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February 21, 1985

ROBERT W. LATZER, Petitioner, against ROBERT ABRAMS, Attorney General of the State of New York Respondent

The opinion of the court was delivered by: GLASSER

I. LEO GLASSER, United States District Judge

This is a petition for a writ of habeas corpus brought under 28 U.S.C. § 2254. Petitioner was convicted, after a jury trial in County Court, County of Nassau, of committing sodomy in the second degree by engaging in sexual acts with a thirteen year old boy, Christopher T. Petitioner was sentenced to an indeterminate term of imprisonment with a minimum of one year, eight months, and a maximum of five years. He appealed to the Appellate Division, Second Department, of the Supreme Court of the State of New York. The Appellate Division unanimously affirmed the judgment of conviction, without an opinion. People v. Latzer, 101 A.D.2d 1030, 475 N.Y.S.2d 963 (2d Dept. 1984). Petitioner's subsequent application for leave to appeal to the New York Court of Appeals was denied. People v. Latzer, 63 N.Y.2d 708, 469 N.E.2d 110 (1984).

 Petitioner asserts three claims in support of his petition for a writ of habeas corpus. First, he contends that his confrontation rights under the Sixth and Fourteenth Amendments of the United States Constitution were violated by the trial court's refusal, pursuant to the New York "rape shield" statute, N.Y. Crim. Proc. Law § 60.42, to permit cross-examination of two prosecution witnesses with respect to their sexual activities with persons other than petitioner. Second, petitioner contends that he was denied due process by an impermissibly suggestive in-court identification. Lastly, he argues that his Sixth Amendment right to a public trial was impaired by the trial court's order to lock the courtroom doors during the court's charge to the jury.

 After thoroughly reviewing the record in this case, this Court concludes, for the reasons that follow, that petitioner's confrontational rights guaranteed by the Sixth and Fourteenth Amendments were violated when the cross-examination of two key witnesses was unduly restricted. Accordingly, the petition for writ of habeas corpus should be granted.


 A. The Incident

 The alleged events which form the basis of the crime charged against petitioner occurred during one day in December of 1980. *fn1" On that day, three brothers, Matthew T., age 12, Christopher T., age 13, and Anthony T., age 14, traveled from their home in New Jersey to the home of one Martin Swithinbank in Baldwin Harbor, Nassau County, New York. There they were introduced to a man named "Bob Fox," *fn2" whom each brother identified at trial as the petitioner, Robert Latzer. The five ate dinner at Swithinbank's house and then traveled to a local theatre to see the play Grease.3

 After Grease, the five returned to the Swithinbank home. Anthony went to sleep in a room on the first floor. Christopher and Matthew testified that Christopher and Swithinbank then went to an upstairs bedroom while Matthew and Fox remained in the dining room downstairs. Fox allegedly performed a sexual act with Matthew and then they both went upstairs, where Fox allegedly performed the sexual act with Christopher which constituted the basis of the sodomy charge. Matthew and Fox then returned downstairs where Fox allegedly performed a further sexual act with Matthew. The next day, the brothers left the Swithinbank home and returned to New Jersey.

 From May 4, 1981 to July 11, 1981, members of the Nassau County Police Department Vice Squad conducted an investigation into allegations of illicit sexual activities occurring at the Swithinbank home. The police maintained surveillance on the Swithinbank home in Baldwin and on an apartment building in Manhattan where Swithinbank allegedly maintained an apartment and conducted his business. On July 4, 1981, Officer Gordon Bradberry was watching the Manhattan Building when he saw a man he later identified as Robert Latzer leave the building. Officer Bradberry testified that he observed Latzer load up a car and then get into the car along with Swithinbank and Matthew. The officer and his partner followed the car to Baldwin. A. 384-386.

 On July 11, 1981, the police executed a warrant to search the Swithinbank house. Swithinbank was arrested that same day. A warrant for the arrest of petitioner was issued on July 30, 1981.

