UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
December 27, 2005
SHERAIN BRYANT, PETITIONER,
ELAINE A. LORD, SUPERINTENDENT, RESPONDENT.
The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge.
REPORT AND RECOMMENDATION TO THE HONORABLE KIMBA M. WOOD
In this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, petitioner Sherain Bryant ("Bryant") challenges her conviction, on one count of Murder in the Second Degree, following a jury trial in Supreme Court, Bronx County. (Pet. ¶¶ 1, 4, 6). The charge against Bryant arose out of the brutal death of her four-year old daughter, who was the victim of extensive abuse. (See S. 26-27).*fn1 On June 13, 1996, Justice Joseph Fisch, before whom the case was tried, sentenced Bryant to an indeterminate prison term of twenty-five years to life. (Id.). The Justice also recommended to the New York State Division of Parole that Bryant "never be granted parole" and "remain incarcerated for the rest of [her] natural life" because she was "not fit for human society." (Id. at 27).
Bryant's petition raises just one claim. Bryant contends that she was denied both her Sixth Amendment right to present a defense and her Fourteenth Amendment due process right to a fair trial because the trial judge refused to admit a proposed expert witness' testimony regarding battered women's syndrome in support of her duress defense. (See Pet. at 12.A; Pet'r's Mem. at 1).
For the reasons that follow, Bryant's petition should be denied.
1. People's Case
a. Trial Testimony
The People's proof at trial established as follows: On March 28, 1994, at approximately 7:20 p.m., Police Officer Michael Kelly ("Kelly") entered Apartment 424 at 760 East 183rd Street in the Bronx in response to a "911" call. (T. 111-13). There, he observed four-year-old Shayna Bryant ("Shayna"), who was lying on her back on a table. (Id. at 113-14). The child was dead and appeared to have been "badly beaten," with a "tremendous bruise" on her forehead, and "bruises" and "cigarette burns" on her arms. (See id. at 113, 120). Emergency Medical Services personnel previously had arrived at the apartment, and Orlando Bryant ("Orlando"), the child's father, was there. (See id. at 113-14). Detectives Thomas Murray ("Det. Murray") of the 48th Precinct and Frank Katen of the Crime Scene Unit also responded to the scene and saw Shayna's condition. (Id. at 289-91, 342-44). The detectives observed blood throughout the apartment --on walls, bed sheets, and in the bathtub -- as well as human feces on the bathroom floor, and a pail of dirty water in the bathtub with undershorts floating in it. (Id. at 291-92, 356, 358, 363-64, 379).
Shayna Bryant had lived in the apartment with her mother Sherain, her father Orlando, her sisters Alanda, Joi and Sherain, and her brother Rahman. (See id. at 163-65, 201-03). Alanda testified that on the night their sister died -- which, sadly, was her birthday -- Orlando had beaten Shayna in Rahman's room. (Id. at 213, 220). Orlando and Bryant also hit and kicked Shayna in the bathroom, as well as in the hallway. (Id. at 187-190, 215, 219-21). As a consequence, Shayna was crying and soiled herself. (Id. at 221). When Shayna emerged from the bathroom, Orlando put her on the couch, but later moved her to the kitchen table. (See id. at 216, 218). Joi, who pretended not to know what her parents had done, asked Bryant what had happened. (Id. at 165). Bryant admonished Joi to "shut up before I do the same thing [to you] that I did to Shayna." (Id.). Bryant then called "911" to report that Shayna -- who was not asthmatic -- was having an asthma attack. (Id. at 216-17, 232-233). Shortly thereafter, Bryant took her four other children to her sister's house. (Id. at 166, 234).
Bryant eventually contacted the 48th Precinct Detective Squad in response to Det. Murray's telephone calls to some of her relatives. (Id. at 296-97). Det. Murray then drove her to the precinct from 105 West 168th Street. (Id. at 298, 301). At the time Det. Murray first saw Bryant, she appeared upset, but he did not detect any bruises on her, nor did she ask to see a doctor. (Id. at 300).
At the precinct, Bryant made no claim that Orlando had hit her. (Id. at 331). With respect to the injury to Shayna's forehead, Bryant told Det. Murray that Shayna and Joi had been burned by hot oil or grease as the result of a kitchen accident. (Id. at 332-33). Outside Bryant's presence, however, Orlando told an assistant district attorney that Shayna's forehead had been burned by hot water. (Id. at 324-25, 333). Orlando also admitted that he often had tied Shayna to a chair at night to prevent her from scratching sores on her head and hands. (Id. at 326-27).
Shayna was not the only victim of abuse in the household. Months before Shayna's death, Alanda watched her mother burn the bottom of her sister Joi's feet with a curling iron. (Id. at 223-24). Additionally, before Joi's birthday in 1993, Bryant and her husband Orlando pushed Joi into a wall, an incident that left her blind in one eye. (Id. at 168-69). After that birthday, when Orlando was not at home, Bryant also burned Joi's hand by rolling a "hot curler" back and forth on it.*fn2 (Id. at 166-67, 177, 192). Bryant and Orlando also tied Joi to a chair fitted with pink straps when she "lied." (Id. at 196, 205-06, 240). At times, Orlando took Joi into the bathroom and hit her. (Id. at 187). Bryant also hit Joi with a belt and burned her neck with a cigarette and her arm with a clothes iron. (Id. at 190, 241-42). On one occasion, Bryant threatened to cut off Joi's tongue while she wielded a knife. (Id. at 192-94). Not surprisingly, Bryant never took Joi to the hospital or sought any treatment for any of her injuries. (Id. at 168, 224).
