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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 appropriate foundation for the report's production or to provide an adequate factual predicate for both the trial judge, and, indeed, this Court, to assess the constitutional significance of its non-production.

 In light of that failure, and the significant amount of evidence already available for impeachment, the trial court did not deprive petitioner of his constitutional rights in not ordering the report produced. See United States v. Pacelli, 521 F.2d 135, 137, 140-41 (2d Cir. 1975), cert. denied, 424 U.S. 911, 47 L. Ed. 2d 314, 96 S. Ct. 1106 (1976); United States v. Green, 523 F.2d 229, 237 (2d Cir. 1975), cert. denied, 423 U.S. 1074, 47 L. Ed. 2d 84, 96 S. Ct. 858 (1976).

 This is especially true since the report itself contained no information which would have had any material impact upon Ms. Williams' credibility. The report noted that complainant had been referred to St. Vincent's Hospital because of suicidal ideation and truancy, see Ex. 7 at 2, and further noted that she had complained of various forms of harassment, verbal abuse, and pressure from her teacher, mother, sister, and boyfriend. See id. at 2-3. The report, which was undated *fn5" and unsubscribed, contains no indication that complainant suffered from psychoses, schizophrenia, or hallucinations. In fact, the report states that "[s]he denies any hallucinations or delusions," and there is no indication in the report that she was not capable of accurately perceiving and communicating her experiences and feelings. See id. at 2-4.

 Moreover, although the report related her troubles at school and at home, as well as the child's self-described struggles between her good and "wild and crazy" sides, see id. at 2-3, the examiner found "no gross disturbance in thought process," see id. at 3, and diagnosed her condition as an "[a]djustment [r]eaction of [a]dolescence [with] depression." See id. at 4. Nothing in the report indicates a propensity for deceit, untruthfulness or falsification.

 It follows that petitioner's confrontation rights were not violated by the trial judge's denial of access to the psychiatric report. Indeed, as noted, many of the matters referred to in the report were elicited on cross-examination. Cf. Pacelli, supra, 521 F.2d at 137-40. Thus, at the trial, defense counsel attempted to discredit complainant's testimony by means of searching inquiries into, inter alia, aspects of her problems in school, her discontent with her family situation, her prior sexual behavior and its role in her relationship with Dennis Louis, and her marijuana usage. Accord, Mag. R. at 5-6; see note 3 supra. *fn6"

 In this regard, it is significant to note that while probative evidence casting doubt on a witness' mental stability at the time of the incident about which he testifies may, of course, be used to discredit him, see United States v. McFarland, 371 F.2d 701, 705 (2d Cir. 1966), cert. denied, 387 U.S. 906, 18 L. Ed. 2d 624, 87 S. Ct. 1689 (1967); see also United States v. Hiss, 88 F. Supp. 559 (S.D.N.Y. 1950), not all psychiatric reports about prosecution witnesses are sufficiently probative to require disclosure and/or free use in cross-examination. Cf. United States v. Brumbaugh, 471 F.2d 1128, 1129 (6th Cir.) (per curiam), cert. denied, 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2732, reh'g denied, 414 U.S. 1033, 38 L. Ed. 2d 326, 94 S. Ct. 465 (1973); United States ex rel. Polhill v. Otis, 316 F. Supp. 334, 336 (S.D.N.Y. 1970). Certainly, the failure to produce a psychiatric report does not in itself effect a constitutional deprivation where, as here, the report does not contain evidence of any deep or sustained mental problems which would directly bear upon the credibility of the witness. In this respect, the cases relied on by petitioner are legally and factually inapposite. Compare United States v. Lindstrom, 698 F.2d 1154, 1160-66 (11th Cir.), cert. denied sub nom. Zuniga v. United States, 464 U.S. 983, 78 L. Ed. 2d 361, 104 S. Ct. 426 (1983); United States v. Partin, 493 F.2d 750, 763-64 (5th Cir. 1974), cert. denied, 434 U.S. 903, 54 L. Ed. 2d 189, 98 S. Ct. 298 (1977).

