that counsel's errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable," and that there is a reasonable
probability that "but for" the claimed errors of counsel, the trial result
would have been different. Strickland, 466 U.S. at 687, 694.
In this case, Mr. Bohan argues that he was denied the effective
assistance of trial counsel in three respects: (1) defense counsel's
failure to file alibi notices for any of the proposed alibi witnesses;
(2) his failure to advise the petitioner of his right to be present
during the taking of the testimony of Carmen Rodriguez; and (3) counsel's
"overall inept performance throughout the trial." (Pet. Memo. at 48).
Because the petitioner's claim of ineffectiveness for failure to give
notice of a proposed alibi witness is intertwined with his substantive
claim that he was denied the right to present a defense, these two issues
will be discussed together below. The other alleged instances of
ineffective assistance did not cause sufficient prejudice to the
petitioner to warrant habeas relief.
Mr. Bohan testified and filed an affidavit stating that counsel never
informed him of his right to be present during the examination of Carmen
Rodriguez, and that he never waived this right. (First Fed. Tr. 33-34;
Affidavit of Robert Bohan dated Nov. 10, 2000, attached to Reply
Memorandum of Law in Support of the Petition for a Writ of Habeas
Corpus). Although this evidence, if credited, might indicate deficient
performance by counsel, the petitioner has not demonstrated that his
presence in the examination room would have altered the proceeding in any
way. Therefore, he has not established that the alleged error gave rise
to any prejudice. See Strickland, 466 U.S. at 694.
The petitioner also recites several examples of the overall lack of
skill of defense counsel, including his failure (1) to object to portions
of the prosecution's opening statement; (2) to give an opening
statement; (3) to turn over Mr. Rodriguez's statement to the prosecution
as required by People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448 (1961);
(4) to cross-examine Officer Vasquez about potentially exculpatory
evidence; (5) to impeach Jamal Williams; (6) to call Manny Martinez as a
witness; (7) to object to the prosecutor's improper summation; and (8) to
request a limiting charge regarding erroneously admitted testimony.
(Pet. Memo. at 48-51). The petitioner has again not established that "but
for" these failings the outcome of the trial would have been different.
Strickland, 466 U.S. at 694.
F. Preclusion of an Alibi Witness
The petitioner claims the trial court's preclusion of the testimony of
Bernardo Rodriguez deprived him of his right to compulsory process and his
right to present a defense, notwithstanding the fact that the petitioner's
trial counsel failed to serve an alibi notice for this witness.*fn24 By
contrast to the claims discussed above, this one has merit.
Under the Compulsory Process Clause of the Sixth Amendment, defendants
have the right to present witnesses at trial. U.S. Const. Amend. VI
(criminal defendants have "the right . . . to have compulsory process for
obtaining witnesses in his
favor"); see also Michigan v. Lucas,
500 U.S. 145, 149 (1991); Taylor v. Illinois, 484 U.S. 400, 407-09
(1988). This right is not boundless; courts may limit the presentation of
evidence in many ways, including the preclusion of testimony if the party
seeking its admission has not complied with the pertinent discovery
rules, such as an alibi notice statute. Taylor, 484 U.S. at 411
(preclusion of exculpatory testimony because of defendant's failure to
comply with alibi notice statute does not violate Sixth Amendment); see
also Lucas, 500 U.S. at 152-53 (preclusion of evidence of defendant's own
past sexual conduct with victim because of defendant's failure to comply
with notice-and-hearing requirements of rape — shield statute not
per se violation of Sixth Amendment). Indeed, in Taylor, the Supreme Court
found it "entirely consistent with the purposes of the Compulsory Process
Clause simply to exclude the witness' testimony" where the failure to
comply with an alibi notice statute was "willful and motivated by a
desire to obtain a tactical advantage that would minimize the
effectiveness of cross-examination and the ability to adduce rebuttal
evidence." 484 U.S. at 415.