Bryant also hit her daughter Alanda at times. (Id. at 222). Alanda testified, however, that Bryant and Orlando hit Shayna more than their other children. (Id. at 213). They both tied Shayna to the chair, often leaving her there all night, which led to her urinating on herself. (See id. at 196-97, 206-07, 225). Bryant would hit Shayna with her hands or a belt when Orlando was not at home. (Id. at 191, 215). She also burned Shayna's neck with cigarettes. (Id. at 214). On one occasion, Bryant burned Shayna's hands with a hot curling iron. (Id. at 209-10, 244-45, 279). Alanda testified that her mother hurt Shayna because Bryant "hated" Shayna and thought that she was "ugly." (Id. at 214). Orlando also hit Shayna with his hands or kicked her. (See id. at 211). Sometimes, Bryant would tell Orlando to stop hitting Shayna because their neighbors might hear him. (Id. at 211-12).
Joi eventually was examined at Jacobi Hospital, where she falsely told a doctor that her hand and Shayna's head had been burned while she and Shayna were baking a cake for Sherain. (See id. at 118, 166, 182-83). At trial, Joi testified that she said this pursuant to Bryant's instructions. (Id. at 195). According to Joi and Alanda, the truth was that Bryant had burned Joi's hand with a curling iron, and Orlando had burned Shayna's forehead by placing her in a tub of hot water. (Id. at 166, 211).
The medical examiner's autopsy on the day after Shayna's death established that she "died as a result of child abuse syndrome with multiple, recent and healed blunt force and thermal or burn injuries of the head, torso and extremities." (Id. at 403, 442). Thus, Shayna's death was not caused by a single injury, but, rather, a "pattern of multiple injuries" suffered over a period of time. (Id. at 442-45, 502-503). Additionally, Shayna's malnourished condition exacerbated her injuries because she was unable to respond to them as would a properly-nourished child. (Id. at 443-44).
The medical examiner also found that Shayna had a "large" and "recent" burn on her forehead, as well as burns around her nose, and on the backs of her hands. (Id. at 406-08, 410). These burns were consistent with Shayna's skin being placed against a hot surface, such as a curling iron, and were not consistent with a hot liquid spill. (Id. at 408-10, 416). Shayna had lacerations, abrasions, bruises and contusions on her face, as well as a "multitude" of circular burns, consistent with burns from a lit cigarette. (Id. at 406, 411). Shayna also had numerous scars and abrasions on the front and back of her torso and on her legs. (Id. at 406-07). Some of these scars were consistent with fingernail scratches or being choked. (Id. at 407, 411-12). Additional abrasions on Shayna's wrists and ankles were consistent with having been restrained by, and struggling against, some type of ligature. (Id. at 407-08, 415-16, 418). There also were injuries to Shayna's buttocks and genitals which were consistent with her having been kicked, slapped, or punched in those areas. (Id. at 414, 417-18). The medical examiner further observed numerous cuts and abrasions inside Shayna's mouth and that some of her teeth had been knocked out as the result of an injury. (Id. at 419-20).
The autopsy established that near the time of her death Shayna suffered contusions where the inferior vena cava met the right atrium of her heart. (Id. at 424, 488-89). There also was tearing in one area of her pancreas, which was determined to have occurred one to two days before her death. (Id. at 425-26, 483). Two areas of bleeding into Shayna's scalp were consistent with blunt-force trauma inflicted at or near the time of her death. (Id. at 427). Her abdomen was distended, and that, coupled with her low body weight, indicated that Shayna was malnourished. (Id. at 415). An examination of Shayna's respiratory system yielded "absolutely no evidence" that she suffered from asthma. (Id. at 425, 489).
b. Transcript of Orlando's Guilty Plea
Orlando's guilty plea allocation was admitted into evidence at trial and read to the jury. (Id. at 547-71).*fn3 As the minutes reflect, Orlando was permitted to plead guilty to one count of Murder in the Second Degree on the understanding that he would receive a sentence of eighteen years to life in prison. (Id. at 548). In the course of his plea, Orlando admitted that, on the date of Shayna's death, he struck her about her head, body, and limbs approximately five to ten times because she had been drinking water from the toilet bowl. (Id. at 550-53). During the course of this attack, Shayna's head hit the toilet. (Id. at 560-61).*fn4
Orlando also admitted that on approximately four occasions, he and Bryant tied Shayna to a chair until she was asleep to prevent her from rubbing the burn on her forehead. (Id. at 553-54). Orlando stated that Bryant burned Shayna with cigarettes, hit her, and was otherwise "abusive" to her. According to Orlando, Bryant at times told the children that she hated them. (Id. at 556-57, 563).
During the guilty plea, the prosecutor indicated that had Orlando proceeded to trial, the People would have proven beyond a reasonable doubt that Shayna was malnourished, that she never received medical attention for her injuries, and that she died as a result of child abuse syndrome. (Id. at 561-62, 564-65). The prosecutor also contended that the beatings, burns, and malnutrition to which Shayna was subjected constituted a reckless course of conduct on the part of Orlando and Bryant, which created a grave risk of serious physical injury or death. (Id. at 565-66). After the prosecutor made this proffer, Orlando admitted the accuracy of the prosecutor's statements. (Id. at 566).
2. Defense Case
a. Bryant's Testimony
Bryant was the principal defense witness. She testified that her relationship with her husband Orlando was marked by physical and mental abuse. Among other things, Orlando hit her with his hands and feet (as well as a billy club, a hanger, and shoes) resulting, on one occasion, in a broken nose, and on other occasions, in fractures of two of her vertebrae and three of her ribs. (Id. at 629-30). According to Bryant, a mark below her left eye was the result of being burned by Orlando with a cigarette. (Id. at 630). She testified that her brother and perhaps some of her neighbors saw her bruises, but that she generally stayed inside so that no one could see her injuries. (Id.). Once, however, Bryant sought medical attention after Orlando broke her nose. (Id. at 687).*fn5
Bryant testified that Orlando was a drug user, who gave her heroin and cocaine, causing her to become addicted to heroin. (Id. at 631-32). Indeed, Joi and Shayna both were removed from her custody because they were addicted at birth. (Id. at 633). Eventually, however, Bryant enrolled in drug treatment and parenting programs which enabled her to regain custody of her children. (Id. at 633-34).
