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November 17, 1999


The opinion of the court was delivered by: Sprizzo, District Judge.


The above-captioned action having come before this Court, and Petitioner having filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and Magistrate Judge Peck having issued a Report and Recommendation to the Court dated September 10, 1999, recommending that Petitioner's writ of habeas corpus be denied, but that Petitioner be issued a certificate of appealability, and Petitioner having filed his objections to the Report & Recommendation on September 30, 1999, and the Court having considered all matters raised, it is

ORDERED that the aforementioned Report and Recommendation is hereby adopted, and it is further

ORDERED that for the reasons set forth in the Report and Recommendation, Petitioner's Writ of Habeas Corpus shall be and is hereby denied, and it is further

ORDERED that for the reasons set forth in the Report and Recommendation, Petitioner shall be issued a certificate of appealability, and it is further

ORDERED that the Clerk of the Court shall close the above-captioned action.


PECK, United States Magistrate Judge.

To the Honorable John E. Sprizzo, United States District Judge:


The Trial Evidence

Grant's Testimony

On Saturday morning, December 19, 1992, Grant and his common-law wife, Larita Mitchell, drove to a church in Brooklyn to meet Mitchell's two children from a prior relationship who were in foster care — Dominique, age seven, and her brother Dashawn, age nine. (Trial Transcript ["Tr."] 791-93, 795, 831-32.) Grant and Mitchell took the children out for lunch and a drive around Manhattan. (Tr. 795-96.) When they returned to the church to drop the children off, the bus that takes the children back to their foster homes already had left. (Tr. 797, 863.) Grant and Mitchell tried to contact the foster care agency but were unsuccessful, so they went to the police station. (Tr. 797-800, 863.) The police could not reach the foster care agency and, according to Grant, told Grant and Mitchell to take the children home. (Tr. 800.) Grant and Mitchell took the children to the home of Linda Thames, with whom Grant has two children, Jermaine and LaVita (age ten). (Tr. 801, 803-05.) Grant hoped that Thames, who worked as a home attendant for a retired social worker, could help them contact the foster care agency, but she was unable to. (Tr. 802.) Grant and Mitchell went home at around 10:30 or 11:00 p.m., taking Dominique, Dashawn, Jermaine and LaVita home with them. (Tr. 803-04, 865.)

The next morning, Sunday, December 20, 1992, Grant left the apartment at 5:00 a.m. to go to work. (Tr. 810.) When he returned home at 10:30 a.m., Mitchell told him that the social worker had called and told her to return Dominique and Dashawn by noon on Monday. (Tr. 812.) At 11:00 a.m., Grant, Mitchell, Dashawn, LaVita and Jermaine took Dominique to her grandmother's house. (Tr. 813-15.) They picked up Dominique at 5:00 p.m., went to Mitchell's aunt's house for the remainder of the evening, and returned home at midnight. (Tr. 815-16.) On Monday, December 21, 1992, Grant and Mitchell took Dominique and Dashawn back to Brooklyn. (Tr. 817-18.)

Grant denied Dominique's rape allegations. (Tr. 823, 867.)

Dominique's Testimony

Dominique was ten at the time of trial. (Tr. 570, 615.) Dominique testified that before the incident, she called Grant "Daddy" but now just calls him "[d]efendant, man, and him." (Tr. 596, 661.) Dominique testified that on Sunday morning, December 20, 1992, Mitchell went to the store while Dominique remained with Grant and her brothers and sisters. (Tr. 582-83, 660.) According to Dominique, Grant had LaVita bring him "reefer" in his bedroom, then Grant called Dominique into his bedroom. (Tr. 584-85.) Grant hugged Dominique and kissed her "[w]ith his tongue" on her lips, put his hand up her shirt and touched her breasts, and touched her vagina. (Tr. 585-86, 588-89, 615, 626, 666-68.) Grant pulled down his underwear and put Dominique's hand on his "private part," that is, his "penis." (Tr. 586-87, 667.) Grant told Dominique to "squeeze it [his penis], . . . shake it up and down . . . and . . . pick the hairs . . . on his penis . . . then this slimy sludge came out of . . . [Grant's] pee hole." (Tr. 587, 589-90, 626.) Dominique said Grant's penis "[l]ooked like a rocket" and said it felt "like a baby's bottom . . . very soft and sometime[s] it felt soft and hard." (Tr. 587-88.) When they heard Mitchell returning, Grant told Dominique to quickly clean up his penis. (Tr. 590-91.) Grant told Dominique "don't tell anybody or you're going to get a beating," which made her feel "[v]ery scared." (Tr. 592.) Several months later, however, she told her foster mother what had happened. (Tr. 594-95.)