 Given that the connection between the information contained in the report at issue and the witness' propensity to tell the truth is attenuated at best, cf. United States v. Rabinowitz, 578 F.2d 910, 912 (2d Cir. 1978), such information was not required to be disclosed absent a sufficient showing of relevance by defendant, which petitioner's trial counsel failed to make. Cf. United States v. Lopez, 611 F.2d 44, 45-47 (4th Cir. 1979); United States v. Brown, 479 F. Supp. 1247, 1253, 1255-56 (D.Md. 1979). Indeed, taking into consideration the broad discretion accorded to trial judges in such matters, the decision of the trial court not to order the report produced might not have been error reversible on direct appeal. Cf. United States v. Glover, 588 F.2d 876, 878 (2d Cir. 1978)(per curiam). It follows that it is not sufficient to entitle petitioner to habeas corpus relief.

 In sum, petitioner's trial simply does not present a case wherein "[t]he trial court cut off in limine all inquiry on a subject with respect to which the defense was entitled to a reasonable cross-examination." See Alford, supra, 282 U.S. at 694; cf. Davis, supra, 415 U.S. at 317-18; Greene, supra, 634 F.2d at 275. In view of the nature of this report, and the extensive cross-examination afforded, it appears that there was no constitutional error in the trial court's failure to produce the report. Cf. Pacelli, supra, 521 F.2d at 137-41.

 B. The Alleged Due Process Violation

 Petitioner's claim of an alleged violation of due process because of the non-production of the report stands in no better posture. First, that argument assumes that it was constitutional error for the trial judge to deny petitioner access to the report. However, as noted above, it is not entirely clear that the nature of the report was such as to require its production, especially in view of the failure of trial counsel to lay an adequate foundation for its production. As such, it may not even have been subject to challenge on direct appeal, see Glover, supra, 588 F.2d at 878, much less a constitutional deprivation which would entitle petitioner to collateral relief by means of habeas corpus. Cf. Volpicelli v. Salamack, 447 F. Supp. 652, 663 (S.D.N.Y.), aff'd, 578 F.2d 1372 (2d Cir. 1978).

 Moreover, even assuming arguendo that the report should have been produced, it does not follow that petitioner's due process rights were violated by its non-production. The Second Circuit's standard in cases where production of specifically requested documents has been denied is whether there is a reasonable likelihood that the outcome of the trial would have been affected had the report been produced. Cf. Ostrer v. United States, 577 F.2d 782, 786 (2d Cir. 1978)(citing United States v. Agurs, 427 U.S. 97, 103-04, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976)), cert. denied, 439 U.S. 1115, 99 S. Ct. 1018, 59 L. Ed. 2d 73 (1979). *fn7" Petitioner has failed to meet that standard. The psychiatric report related, in large part, to many of the same areas already explored by counsel thoroughly and searchingly on cross-examination. Therefore, at best the report would have afforded merely an additional basis to impeach a witness whose credibility had been already substantially attacked. Accord, Tr. at 392-430 passim (closing statements of defense counsel).

 Furthermore, there was ample other evidence in the record which corroborated the testimony of the complaining witness. There is, therefore, no reasonable likelihood that the result would have been different had counsel been permitted access to that additional information. Cf. Ostrer, supra, 577 F.2d at 786. *fn8" Finally, as has been noted above, petitioner's trial counsel could have elicited that same information by cross-examination since he was aware of the witness' psychiatric history. See Part I.A., supra.

 Given all of these circumstances, the Court concludes that petitioner's due process rights were not violated by the non-production of the psychiatric report. The cases relied on by petitioner are legally and factually inapposite. Compare Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963); Giglio v. United States, 405 U.S. 150, 154, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972). *fn9"

 II. The Testimony of Dennis Louis

 A. The Trial Court's Refusal to Grant Immunity

 Petitioner contends that his constitutional rights to due process and compulsory process were violated by the trial court's refusal to grant immunity to Dennis Louis. See Pet. Memo at 31-40. The Court rejects petitioner's contentions, for the reasons stated below.