 B. The Trial

 At trial, the defense focused on the claim that Latzer had been mistakenly identified as the "Bob Fox" who had allegedly committed the crime of sodomy. There were several inconsistencies in the testimony of the brothers, in addition to those discussed in the preceding footnotes, that tend to support the defense of mistaken identification. First, Christopher originally described Bob Fox to the police as being 5'5" tall. A. 300, 306. At trial, Latzer was measured at 5'9 1/2" without shoes and 5'10 3/4" with shoes. Second, Matthew originally described Fox as having grey hair. A.356. Officer Bradberry, who saw Latzer with Matthew on July 4, 1981, described Latzer's hair as dirty blond. A. 385. Third, Matthew, when first interviewed by the police on July 12, 1981, stated that he had "met" Bob Fox on July 4, 1981 in Swithinbank's apartment in Manhattan. During that first interview, Matthew did not mention any sexual incident with Fox in December 1980. A. 341-46. Matthew first mentioned the December 1980 incident when interviewed by a different detective two days later on July 14, 1981, but during that interview Matthew failed to mention that Anthony had traveled with Christopher and him to Swithinbank's home at the time of the alleged incident. A. 344. At trial, Matthew testified that he first met Fox in December 1980. A. 322.

 Petitioner challenges three adverse rulings made by the trial court. The first contested ruling involves the trial court's repeated denial of petitioner's requests for disclosure of certain statements made by Christopher and Matthew, and the repeated denial of requests for permission to cross-examine those boys with respect to their sexual relations with men other than petitioner. Shortly after the arrest of Swithinbank, Christopher and Matthew gave several statements to various police officers. Some of those statements, and the boys' Grand Jury testimony, purportedly indicate that the boys had relations with a number of different men at the Swithinbank home. *fn4"

 Petitioner's initial pretrial request for discovery of those statements was denied by order of the trial court. At the beginning of the trial, petitioner requested permission to cross-examine the boys regarding their sexual activities with other men, and also requested copies of all portions d of the disputed statements that might be considered "exculpatory" material under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). The request regarding cross-examination was denied. A. 213. The court agreed to inspect the statements in camera for Brady material. After such inspection, the court stated that "[n]one of this material is relevant to defendant Robert Lazer" and declined to direct that the statements be turned over to petitioner. A. 215. Petitioner renewed his request for the statements just prior to the cross-examination of Christopher. The request was again denied. A 291-92. After the prosecution's summation, petitioner requested permission to recall Christopher and Matthew to elicit testimony regarding their sexual encounters with other men. request was also denied. A. 488-89, 502-05.

 Petitioner's second objection is to the trial court's ruling in allowing an allegedly suggestive in-court identification of Latzer and the court's refusal to strike that identification. At the trial, Anthony identified Latzer in court as "Bob Fox" by pointing to Latzer who was seated at the defendant's table. Anthony has never previously been asked to identify Latzer as "Bob Fox," either in person, by photograph or otherwise, during the 22 months since the December 1980 incident.

 Petitioner's third objection is to the trial court's order that the courtroom doors be locked during the court's charge to the jury. In response to petitioner's post-trial objection to the practice, the court noted that "[t]he public was not excluded during the charge. They merely were limited in their coming and going for a short period of time. No one who was present when the charge began was denied the right to hear and see the court charge the jury." A. 136.

 All three claims asserted by petitioner before this Court were raised in petitioner's appeal to the Appellate Division. Respondent correctly concedes that petitioner has fully exhausted his state remedies on all three claims raised here. Those claims are therefore appropriate for review on the merits in this habeas corpus proceeding.


 Petitioner contends that the trial court's ruling which prohibited cross-examination of the brothers with respect to their sexual conduct deprived petitioner of rights guaranteed by the confrontation clause of the Sixth Amendment. Respondent maintains that the court's ruling was a proper application of the New York "rape shield" statute, N.Y. Crim. Proc. Law § 60.42. Under that statute, evidence of a victim's sexual conduct is inadmissible in a sex crime trial unless such evidence satisfies certain conditions specified in the statute. *fn5" The salutary purpose of that statute is to prevent cross-examination from "focusing upon the immaterial issues of the victim's chastity [which] tends to demean the witness, discourages the prosecution of meritorious cases and leads to acquittals of guilty defendants." Memorandum of Assemblyman Stanley Fink, accompanying Assembly Bill No. 6698, Senate Bill No. 4821, N.Y. Legis. Ann. (1975) at 47-48. The ultimate question in the present case is whether, under the particular circumstances presented here, the policies embodied in the rape shield statute must yield to petitioner's constitutional right to confront witnesses called to testify against him.