Bryant regained custody of all her children by 1992. (Id. at 634). Thereafter, she lived with her five children and Orlando in Apartment 424. (See id.). Bryant testified that Orlando worked nights, and that she would go to her drug treatment and parenting programs after he returned home and most of the children had left for school. (Id. at 635). Bryant said that Shayna attended day care, but that their youngest child, Sherain, would be left home with Orlando. (See id. at 636-37).
According to Bryant, Orlando had a "rule" that family members were not to discuss "family business" -- i.e., anything that happened "within the household" -- with outsiders. (Id. at 639-40). Although this was Orlando's rule, Bryant testified that she also conveyed it to their children. (Id. at 640).
Bryant testified that on one occasion Orlando punched her in the mouth, breaking her tooth, because he was angry that she had enrolled in a methadone program and was becoming "too independent." (Id. at 642-44). Despite the "rule," and over Orlando's objections, Bryant went to a dentist to have the tooth capped. (Id. at 644, 687-88, 702-03).
Bryant also testified that Orlando frequently would beat her or one of the children in the bathroom so that the others could not see. (Id. at 644). According to Bryant, after Orlando beat her, she would not talk to her children about what had transpired. (Id. at 645-46).
Bryant testified that she did not report Orlando's abuse to the police because "a man hitting a woman" was a "natural part of [her] growing up." (Id. at 647-48). Although she claimed to have felt unable to stop him, she conceded on cross-examination that she had heard of an order of protection. (Id. at 683-84). In fact, Bryant previously had obtained such an order against a man named "Smitty," which led to the termination of their relationship. (Id. at 684-85).
When she was asked about her children, Bryant denied burning Joi with either a curling iron or cigarettes, and claimed that she never saw the child burned. (Id. at 649-50). She admitted, however, that she did punish Joi for stealing and lying by spanking her buttocks with her hand or a belt. (Id.). Bryant also claimed that she "never" burned Shayna with a curling iron or cigarettes, and was not present when her forehead was burned. (Id. at 651-54, 671). She testified that it was Orlando who had inflicted cigarette burns on Shayna, although she never actually saw him do so. (Id. at 651-52). Bryant conceded, however, that Orlando was a nonsmoker. (Id.).
Bryant claimed that she never took her children to a hospital or doctor because Orlando threatened that he would kill her if she told anyone of his abuse and that her children would be taken from her. (Id. at 672-74). She admitted, however, that hospitals were open twenty-four hours a day, and that she often was alone with her children during the hours Orlando was at work. (See id. at 705-06).
With respect to the events leading to Shayna's death, Bryant testified that she heard Shayna drinking from the toilet and yelled at her, which caused Orlando to wake from his sleep. (Id. at 658). Orlando then grabbed Shayna, took her into the bathroom, and closed the door. (Id. at 658-59). While Bryant did not see what transpired in the bathroom, she claimed that she would have allowed Orlando to hit her, instead of Shayna, in an effort to "save" the child, but could not get into the bathroom. (Id. at 659, 663, 704). Although there was a telephone in the apartment, Bryant did not call the police. (Id. at 696-99).
According to Bryant, after Shayna emerged from the bathroom she walked to the living room, where Orlando kicked her, causing her to fall. (Id. at 664, 698). Bryant claimed that she then set up an "asthma machine" because she believed that Shayna was an asthmatic and because Shayna was wheezing when she came out of the bathroom. (Id. at 656, 659, 664-65, 698-99). Bryant's belief was not based on a discussion with a doctor, but, rather, a visit to a "health station," where she was told that Shayna had "respiratory problems" and was underweight. (Id. at 656-57). Bryant obtained the asthma machine when Shayna was returned to her custody from foster care. (Id. at 656).
Bryant testified that when Shayna continued to wheeze despite the use of the asthma machine, she called "911" to report that Shayna was having an asthma attack. (Id. at 660, 665, 699). Bryant stated that, pursuant to the dispatcher's instructions, she and Orlando placed Shayna on the kitchen table and began administering CPR. (Id. at 665). Bryant testified that Orlando suddenly seemed "crazy," with a "look on his face like he was going to hurt [them] all" and "had nothing to lose." (Id. at 666, 699). As a consequence, she grabbed her other children and took them to her cousin's home. (Id. at 666). When she left the apartment, Shayna was still alive. (Id.).
Bryant testified that she learned that the police were looking for her when her brother called her cousin's home. (Id.). Bryant stated that she subsequently told the police that Orlando had beaten both her and her children, but she did not provide the police with any specifics about Orlando's violence against her. (Id. at 668-69). Bryant also admitted that she lied to the police about how Shayna sustained the burn on her head. (Id. at 654). Finally, Bryant admitted that she was using drugs at the time of her arrest. (Id. at 678).
b. Rahman Smith's Testimony
Rahman Smith ("Rahman"), who was eight years old at the time of the trial, also was a defense witness. He testified that his memory of the day his sister died was "a little foggy," but that Orlando and Bryant both had hit Shayna after she drank from the toilet bowl. (Id. at 578-79, 581-82, 584). He testified further that Orlando hit Shayna with his hands and feet. (Id. at 582-83). He confirmed the presence of burns on Shayna's hands and feet, but stated that he did not know how she got them. (Id. at 586-87).
c. Marie Turner's Testimony
Marie Turner, a friend of Bryant's, was the final defense witness. (See id. at 715-16). Turner stated that she had seen Bryant with black eyes and red bruises around her neck, but did not recall asking her the cause. (Id. at 716-17). On one occasion, Orlando arrived at her home while Bryant was there. (Id. at 717-719). Because Bryant was "scared to death," Turner told Orlando that Bryant was not there. (Id.).
