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January 13, 1998

JAMES TYSON, Petitioner, against JOHN KEANE, as Superintendent of Sing Sing Correctional Facility, Respondent.

The opinion of the court was delivered by: SCHEINDLIN



 Petitioner James Tyson seeks a writ of habeas corpus challenging his Supreme Court, Bronx County conviction for rape in the first degree. Part of the evidence presented against Tyson at trial consisted of a tape recorded telephone conversation in which a person identifying himself as "Tyson" did not deny committing the rape when so accused by the complaining witness. Before the trial began, Tyson asked the trial court for funds to hire an expert witness to verify his contention that the voice on the tape was not his. This request was denied, and Tyson was convicted.

 On appeal, the Appellate Division, First Department, held that the trial court had erred in refusing to provide the requested expert. However, it did not grant Tyson a new trial; instead, it held his conviction in abeyance so an expert could be retained and an appropriate study completed. If the expert were to conclude that the voice on the tape was not Tyson's, according to the court, an evidentiary hearing would have to be held to determine the admissibility of the expert's testimony. Tyson sought leave to appeal the decision not to grant a new trial; this application, however, was denied by the Court of Appeals.

 Pursuant to the Appellate Division's ruling, Tyson retained an expert witness and a study was conducted. The expert concluded that, contrary to Tyson's testimony at trial, the voice on the tape was indeed his. However, the expert also concluded, in light of "linguistic discourse analysis," that the conversation was not probative of Tyson's guilt. Specifically, the expert found that Tyson's speech impediment, combined with the complainant's verbal assertiveness, might have prevented Tyson from making a denial when the complainant accused him of rape.

 The Appellate Division then affirmed Tyson's conviction, and leave to appeal to the Court of Appeals was denied. Tyson filed this petition on October 25, 1996. The petition was referred to Magistrate Judge Peck for a Report and Recommendation. On November 19, 1997, the Magistrate issued a Report recommending that the petition be denied. The Magistrate did not address the question of whether the trial court erred in refusing funding for the expert; instead, he suggested that the error, if any, was harmless.

 Though he concurred in the Magistrate's proposed result, the respondent made two objections to the Report: 1) that it characterized the crime at issue as a "date rape," and 2) that it did not address respondent's argument that Tyson is procedurally barred from raising his Constitutional claims in this action. Tyson objected to the Report's "harmless error" analysis. After consideration of these objections and a de novo review of the record, I accept and adopt the thoughtful and thorough Report of the Magistrate.

 I. Legal Standard

 Under 28 U.S.C. § 636(b)(1)(A) and (B), a designated magistrate judge may issue a Report and Recommendation regarding a motion for summary judgment. The parties are given ten days to object to such a report; after objections are received, the district court must review de novo those portions of the report to which objections are made. In this case, each party filed timely objections which are considered below.

 III. Objections to the Magistrate's Report

 A. The Respondent's Objections

 1. Use of the term "date rape"

 The respondent first objects to the fact that the Report refers to the crime at issue as a "date rape." The basis of this objection is a distinction the respondent draws between "date rape" and "forcible rape," and an implicit assertion that "date rape" is a crime of lesser gravity. See Respondent's Objections to Report and Recommendation at unnumbered pages 1-2 (objecting to the Report's use of the words "date rape" because "the harrowing account given at trial by [the complainant] clearly established . . . that petitioner was guilty of forcible rape."). It need hardly be said, of course, that no distinction between "date" and "forcible" rape exists in the law. See N.Y. Penal Law § 130.35 (McKinney 1997) (making no special provisions for "date rapes"). Moreover, the respondent's apparent belief that rape is a less serious crime if it happens to occur during a date is as repugnant as it is unsupported. That such a theory would even be advanced in a brief submitted by one of our city's major prosecutorial offices is deeply troubling.

 Finally, it is apparent that the Magistrate's use of the term "date rape" was not intended to denigrate the seriousness of the crime charged, but rather to emphasize the importance of the primary witnesses' credibility in light of the fact that the only disputed issue at trial was whether the complainant had consented to intercourse. This was a fact worthy of emphasis, because the trial court had denied authorization for Tyson's proposed expert witness partially on the ground that the authenticity of the tape recording was "not a central issue to the case." March 24, 1992 Hearing Transcript at 3-4. The trial court reasoned that even if an expert testified that Tyson's voice was not the one on the tape, this evidence would only go to show that the complainant had misidentified her attacker's voice. Because the complainant's ability to identify Tyson was not in dispute, the court concluded, the tape's authenticity was not vital to the outcome of the case. See id. As the Report recognized, this reasoning was erroneous: Evidence that the man who identified himself as "Tyson" on the tape was an imposter could have led a reasonable juror to question the complainant's general truthfulness, and thus to doubt her contention that a rape had occurred. See Report and Recommendation at 18 ("Expert testimony proving that it was not Tyson's voice on the tape would seriously damage the complainant's credibility, obviously a key issue in a date rape case."). The Report's use of the term "date rape" served to illustrate the importance of the evidence the expert might have been able to provide. Thus, the use of the term was logically appropriate and legally unobjectionable.

 2. Failure to address respondent's procedural argument

 The respondent also argues that the Magistrate erred in not finding Tyson's constitutional claims to be procedurally barred. In his habeas petition, Tyson asserts that the trial court denied him his due process, equal protection and effective assistance of counsel rights by failing to authorize funds for the proposed expert. *fn1" He raised substantially the same claim on his direct appeal to the Appellate Division. As noted above, that court held that the trial court abused its discretion in denying Tyson the funds necessary to retain an expert. As a result, the appellate court remanded for a hearing on the admissibility of any exculpatory evidence the expert might produce. In his application for leave to appeal to the Court of Appeals, Tyson only sought review of the Appellate Division's decision that an evidentiary hearing -- rather than a new trial -- was the appropriate remedy for the trial court's error. Naturally, he did not appeal the Appellate Division's favorable ruling that the trial court had erred in denying him funds to retain an expert. Nevertheless, respondent claims that because Tyson did not appeal this favorable ruling, he is barred from now raising his constitutional claim.