In determining "the fundamental character of the defendant's right to
offer the testimony of witnesses in his favor," the court must balance
"[t]he integrity of the adversary process, which depends both on the
presentation of reliable evidence and the rejection of unreliable
evidence, the interest in the fair and efficient administration of
justice, and the potential prejudice to the truth-determining function of
the trial process." Id. at 414-15 (footnote omitted); see also Noble v.
Kelly, 246 F.3d 93, 99 (2d Cir.), cert. denied, ___ U.S. ___, 122 S.Ct.
The Second Circuit's recent decision in Noble is particularly
instructive because its fact pattern is similar to that presented in this
case. In Noble, the petitioner was found guilty of a murder that occurred
outside a bar. At trial, the defense offered a witness who would testify
that he was inside the bar with the petitioner at the time of the
murder. The prosecution objected to the witness because no alibi notice
had been given. Defense counsel countered that the witness was not an
alibi witness because the complaint specified the crime scene as the
vicinity of the bar, and the witness would place the petitioner in the
bar, which was at the scene of the crime. The trial court found that the
crime scene was only in front of the bar, and excluded the witness based
on defense counsel's failure to give notice under the statute. Id. at
96. On appeal, the Appellate Division found that even if the judge
committed error by precluding the witness it was "harmless in view of the
overwhelming evidence of guilt." People v. Noble, 209 A.D.2d 735,
735-36, 618 N.Y.S.2d 123, 124 (3d Dep't 1994).
On habeas review, the Second Circuit focused on the potential prejudice
to the prosecution and the willfulness of the defense attorney's
actions. Noble, 246 F.3d at 99-100. It concluded that where "the state
trial court could have used less onerous sanctions (such as an
adjournment) to minimize any prejudice to the prosecution, . . . a
finding of willfulness was therefore required to justify the exclusion of
[the precluded witness'] testimony." Id. at 100. Because the state court
had failed to make such a finding, the Second Circuit found that it had
violated the petitioner's Sixth Amendment rights. Id.
In this case, no evidence was presented either at trial or at the
hearing held in this Court from which it could be inferred that Mr.
Rawlins' failure to give notice to the
prosecution of Bernardo Rodriguez
was willful or motivated by a desire to gain a tactical advantage.
Although Mr. Rawlins certainly did not demonstrate good cause for the
failure to give timely notice, cf. Anderson v. Groose, 106 F.3d 242, 246
(8th Cir. 1997) (not willful where no evidence that defense counsel knew
name of alibi witness before morning of trial), the inability to provide
a good excuse does not mean that defense counsel acted willfully. See
Noble, 246 F.3d at 99-100; Escalera v. Coombe, 852 F.2d 45, 48 (2d Cir.
The petitioner, citing to Noble, 246 F.3d 93, claims that Mr. Rawlins'
failure to comply with the statute was due to a misinterpretation of the
law and, therefore, was not willful. (Post-Hearing Memorandum of Law in
Support of Petition for Writ of Habeas Corpus at 2-3). After the trial
judge indicated that she was going to exclude Mr. Rodriguez from
testifying, Mr. Rawlins changed tactics and argued that his failure to
comply with the alibi notice statute was due to his misreading of the law
and his mistaken belief that Mr. Rodriguez was not an alibi witness
because the time of the murder had not been established and Mr.
Rodriguez's statement made no mention of the petitioner's whereabouts at
the time of the crime. (Tr. 309). This post hoc argument is
unconvincing. The record amply supports the conclusion that Mr. Rawlins'
failure to come forward earlier with Mr. Rodriguez as an alibi witness
was due to a combination of his last minute trial preparation,
forgetfulness, and ineptitude, not to any misinterpretation of the law.
Indeed, Mr. Rawlins suggested that he simply forgot about Mr. Rodriguez
after they met in March 1994, until the third day of trial when the
prosecution concluded its case and the defense began its presentation.
That morning, Mr. Rawlins apparently received a phone call from another
alibi witness, which caused him to review his file and discover Mr.