On cross-examination, Turner exercised her Fifth Amendment privilege against self-incrimination and did not answer any further questions after the prosecutor asked her whether she recalled being arrested in 1986 for larceny and possession of a controlled substance. (See id. at 719-21). Nevertheless, Turner's testimony was not stricken.
d. Proposed Expert Testimony
During the trial, the defense proposed to call Dr. Ellen Brickman to testify that Bryant evidenced the "characteristics and psychology" of a battered spouse. (Id. at 724-25). Because the People opposed the admission of this evidence, Justice Fisch conducted a hearing on May 7, 1996.*fn6 (Id. at 724-77).
At the hearing, Dr. Brickman testified that she had received a doctorate in social psychology from the Teachers College of Columbia University. (Id. at 735). While in graduate school, she worked with Dr. Julie Blackman on a study concerning inmate violence, battered women, rape, and child abuse. (Id. at 743). She joined that project after the interviews were conducted, but was responsible for reading, coding, and analyzing transcripts of the interviews. (Id. at 743-44, 757-58). This work required her to analyze approximately 115 interviews. (Id. at 743-44). The results of the study were reported in an article which contained some discussion of the psychology of battered women. (Id. at 760). Dr. Brickman also attended interviews that Dr. Blackman conducted for court cases involving battered women.*fn7 (Id. at 744).
After working with Dr. Blackman, Dr. Brickman joined Victim's Services, a private not-for-profit organization in New York City. (Id. at 735). There, Dr. Brickman directed a project regarding "supportive and unsupportive behavior" of others towards victims. (Id. at 736). As part of that project, she conducted interviews of approximately 100 female crime victims, of whom about 25 to 50 had experienced violence in an intimate relationship. (Id. at 736, 763). Dr. Brickman eventually became deputy director of the research department at Victims' Services, where she worked on several projects, including a study of child sexual abuse and an evaluation of intervention programs for domestic violence victims. (Id. at 738). Although she herself did not conduct any interviews with the families of domestic violence victims, she supervised others who did. (Id. at 738-39). Dr. Brickman also synthesized and interpreted the information obtained during interviews for agency reports. (Id. at 739). While at Victims' Services, she also worked on a study of battered women's attitudes towards mandatory arrest of spouses. (See id. at 740). For that study, Dr. Brickman conducted focus groups with battered women staying in shelters or other safe housing and individual interviews of about twelve to fifteen women. (Id. at 740-41).
Following her work at Victims' Services, Dr. Brickman worked for a year as a "trial consultant" for two consulting firms. (Id. at 741). In that capacity, she helped attorneys "to think about psychological knowledge" while formulating cases, and conducted focus groups. (Id. at 741, 767). This work almost always involved civil cases. (Id. at 766).
When she ceased to be a consultant, Dr. Brickman went to work at Fordham University, where she continued to be employed at the time of the Bryant trial. (Id. at 742). As a "research specialist" at Fordham, Dr. Brickman conducted research on child welfare issues. (Id.). Her work there on family violence involved her "extensively" in the psychology of the battered spouse. (Id. at 743). While at Fordham, Dr. Brickman also developed a private consulting practice in which she performed evaluations (mostly for courts) of women who claimed they were abused to determine whether they displayed "characteristics consistent with having been a battered woman." (Id. at 745). Despite this work, Dr. Brickman stated that she never previously had been called to testify in court about the psychology of a battered spouse, although she had submitted reports to courts about that subject on three occasions, including the Bryant case. (Id. at 746).
Dr. Brickman had met with "over a hundred" women whom she would characterize as battered by the time she interviewed Bryant. (Id. at 747). Additionally, she had reviewed or coded profiles of "close to another hundred" such women. (Id. at 747-48). Some of these interviews focused on one area -- such as mandatory arrest -- while others had different purposes. (Id.at 748.). When she performed evaluations for a court, Dr. Brickman would render a report which summarized her interview and then "offer[ed her] professional opinion as to the extent to which what [her subject had] told [her was] consistent [with] what is known about the psychology of a battered woman." (Id. at 749).
Dr. Brickman testified that she was not a licensed psychologist; instead, her field is social psychology, which is primarily a research discipline. (Id. at 749-50). As she explained the distinction in response to Justice Fisch's questions:
[I]f I were [a clinical psychologist] offering a diagnosis, what I would be coming up with is a number and a terminology from the DSM IV, and I don't do that.
What I do is come up with a narrative description of the patterns I see and the extent to which they are consistent with the patterns that I would look for in a battered woman. (Id. at 753). Dr. Brickman also noted that she did not feel qualified to render a diagnosis and could offer only an evaluation. (Id. at 751-53). As she summarized the thrust of her proposed testimony, she would testify about battered women's syndrome, based on her knowledge of it, but "would not necessarily be able to say . . . who [was] suffering from it." (Id. at 771).
At the conclusion of the hearing, Justice Fisch excluded Dr. Brickman's testimony, stating that he would later issue a written decision. (Id. at 774). Bryant's counsel then sought to clarify the purpose of her testimony, indicating that he planned to ask her whether, "to a reasonable degree of scientific certainty," Bryant "displayed the characteristics of a person who had the psychology of a battered spouse." (Id. at 775).
Counsel contended that this was a different question than whether she could say, with a "reasonable degree of psychiatric or psychological certainty as a clinician," that Bryant suffered from battered women's syndrome. (Id. at 774). Counsel urged that Dr. Brickman's testimony in this regard be received "subject to whatever weight" the jury chose to accord it. (Id. at 775). He argued further that if the court precluded Dr. Brickman from testifying, it would substantially prejudice Bryant's defense. (Id. at 776). Justice Fisch nevertheless adhered to his prior ruling. (Id. at 777).