 Complainant testified that petitioner and his two co-defendants participated in the crimes on the roof, while her boyfriend, Dennis Louis, stood by and observed. See generally, Tr. at 33, 41-145 passim. After refusing to comply with the requests of defense counsel to interview him during the course of the trial, Louis was called to the stand and refused to testify, invoking his privilege against self-incrimination. See Tr. at 323-36. The trial court denied a request by petitioner's trial counsel that it "require the District Attorney to grant Dennis [Louis] immunity," see. Pet. Memo at 17; Tr. at 316-17, 321-22, 346-53. *fn10"

 It is well-established in this Circuit that the Compulsory Process Clause of the Sixth Amendment "does not support a claim for defense witness immunity." See United States v. Turkish, 623 F.2d 769, 773-74 (2d Cir. 1980), cert. denied, 449 U.S. 1077, 66 L. Ed. 2d 800, 101 S. Ct. 856 (1981). The Court notes petitioner's acknowledgment of this principle. See Pet. Memo at 33, n.9.

 This Circuit has also held that the exercise of the statutory right of a New York prosecutor to refuse to grant immunity to a witness generally does not violate any federal due process requirement. See Grochulski v. Henderson, 637 F.2d 50, 52-53 (2d Cir. 1980), cert. denied, 450 U.S. 927, 67 L. Ed. 2d 358, 101 S. Ct. 1383 (1981); see also Turkish, supra, 623 F.2d at 778. Petitioner has made no persuasive attempt to distinguish either of these cases, which are dispositive of petitioner's claims. *fn11"

 Moreover, at the time of trial, the applicable five-year statute of limitations, see. CPL § 30.10(2)(b) (McKinney 1981), had not yet run, thus belying petitioner's premise that "a grant of immunity to Dennis [Louis] could not conceivably have affected any present or future prosecution [of Louis]." See Pet. Memo at 34. Indeed, it is clear that, almost from the outset of the trial, all the parties and the trial judge were aware of Louis' possible criminal liability. See, e.g., Tr. at 92-95.

 Furthermore, at the time when the trial judge denied defense counsel's request for immunity, it was not at all clear that Louis, who had previously refused to cooperate with either defense counsel or the prosecutor, could or would have provided testimony at trial that was clearly "material, exculpatory, and not cumulative." Cf. Turkish, supra, 623 F.2d at 778. Thus, contrary to petitioner's assertions, see Pet. Memo at 37, Louis's purported post-verdict statement (discussed infra at Part II.B. of this Opinion) does not establish that at trial Louis would have testified that no rape occurred. Compare Turkish, supra, 623 F.2d at 778. *fn12"

 In sum, at best petitioner's claim is one of general "fairness" that does not rise to the level of a due process violation. See Grochulski, supra, 637 F.2d at 56. The Court must consider that claim in the light of the Second Circuit's wariness about interfering with the decision of a New York prosecutor, see id. at 52-53; Turkish, supra, 623 F.2d at 778, whose express request is required under New York law before a court can grant full transactional immunity. See CPL § 50.30 (McKinney 1981). It is clear, therefore, that the immunity claim was properly rejected by the trial court, see People v. Adams, 53 N.Y.2d 241, 247, 440 N.Y.S.2d 902, 904, 423 N.E.2d 379 (1981), and does not provide a basis for habeas corpus relief. Cf. Grochulski, supra ; Turkish, supra13

 B. The Trial Court's Denial of Petitioner's "Newly Discovered Evidence" Motion

 Petitioner contends that the trial court's denial of his motion for a new trial based upon newly discovered evidence deprived him of due process. That claim lacks merit and must be denied. By written, presentence motion, attorneys for petitioner argued to the trial court that pursuant to CPL §§ 330.30, 330.40, and 330.50, a new trial should be ordered. See Ex. 8 to Ans. Aff. In that motion, petitioner alleged, inter alia, that on September 9, 1980, more than one month after the jury had rendered its guilty verdicts on July 30, 1980, Louis "voluntarily met with . . . counsel for Samuel Harrington, and . . . an associate of defense counsel for the [petitioner] See id. at 7. Counsel for petitioner alleged that "[a]t that time, Mr. Louis *fn14" indicated that he was present on the night of the alleged incident and that none of the defendants had sexual intercourse, of any sort, with [complainant], thus corroborating [the testimony of] the one defense witness, [Samuel Harrington]." See id.