 The right of a criminal accused to cross-examine the prosecution's witnesses "is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation . . . . It is, indeed, 'an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal.'" Chambers v. Mississippi, 410 U.S. 284, 295, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973), citing Pointer v. Texas, 380 U.S. 400, 405, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965) (other citations omitted). The right to cross-examine is not absolute. It is "[s]ubject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation," Davis v. Alaska, 415 U.S. 308, 316, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974), "and may, in appropriate cases, bow to accommodate other legitmate interests in the criminal trial process." Chambers, 410 U.S. at 295. However, state evidentiary rules which unduly restrict or prohibit cross-examination may deprive a criminal defendant of his rights under the confrontation clause, even if the evidentiary rules serve otherwise valid state interests. Davis, 415 U.S. at 319.

 In Davis, the petitioner was convinced of burglary in connection with the theft of a safe from a bar. Richard Green, a juvenile, provided crucial testimony for the prosecution. He testified that he had a conversation with the defendant who was at the time standing beside a car implicated in the crime and located at the place where the stolen safe was later discovered. At trial, the petitioner opposed a protective order which prohibited cross-examination of Green with respect to his being on probation for a prior adjudication as a juvenile delinquent. The petitioner argued that the juvenile record was probative of Green's possible bias or motive to testify falsely so as to shift possible suspicion away from Green himself. The trial court excluded any such evidence, relying on provisions of Alaska law that prohibited the admission of evidence concerning juvenile adjudications in later court proceedings. 415 U.S. 309-11, 94 S. Ct. 1105, 39 L. Ed. 2d 347.

 The Supreme Court in Davis first noted that the "exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Id. at 316-17. The Court then weighed the competing interests of the state and the petitioner. While recognizing that the state had a legitimate interest in preserving the anonymity of juvenile offenders, the Court observed that the excluded evidence could have done "[s]erious damage to the strength of the state's case . . . . In this setting we conclude that the right of confrontation is paramount to the state's policy of protecting a juvenile offender." Id. at 319. The Court reversed the judgment affirming the petitioner's conviction. Id.

 The threshold question in the present case is whether the Davis holding is applicable where, as here, a state evidentiary rule is invoked to exclude cross-examination challenging the credibility of identification testimony. The lower federal courts have regularly applied the Davis balancing test to hold that the Sixth Amendment rights of criminal defendants have been violated by various restrictions on the cross-examination of witnesses for improper motive or bias. *fn6" State courts construing rape shield statutes have similarly concluded that sex crime defendants cannot constitutionally be prohibited from cross-examining victims with respect to their sexual history for purposes of showing the victim's possible improper motive or bias in testifying. See, e.g., Winfield v. Commonwealth, 225 Va. 211, 301 S.E.2d 15 (1983); Commonwealth v. Joyce, 382 Mass. 222, 415 N.E.2d 181 (1981); State v. Jalo, 27 Or. App. 845, 557 P.2d 1359 (Or. Ct. App. 1976) (en banc). To avoid such potential constitutional problems, the courts in at least two states have also narrowly construed rape shield statutes so as to permit the introduction of evidence concerning a rape victim's prior sexual activity to rebut specific elements of proof offered by the state. *fn7"

 While these cases do establish that, under Davis, rape shield rules must yield to a criminal defendant's right to cross-examine witnesses for bias or improper motive, the cases do not conclusively establish whether the defendant has a similar right to cross-examine witnesses with respect to possible sources of mistaken identification (i.e., faulty memory). There is substantial authority, however, upon which to base such an extension of the Davis doctrine. The most analogous case was decided by the Sixth Circuit, which held that a trial court could not constitutionally prohibit a defendant from cross-examining witnesses with respect to suppressed out of court identifications where the witnesses were permitted to identify the defendant in court. Flowers v. State of Ohio, 564 F.2d 748 (6th Cir. 1977). *fn8" The court noted that the "state's asserted interest in Davis, must fall before defendant's fundamental right of confrontation . . . as to the credibility of the in-court identifications." Id. at 750.

