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GROTTO v. HERBERT

May 1, 2002

LOUIS GROTTO, PETITIONER, VS VICTOR HERBERT, SUPERINTENDENT, COLLINS CORRECTIONAL FACILITY, RESPONDENT.


The opinion of the court was delivered by: David N. Hurd, United States District Judge.

  MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On April 20, 1998, petitioner Louis Grotto ("petitioner" or "Grotto") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 24, 2001, United States Magistrate Judge Gary L. Sharpe filed a Report-Recommendation which recommended dismissal of the petition. Petitioner filed objections to the Report- Recommendation on February 6, 2001, pursuant to 28 U.S.C. § 636(b)(1). The respondent did not reply to the objections. The matter was received without oral argument.

II. FACTS

The following are the facts necessary to a determination of the instant petition.

On November 5, 1994, Grotto was convicted in Ulster County Court at Kingston, New York, upon a jury verdict of the crimes of Rape in the First Degree, Sexual Abuse in the First Degree, Incest, and two counts of Endangering the Welfare of a Child. On December 14, 1994, he was sentenced to a term of imprisonment of six to 18 years.

The rape and incest charges arose out of an alleged sexual assault by Grotto on his six-year old daughter at the townhouse of Grotto's sister, Linda Noe ("Noe"), on the morning of her wedding. The endangering charges arose out of alleged sexual assaults by Grotto of his daughter and the other 12-year old daughter of his live-in girlfriend, Kimberly O'Brien ("O'Brien").*fn1 O'Brien and her two daughters were the primary fact witnesses in the prosecution case.

The petitioner's six-year old daughter was the only fact witness against him regarding the alleged sexual assault at the Noe townhouse. She testified specifically that the assault had occurred at the townhouse on the morning of Grotto's sister's wedding. Grotto's defense to the rape and incest charges was an alibi defense. He offered proof that he had not been at Noe's townhouse at all on the day of the wedding. To discredit Grotto's alibi defense, the prosecution offered certain photographs into evidence that were allegedly taken by Grotto at the Noe townhouse on the morning of Noe's wedding. These photographs were received into evidence by the trial judge, the Honorable Edward A. Sheridan. The defense concluded its proof and rested at approximately 7:00 p.m. on Thursday, November 3, 1994.

At approximately 10:10 a.m. the next morning, Friday, November 4, 1994, defense counsel informed Judge Sheridan that he had received a telephone call from Grotto that morning. Grotto indicated that his family had found additional photographs from the same negative string as the ones containing the pictures which the prosecutor used to discredit his alibi, and that these additional photos proved that the photos used by the prosecutor were, in fact, not taken by Grotto. The defense moved to reopen the case to call Rochelle Grotto ("Rochelle"), the wife of petitioner's brother.

Grotto's attorney informed the court that Rochelle would testify that, based upon a review of the photographs from the negative string mentioned above, that it was her husband, Ralph Grotto ("Ralph"), not petitioner, who had taken the disputed photographs. She was prepared to testify that she knew this because she had made handwritten notations on the back of the photographs taken by her husband, and because his photographs were developed on different paper than the photographs taken by petitioner.*fn2

Based upon this new information, Grotto's attorney moved for a continuance until the following Monday, November 7, 1994. Alternatively, the defense requested a continuance until 2:00 p.m. that same afternoon for Rochelle to fly from her home in Rochester to Kingston. As a final option, he requested that the defense be allowed to call Rochelle's niece, Renee Planke ("Planke") to identify the handwriting on the photographs in question as Rochelle's. Judge Sheridan denied petitioner's request for a brief continuance to allow Rochelle to testify, ruling that

it seems to me that the evidence that the defense has discovered and seeks to introduce now after the defense has rested . . . is hardly conclusive with respect to the defendant's guilt or non-guilt, and in the Court's view, the People's proof with respect to the sequence of negatives is hardly conclusive for its theory or its version of what the negatives show. Each side is free to argue it. I'll let you argue it as you see fit. But it seems to me the evidence is hardly conclusive that these photographs were taken by the camera owned by the defendant. It's hardly conclusive that it places him there. I mean, there's testimony throughout the trial that several people were taking photos. There is nothing conclusive on either side of the case linking these particular negatives to the defendant's camera. So you're each free to argue it as you see fit, but I'm not going to reopen for the purpose put on the record by defense counsel or grant a continuance until Monday or until later in the day.

[RA 536-37] (Emphasis added.) Judge Sheridan also declined to reopen the case to allow Planke to testify. The parties then proceeded to make their closing arguments.

The defense closing highlighted Grotto's claim that he was not at the Noe townhouse and that he had not committed the acts alleged. The defense also focused upon the lack of physical evidence, and attacked the credibility of the three primary fact witnesses in this case (O'Brien and her two daughters). The prosecution's closing, among other things, vigorously attacked Grotto's alibi defense through the disputed photographs and by arguing that it was not logical for Grotto to stay away from the Noe townhouse on the morning of his sister's wedding because his family members had gathered there and he was the official photographer for the wedding.

Specifically, the prosecution argued that

when a false alibi is introduced into evidence, [the judge] tells you that that person who introduced that false alibi is conscious of guilt, of his guilt in that instance, and you know why? You know why that alibi is false in those negatives up there . . . . The pictures do show that he was there, she was there and the negatives tell you that the sequence of events are exactly the way she said them.

[RA 585-86] (Emphasis added.) Referring to the photographs developed on Kodak paper, the prosecution also argued that

the fact of their being together on that exhibit tells you that the same person who took this picture was the same one who took all these other pictures at the house. And that person who took this picture is Louis Grotto, and that person who took these photos is Louis Grotto, and he was in the house, and this makes it very clear.

[RA 598-600] (Emphasis added.) By attacking the alibi defense through the photographs taken at the Noe townhouse allegedly by Grotto, the prosecutor sought to discredit Grotto and all of his alibi witnesses who testified that he was not at the Noe townhouse on the morning of the wedding.

Following the closing arguments, Judge Sheridan charged the jury. With regard to Grotto's alibi defense, Judge Sheridan instructed the jury that

[T]he defendant has presented evidence that he was someplace else when the crime[s] alleged in counts one, two and three of the indictment occurred. In our law, this is known as an alibi defense. In order for you to convict the defendant, the People must disprove the alibi defense beyond a reasonable doubt. If the evidence as to alibi in and of itself or when taken into consideration with all the other evidence in the case creates a ...

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