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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 ...

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