Justice Fisch issued his written decision on December 19, 1996. (A. 56-66). In his decision, Justice Fisch first noted that "battered women's syndrome" is a "form of post-traumatic stress disorder [("PTSD")]" under the Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV").*fn8 (Id. at 61). The Justice concluded that Dr. Brickman "[w]as [n]ot [q]ualified" to testify with respect to that type of mental disorder because she stated "with commendable candor . . . that she is not a clinical psychologist, and is not qualified to diagnose or treat any mental or emotional condition or syndrome." (Id. at 62). The Justice also characterized her proposed testimony that "the defendant's responses in her interview were characteristic of a battered wom[a]n in general" as "incompetent 'profile' evidence." (Id.).
Although Justice Fisch concluded that Dr. Brickman was not qualified, he also considered the substance of her proposed testimony. As he explained, even if he had assumed, arguendo, that Dr. Brickman was qualified, in order to introduce her testimony the defense would have had to establish:
(a) that the "subject matter of the proffered expert testimony [would] likely not readily be understood by the average juror;"
(b) that the "proffered testimony [was] relevant and necessary to aid the jury's understanding [of] the facts of the particular case; [and]
(c) that the "area of expertise [was] generally recognized in the relevant scientific community."
(Id. at 62-63) (citing People v. Taylor, 75 N.Y.2d 277 (1990)). Focusing on the second of these criteria, Justice Fisch concluded that Bryant had "failed to prove that she was a 'battered woman,' subject to prolonged physical and mental abuse by her husband," since she gave only a "vague account of [her] alleged battering [which] lacked specificity and documentation." (Id. at 63). Justice Fisch further noted that Bryant claimed to have sought treatment for abuse at three local hospitals which had been subpoenaed for their records but did not have any records of such treatment.*fn9 (Id.).
B. Deliberations and Verdict
The jury heard summations and was instructed as to the applicable law on May 9, 1996. (T. at 796-965). Later that day, after retiring to deliberate, the jury sent the court two notes. The notes requested readbacks of Orlando's guilty plea and Alanda's testimony, and further instructions as to the applicable law. (Id. at 981). After these requests were met, the jury found Bryant guilty of Murder in the Second Degree the following day.*fn10 (Id. at 1004-05).
C. Subsequent Procedural History
In her appeal to the Appellate Division, First Department, Bryant raised three claims. First, Bryant contended that the trial court's refusal to admit the expert testimony of Dr. Brickman regarding battered women's syndrome denied Bryant her right to present a defense and her due process right to a fair trial. Second, Bryant argued that the trial judge had engaged in various forms of misconduct. Finally, Bryant argued that her sentence was excessive, noting that the trial court had relied on scripture to support the imposition of the maximum sentence. (See A. 77-156 (Pet'r's Br. on Appeal), 233-47 (Pet'r's Reply Br. on Appeal)).
The Appellate Division unanimously affirmed Bryant's conviction on December 5, 2000. See People v. Bryant, 717 N.Y.S.2d 136 (1st Dep't 2000). Insofar as relevant to this habeas proceeding, the court concluded that the [trial] court did not improvidently exercise its discretion in denying the defense application to call an expert witness on battered women's syndrome on the ground that, under all the circumstances, defendant did not lay a sufficient foundation (see, People v. Cronin, [60 N.Y.2d 430 (1983)]; People v. Diaz, [51 N.Y.2d 841 (1980)]) or make an adequate offer of proof. We note that there was overwhelming evidence that defendant personally inflicted vicious abuse and severe injuries upon the deceased, her four-year-old child, entirely of her own volition and ill-will toward the child, and that the purported abuser, defendant's husband, was not even present during some of this abuse. The People's theory that defendant failed to protect the child from abuse by defendant's husband was only a minor component of the case.
By letter application dated December 12, 2000, Bryant sought leave to appeal to the New York Court of Appeals on the basis of all three issues raised in her Appellate Division brief. (See A. 250-51 (Ltr. dated Dec. 12, 2000, from Robert S. Dean, Esq., to the Hon. Judith Kaye)). A subsequent letter to Judge George Bundy Smith, to whom Bryant's leave application was assigned, again sought review of all three issues, but focused on the trial court's denial of Bryant's application to call Dr. Brickman as an expert witness. (See id. at 252-56 (Ltr. dated Jan. 3, 2001, from Barbara Zolot, Esq., to the Hon. George Bundy Smith)). Bryant contended that review by the Court of Appeals was essential because Bryant's "due process right to defend against the horrific charges she faced was irremediably crippled by the lower court's erroneous preclusion" of Dr. Brickman's testimony. (Id. at 253).
On February 28, 2001, the Court of Appeals summarily denied Bryant's application for leave to appeal. People v. Bryant, 96 N.Y.2d 757 (2001). Bryant's habeas petition thereafter was timely filed in this Court on June 25, 2001. (See Docket No. 2 at 2).
Although the Respondent does not dispute that Bryant's constitutional claim was properly exhausted, she contends that two of the arguments in support thereof were not. (See Resp't's Mem. at 30-31). First, the Respondent contends that Bryant cannot rely on Dr. Brickman's report in connection with her argument that Dr. Brickman's testimony was admissible because the report first was made a part of the record at Bryant's sentencing, and Bryant had not previously asked the trial court to consider it. (See id. at 30; Pet'r's Mem. of L. at 47-48). Second, the Respondent notes that Bryant has alleged that if the blunt force trauma injuries that Shayna suffered on the day of her death were the cause of her death, "[Bryant's] guilt could rest only on her supposed inaction and failure to be a good mother that particular day -- events fully explainable by Dr. Brickman's testimony." (See Pet'r's Mem. at 59). The Respondent asserts that "[t]his argument, too, was never presented to any state court." (Resp't's Mem. at 30).
