And she just kept saying I want to testify, but I don't know if they'll let me."
This corroborating testimony persuades the Court that DeLuca was, in fact, unaware that she had the ultimate right to decide whether or not to testify. Since the preponderance of evidence suggests that the petitioner was unaware that it was ultimately her decision whether or not to testify, and counsel admittedly did not correct that misperception, this Court finds that petitioner has been denied effective assistance of counsel.
Nor can there be any doubt that DeLuca suffered prejudice as a result of her counsel's failure to inform her that she had the ultimate right to decide whether or not to testify. Given her repeatedly expressed desire to tell her side of the story, it is highly likely that the petitioner would have exercised her right had she known that her decision overrode her lawyer's. Numerous witnesses, including GaNun, one of her attorneys, testified that DeLuca both wanted and expected to testify at her trial.
Likewise, it is at least reasonably probable that had she testified, "the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. at 694. "The testimony of a criminal defendant at his own trial is unique and inherently significant. 'The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." Nichols v. Butler, 953 F.2d 1550, 1553 (11th Cir. 1992) (quoting Green v. United States, 365 U.S. 301, 304, 5 L. Ed. 2d 670, 81 S. Ct. 653 (1961)).
In many criminal cases, "the most important witness for the defense . . . is the defendant himself" Rock v. Arkansas, 483 U.S. at 52. Nowhere would that truism have been more applicable than in the instant case. Had DeLuca taken the stand, her testimony would have been the cornerstone of a defense that, if successfully presented, could have: 1) explained much of the persuasive circumstantial evidence against her; 2) cast doubt on the veracity of the prosecution's two main witnesses; 3) provided some explanation for the shooting; 4) called Bissett's motivations on the night of the shooting into question; 5) educated the jury about Rape Trauma syndrome; and 6) painted a picture of herself that contradicted the prosecutor's portrayal of her as a black widow spider, a sex-starved woman who mates and then kills.
Moreover, had she testified, Patten, who testified that he was unwilling to present a "partial defense" because he feared that the jury would wonder what they had to hide, would have felt free to support her version of events both with corroborating testimony and medical and physical evidence. Under these circumstances, this Court holds that DeLuca received constitutionally ineffective assistance of counsel.
III. Preclusion of Expert Witness on Rape Trauma Syndrome
Finally, petitioner contends that the trial court's refusal to allow Flora Colao, the rape trauma syndrome expert, to testify violated her Sixth and Fourteenth Amendment right to present a defense. While this Court believes that Colao's expert testimony could have been admitted to refute the State's contention that DeLuca's rape claim was a false exculpatory statement evidencing knowledge of guilt, we find that the decision to exclude the testimony was well within Justice Tonetti's discretion.
After the prosecution rested, Patten requested permission to present the testimony of a defense expert regarding rape trauma syndrome. Arguing that "the law has for generations had a very male view on the concept of rape," Patten sought to introduce Colao's testimony to rebut the commonly held notion that a rape victim will make an immediate outcry. Patten contended that this notion results in a "prejudicial belief," reflected during the trial in the testimony of Detective Taylor,
that a woman who does not immediately call for help has not been raped.
Although sympathetic to Patten's argument, Justice Tonetti questioned "the relevancy of rape to this case."
In response, Patten replied that rape was relevant because of the prosecution's position "from the very beginning of this case that . . . 'All you individuals know when you are being told a story.'" Referring to the testimony of Sgt. Eberhardt, he argued that part of the State's circumstantial evidence involved the testimony and argument that DeLuca created a false rape story to cover her guilt.
Although Justice Tonetti reserved decision on the matter until after a short adjournment for lunch, he did express skepticism about Patten's grounds for admitting the testimony of Colao. Conceding that the proposed testimony "could be offered on the theory that it might have affected the mind or the state of mind of Peter DeLuca," the judge was still unwilling to admit it because there had been no evidence of Peter DeLuca's involvement in the shooting.
If Peter DeLuca were to testify, that might be a factor. If [DeLuca herself] had testified she had been raped that might be a factor, but to allow an expert to testify about reactions of a rape victim on the theory that maybe that had some effect on someone seems to me to give rise to sheer speculation.
After the lunch recess, proceedings resumed and counsel and the court conferred at the bench in an off-the-record discussion. Both sides then rested in the presence of the jury. The record reflects no further discussion of the proposed expert testimony, no request for a ruling by defense counsel, and no decision by Justice Tonetti.
Respondents contend that petitioner abandoned her request to present the proposed expert testimony because she did not request a ruling from Justice Tonetti at trial. Therefore, they argue, she is procedurally barred from raising this claim in her habeas petition. The magistrate judge rejected this argument, finding that Justice Tonetti had put an end to this issue in his ruling at the § 440 hearing. Although admitting that his decision may have been off the record, Justice Tonetti stated that "my recollection is that . . . the court made a ruling denying counsel's application to call that witness and that it was preserved for the record." This Court accepts Magistrate Judge Roberts recommendation that the respondents' assertion of a procedural default be rejected.
