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Chase v. Berbary

December 8, 2005

CARL D. CHASE, PETITIONER,
v.
JAMES BERBARY, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

INTRODUCTION

Carl D. Chase ("Chase") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Erie County Court on one count of first degree rape and one count of endangering the welfare of a child. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. §636(b).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Chase was charged on May 16, 1996, with raping the eight-year-old daughter of the woman with whom he was having a romantic relationship at the time. The indictment contained two counts: rape in the first degree (N.Y. Penal Law § 130.35(3)) and endangering the welfare of a child (N.Y. Penal Law § 260.10(1)).*fn1 Chase's jury trial commenced on July 7, 1997, in Erie County Court (DiTullio, J.). A summary of the relevant trial testimony follows.

In April of 1996, Barbara Goodrum ("Goodrum") lived with her eight-year-old daughter ("the complainant" or "J.D.") in the City of Buffalo. Prior to January of 1996, she had had a sexual relationship with Chase, a part-time deputy sheriff who worked at the county jail. Chase regularly provided Goodrum with financial assistance and bought things for her and her daughter. In January 1996, Goodrum decided that she needed to take a vow of celibacy as part of her effort "to turn her life around." According to Goodrum, Chase had no quarrel with this decision and they continued to see each other socially. Goodrum described Chase as a "gentleman" and rather passive.

On April 24, 1996, Goodrum left work, picked up her daughter at the East Ferry YWCA after-school program, and arrived home between 5:30 and 6:30 p.m. Chase telephoned Goodrum between 6:30 and 7:00 p.m. and said that he wanted to get together. When Goodrum stated that she had just purchased a VCR but did not know how to hook it up, Chase offered to do it for her.

T.280-81.

Goodrum testified that she put J.D. to bed at 8:45 p.m. that she was asleep by 9:00 p.m. T.239-40. Between 11:30 and 11:45 p.m., Goodrum went across the street to her mother's house to borrow an iron. T.241. She checked on her daughter before she left, and J.D. was still asleep. As Goodrum was leaving her house, Chase was pulling up in the driveway. T.242. She told him where she was going to her and continued on her errand. Goodrum returned moments later, went through the front gate, entered the house, and encountered Chase, who was coming into the kitchen from the front sitting room. T.253. Chase commented that she did not have anything to drink and asked if she needed anything from the store. When she replied affirmatively, he handed her a twenty-dollar bill and said that she could go get what she needed. T.254. Goodrum put on sweatpants and a jacket and left the house. T.255. Before leaving, she noted that her daughter was still asleep. At that time, Chase was hooking up the new VCR.

Goodrum walked to the twenty-four-hour convenience store at the corner, which took "five or ten minutes at the most." T.257. She purchased beer, cereal, milk, and some snacks for her daughter, and chatted with the store owners for several minutes. T.258. She stated that she was not in a hurry to return home since her daughter had been in Chase's care alone before without any problems. She estimated that her trip to the store and back home took about twenty-five minutes. T.258-59.

When Goodrum returned home, she noticed that Chase's socks and shoes were off; one sock was in the kitchen, and his sneakers "were going into [her] sitting room by the sofa." T.259. Goodrum put the groceries down on the kitchen table and went to get changed. Goodrum went into her daughter's bedroom and saw that she was "moving around in the blanket . . . like she was hiding her head[.]" T.261. Goodrum turned on the light and asked her daughter what she was doing awake, at which point J.D. said, "Come here." T.261. Goodrum noticed that her daughter "had water in her eyes and she was looking like kind of frantic like" and had "a little tremble to her." Id. Goodrum asked, "What's wrong?" Her daughter "grabbed [her] real tight" and said, "Where you been?" Goodrum said that she had gone to the store. Her daughter then said, "Don't leave me." Goodrum laid down on the bed with her because J.D. was still clinging tightly to her, and stayed with her until she went to sleep. T.261.