 The Magistrate did not address this argument because it is utterly without merit. It is true that failure to raise a claim in a state court appeal may bar a petitioner from raising it in a habeas corpus proceeding, absent a showing of good cause and prejudice, even when such claims can no longer be raised in state court. See Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991) (citing Murray v. Carrier, 477 U.S. 478, 492, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986) and Wainwright v. Sykes, 433 U.S. 72, 87-91, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977)). However, petitioner could hardly be expected to appeal from a decision in his favor. Appeal need not be taken when doing so would be futile. See, e.g., Duckworth v. Serrano, 454 U.S. 1, 3, 70 L. Ed. 2d 1, 102 S. Ct. 18 (1981). While "futility" in this context generally refers to deficiencies in a state court's appellate process, see id., it would surely describe an appeal taken from a favorable determination as well. It was therefore appropriate for the Magistrate to reach the merits of Tyson's claim.

  B. Tyson's Objections

 Tyson objects to the Magistrate's conclusion that even if the trial court erred in denying funding for an expert, such error was harmless. According to the Report, the most important ground for this conclusion was the fact that Tyson had not met his burden of showing that the "linguistic discourse analysis" his expert provided would have been admissible at trial. See Report at 24-27. Tyson does not dispute the inadmissibility of this evidence; instead, he argues that if the proposed expert had been hired, his attorney would have known that the tape was authentic and therefore would have used a different, and perhaps more successful, strategy at trial.

 When a federal court conducts a habeas review of a conviction, the standard it applies is less stringent than it would be if the court were conducting a direct appellate review. See Brecht v. Abrahamson, 507 U.S. 619, 123 L. Ed. 2d 353, 113 S. Ct. 1710 (1993). An appellate court will set aside a conviction if there is constitutional error that is not "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967); Peck v. United States, 106 F.3d 450, 454 (2d Cir. 1997). On the other hand, absent a fundamental, "structural" error, *fn2" habeas relief is only granted when the error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. 619, 637-38, 123 L. Ed. 2d 353, 113 S. Ct. 1710 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946)). If "grave doubt" exists as to the harmlessness of the error, habeas relief must be granted. Agard v. Portuondo, 117 F.3d 696, 714 (2d Cir. 1997) (quoting O'Neal v. McAninch, 513 U.S. 432, 437, 130 L. Ed. 2d 947, 115 S. Ct. 992 (1995)).

 The trial court's purported error was harmless under this standard. Tyson suggests no reason why his now-preferred defense -- that the tape was authentic, but his "admissions" were not truly inculpatory because the complainant was effectively putting words in his mouth -- would have been more successful at trial than the defense he actually presented. While Tyson's conviction proves that the defense raised at trial failed, this does not mean that it could not have worked, nor that the new defense would have been more likely to. I accept the proposition that the trial court's decision had an "effect" on the trial in the sense that the issues presented would have been different had the expert testimony been available; however, to have an " injurious effect," as the habeas standard requires, the erroneous decision must have led to a trial that was not only different, but less favorable to the defendant than the one he otherwise would have had. Brecht, 507 U.S. at 637 (emphasis added). If anything, however, it appears that the trial court's purported error may have improved Tyson's chance for an acquittal at trial: Under his now-preferred defense, Tyson would have to explain, for example, why his taped statement to the complainant, "I didn't mean to rape you," was not truly probative of his guilt. At first blush, at least, a stout denial that he ever made such a comment would appear to be significantly more credible. For aught that appears, then, the trial court's purported error may have had a beneficial rather than an injurious effect on the trial, from Tyson's point of view.

 The absence of any injury to Tyson is made still clearer by the fact that nothing prevented him from raising his now-preferred defense at trial, even without the benefit of the expert. As Tyson himself points out:


It is possible that defense counsel, even in the absence of any . . . suggestion by the expert . . . would have decided to admit at trial that it was petitioner's voice on the tape, but to minimize the impact of the tape by arguing to the jury that the complainant was dominating the conversation, was putting words in [Tyson's] mouth, and petitioner was therefore not admitting that he had committed any of the crimes charged. That argument is apparent from review of the transcript. . . .

 Petitioner's Objections to Report and Recommendation at 4. According to Tyson, then, the effect the trial court's error had was that it encouraged the defense counsel to pursue one explanation of the tape evidence at the expense of a different, equally available one. But this argument is unavailing. There is no reason why the defense counsel had to choose one explanation over the other: He could have argued to the jury that 1) the voice on the tape was not Tyson's, but 2) even if it were, it would not be probative of guilt. Thus, the only possible effect of the trial court's decision was to provide a modest incentive for the defense counsel to spend more time on the former argument at the expense of the latter. If errors with such minor consequences warranted habeas relief, the harmless error doctrine would be effectively eviscerated. Tyson has therefore failed to identify any "substantial" effect the trial court's decision had on the outcome of the trial. Brecht, 507 U.S. at 637.

 IV. Conclusion

 Having considered the parties' objections to the Magistrate Judge's Report and Recommendation and having conducted a de novo review of the record, I accept the Report and adopt it as the opinion of this Court.


 Shira A. Scheindlin


 Dated: New York, New York

 January 13, 1998

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