of disproving the defense beyond a reasonable doubt. See PL §§ 35.00 and 25.00(1); People v. Steele, 26 N.Y.2d 526, 528, 311 N.Y.S.2d 889, 891 (1970); People v. McManus, 67 N.Y.2d 541, 549, 505 N.Y.S.2d 43, 48 (1986). Under New York law, in determining whether the evidentiary record supports a justification jury instruction, the court must view the record in the light most favorable to the criminal defendant. See McManus, 67 N.Y.2d at 549, 505 N.Y.S.2d at 48. In New York, a defendant charged with assault is not entitled to a justification jury instruction if he or she is the "initial aggressor." See People v. Baez, 118 A.D.2d 507, 508, 500 N.Y.S.2d 3, 4 (App.Div. 1st Dep't 1986).
The record evidence established that several hours after Kostun took Wilcox's cellular telephone and wristwatch she recruited six other persons to accompany her to Kostun's home to retrieve her property. When Wilcox and her accomplices reached the vicinity of Kostun's home, five members of the group she had assembled hid themselves, while the sixth member waited by a nearby traffic stop sign. Wilcox proceeded to Kostun's home. She persuaded him to return with her to the traffic stop sign, where Wilcox's friend, Cimaomo, was waiting. Having persuaded Kostun to leave the confines of his home and to walk with her to the vicinity of the traffic stop sign, Wilcox enabled her accomplices to chase him and surround him. She also made Kostun vulnerable to the assault that she and Miles would perpetrate upon him. At that juncture, several hours after her property had been taken by Kostun, Wilcox could not reasonably have believed that Kostun was then committing or was about to commit a larceny. His larcenous act, as Wilcox had explained to her accomplices well before they traveled to the vicinity of Kostun's home, had been completed when he took her telephone and wristwatch hours before. Moreover, after Wilcox persuaded Kostun to exit his home, he did not assault her or engage in any other aggressive behavior toward her. He walked with Wilcox, at her request, until he spied someone who appeared to him to be hiding. Therefore, under the circumstances described above, neither Wilcox nor anyone who accompanied her to the vicinity of Kostun's home was permitted by New York law to employ physical force on Kostun to retrieve Wilcox's property.
Based on the above, the Court finds that the first question posed in Davis: "was the justification charge required as a matter of New York state law?" must be answered in the negative, since no reasonable view of the evidence the Appellate Division considered would support a finding that the justification defense existed. See People v. Watts, 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 678 (1982). Accordingly, the Court finds further that Wilcox has not made a showing that the Appellate Division erred, as a matter of state law, when it determined to uphold the trial court's decision declining to instruct the jury on the defense of justification. As a consequence, the Court need not reach the issue of whether Wilcox's right to due process was violated. See Davis, 270 F.3d at 123-124.
Exclusion of Expert Testimony
The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so that it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923 (1967).
However, the right of a criminal defendant to present relevant evidence at his or her trial is not unlimited. That right is subject to reasonable restrictions. See Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 653-54 (1988). "[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused's right to present a defense so long as they are not 'arbitrary' or 'disproportionate to the purposes they are designed to serve.'" United States v. Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261, 1264 (1998) (citation omitted).
In the instant case, the Appellate Division found the trial court acted properly when it excluded opinion testimony regarding BWS from Wilcox's trial. The court explained that BWS is not itself a defense and is only relevant in the context of self-defense. The Appellate Division determined self-defense was not an available defense to Wilcox because she was the initial aggressor. As noted above, when a state prisoner's federal claim is adjudicated on the merits by a state court, any state court determination of a factual issue must be presumed by a federal court to be correct unless the habeas corpus petitioner rebuts the presumption of correctness by clear and convincing evidence.See 28 U.S.C. § 2254(e)(1).
The Appellate Division made a factual finding that Wilcox was the initial aggressor. Therefore, in analyzing Wilcox's petition for the writ, the Court must presume that determination to be correct, unless Wilcox rebuts the presumption by clear and convincing evidence. This she has not done. As the Appellate Division explained, since BWS is not itself a defense in New York but rather, is relevant only in the context of self-defense, a defense that was unavailable to Wilcox, the exclusion of opinion testimony on BWS was warranted. A criminal defendant has a right to present relevant evidence at his or her trial, see Taylor,supra, but has no right to present irrelevant evidence at the trial. Since BWS was relevant only in the context of self-defense and that defense was unavailable to Wilcox, she had no constitutional right to present irrelevant opinion testimony to the jury at her trial.
Wilcox contends the timing of the trial court's decision to bar her from offering opinion testimony at her trial "had a substantial and injurious effect on the jury's verdict" and was unconstitutional because it infringed the petitioner's "ability to present a complete defense." In making these assertions, Wilcox ignores the fact that she has no constitutional right to present irrelevant evidence at a trial. She also ignores the fact that at a pretrial proceeding, when the trial court was made aware of: (a) Wilcox's desire to offer evidence, at her trial, in the form of opinion testimony concerning BWS; and (b) the prosecution's desire to offer pertinent rebuttal evidence, Wilcox's counsel advised the court that the admissibility of such evidence was an issue that the court should resolve at the trial. Thus, it is clear from the colloquy the parties had with the court at the pretrial proceeding that the extent to which, if at all, evidence concerning BWS and any pertinent rebuttal evidence would be allowed to be put before the jury would not be decided until the trial was underway. Moreover, Wilcox was aware, before the trial commenced, that she might not be able to present opinion testimony concerning BWS to the jury because the court had not ruled on the prosecution's preclusion motion. Armed with that knowledge, Wilcox had to structure any defense she might determine to present at the trial flexibly, so as to ensure that the theory of her defense would not be undermined if, in the midst of the trial, a ruling were to be made barring her from offering opinion testimony on BWS.
It is clear to the Court, from its review of the trial record, including Wilcox's opening statement to the jury, that she had structured her defense as if the admissibility of opinion evidence on BWS was free from doubt. A trial court has great discretion in managing the conduct of a trial. See United States v. Blackwood, 456 F.2d 526, 529 (2d Cir. 1972). Here, the trial court determined that it could not decide, before the trial commenced, whether to preclude Wilcox from offering opinion evidence to the jury on BWS and, as a result, it reserved decision on the prosecution's preclusion motion. Once the trial began, and evidence was received from Wilcox and Kostun about their fractious relationship, the trial court was satisfied that it possessed that quantum of information it needed to rule on the prosecution's preclusion motion.
The court then rendered its decision on that motion.
In the circumstance of the instant case, Wilcox's claim, that the timing of the trial court's decision to preclude her from offering irrelevant opinion testimony undermined her defense and denied her a constitutional right, is disingenuous and provides no basis for habeas corpus relief.
IV. RECOMMENDATION
For the reasons set forth above, the petitioner's application for a writ of habeas corpus should be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Sidney H. Stein, United States District Judge, 500 Pearl Street, Room 1010, New York, New York 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Stein. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992);Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988);McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).