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June 4, 1986

ROBERT WHITE, Petitioner,
EVERETT JONES, Superintendent, Great Meadow Correctional Facility, Respondent

The opinion of the court was delivered by: SPRIZZO


Petitioner Robert White has made application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 2, 1980, following a jury trial in the Supreme Court of the State of New York, Bronx County (Reilly, J.), petitioner, along with co-defendants Samuel Harrington and Darryl Henderson, was convicted of rape in the first degree (New York Penal Law § 130.35) and sodomy in the first degree (New York Penal Law § 130.50). The complainant victim was a twelve-year-old girl at the time these crimes were committed. White was sentenced to concurrent, indeterminate terms of imprisonment of not less than four years nor more than twelve years on those counts.

On November 19, 1981, the Appellate Division of the Supreme Court of the State of New York (First Department) affirmed White's convictions without opinion. See People v. White, 84 A.D. 2d 970, 447 N.Y.S.2d 571 (1st Dept. 1981). *fn1" On January 6, 1982, petitioner was denied leave to appeal the affirmance of his convictions to the New York Court of Appeals. See People v. White, 55 N.Y.2d 884, 448 N.Y.S.2d 1034, 433 N.E.2d 545 (1982).

 The instant petition for a writ of habeas corpus was referred to a magistrate for report and recommendation ("Mag. R."). After receipt of petitioner's objections ("Pet. Obj.") to that report and recommendation, the Court has considered the petition de novo and heard argument on the issues raised by counsel for the parties. See 28 U.S.C. § 636(b)(1984).


 Petitioner makes three general claims in this petition: (1) that the trial court's refusal to release to defense counsel a psychiatric report about complainant Sali .Williams deprived him of his constitutional rights to due process and confrontation; (2) that the state court's refusal to compel a grant of immunity to Dennis Louis deprived him of his rights to compulsory process and due process; and (3) that the trial court's refusal to set aside the jury's verdict based upon petitioner's claim of "newly discovered evidence" deprived him of due process. Each of these claims will be treated separately.

 I. The Psychiatric Report

 The major prosecution witness at petitioner's trial was complainant Sali Williams, who testified that on February 25, 1980 she was raped and sodomized by the three defendants. Complainant testified that her boyfriend, Dennis Louis, stood by and watched, without participating and without coming to her assistance, while the three co-defendants held her down and committed the various criminal acts of which they were convicted.

 Petitioner complains that he was denied his federal constitutional rights of confrontation and due process by the the trial court's decision not to permit the defense attorneys to examine a psychiatric report detailing Ms. Williams' condition a short time before the rape incident. *fn2" The report, which was undated and contained an illegible signature, was prepared at St. Vincent's Hospital in New York City. See Ex. 7, ("Ex. 7") to Respondent's Answering Affidavit ("Ans. Aff.").

 Before the jury was brought to the courtroom to hear the opening statements, petitioner's attorney informed the trial court that he had asked the prosecutor on the day before trial "to inquire of his complaining witness whether she had any prior mental hospitalization or mental treatment. . . ." See Tr. at 10. The Assistant District Attorney replied that the "complainant informed me that shortly before the incident she was having trouble in school and she did visit a counselor or psychiatrist -- she is not quite sure -- concerning her work in school, and there was one visit and one visit only." See id. at 10-11. Trial counsel for petitioner then requested of the trial court "that that report be obtained and at least your Honor make an in camera inspection . . . to see whether that material should be made available to us." See id. at 11- 12. Neither petitioner's trial counsel nor either of the other two defense counsel requested an adjournment at that point, and the trial proceeded. In fact, complainant's testimony was taken that day, and defense counsel were allowed wide latitude in cross-examination. *fn3"

 On the third day of trial, the court announced that it had received and reviewed the psychiatric report, and had not found "anything which is material or probative in the examination for purposes of this trial." See id. at 247. No objections or further requests or arguments from defense counsel with respect to the report were forthcoming. *fn4" A. The Alleged Sixth Amendment Violation

 In support of his contention that the trial court's non-disclosure of the psychiatric report effectively deprived him of his Sixth Amendment rights, petitioner relies on a line of cases wherein trial courts entirely foreclosed defense cross-examination with respect to a crucial aspect of a witness' testimony. Compare Davis v. Alaska, 415 U.S. 308, 317-19, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974); Alford v. United States, 282 U.S. 687, 75 L. Ed. 624, 51 S. Ct. 218 (1931); Greene v. Wainwright, 634 F.2d 272, 275 (5th Cir. 1981). No such preclusion occurred in this case.

 Although the report itself was not produced, counsel were aware of the witness' psychiatric history and her school problems. The trial court never foreclosed an inquiry into either area, and the record reflects that counsel freely cross-examined into various aspects of the witness' family and school life. Thus, rather than being a case where the trial court foreclosed inquiry, this case presents a situation wherein counsel, for whatever strategic reasons, chose not to inquire more specifically about the witness' psychiatric history.

 Had such an inquiry been made, and had the witness denied visiting a psychiatrist or failed to admit the true nature of her psychiatric problems, counsel would have been able to demonstrate to the trial judge the need to produce the report in order to impeach the truthfulness of that testimony, and the report would, in all likelihood, have been produced. On the other hand, had the witness admitted the psychiatric history as reflected in the report, the report would have been clearly cumulative since the jury would have been aware of the true extent of her psychiatric history. It appears clear, therefore, that the alleged constitutional deprivation complained of was not so much the result of the trial court's restriction on the right of cross-examination as it was the result of counsel's failure to lay an ...

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