Rodriguez's statement. (Tr. 297, 345). Mr. Rawlins reiterated this
rendition of the events at the hearing held before this Court. (Second
Fed. Tr. 4, 11).*fn25
The respondent argues that Mr. Rawlins was aware of Mr. Rodriguez and
intended to call him as a witness by July 5, 1995, seven days before the
prosecution rested, and yet still failed to submit an alibi notice. The
respondent relies on Mr. Silberg's testimony from the hearing held in
federal court, in which he said that shortly before jury selection
began, Mr. Rawlins told him that he wanted to call some alibi witnesses
and that not all of them had testified before the grand jury. Mr. Silberg
expressed his displeasure with Mr. Rawlins' failure to comply with the
notice statute, and informed Mr. Rawlins he was not concerned about the
witnesses with whom he was familiar, but that they would have to discuss
the matter with the judge on the record. Mr. Silberg did not recall
whether Mr. Rawlins specifically mentioned Mr. Rodriguez's name. (First
Fed. Tr. 40-41). The only indication of this conversation in the state
record from July 5 is the following:
THE COURT: The Defendant testified and served alibi
MR. SILBERG: Correct.
THE COURT: Is there going to be an alibi again?
MR. RAWLINS: He agreed to accept a late notice.
(Voir Dire Tr. at 4).*fn26 Despite this colloquy, Mr. Rawlins never did
serve alibi notice for any of the alibi witnesses. Even if Mr. Rawlins had
intended to call Mr. Rodriguez by July 5, his failure to do so does not
appear to be motivated by any strategic concerns, but was more likely due to
his general incompetence.
Moreover, whether Mr. Rawlins became re-acquainted with Mr. Rodriguez
immediately before the trial or five days later, as Mr. Rawlins stated at
the Dawson hearing, is of little importance to this analysis because the
state court never made any finding of willfulness nor inquired into
whether defense counsel's "failure to comply with the notice requirement
was designed to frustrate the truth-seeking function of the trial." Noble
v. Kelly, 89 F. Supp.2d 443, 457 (S.D.N.Y. 2000), aff'd, 246 F.3d 93 (2d
Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 197 (2001). After the
prosecution objected to Mr. Rodriguez testifying, the state court
precluded the witness, finding that it was "a clear violation of the
statute." (Tr. 308). The court did not make any specific determination
about Mr. Rawlins' motivation in not coming forward sooner with
information about Mr. Rodriguez. Again, on appeal, the state court did
not probe this issue and merely found that the trial court properly
exercised its discretion in precluding Mr. Rodriguez from testifying,
since defense counsel failed to comply with the statute and the
prosecution was not given an opportunity to investigate Mr. Rodriguez.
Where the state court has not made any finding as to willfulness, as is
the case here, the petitioner is denied his right to present a defense.
See Noble, 246 F.3d at 100.
Nevertheless, the respondent asserts that in Noble the Second Circuit
left open the question of whether a finding of willfulness is necessary
for a Sixth Amendment violation. (Resp. Post-Hearing Memo. at 15). The
respondent goes on to argue that the court should consider the cumulative
nature of Mr. Rodriguez's testimony, his bias, and his lack of
credibility in determining whether the petitioner's Sixth Amendment
rights were violated, and that all of these factors demonstrate that
there was no constitutional infirmity at trial. (Resp. Post-Hearing
Memo. at 17-22). These factors, however, are more properly addressed in
the harmless error analysis. More importantly, the respondent
misconstrues Noble. There the court stated,
We . . . need not decide whether, and to what extent,
a finding of willfulness is required in every
case. . . . For purposes of the present case, we need
only conclude that where prejudice to the prosecution
can be minimized with relative ease, a trial court's
exclusion of alibi testimony must be supported by a
finding of some degree of willfulness in defense
counsel's violation of the applicable discovery
Noble, 246 F.3d at 100 n. 3. Here, the same circumstances are present:
the trial court could have minimized any prejudice to the prosecution
with a short adjournment,