Court find, that any of the seven exceptions are applicable.
Nor does the Court find that the state court's determination lacked fair support in the record. The initial requirements of timeliness and authenticity are satisfied in that the memorandum was prepared only a few days after the murder and was in McKenna's handwriting. Wishner, who was in charge of the plant's security at the time of the murder, testified at the hearing that the plant's night watchmen were required to fill out reports of unusual incidents. He also testified that three such reports, including the McKenna Memorandum, had been made during the period from June through July 1980.
Wishner further noted that no one, to his knowledge, had instructed McKenna to prepare the memorandum, allowing an inference that McKenna believed it was his ordinary work responsibility to write such a document and that litigation was not the reason for its creation. In fact, Wishner revealed that Tropicana's insurance company did not discuss The incident with anyone at the plant until "many months afterwards." (H. at 63.) Wishner also emphasized that Tropicana used the information contained in the McKenna Memorandum to implement new security measures at the plant.
The state court explicitly found Wishner's testimony to be "credible and not marred by any serious inconsistencies. (H. at 128-29.) As " 28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine the credibility of witnesses whose demeanor has been observed by the state trial court, but not by them, Marshall v. Lonberger, 459 U.S. 422, 434, 74 L. Ed. 2d 646, 103 S. Ct. 843 (1983), the Court is not at liberty freely to question this credibility assessment. Based on the testimony concerning Tropicana's security practices, the state court's decision regarding whether the McKenna memorandum met the requirements of a business record is entitled to a presumption of correctness.
"Where the presumption applies, the burden 'shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.'" Ventura, 957 F.2d at 1054; see also Knapp v. Leonardo, 46 F.3d at 175 (citations omitted). Petitioner argues that because, by Wishner's own testimony, the McKenna Memorandum was an unusual report, it could not be considered to be prepared in the regular course of business. Petitioner also asserts that since the McKenna Memorandum was written three days after the murder, it must have been prepared in anticipation of litigation. These arguments are belied by Wishner's testimony, outlined supra. In light of this testimony, petitioner cannot establish by convincing evidence that the state trial court made an erroneous factual determination in concluding that the McKenna Memorandum constituted a business record.
Accordingly, because the McKenna Memorandum fell within a firmly rooted exception to the rule against admission of hearsay evidence and McKenna was clearly unavailable to testify, its admission into evidence was proper and thus not in violation of petitioner's constitutional nghts.
B. Sixth Amendment Right to Present a Defense
Petitioner's second claim is That he was deprived of his Sixth Amendment right to present a defense due to the exclusion of a police report interviewing Patrick McKenna, which allegedly contained exculpatory evidence. It is unclear from the record whether petitioner sought to introduce into evidence the police report prepared by Detective Evola (Tr. at 137) or the police report prepared by Detective Perfano, another detective who investigated the murder. (Tr. at 1109). The pages to which petitioner refers in the transcript arguably seem to address only the Perfano's report, although the trial judge's ruling was somewhat ambiguous and could be viewed as extending to cover Evola's report as well. Because it is unclear whether petitioner's counsel is referring to the trial court's ruling on the admissibility of Detective Evola's or Detective Perfano's report, the Court will examine both reports and their implications for this claim.
Evola's report, prepared on the day of the murder, consisted of an interview with the night watchman, Patrick McKenna. Petitioner claims that this report contained "exculpatory evidence" needed to prove his innocence. This is based on the fact that Evola testified that he failed to include in the report "the name or any of the particulars concerning the person who was wanted for this specific incident." (Tr. 144-45.) Petitioner's argument is that McKenna must therefore have not mentioned to Evola that he suspected Perfetto, rendering questionable his mention three days later in the McKenna Memorandum of seeing petitioner at the plant on the night of the murder. Petitioner also argues that Perfano's report, which consisted of a follow-up interview of McKenna on the day of the murder, was exculpatory since it also failed to specify Perfetto as a possible suspect.
While the right to present a defense has been recognized as "one of the 'minimum essentials of a fair trial,'" Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988) (quoting Chambers, 410 U.S. at 294), This right is not unlimited. Thus, the right to present a defense "does not give criminal defendants carte blanche to circumvent the rules of evidence. Restrictions on a defendant's presentation of evidence are constitutional if they serve 'legitimate interests in the criminal trial process' . . . and are not 'arbitrary or disproportionate to the purposes they are designed to serve." United States v. Almonte, 956 F.2d 27, 30 (2d Cir. 1992) (quoting Rock v. Arkansas, 483 U.S. 44, 55, 97 L. Ed. 2d 37, 107 S. Ct. 2704 (1987)); see also Michigan v. Lucas, 500 U.S. 145, 111 S. Ct. 1743, 1747-48, 114 L. Ed. 2d 205 (1991); Crane v. Kentucky, 476 U.S. 683, 690, 90 L. Ed. 2d 636, 106 S. Ct. 2142 (1986)(citing Chambers, 410 U.S. at 302); Williams v. Lord, 996 F.2d 1481, 1483 (2d Cir. 1993).