Goodrum walked in to the sitting room where Chase was "slouched down on the sofa." His pants "were not fastened all the way and they were coming off his waistline." T.264. His belt was hanging off the loops and he did not appear to have underwear on, although Goodrum stated that it was not Chase's normal practice to wear underwear. T.264. Goodrum asked Chase if he heard that J.D. was awake. Chase responded, "No." When Goodrum asked Chase if he was sure, he "very quickly" said, "I didn't move from this couch." T.265. At that point, Goodrum said, the situation "didn't feel right"--her daughter was awake at midnight, which was unusual. Concerned, Goodrum began pacing around the downstairs. Chase then told her to get him a Heineken. She did so, and they watched all of the videotapes he had brought. Goodrum said her mood was "distant" and that she sat at the opposite end of the couch. Chase left at about 3:30 or 4:00 a.m.

The next morning, Goodrum woke up her daughter at 6:30 a.m. While watching the news, Goodrum heard that her friend Pamela Ingram had been murdered the previous night. She became hysterical. J.D. tried to talk to her, but Goodrum was not in any condition to listen. Goodrum rushed her daughter out to the bus stop and then went Ingram's relatives' house for the day. When Goodrum picked J.D. up from the YWCA at 5:30 pm., she was told that J.D. had not acted like herself that day. When Goodrum brought J.D. back to Ingram's relatives' house, J.D. acted like a "little baby" and would not leave her mother's lap. J.D. wanted to go home even though there was candy, food and other children to play with.

Later that night, after they returned home, J.D. told her mother that "Mr. Carl" had come into her room the night before and "something pricked her girl thing." T.274. She was sure it was Chase because she saw his glasses. T.274. When Goodrum asked what else happened, J.D. became scared and refused to divulge any more details, saying that she did not remember. When J.D. asked her mother what she was going to do, Goodrum replied that she would take care of it.

The next day, which was Friday, April 28, Goodrum sent her daughter to school as usual. That night, she called Chase at his home. He claimed that he did not leave the sofa on the night of April 26. T.276. When told what the complainant had said, he stated that he had a niece and would not do anything like that. Goodrum asked Chase how J.D. could have known that Chase was there that night since she had been in bed and asleep when he arrived. Chase could not say. Chase then changed the subject and asked Goodrum how she was fixed for money. T.276-77. When Goodrum stated that she was going to get to the bottom of the incident, Chase said that he would hire the best lawyer money could buy. He stated that her accusations would "backfire" on her and she would lose her daughter. Goodrum was worried that this was a possibility since she had a history of several petty larcenies and misdemeanors. T.279-82.

Chase called her again that night to find out what she was planning to do. When she told him that she was going to prosecute, he became "arrogant" with her. Goodrum then called a friend of hers on the Buffalo police force and asked for advice. She was told that if she was unsure about the accusations, she should "drop it," but if she was sure, she should "take it all the way." T.283. After that phone call, Goodrum went to talk to a couple of the "tough guys" that lived in her "highly drug infested neighborhood" about putting a "hit" out on Chase. T.284. The two men agreed to do it "cheap" for about $250 or $300. T.284. However, Goodrum would not have the money to pay them until her pay day the following week.

Meanwhile, the complainant had spent Friday night at her grandmother's house. On the morning of Saturday, April 29, the grandmother called Goodrum to say that J.D. had slept very poorly the night before--she was "kicking, whining and saying no." T.285. As a result of that conversation, Goodrum reported the suspected rape to the police but did not give them Chase's name. T.286. The police told Goordum to bring J.D. to be seen by a doctor. T.286. When J.D. returned home from her grandmother's a little later that day, she complained that her "girl thing" was hurting. T.287.

Goodrum brought her daughter to the Deaconess Treatment Center to be examined. J.D. was extremely uncooperative and would not let the doctor examine her, so they left. When they returned home, Goodrum told J.D. that she was going to have Chase "knocked off." Her daughter said, "Don't do that. Just call the police." T.288. She said that Goodrum would go to jail and "she would lose her mommy." T.288.

The following Wednesday (the day before Goodrum's pay day), J.D. did not want to go to school. As Goodrum was getting ready to leave for her noon swing shift, the school called and said that she must come get J.D. immediately because J.D. had broken out into hives all over her body. T.289. J.D. had never had that kind of reaction before. Goodrum took her to Health Care Plan where she was seen by nurse practitioner Kathy McDonnell ("McDonnell") . T.291. Neither Goodrum nor J.D. mentioned the suspected rape at first, but during the physical examination, Goodrum suddenly asked McDonnell whether it looked as though J.D. had been abused. T.452. McDonnell asked Goodrum what she meant, and Goodrum said she wondered whether the child could have been touched. T.452. At that point, McDonnell had J.D. get dressed so she would feel more comfortable.

