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RONSON v. COMMISSIONER OF CORRECTION OF NEW YORK

November 22, 1982

WILLIAM RONSON, Petitioner,
v.
COMMISSIONER OF CORRECTION OF THE STATE OF NEW YORK, Respondent



The opinion of the court was delivered by: CONNER

OPINION AND ORDER

 CONNER, D.J.:

 William Ronson ("Ronson") has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 30, 1980, following his conviction in New York Supreme Court, Bronx County, on a charge of manslaughter in the first degree, Ronson was sentenced to a term of seven to twenty-one years imprisonment. He alleges that his incarceration violates the United States Constitution and, therefore, seeks release from the State's custody. For the reasons stated below, Ronson's petition is denied.

 Background

 Before arriving in this Courthouse, Ronson endured a tumultuous odyssey commencing in 1972 and spanning both the federal and state judicial systems. On August 16, 1972, Ronson was indicted by a Bronx County Grand Jury on a charge that he had murdered his estranged wife. His first trial ended in a mistrial when the jury was unable to reach a unanimous verdict. Petitioner was subsequently retried by the State, and on April 30, 1975 his second trial ended with the jury finding him guilty of manslaughter in the first degree. The presiding Justice Herbert Evans sentenced Ronson to a term of seven to twenty-one years imprisonment on that conviction. That judgment was affirmed by the Appellate Division, New York State Supreme Court, First Department, People v. Ronson, 54 A.D.2d 639, 387 N.Y.S.2d 619 (1st Dep't 1976), and on November 12, 1976 Ronson's application for leave to appeal to the New York Court of Appeals was denied, 40 N.Y.2d 925 (1976).

 Petitioner thereafter attacked his conviction by filing an application for a writ of habeas corpus in this Court. On December 21, 1978, Judge Morris E. Lasker granted the writ, finding that Ronson's sixth amendment rights had been violated because he had not been given the opportunity to present an insanity defense at his second trial. See Ronson v. Commissioner of Correction, State of New York, 463 F. Supp. 97 (S.D.N.Y. 1978). Judge Lasker's determination was subsequently affirmed by the Second Circuit. 604 F.2d 176 (2d Cir. 1979).

 On that mandate, the State brought Ronson to trial for a third time, commencing November 29, 1979. At this trial Petitioner was again found guilty of manslaughter in the first degree and was sentenced to the same seven to twenty-one year term of imprisonment. That judgment was affirmed without opinion by the Appellate Division, People v. Ronson, 86 A.D.2d 789 (1st Dep't 1982), and Ronson was again denied leave to appeal to the New York Court of Appeals, People v. Ronson, 56 N.Y.2d 654 (1982). Petitioner's post-judgment motion to vacate his conviction was also denied without leave to appeal to the Appellate Division.

 In the instant petition, Ronson attacks his conviction at the third trial. Because all of Ronson's claims have been presented to the State courts and all avenues of appeal have been exhausted, his petition is ripe for review by this Court. See Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982).

 Discussion

 Ronson's petition raises eight separate claims of constitutional violations arising from his third trial. Ronson alleges that:

 (1) he was allowed to present only limited psychiatric testimony at trial, thus depriving him of his right to present an insanity defense as previously mandated by this Court and the Second Circuit under the sixth amendment to the Constitution;

 (2) the trial court's charge and recharge to the jury on the question of insanity was improper and confusing, depriving him of a fair trial in violation of the fourteenth amendment;

 (3) the presence of the prosecutor at a State-ordered psychiatric examination of petitioner in November 1979 violated his fifth amendment right against self-incrimination, made applicable to the states through the fourteenth amendment;

 (4) because of the actions of his privately retained attorney, who was subsequently disbarred on another matter, petitioner was prevented from testifying before the Grand Jury that indicted him, thus depriving him of his sixth amendment right to effective assistance of counsel;

 (5) there was no unanimous verdict of guilty at trial; rather, one juror was coerced by the trial court into voting for a guilty verdict in violation of petitioner's due process guarantee under the fourteenth amendment;

 (6) the prosecutor possessed petitioner's dental college records without his permission and violated petitioner's fourteenth amendment guarantees when he showed them to the jury during trial;

 (7) the destruction by the State prior to the third trial of the gun, bullets, and shell casings used in the killing of Ronson's wife deprived petitioner of the opportunity to present a full defense;

 (8) each of petitioner's motions for a mistrial should have been granted and, when viewed as a whole, the individual errors claimed therein deprived petitioner of his right to a fair trial in violation of the fourteenth amendment.

 I will discuss each of these alleged constitutional violations separately.