In this case, the trial judge determined that the reports did not fall under an accepted hearsay exception. Though N.Y. Civ. Prac. L. & R. § 4518(a) (McKinney 1978) generally allows for the admission of police reports into evidence as business records, they must be excluded if the recording officer did not observe the matter personally and the declarant did not have a duty to make the statement to the recording officer. See Johnson v. Lutz, 253 N.Y. 124, 127-28, 170 N.E. 517 (1930); People v. Dyer, 128 A.D.2d 719, 513 N.Y.S.2d 211, 212 (App. Div., 2d Dep't, 1987); People v. Wilson, 123 A.D.2d 457, 506 N.Y.S.2d 760, 761 (App. Div., 2d Dep't, 1986); Murray v. Donlan, 77 A.D.2d 337, 433 N.Y.S.2d 184, 190 (App. Div., 2d Dep't, 1980); Hayes v. State, 50 A.D.2d 693, 376 N.Y.S.2d 647, 648 (App. Div., 3d Dep't, 1975); see also Weinstein et al., 5 New York Civil Practice § 4518.02 ((Bender 1994).
Under Johnson's definition of 'a writing ... made in the regular course of business,' memoranda would not be included if based upon information derived from third parties whose communications were casually and voluntarily made and not pursuant to a business duty or obligation. Consequently, a recorder may be under a business duty to record information supplied to him, while his informant is not duty bound to supply that information. If so, a writing created as a result of such a transaction would not be admissible in evidence as a hearsay exception under the statutory business record rule.
Murray, 433 N.Y.S.2d at 188. The state trial court determined that Evola and Perfano did not personally observe the events on the night in question and that McKenna was under no business duty to speak to the police. (Tr. at 1114.) Therefore, the trial court reasoned, neither Evola's or Perfano's report was an admissible business record. Assuming that the trial court's factual analysis was correct, its ruling would be consistent with commonly recognized principles barring the introduction of hearsay testimony of the type in question. See generlly Fed. R. Evid. 801(6)-(8). The exclusion of the reports would seem, therefore, to be a legitimate and reasonable constraint on petitioner's ability to offer evidence at trial.
Petitioner himself does not appear to question the propriety of the trial court's ruling that these reports were not business records.
Rather, petitioner argues that, even if the reports did not fall under an accepted hearsay exception, the trial court should not have applied the rule against hearsay evidence in a "pedantic and wooden manner and exclude reliable and probative evidence." (Petition, 88-CV-3822, at 31.) Even assuming, arguendo, that petitioner is correct in asserting that the trial court should have admitted these reports under some general hearsay exception similar to Fed. R. Evid. 803(24), this Court is limited in its habeas review only to considering whether the challenged ruling involved error of constitutional magnitude. See, e.g., Richmond v. Lewis, 506 U.S. 40, 121 L. Ed. 2d 411, 113 S. Ct. 528, 536 (1992); Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 480, 116 L. Ed. 2d 385 (1991). That is, the error must have deprived petitioner of a fundamentally fair trial. Rosario, 839 F.2d at 924 (citing Chambers, 410 U.S. at 294; Taylor v. Curry, 708 F.2d 886, 891 (2d Cir.), cert denied, 464 U.S. 1000, 78 L. Ed. 2d 694, 104 S. Ct. 503 (1983); Roberts v. Scully, 875 F. Supp. 182, 188-89 (S.D.N.Y. 1995).
"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, 839 F.2d at 925 (citing Taylor, 708 F.2d at 891). Materiality has been interpreted to mean that "'if there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.'" Rosario, 839 F.2d at 925 (quoting United States v. Agurs, 427 U.S. 97, 112-113, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976)).
The excluded evidence would not have raised reasonable doubt about guilt. First, Petitioner's counsel was able to cross-examine Evola in detail regarding his report:
Q.: And could you tell us whether or not the complaint report contains a space concerning itself and dealing itself with persons who are wanted in connection with a particular incident?