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November 18, 1997

JAMES TYSON, Petitioner,
JOHN KEANE, Respondent.

The opinion of the court was delivered by: PECK


 ANDREW J. PECK, United States Magistrate Judge:

 To the Honorable Shira A. Scheindlin, United States District Judge:

 James Tyson seeks a writ of habeas corpus from his "date rape" conviction. The evidence against Tyson at trial included the complainant's tape recorded telephone conversation with someone who identified himself as "Tyson" and admitted the rape. Before trial, Tyson asked the trial court for funds for an expert to show that the voice on the tape was not his. The trial court denied the request, Tyson was convicted, and on appeal the First Department remanded to allow an expert to examine the tape. Tyson's expert concluded that, contrary to Tyson's trial testimony, the voice on the tape was Tyson's; using "linguistic discourse analysis," however, the expert concluded that because of Tyson's speech impediment, he was incapable of offering denials when confronted with the victim's accusations. The trial court and First Department affirmed Tyson's conviction. The issue on the peculiar facts of this case is whether the trial court's initial refusal to fund the requested expert testimony requires the Court to set aside Tyson's conviction. For the reasons set forth below, I recommend that Tyson's habeas petition be denied.


 On July 29, 1992, Tyson was convicted after a jury trial of rape in the first degree, and was sentenced to ten to twenty years of imprisonment. (Petition PP 1-6; Tyson Reply Br. at 17-18; Affidavit of Assistant District Attorney Karin R. Vandevenne P 4.) See also Tyson v. Keane, 1997 U.S. Dist. LEXIS 5093, 96 Civ. 8044, 1997 WL 189125 at *1 (S.D.N.Y. April 18, 1997). *fn1"

 Tyson's Pre-Trial Request for Payment for Voice Analysis of the Tape

 "When defense counsel was informed before trial that the prosecution had obtained an audiotape from the complainant on which petitioner purportedly admitted raping her, he confronted his client, who denied that it was his voice on that tape." (Tyson Reply Br. at 1; see 3/26/92 Hearing Tr. at 4-5.)

 On March 24, 1992, Tyson's defense counsel sought court approval for payment for "an expert to analyze the tape." (Tyson Reply Br. at 5; 3/24/92 Hearing Tr. at 2.) The trial judge denied the request, stating:

THE COURT: I'm not going to approve payment for whatever it is. I don't think that the State has funds available for whatever it is.
What is authorized for physicians and psychiatrists is what you are requesting and it appears to me that the issue that could be resolved by this tape is really a -- not a central issue to the case since the identification of the defendant here is made on the basis that the complainant knows him.
The voice (sic) is not a voice identification. The issue is whether one piece of the People's evidence was authored by the defendant or not.
DEFENSE COUNSEL: Well, except in this case the complaining witness has stated to the District Attorney and to the Grand Jury that she spoke to him on the phone, that it was definitely James Tyson and that she recorded his voice and that he made incriminating statements.
Now, if it comes back with the tape analysis that it's not James Tyson, I would say to the court that that seriously questions the credibility of the complaining witness, and I think everybody will agree with me on that point and would throw this whole case into question, and I disagree with Your Honor, that it's some collateral issue.
I think this issue really does go to the heart of the case, the credibility of the complaining witness.

 (Tyson Reply Br. at 5-6, quoting 3/24/92 Hearing Tr. at 3-4.) The trial court denied the request. (Tyson Reply Br. at 6; 3/24/92 Hearing Tr. at 4-5.)

 Tyson's counsel renewed his request at a hearing two days later. (3/26/92 Hearing Tr. at 4-14.) Tyson's counsel informed the court that "Mr. Tyson, after listening to the tape and after reading the transcript, says that it is definitely not my voice on the tape." (3/26/92 Hearing Tr. at 5.) Counsel contacted Dr. Rafaella, who had testified as an expert in "voice print analysis" in prior cases. (Id. at 5-6.) Counsel cited cases admitting spectrographic voice analysis, and explained that "if we can prove, through scientific analysis, that the tape is a fraud [i.e., if it is not Tyson's voice], then that seriously throws into question the credibility of this complaining witness and could seriously throw into question the entire validity of the People's case, period." (Id. at 8.) The trial court reiterated its refusal to "authorize the expenditure of some two hundred dollars an hour to have this done." (Id. at 10.) The trial court explained that scientific and court acceptance of spectrographic voice analysis "is ambiguous, at best" and the "trend is to find that this is not admissible." (Id. at 10-11.) Second, because the complainant knew Tyson from before the rape, the trial judge believed the voice analysis would "not go to the guilt or innocence of the defendant," but would be "collateral." (Id. at 11-12.) Defense counsel stressed that since the tape went to "the credibility of the complaining witness [it] is not a collateral matter" but rather it "is crucial, that it is central to the entire case here in this particular type of case," i.e., a date rape case. (Id. at 12-13.) Defense counsel also stated that if the trial court felt it was collateral, the court should prohibit the introduction of the tape. (Id. at 14.)

 Tyson's Trial

 The trial court admitted the tape at trial. (See Tyson Reply Br. at 11-13 & n.6.) The complainant testified to Tyson's "date rape" of her. (See id. at 9-11.) The complainant testified that Tyson called her at home later that day and that she recorded the conversation on her answering machine tape. (Trial Tr. at 91-95, 235-37.) She testified that she recognized the male voice on the tape as Tyson's. (Id. at 94-96, 106, 248-49.) The tape was played for the jury and they were provided with a transcript of it. (Id. at 248-53.) The trial judge instructed the jury that they would have to judge the complainant's credibility when she identified the male voice on the tape as Tyson's. (Id. at 250-52; see also Tyson Reply Br. at 11 n.6.)

 The taped conversation began with a male voice identifying himself as "Tyson." (Tyson Reply Br. at 12, quoting Tape Transcript ("T") at 1; see also Vandevenne Aff. Ex. 4, which includes a transcript of the tape.) The tape continued:

[Complainant]: Did I entice you and make you do that?
MR. TYSON: No. I'm -- I'm sorry.
* * * *
[Complainant]: I said because I'm your friend and you raped me. That's why you feel bad.
MR. TYSON: That I --
[Complainant]: I knew you didn't mean to do it, but that's what you did. That's why you feel bad, right?
MR. TYSON: Yeah.
[Complainant]: I don't know, you just, I don't know you just lost it. You just. . .
[Complainant]: I don't know you just totally lost it. You never did that be, before? You never went off like that before?
[Complainant]: So why would you rape me, me of ...

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