 1. Limited Psychiatric Testimony

 Ronson alleges in Paragraph Two of his petition that he was denied his opportunity to present a defense of temporary insanity. In a prior habeas proceeding, this Court granted Ronson's petition on the ground that he had been denied this opportunity at his second trial. See Ronson, supra, 463 F. Supp. 97. But the transcript of petitioner's third trial belies any assertion that he was not given the broadest opportunity to present an insanity defense in accordance with his constitutional guarantees and the mandates of both this Court and the Second Circuit.

 During the course of the trial, two psychiatrists, Dr. Abrahamsen and Dr. Schwartz, testified as experts concerning Ronson's mental condition. There was no attempt by petitioner to introduce any further medical testimony. Dr. Abrahamsen, the defense's psychiatrist, testified at great length and was given broad latitude by the trial judge concerning the scope of that testimony. The court repeatedly overruled the prosecutor's objections designed to restrict the range of Dr. Abrahamsen's comments. Dr. Abrahamsen was allowed to testify out of order to accommodate petitioner; he was allowed to testify based on observations occurring after 1974, even though petitioner's counsel failed to give the prosecution a copy of Dr. Abrahamsen's updated report until less than one hour before the doctor began testifying; he was allowed to profess his views concerning the credibility of the eyewitness testimony of petitioner's son Michael and finally, but most importantly, he was allowed to state clearly for the jury his expert opinion that petitioner was not responsible for his act because of his mental state at the time of the shooting.

 Further, petitioner's counsel was given a liberal hand in his cross-examination of Dr. Schwartz, the prosecution's expert. Together, the testimony of these two doctors comprises approximately twenty percent of the total record. Moreover, Ronson himself was allowed to testify concerning certain incidents that he had experienced as a member of the military which may have affected his ability knowingly to shoot his wife. In light of this extensive testimony, it can hardly be said that Ronson was denied his right to present an insanity defense.

 2. The Jury Charge

 In his petition, Ronson presses the same objections to the trial court's charge to the jury that he raised initially at trial and later on appeal to the Appellate Division. Ronson's first objection goes to the court's charge on the effect of "extreme emotional disturbance." After quoting and explaining the elements of the insanity defense *fn1" as set forth in the New York statutes, N.Y. Penal Law § 30.05 (McKinney 1975), the court charged the jury:

 
You should know at this point that an extreme emotional disturbance is not a defense to a charge of manslaughter in the first degree. It is a defense to murder, which is not the subject of this trial.
 
(Tr.1513).

 Although it is clear that there are other defenses which would also not apply to the crime of manslaughter, the court intentionally chose to charge the jury on this mental state because it was discussed at trial by the two psychiatrists.

 
In view of the tenor of the expert testimony, the allusion to the "emotional disturbance of the defendant" at the time or times approximate to the crime, the Court will incorporate the suggested statement, even although [sic] it does not apply to, as a defense, in this case. And even although [sic] its application is limited to a murder case charge.
 
(Tr. 1345).

 Thus, this charge was given to prevent the jury from confusing the "emotional disturbance" referred to during the trial testimony with the requirements for insanity set forth in the New York statute.

 Ronson in his petition alleges as he did in his state appeal that another type of confusion resulted; that because of the instruction the jury might have believed they could not consider Ronson's "mental disturbance" in determining whether he had the requisite intent to "cause serious physical injury to another person," an essential element of the crime of manslaughter in the first degree. N.Y. Penal Law § 125.20(1) (McKinney 1975). There is no claim that this charge embodies an incorrect statement of the law.

 In determining whether an instruction to a jury gives rise to a constitutional violation, this Court does not view the single instruction in isolation but rather in the context of the overall charge. Cupp v. Naughten, 414 U.S. 141, 146-47, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973). The analysis is not whether the trial court failed to isolate and correct a particular, improper instruction, but whether "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. This burden on a habeas petitioner to demonstrate that the improper instruction was so prejudicial that it supports a collateral attack on the constitutionality of his conviction is far greater than what is required to show plain error on direct appeal. Henderson v. Kibbe, 431 U.S. 145, 155, 52 L. Ed. 2d 203, 97 S. Ct. 1730 (1977); see Callahan v. LeFevre, 605 F.2d 70, 73 (2d Cir. 1979).

 When read in its proper context as part of the full jury charge, it is clear that the instruction on emotional disturbance did not deprive petitioner of his right to a fair trial. After the jurors began deliberating, they requested a recharge on the issue of insanity. During this supplemental charge, the court stated, with respect to "emotional disturbance," that:

 
In other words, a defendant's mental disease or defect must be the cause of his lack of substantial capacity to know or appreciate. You should know at this point that an extreme emotional disturbance is not a defense to a charge of manslaughter, although it may be interposed in a charge of murder. When I say manslaughter, I mean manslaughter as alleged in this case, manslaughter in the first degree. You should know also that extreme emotional disturbance is the emotional state of an individual who:
 
(a) has no mental disease or defect that arises to the level established by Section ...

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