 Further support for extending the Davis rule to this case can be drawn from the observation that challenges to both bias and faulty memory have been traditionally treated as comparably important forms of impeachment. In Greene v. McElroy, 360 U.S. 474, 3 L. Ed. 2d 1377, 79 S. Ct. 1400 (1959), the Supreme Court observed that the right to confront and cross-examine government witnesses is important both where the individuals' "memory might be faulty" and where the individuals might be "motivated by malice, vindictiveness, intolerance, prejudice or jealousy." Id. at 496. In Davis, the Supreme Court noted that the partiality of a witness is "always relevant as discrediting the witness and affecting the weight of his testimony." 415 U.S. at 316, citing 3A Wigmore, Evidence (Chadbourne rev. 1970). Weinstein and Wigmore have similarly observed that credibility of a witness can always be attacked with proof that "his capacity to observe, remember or narrate is impaired." 3 J. Weinstein, Weinstein's Evidence, P607 [04], at 607-44 (1982), citing 3A Wigmore, Evidence, § 931-935, 989-995 (Chadbourne rev. 1970). These authorities indicate that impeachment by proof of bias or faulty memory are of equal importance and therefore should be accorded comparable protection by the confrontation clause. Accordingly, I conclude that under Davis, undue restriction of cross-examination that is probative of a witness' faulty memory may deprive a criminal defendant of rights guaranteed by the Sixth Amendment.

 The determination of whether the confrontation clause has been violated in any individual case requires a close "examination of all [the] circumstances and evidence." Chipman v. Mercer, 628 F.2d 528 (9th Cir. 1980). In the present case, petitioner has raised substantial questions as to the veracity of the brothers' identification testimony. As discussed above, there were discrepancies between the brothers' initial descriptions of "Bob Fox" and the actual appearance of Robert Latzer at trial. Furthermore, Matthew initially stated that he first met Fox in July 1981, over six months after the date of the alleged crime. Petitioner had thus established a sufficient foundation for his defense of mistaken identification to justify cross-examination of the brothers regarding their sexual history for purposes of further supporting that defense. Petitioner was not seeking to launch a generalized challenge to the witnesses' credibility by adducing evidence to besmirch their reputation for chastity. Rather, the prohibited cross-examination would have been directed toward challenging a critical element of the state's case -- the identity of the alleged criminal. The trial court's absolute prohibition on any questions regarding the brothers' sexual history deprived petitioner of his constitutional right to "a certain threshhold level of cross-examination . . . ." Chipman, 628 F.2d at 530. See also Greene v. Wainwright, 634 F.2d 272, 275 (5th Cir. 1981); Commonwealth v. Joyce, 382 Mass. 222, 415 N.E.2d 181, 188 (1981). Under such circumstances, the state's interest in shielding the brothers from questions regarding their sexual history must yield to the petitioner's right to confront witnesses called to testify against him. See Davis, 415 U.S. at 320. *fn9"

 V. Berger, Man's Trial, Woman's Tribulation, 77 Col. L. Rev. 1, 55 (1977).

 Respondent conceded at oral argument that Davis might be applicable where a court unduly restricted cross-examination regarding misidentification, but argues that the particular evidence excluded in the present case is not relevant to the brothers' identification of petitioner. In making this argument, respondent relies on the trial court's in camera determination that the sealed statements given by Christopher and Matthew to police officers did not contain any Brady10 material, and respondent's own discussion of the contents of those statements in its memorandum of law submitted to this Court. Neither of these sources provides an appropriate basis for determining the relevance of the brothers' sexual history. As discussed earlier, neither petitioner nor this Court has seen the disputed statements. Consequently, in the proceedings before both courts, petitioner was seriously hindered in his ability to argue about the relevance of the events contained in those statements, resulting in a possible denial of his due process rights. See In re Taylor, 567 F.2d 1183, 1187-88 (2d Cir. 1977). Furthermore, it is not clear from the record that the trial court's refusal to order disclosure of the statements reflects a determination that the statements are not relevant to a defense of mistaken identification. The court's ruling may have been based solely upon a determination that the statements did not contain material considered "exculpatory" under Brady. Even if it is assumed that the sealed statements describe only irrelevant events, there is no assurance that those statements, which were presumably elicited through sympathetic questioning by police, reflect all the sexual activities of the brothers which might be revealed through cross-examination. As the Supreme Court has observed:


Counsel cannot often learn in advance what pertinent facts may be elicited on cross-examination. For that reason, it is necessarily exploratory . . . . To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial.

 Alford v. United States, 282 U.S. 687, 692, 75 L. Ed. 624, 51 S. Ct. 218 (1931).

 The precise meaning of "relevant evidence" has long been a subject of lively scholarly debate. See generally 1A Wigmore, Evidence, §§ 24-37.7 (Tillers rev. 1983). Perhaps the most pragmatic definition of relevancy, however, is set forth in Rule 401 of the Federal and Revised Uniform Rules of Evidence:


'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

 In this case, the trial court prohibited cross-examination as to facts which could tend to disprove a critical element of the state's case by making it more probable than it would otherwise appear that the brothers mistakenly identified petitioner as the man who committed the alleged sodomy. The prohibited cross-examination would therefore have addressed a facially relevant line of inquiry. If the trial court doubted whether any or all aspects of the brothers' sexual activities were of sufficient similarity to the crime charged to be probative of mistaken identification, the court had broad discretion to limit the scope or means of cross-examination. Alford, 282 U.S. at 694; United States v. Brown, 511 F.2d 920, 923 (2d Cir. 1975). For example, the court could have held a special hearing to determine the relevance of the specific sexual activities of Christopher and Matthew, N.Y. Crim. Proc. Law § 60.42(5), or required the development of an appropriate foundation before the description of each incident, or limited the depth of inquiry into the details of each relationship. The court chose, however, to completely bar any inquiry into this facially relevant subject matter. This absolute bar on cross-examination impermissibly restricted petitioner's Sixth Amendment rights. Greene, 634 F.2d at 275; Chipman, 628 F.2d at 530; Joyce, 415 N.E.2d at 188.

 The final question is whether this deprivation of petitioner's Sixth Amendment rights warrants setting aside petitioner's conviction. While Davis implied that prejudice need not be shown when an accused is denied the right of effective cross-examination, 415 U.S. at 318, the clear rule in this Circuit is that a writ of habeas corpus should not issue where violations of the confrontation clause are "harmless beyond a reasonable doubt." Klein v. Harris, 667 F.2d 274, 290 (2d Cir. 1981), citing Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967); U.S. ex rel. Santiago v. Vincent, 423 F. Supp. 103, 106 (S.D.N.Y. 1976), aff'd 573 F.2d 1295 (2d Cir. 1977), cert. denied, 436 U.S. 913, 56 L. Ed. 2d 414, 98 S. Ct. 2254 (1978). The Second Circuit noted, however, that "a reviewing court should not lightly find a constitutional error to have been non-prejudicial . . . ." Klein, 667 F.2d at 290. In this case, the excluded evidence, when viewed in conjunction with the inconsistent identification testimony already on the record, could possibly have raised a reasonable doubt as to petitioner's guilt in the mind of the jurors. The full impact of the excluded evidence cannot be determined on the basis of the present record because petitioner was never permitted to adduce any evidence concerning the sexual activities of the brothers. I therefore cannot find that the constitutional error in this case was harmless beyond a reasonable doubt.

 Accordingly, it is hereby ordered that the petition for a writ of habeas corpus is granted unless the state affords petitioner a new trial within sixty (60) days of the issuance of the order herein. It is further ordered that petitioner shall remain released on bail, pursuant to the terms of the Order of this Court dated September 12, 1984, pending the final determination of this petition.

 In light of the above, I find it unnecessary to address the second and third claims raised in the petition for a writ of habeas corpus. *fn11"


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