The opinion of the court was delivered by: John Gleeson, United States District Judge
David Schicchi, a state prisoner, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction by a jury of murder in the second degree, in violation of N.Y. Penal Law § 125.25(1).*fn1 Schicchi has been sentenced to a prison term of 25 years to life. After reviewing the petition and respondent's opposition, I appointed counsel for Schicchi and directed further briefing. Oral argument took place on March 2, 2007. For the reasons set forth below, the petition is denied.
Schicchi stabbed his ex-girlfriend Jennifer Davids to death in his Brooklyn apartment early in the morning of July 7, 1999. Davids sustained seven stab wounds to the body and face, as well as multiple contusions and abrasions and an incised wound behind the ear. At trial, the prosecution established that a knife had caused many of the stab wounds, but that one wound -- through the jugular vein -- had been made with a pair of scissors. The defense did not contest these facts. Schicchi testified that he had, in fact, stabbed Davids with a knife and scissors. But he raised the affirmative defense that he had acted out of an extreme emotional disturbance, and that the most he could properly be convicted of was manslaughter. The jury rejected the affirmative defense and convicted Schicchi of intentional murder in the second degree.
Schicchi challenges two aspects of his trial: (1) the prosecution's introduction, on rebuttal, of the testimony of two of Schicchi's ex-girlfriends about uncharged crimes; and (2) various comments made by the prosecutor on cross-examination and in summation.
The evidence at trial established that Schicchi telephoned Davids at work on July 6, 1999. Schicchi, after being instructed by Davids's boss not to call there, showed up in person, threatening to kill himself and saying that he wanted Davids back. Davids promised to speak to him later. After he left, Schicchi telephoned two female friends, letting them know he would not be seeing them later because he would be with Davids. At 10:20 p.m., Schicchi called Davids's father for the first time since Schicchi had moved out of the Davids's house more than two months earlier. Schicchi, in tears, asked to meet for coffee. Davids's father declined, but suggested meeting the next day. At approximately 11:30 p.m., Schicchi drove by the Davids's house, where Jennifer was speaking with a neighbor outside. She remarked to the neighbor, "Oh my God. What does he want? I wish he'd leave me alone. I hope he don't think you are somebody else." Tr. 180. Davids and Schicchi spoke privately. Davids reported to the neighbor that she had to give Schicchi "a shoulder to lean on" because he was threatening to hurt himself, and left in Schicchi's car just before midnight. Tr. 181-82.
Schicchi testified that he and Davids discussed the difficulties of their relationship in the car and at his house. He claimed that he was going to take her home after she said she could not "do this any more," but that when she discovered another woman's name and telephone number she called him a "son of a bitch" and took up a knife. Tr. 460. He testified that he knocked the knife out of her hand, causing an abrasion on his palm, and then "flipped out." Id. He took up the knife and stabbed her repeatedly. He then stabbed her in the neck with the scissors. Schicci testified: "I just see her with [the knife] and I just reacted towards that and I just completely flipped. . . . I just reacted towards her. I hit her, I grabbed the knife and I just remember stabbing her and I couldn't stop it. I just kept going." Tr. 463-64. Schicchi testified that he dragged the body into brighter light to see if Davids was alive, and grabbed sheets to stop the bleeding. He used a solution to begin cleaning up the blood. Detectives later found a large blood stain extending from the bedroom through the hallway to the body lying in the kitchen, and more blood on the floor and walls. Davids's body lay supine with the handle of a pair of scissors protruding from her neck.
At 12:30 or 1:00 a.m. on July 7, 1999, Schicchi telephoned his father and in an "uncharacteristic" voice asked him to "come quick and act casual." Tr. 221. His father found him on the corner, pacing. Schicchi asked that he not be angry. Inside there was a body on the floor, covered in a sheet. Schicchi's father did not recognize Davids at first when he felt for a pulse. Schicchi's father suggested they go to the police, to which Schicchi repeatedly responded that he wanted to kill himself and repeatedly asked his father to be casual. After stopping by a church and trying unsuccessfully to speak to a priest, Schicchi's father brought him to the police precinct, where Schicchi was arrested. Schicchi was treated for a fracture of his ring finger --called a "boxer's fracture" because it is consistent with an injury sustained while delivering or blocking a punch -- and the abrasion on his palm.
B. Evidence of Prior Conduct Involving the Victim and Uncharged Crimes
At a pre-trial hearing, the prosecution sought permission to introduce evidence, both in its case-in-chief and on cross-examination, of prior acts of the defendant involving Davids. The trial court permitted the introduction of evidence in the prosecution's case-in-chief that, inter alia, Schicchi had once struck Davids and pulled her hair; witnesses had occasionally seen Davids with bruises, a black eye, and a bleeding head injury; Schicchi had several times tried to prevent Davids from going out or speaking to friends on the telephone; and Schicchi repeatedly tried to make contact with Davids at her home and job even after the two had broken up. At the close of the prosecution's case, the court instructed the jury to consider the prior conduct involving Davids as proof of the "nature of the party's [sic] relationship," not as proof of Schicchi's "propensity" or "disposition" to commit the crime charged. Tr. 311-12.
The trial court also allowed the prosecution to cross-examine Schicchi about an incident ten years prior to the murder (when Schicchi was 16 years old), in which Schicchi struck his then-former girlfriend Melanie Ceglio repeatedly with an umbrella after she had slapped him. (Schicchi testified about this event on direct as well.) The trial court denied the prosecution's application to cross-examine Schicchi about whether he had raped Ceglio or struck her in the head at a phone booth, both on propensity grounds and because it concluded such evidence would be overly prejudicial. The trial court deferred ruling on the prosecution's application to rebut Schicchi's extreme emotional disturbance defense with testimony that Schicchi had raped Ceglio and had once threatened to rape another then-former girlfriend --Melissa Walsh -- and to throw her off a bridge.
Once Schicchi raised the affirmative defense at trial, the court admitted the Ceglio and Walsh testimony, reasoning that "since the defendant has placed the state of mind at the time of the event at issue in order to convince the jury that he was suffering from extreme emotional disturbance . . . his past relationships become important in order for the jury to make this determination." Tr. 483. The court also allowed the proposed testimony because it impeached the testimony of the defendant's expert witness, who testified that Schicchi had suffered from an extreme emotional disturbance, and because the defendant had, on cross-examination, stated "that he didn't go after anyone that didn't want him." Tr. 484. The court found that the prejudicial effect of the challenged evidence was outweighed by its probative value.
Accordingly, over objection by defense counsel, the prosecution on rebuttal elicited testimony about Schicchi's rape of Ceglio after she began dating someone else, and his threatened rape and killing of Walsh after Walsh ended their relationship. In addition, the prosecution elicited testimony from Walsh that Schicchi had been "possessive and controlling," becoming angry if she was with others when he called, criticizing her, and disapproving of her relationship with another man. Tr. 493. The prosecution also elicited testimony from Ceglio that Schicchi had damaged her house; that he once grabbed, pushed, and shoved her during an argument; that he once struck her repeatedly with the receiver of a pay phone when she refused to call a male friend so Schicchi could secretly listen in on the conversation; and that, when Ceglio once refused to speak with Schicchi because her father had forbidden her to, Schicchi had struck her repeatedly with an umbrella.
The trial court issued a limiting instruction to the jury regarding the testimony from Ceglio and Walsh. It told the jury not to take the evidence as proof of propensity, but solely as evidence bearing on "the issue of the defendant's intent." Tr. 535. During its general jury charge, too, the court instructed the jury that the testimony of Walsh and Ceglio, "insofar as it . . . bears on the issue of the ...