Pursuant to 28 U.S.C. §§ 2254(b)(1)(A) and (B), a habeas petition brought by a state prisoner may not be granted unless the petitioner has exhausted all of the remedies available through the state courts, or there is no state corrective process available to the petitioner, or circumstances render that process ineffective to protect the petitioner's rights. As a defendant charged with a crime in New York State, Bryant unquestionably had an effective process available to her through the state statutes governing appeals and collateral review in criminal cases. See N.Y. Crim. Proc. Law §§ 440.10, 450.10 (McKinney 1994). Therefore, to satisfy the exhaustion requirement with respect to a particular federal claim, Bryant must show that she presented the substance of "the same federal constitutional claim that [s]he now urges upon the federal courts . . . to the highest court in the . . . state." Aparicio v. Artuz, 269 F.3d 78, 89-90 (2d Cir. 2001) (internal citations and quotation marks omitted).
To exhaust a habeas claim, a petitioner held in state custody must have fairly presented the constitutional nature of the claim to all levels of the state court. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("State prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process."). Moreover, "[a] federal constitutional claim has not been fairly presented to the [s]tate courts unless the petitioner has informed those courts of 'all of the essential factual allegations' and 'essentially the same legal doctrine he asserts in his federal petition.'" Strogov v. Attorney Gen. of N.Y., 191 F.3d 188, 191 (2d Cir. 1999) (quoting Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 191-92 (2d Cir. 1982)). To meet this requirement, it is not necessary that the federal constitutional claim be presented to the state courts in haec verba; rather, there are a number of ways in which a petitioner may present such a claim, including (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Daye, 696 F.2d at 194.
Here, neither Bryant's briefs on her direct appeal, nor the letters in support of her application for leave to appeal to the Court of Appeals, contains any reference to either of the arguments to which the Respondent objects. (See A. 77-156, 233-47, 250-56). Accordingly, the Respondent's contention that Bryant failed to exhaust these two arguments by presenting them to the state appellate courts is correct.
A federal habeas court presented with an unexhausted constitutional claim may either stay the petition or dismiss it without prejudice so that the petitioner can return to state court to pursue exhaustion. See Duncan v. Walker, 533 U.S. 167, 182-83 (2001) (Stevens, J., concurring); Zarvela v. Artuz, 254 F.3d 374, 381-82 (2d Cir. 2001) (discussing procedures applicable to "mixed" petitions containing both exhausted and unexhausted claims). However, a criminal defendant in New York State has only thirty days to seek reconsideration of the denial of his leave application by the Court of Appeals. See N.Y. Rules of Court, Court of Appeals, § 500.20(d). That time period has long since passed. Additionally, pursuant to Section 440.10(2)(c) of the New York Criminal Procedure Law, a defendant who has prosecuted a direct appeal may not subsequently seek collateral review of an issue that could have been raised on appeal but was not. See N.Y. Crim. Proc. Law § 440.10(2)(c) (McKinney 1994); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994).
In these circumstances, because the New York courts would treat Bryant's unexhausted arguments as procedurally barred, this Court must deem them procedurally defaulted. Aparicio, 269 F.3d at 90 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)). Consequently, federal habeas review is precluded unless Bryant can demonstrate either "cause for the default and actual prejudice as a result of the alleged violation of federal law" or "that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; accord Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996). To make the latter showing, she must establish that she is "actually innocent." Aparicio, 269 F.3d at 90. Because Bryant has shown neither cause and prejudice nor that she actually is innocent, the Court is precluded from considering her unexhausted arguments.
In any event, as shown below, even if this Court were to consider Bryant's two new arguments as part of her claim that the preclusion of Dr. Brickman's testimony violated her constitutional rights, the Respondent still would prevail.
B. Merits of Bryant's Claim
1. Standard of Review
A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390, 401 (1993). Instead, a state prisoner seeking habeas relief under Section 2254 must show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petitioner bears the burden of proving, by a preponderance of the evidence, that his rights have been violated. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). Before this Court can determine whether Bryant is entitled to federal habeas relief, however, the Court must address the proper standard of habeas corpus review under Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Bryant contends that her federal claim was not "adjudicated on the merits" in the state courts and that the standard of review utilized prior to the adoption of the AEDPA therefore applies. This assertion is incorrect.
When Congress enacted the AEDPA, it "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403 (2000). Section 2254 now provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. 28 U.S.C. § 2254(d)(1) (emphasis added).
The Supreme Court has "construed the amended statute so as to give independent meaning to 'contrary [to]' and 'unreasonable.'" Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. Under the "unreasonable application" clause, a federal habeas court should "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. This standard does not require that reasonable jurists would all agree that the state court was wrong. Id. at 409-10. Rather, the standard "falls somewhere between 'merely erroneous and unreasonable to all reasonable jurists.'" Stinson, 229 F.3d. at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 109 (2d Cir. 2000)).
In its present form, Section 2254(d)(2) further authorizes the federal courts to grant a habeas writ when a claim considered on the merits in state court "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Moreover, to the extent that a habeas petition challenges factual findings, Section 2254(e)(1) provides that "a determination of a factual issue made by a State court shall be presumed to be correct" and that "[t]he [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."
Prior to the enactment of the AEDPA, "pure questions of law and mixed questions of law and fact were reviewed de novo." Washington v. Schriver, 255 F.3d 45, 55 (2d Cir. 2001) (citing Williams, 529 U.S. at 400). Thus, "a federal habeas court owed no deference to a state court's resolution of such questions." Williams, 529 U.S. at 400. While the factual findings of state courts were "'presumed . . . correct' absent special circumstances listed in the statute," Schriver, 255 F.3d at 55 (citing 28 U.S.C. § 2254(d) (1994)), even that presumption could be set aside if the federal habeas court concluded on the basis of the record as a whole that a "factual determination [was] not fairly supported by the record." Id. (quoting 28 U.S.C. § 2254(d)(8) (1994)). Indeed, even if a state court determination was "fairly supported by the record, and thus presumed correct, [the] petitioner in a federal evidentiary hearing," could nonetheless prevail by establishing through "convincing evidence that the factual determination by the [s]tate court was erroneous." Id. at 55-56 (citations and internal quotation marks omitted).