Other Testimony

Dominique's foster mother, called as a defense witness, testified that when Dominique returned on Monday, December 21, 1992, she did not say anything about a rape and did not appear upset or depressed. (Tr. 889-91, 896, 914-17.) Dominique told her foster mother in February 1993 about Grant's alleged rape of her. (Tr. 908.) The foster mother told Dominique's social worker. (Tr.922.)

The prosecution's expert, Dr. Linda Cahill, examined Dominique for signs of sexual abuse and reported "no findings of any significance . . . [Dominique] had hymenal tissue without any signs of scars or tears or unusual thickening. [But this finding] is consistent [with] a seven-year-old child ['s claim that] a finger went in her vagina." (Tr. 735-40.)

The Prosecutor's Summation

In summation, the prosecutor emphasized that Dominique was able to describe in detail the molestation:

    [Dominique] testified in detail about what
  happened. She testified to, ladies and gentlemen,
  that when her hand was on his penis, she felt that it
  was hard but yet soft. That it was smooth like a
  baby's bottom. She said it looked like a rocket with
  hair on it. . . . And she tells you this rocket,
  this penis, all of a sudden white stuff — I think she
  used the word sludge — white sludge started coming
  out the top. And I asked her, what do you mean
  coming out the top? And she said, this ten-year-old
  said that white sludge came out where you pee, you
  know, the tip of your penis where you pee from.
    The second thing is [we] must have details of
  actual facts. Let's check that out? . . . [D]etails
  are important . . .
  That's what the defense says. . . . She's telling you
  in detail. She tells you what happened. She tells you
  how the kiss felt yucky, the tongue in her mouth felt
  yucky. She said it hurt when he put his hand on her
  vagina. How when he had his hand on the breast, he
  used his other hand to grab her hand and put it on
  his penis, and she didn't say a penis and not know
  what it was. She described it in detail.
    Ladies and gentlemen, she described in detail she
  viewed it as a rocket with hair on it and she told
  you how it was smooth. She told you how it felt. She
  told you how it looked.
    She told you how it was hard. She told you exactly
  what she did in order for the white stuff to come out
  the top. She called it the white sludge.
    She gave details. She gave how she had to wipe the
  sludge that came out from where you pee. There are so
  many details. She told you what happened. She
  remembered what affected her most. She remembered how
  it felt, what it looked like, what happened, how she
  touched it.
    Again, details and consistencies is what's
  necessary when the evaluator makes a determination as
  to whether or not a child's complaint is valid or

Ask yourself were there any details?

  Is a seven-year old capable of making a lie up and
  keeping it consistent for three years? Told so many
  times to so many different people? Is that possible?
  Especially, ladies and gentlemen, when she has no
  reason to make this up. She has benefitted zero. She
  has lost a lot.

(Tr. 1005-06, 1053-56, emphasis added.)

The Pretrial Preclusion Hearings

Prior to the trial, the prosecutor moved "to preclude evidence or testimony regarding prior sexual abuse of the complainant [Dominique] . . . under [New York] CPL 60.42," New York's rape shield law. (Tr. 26-27.)

The defense argued that these incidents were admissible under CPL 60.42(5) (quoted at page 13 below), the provision of New York's rape shield law which provides that after a hearing, a court may admit evidence that would otherwise be excluded if it is relevant and admissible in the interests of justice. (E.g., Tr. 28.) The defense argued, as to the prior rape:

    The fact, however, that she had this sexual
  experience is very relevant to the issue at this
  trial for this reason: Normally where you have a case
  which like this is based entirely on the testimony of
  the child, . . . the jury is going to ask this
  question: How would a child know about these specific
  sexual acts unless it had actually been committed by
  the defendant? And the answer in this case is she
  would know about it because she had previously been
  the victim of a sexual offense.
    Second, your Honor, there is another allegation of
  sexual molestation that the child had made against
  another individual and that is a teacher at her
    And so I do feel there is a fair issue in this case
  of whether the child does have a history of ...

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