 In an opinion filed October 17, 1980, the trial judge denied petitioner's motion. See Ex. 10 to Ans. Aff. That ruling was correct for several reasons. First, petitioner's papers on this "newly discovered evidence motion" (and, indeed, here in this habeas proceeding) contained no affidavit executed by Louis, no statement by Louis that he would be willing to testify at a new trial, and no statement by Louis giving any specific details regarding his observations of the actions of the people at the scene of the alleged crime. *fn15" That showing was manifestly insufficient to entitle petitioner to a new trial.

 Petitions for habeas corpus based upon newly discovered evidence should only be granted in rare instances, and here, where the evidence could have been discovered with due diligence prior to trial, where it is merely cumulative, and where the admission of the evidence would probably not lead to an acquittal, cf. Srulowitz, supra note 8, habeas relief is not warranted. See De Martino v. Weidenburner, 616 F.2d 708, 711 (3d Cir. 1980); (citing Townsend v. Sain, 372 U.S. 293, 311, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963)); cf. Mapp v. Clement, 451 F. Supp. 505, 511 (S.D.N.Y.); aff'd without opinion, 591 F.2d 1330 (2d Cir. 1978); cert. denied, 440 U.S. 948, 99 S. Ct. 1428, 59 L. Ed. 2d 637. (1979).

 The "newly discovered evidence" in this case was not in fact "newly discovered," as the discussion about the need for immunizing Louis at the trial demonstrates. Even assuming arguendo that the so-called newly discovered evidence was in fact newly discovered, it was not even clear from the motion for a new trial that Louis would in fact be a witness at a new trial. Indeed, that prospect was highly unlikely, given Louis' own self-incrimination problems and the prosecutor's understandable reluctance to afford him statutory immunity.

 In sum, this is, therefore, not a case in which perjury was knowingly introduced or tolerated, cf. Giglio, supra, 405 U.S. at 152-55, or in which exculpatory evidence within a prosecutor's control and/or possession was requested and withheld. Cf. Brady, supra, 373 U.S. at 87. It follows that the state court's determination that a new trial was not required should not be disturbed by this Court on habeas corpus review. Cf. United States v. Gilbert, 668 F.2d 94, 96 (2d Cir. 1981), cert. denied, 456 U.S. 946, 72 L. Ed. 2d 469, 102 S. Ct. 2014 (1982); United States v. Alessi, 638 F.2d 466, 479 (2d Cir. 1980); United States v. Sherr, 533 F. Supp. 728, 735 (S.D.N.Y.) aff'd without opinion, 697 F.2d 300 (2d Cir. 1982).

 This is especially true since, as the trial court properly concluded, petitioner's motion papers did not even provide an adequate basis for assessing whether Louis' purported post-verdict exculpatory statement was more than merely cumulative to co-defendant Harrington's denial of the crime at trial, and whether that statement offered more than a mere impeachment of complainant's testimony, cf. People v. Bartholomew, 73 Misc. 2d 541, 547; 342 N.Y.S.2d 798, 805 (Nassau Cty. Ct., Special Term, 1973), and whether that statement created a possibility of a result more favorable to the defendants. See Ex. 10 to Ans. Aff. at 1-2 (citing People v. Williams, 35 A.D.2d 1023, 316 N.Y.S.2d 473 (1970). Evidence merely relevant to the guilt or innocence of an accused is not sufficient to afford relief by way of habeas corpus. Cf. Mapp, supra, 451 F. Supp. at 511 (quoting Townsend v. Sain, supra, 372 U.S. at 317).


 For all the foregoing reasons, the above-captioned petition for a writ of habeas corpus must be dismissed. The Clerk of the Court shall enter judgment for the respondent accordingly.


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