In sum, under the AEDPA, federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 341 F.3d 104, 109 (2d Cir. 2003). However, the "necessary predicate" to such deferential review is that "the petitioner's federal claim has been 'adjudicated on the merits' by the state court." Aparicio, 269 F.3d at 93. If a petitioner's federal claim has not been adjudicated on the merits by the state court, a habeas court must "apply the pre-AEDPA standards, and review de novo the state court disposition of the petitioner's federal constitutional claims." Id. (citing Schriver, 255 F.3d at 55).
Bryant contends that this Court must review her claim under pre-AEDPA standards, because the state courts did not adjudicate her federal claim "on the merits." (See Pet'r's Mem. of Law at 33-36). She bases this assertion on the Second Circuit's decision in Schriver, in which the court specifically declined to determine the level of deference that a federal habeas court owes to a state court's denial of a defendant's federal claim where there has been no express reference to, or discussion of, federal law. Schriver, 255 F.3d at 55.
After Bryant filed her petition, however, the Second Circuit resolved that open question in Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001). There, the Second Circuit held that
[f]or the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim -- even if the state court does not explicitly refer to either the federal claim or the relevant federal case law.
Id. at 312. Thus, in order for AEDPA standards to apply, "the state court need only dispose of the petitioner's federal claim on substantive grounds, and reduce that disposition to judgment." Aparicio, 269 F.3d at 94 (citing Sellan, 261 F.3d at 312). "No further articulation of its rationale or elucidation of its reasoning process is required." Id.; accord Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition -- the word "denied" -- triggered AEDPA deference.").*fn12
Here, the Appellate Division plainly disposed of Bryant's expert witness claim on the merits, stating that she did not lay a sufficient foundation and that the proffered testimony was relevant to only "a minor component of the case." (A. 248). Accordingly, because Bryant's federal claim was adjudicated on the merits, the AEDPA standard of review applies
2. Clearly Established Federal Law
Under the AEDPA, the Court must consider whether Bryant's claim that she was denied her right to a fair trial and her right to present a defense by the trial court's refusal to permit her to call Dr. Brickman as an expert witness on battered women's syndrome is based on "clearly established federal law" as determined by the Supreme Court. See Wade v. Mantello, 333 F.3d 51, 57 (2d Cir. 2003); 28 U.S.C. § 2254(d)(1). In that regard, the Supreme Court's case law establishes that "[t]he right to call witnesses in order to present a meaningful defense at a criminal trial is a fundamental constitutional right secured by both the Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment." Schriver, 255 F.3d at 56 (citing, among other cases, Taylor v. Illinois, 484 U.S. 400, 408-09 (1988), and Chambers v. Mississippi, 410 U.S. 284, 294 (1973)).
The right to call defense witnesses is not unlimited, however, and is subject to "reasonable restrictions." United States v. Scheffer, 523 U.S. 303, 308 (1998). For example, a defendant "does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor, 484 U.S. at 410. The right to impose restrictions on the evidence extends to the exclusion of expert witnesses in appropriate circumstances. See Schriver, 255 F.3d at 56 (citing Agard v. Portuondo, 117 F.3d 696, 705 (2d Cir. 1997), and Ronson v. Commissioner of Corr., 604 F.2d 176, 178-79 (2d Cir. 1979)).
3. Application of Law to Facts
Under the AEDPA, Bryant must make at least one of three showings in order to prevail in this proceeding:
a. that the state court's decision was based on a conclusion opposite to that reached by the Supreme Court on a question of law or a materially indistinguishable set of facts;
b. that the state court's application of such clearly established Supreme Court case law was unreasonable; or
c. that there is clear and convincing evidence that the state court unreasonably determined the facts in light of the evidence presented in state court.
28 U.S.C. § 2254(d)(1), (d)(2), (e)(1).
In this proceeding, Bryant has not shown, nor does there appear to be any Supreme Court authority squarely holding that an expert must be permitted to testify in connection with a duress defense that a defendant displayed characteristics "consistent with" battered women's syndrome. Moreover, as noted above, the Supreme Court's case law establishes that a state may impose reasonable restrictions on an accused's right to present testimony. See Taylor, 484 U.S. at 410-11. Accordingly, the state court's decision to exclude Dr. Brickman's proposed testimony does not appear to violate a conclusion that the Supreme Court reached in another case involving materially indistinguishable facts or constitute an objectively unreasonable application of the Supreme Court's existing case law.