Turning to the merits of petitioner's claim, the magistrate found that Justice Tonetti did not abuse his discretion in excluding the proposed testimony because it was both collateral and of questionable probative value. Furthermore, she found that even assuming, arguendo, that he erred in precluding Colao's testimony, such error was not of constitutional dimension. Alternatively, if it was a constitutional error, it was harmless. The Court agrees with all of these findings and accepts them as its own.
It is well-established that a trial judge has broad discretion in determining the relevancy and admissibility of evidence. Levy v. Abate, 1993 U.S. Dist. LEXIS 9231, 93 Civ. 0258 (JSM), 1993 WL 267421 (S.D.N.Y. July 9, 1993); People v. Cronin, 60 N.Y.2d 430, 470 N.Y.S.2d 110, 111, 458 N.E.2d 351 (1983) ("The admissibility and bounds of expert testimony are addressed primarily to the sound discretion of the trial court.").
Moreover, even if erroneous, evidentiary rulings by state courts "do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus." Taylor v. Curry, 708 F.2d 886, 891 (2d. Cir. 1983). A defendant is entitled to habeas relief only when she can show that the error was so prejudicial as to amount to a denial of due process or that it was tantamount to the denial of a "fundamentally fair trial." Id. at 891 (emphasis in original; citations omitted). "It is the materiality of the excluded evidence to the presentation of the defense that determines whether a defendant has been deprived of a fundamentally fair trial." Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988) (citing Taylor v. Curry). Erroneously excluded evidence is material, and constitutional error has been committed "'if the omitted evidence creates a reasonable doubt that did not otherwise exist'." Rosario, 839 F.2d at 925 (quoting United States v. Agurs, 427 U.S. 97, 112-13, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976).
While the testimony of Flora Colao was arguably relevant to the State's characterization of DeLuca's rape report as a false exculpatory statement that circumstantially demonstrated her consciousness of guilt, Justice Tonetti did not abuse his discretion in disallowing it. In the absence of a justification defense, Justice Tonetti was correct in arguing that the truth or falsity of DeLuca's rape claim was a collateral issue and of limited probative value.
Where the proposed evidence is not critical factual testimony but expert testimony offered for the very limited purpose of supporting credibility, the trial court's failure to admit such testimony did not deny defendant her Sixth Amendment right to present witnesses in her defense.
Fennell v. Goolsby, 630 F. Supp. 451 (E.D.Pa. 1985).
Moreover, petitioner's proposed expert had no personal knowledge of the facts surrounding the shooting. "The testimony excluded was not that of a 'key fact witness' who actually observed the crime. Rather petitioner's expert would have testified as to petitioner's state of mind. . . . The Constitution does not require that such testimony be admitted." Tourlakis v. Morris, 738 F. Supp. 1128 (S.D. Ohio 1990).
To the extent Patten wished to introduce this testimony as a foundation for a justification defense, as he appeared to be claiming at the evidentiary hearing before the magistrate judge, then the fault lies with Patten. Justice Tonetti clearly indicated that he would have been receptive to Colao's testimony, if it were presented in conjunction with DeLuca's testimony. At no time did Patten suggest to Justice Tonetti that the expert's testimony would be part of a justification defense, or that petitioner would be testifying that she had committed what she believed to be justifiable homicide.
In order to violate the Sixth Amendment, the omitted evidence must "create a reasonable doubt that did not otherwise exist." Rosario, 839 F.2d at 925. Even if, based upon Colao's testimony, the jury might be more inclined to believe that DeLuca had been raped, the fact that it was her gun that killed Bissett and that she had access to him prior to his death remained unchallenged. Accordingly, in the absence of a justification defense, the fact that petitioner may have been raped created no reasonable doubt that did not otherwise exist. For the same reasons, any constitutional error in excluding the expert's testimony did not have a "substantial and injurious effect or influence" on the jury's verdict. Brecht v. Abrahamson, 123 L. Ed. 2d 353, 113 S. Ct. 1710, 1714, 1722 (1993).
This Court finds that Patten's actions in failing to 1) inform and advise DeLuca about the option of an EED defense and 2) inform his client that she had the ultimate right to choose whether or not to testify, were sufficient to undermine confidence in the outcome of DeLuca's trial.
For the reasons set forth above, DeLuca's petition for a writ of habeas corpus is granted and the conviction set aside. DeLuca is to be released from prison unless she is afforded a new trial within 180 days of this date.
It is so ordered.
Dated: New York, New York
August 4, 1994
Robert J. Ward