McDonnell attempted to question J.D., but she was very reticent and really did not answer. Goodrum started to get upset and interrupt, asking, "Did he touch you, did Mr. Carl touch you?" T.452. McDonnell then asked Goodrum to leave the room. When McDonnell questioned J.D. about what had happened with Chase, J.D. said that "Mr. Carl put his dick into where she peed." T.455. J.D.'s vaginal area appeared to McDonnell to be red and irritated, more red than what would normally be seen. T.456. McDonnell also noticed some milky discharge and some clumping of whitish material around the labia, which made her suspect that J.D. had a yeast infection. T.457. Finally, McDonnell observed that the vaginal opening appeared irregular in shape, and there were two possible tears in the tissue. T.457.

McDonnell then sent J.D. to undergo a rape exam at Children's Hospital. Dr. Michelle Penque, the resident who saw J.D., was not able to do a thorough exam because J.D. was combative and needed to be restrained. T.497-98. However, Dr. Penque was able to see that there was "marked amounts of erythema or redness" in the vaginal area. T.501. She also felt that J.D. could have had a yeast infection, which was uncommon in a normal eight-year-old girl.

On May 2, 1996, J.D. was seen by Dr. James Canavan, a pediatrician with expertise in treating cases of sexual abuse in children. T.520. During his examination of J.D., Dr. Canavan found that the entire vaginal area was reddened and there was an off-white discharge. T.521.

The colposcopy revealed fissures at "5:30" and "7:00" in the back wall of the vagina. T.524, 528. The nature and placement of the tears had specific significance in terms of Dr. Canavan's assessment that it was extremely likely that J.D.'s vagina had been penetrated by a male penis. T.528, 529. He testified that the fissures were consistent with an erect penis having entered the victim's vagina while the victim was in a supine position. T.530, 532. In fact, he stated on cross-examination, it was a "high 90 percent likelihood" that an erect penis caused the fissures he saw in the victim's vaginal tissue. Dr. Canavan further testified, to a reasonable degree of medical certainty, that the fissures were not caused by J.D. scratching herself. T.530. Dr. Canavan also stated that it was possible to have the hymen intact yet still have fissures or tears caused by a penis. T.533.

J.D. testified that when she said, "Mr. Carl did a bad thing to [her]," she meant that he "put something in [her]." T.421. She stated that while she was lying on her back in bed that night, Chase put his "d-i-c-k" [sic] into her "girl thing." T.422. She said that Chase lifted her nightgown up and moved her underwear aside. T.423. J.D. testified that she was sure that Chase was the one who did this; she recognized his glasses. T.424. She related that it "hurt a lot" but she did not cry or yell for help because she knew that her mother was not in the house and she was scared. T.424. J.D. testified that she was "pretend asleep" but she was really awake while Chase did the "bad thing" to her. J.D. stated that Chase did the "bad thing" for a "little time" but stopped after the gate slammed, which meant that her mother was home. T.425.

Sheri Bell, a certified social worker, was qualified as an expert, T.566-67, and testified regarding the characteristics of child sexual abuse syndrome. T-582. The court briefly instructed the jury that, under the law, Bell could not conclude whether J.D. suffered from child sexual abuse syndrome. T.587.

Chase did not testify in his behalf, but he did call three character witnesses: a former girlfriend and her niece, and a childhood friend who had not had much contact with Chase since college. They testified as to his propensity for truthfulness and honesty and his "peaceful" nature.

Finally, a private investigator testified for the defense that he traced the route that Goodrum took to the corner store, walked around the store, purchased a few items, and walked back to Goodrum's house. T.654. The videotape of this was introduced into evidence; the total trip, according to the tape, took only about nine minutes.

On July, 15, 1997, the jury returned a verdict convicting Chase of both counts of the indictment. On October 1, 1997, Chase was sentenced on the rape charge to an indeterminate sentence of 8 to 16 years imprisonment. A concurrent one-year ...


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