The only other potential basis for setting aside a petitioner's conviction on habeas review under the AEDPA is that the state court unreasonably determined the facts in light of the evidence presented at the state court hearing. 28 U.S.C. § 2254(e)(1). In that regard, there admittedly are criminal cases in the New York courts in which experts have been permitted to testify, in substance, that the actions of a defendant or witness were consistent with a particular mental condition or syndrome. See, e.g., Taylor, 75 N.Y.2d at 292-93 (proper for prosecution to introduce testimony of rape counselor regarding rape trauma syndrome to explain behavior of victim arguably inconsistent with defendant's guilt); People v. Seeley, 720 N.Y.S.2d 315 (Supreme Ct. Kings County 2000) (noting court's decision in prior cases to permit experts to testify generally about battered women's syndrome without "introducing evidence that the victim/complainant [was] in fact a battered person."); see also Torres, 488 N.Y.S.2d at 363 (testimony of Dr. Julie Blackman received to establish that defendant "suffered from" battered women's syndrome); People v. Reid, 475 N.Y.S.2d 741 (Supreme Ct. Kings County 1984) (Dr. Blackman permitted to "express her opinion that the victim suffers from [rape trauma] syndrome"). In this case, Justice Fisch found that Dr. Brickman was not qualified to testify as an expert because she admitted that she could not say that Bryant was, in fact, suffering from battered women's syndrome. (A. 61-62). Although the New York courts have permitted experts to testify without meeting this threshold, Bryant has not shown that such a liberal interpretation of the showing necessary in order for the testimony to be received is constitutionally required. Indeed, if it were the law, a defense psychiatrist presumably could testify that a defendant charged with a homicide in New York State exhibited characteristics "consistent with" insanity, without also saying that the defendant was not responsible for his acts at the time the offense was committed because, "as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either . . . [t]he nature and consequences of [his] conduct . . . or . . . [t]hat such conduct was wrong," See N.Y. Penal Law § 40.15 (McKinney 2004). It is difficult to believe that any state court judge would permit such equivocal testimony in a case where the defendant's mental capacity was at issue. Similarly, in this case, because Dr. Brickman lacked the knowledge and training necessary to determine whether Bryant in fact suffered from battered wife syndrome during the period that Shayna was being abused, there is no basis for this Court to conclude that Justice Fisch's factual determination that Dr. Brickman was unqualified to testify as an expert was unreasonable. Indeed, in the absence of clear and convincing evidence to the contrary, the Justice's finding must be presumed to be correct. 28 U.S.C. § 2254(e)(1).
Finally, even if Justice Fisch's decision to preclude Dr. Brickman's testimony were error, Bryant's petition would fail for two further reasons. First, as the Respondent correctly observes, the ruling involved only a question of state law. (See Resp't's Mem. at 32-33). As the Supreme Court cautioned in Estelle v. McGuire, 502 U.S. 62 (1991), "federal habeas corpus relief does not lie for errors of state law." Id. at 67 (citations and internal quotation marks omitted). Second, had the testimony that Bryant proposed to introduce through Dr. Brickman been received, its relevance would have been limited to her duress defense. As Justice Fisch explained to the jury in his duress charge:
The defendant says in effect, yes, I failed to perform the required duties of a mother toward her child. I failed to call the authorities when my child was beaten, burned and abused.
I failed to provide nourishment for my child, I failed to get medical attention for the child [and] I failed to do these things the law requires that I as a mother do because I was afraid of [im]minent injury at the hands of my husband and my fear was reasonable. A reasonable mother, in my position, could not have behaved any differently.
During the trial of this case, there was overwhelming evidence that Bryant did not merely fail to act while her husband abused their children. Rather, all three of her children who testified -- two for the People and one for the defense -- agreed that she herself had committed violent acts. For example, Joi, who was only seven years old at the time of trial, testified, in substance, that Bryant intentionally burned her with a "hot curler" while Orlando was not at home (T. 162, 166-68, 177), that she lost the sight in her right eye after Bryant pushed her into a wall (id. at 168-69), that certain marks on her neck were cigarette burns inflicted by Bryant (id. at 190), and that Bryant at times restrained her in a chair overnight when Orlando was not home (id. at 196-97). Alanda, who was nine at the time of trial, testified, in substance, that both Orlando and Bryant would tie up Shayna in a chair for lengthy periods of time (id. at 206), that Bryant intentionally burned Shayna's hands and Joi's feet using a hot curler (while Orlando was not home) (id. at 209-10, 223-24, 238-39, 279), that Bryant also burned Joi's arm with a clothes iron (id. at 242), that Bryant burned Shayna's neck with lit cigarettes (id. at 214), that Bryant hit and kicked Shayna on the date of her death (id. at 219, 254, 262-63), and that Bryant and Orlando "beat Shayna to death" (id. at 215, 217, 251). Even Rahman Smith, who was called as a defense witness, testified that both "[d]addy and mommy hit Shayna on the date of her death. (Id. at 582).
While the hearing conducted by Justice Fisch did not delve into the details of Dr. Brickman's proposed testimony, her report, which is part of the present record, establishes that she was prepared to testify that Bryant displayed the following four characteristics common to battered women:
([a]) feelings of helplessness or powerlessness (frequently referred to as learned helplessness); ([b]) a narrowed perception of options or alternatives, with the result that options which appear viable to the outsider (e.g. leaving the relationship, summoning help) may either not occur to or not appear viable to the battered woman; ([c]) a high tolerance for cognitive inconsistency, in which battered women are able to hold on simultaneously to beliefs that appear totally inconsistent with each other. This tolerance is often the result of living with the greatest possible inconsistency -- that the man whom they love and who loves them is also causing them great physical and emotional pain and damage; and ([d]) a heightened awareness of their batterer's capacity for violence, and an ability to gauge when an episode is going to be off the continuum of tolerability. (A. 67) (emphasis in original). The report does not suggest that Dr. Brickman would have contended that a battered woman typically lacked the mental and emotional wherewithal to resist engaging in her own affirmative acts of abuse against her children.
Accordingly, had Dr. Brickman been allowed to testify, her testimony would, at best, have explained why Bryant did nothing to stop Orlando's abuse of Shayna. As the Appellate Division correctly observed, however, the "People's theory that [Bryant] failed to protect the child from abuse by [her] husband was only a minor component of the case." (A. 248). Moreover, the uncontradicted medical evidence in this case showed that Shayna's death was caused by persistent abuse over time, not simply the blows delivered by Orlando on March 28, 2004. (See T. 552, 445, 500-503). For these reasons, Bryant cannot show that the exclusion of Dr. Brickman's testimony had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). It follows that if Justice Fisch's decision to exclude Dr. Brickman's testimony was error, it was harmless error.
For the foregoing reasons, Bryant's habeas petition should be denied.
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have any objections to this Report and Recommendation, they must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Kimba M. Wood, United States District Judge, and to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, NY 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Wood. Any failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72(b).
FRANK MAAS United States Magistrate Judge