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
REPORT AND RECOMMENDATION
PECK, United States Magistrate Judge.
To the Honorable John E. Sprizzo, United States District Judge:
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 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.)
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.
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
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
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 ...