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Bristol v. Superintendent

May 19, 2008

CHRISTOPHER J. BRISTOL, PETITIONER,
v.
SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

The Clerk of the Court has sent Petitioner Christopher J. Bristol's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to the Court for its review. See Dkt. No. 1.

On November 22, 1999, Petitioner was convicted of first degree attempted rape, see N.Y. Penal Law § 110.00/135.35(1), (3) (two counts), first degree sexual abuse, see N.Y. Penal Law § 130.65(1), (3) (two counts), and endangering the welfare of a child, see N.Y. Penal Law § 260.10(1). See Dkt. No. 1, Petition, at 1; Transcript of Trial of Christopher J. Bristol ("Trial Tr."), dated October 8, 1999, at 78-80. The New York Supreme Court, Appellate Division, Fourth Department, affirmed the convictions on December 30, 2002. See People v. Bristol, 300 A.D.2d 1059 (4th Dep't 2002). On July 10, 2003, the New York Court of Appeals denied Petitioner leave to appeal. See People v. Bristol, 100 N.Y.2d 579 (2003).*fn1

Petitioner raises the following grounds for habeas relief: (1) there was insufficient proof to establish a chain of custody to support the admission of the victim's underwear into evidence; (2) the trial court improperly permitted the prosecutor to read into evidence portions of Petitioner's grand jury testimony and failed to conduct a hearing on whether the probative value of this evidence was outweighed by its prejudicial effect; (3) trial counsel was ineffective for failing to object to the admission into evidence of the underwear and items found on the underwear; and (4) the sentence imposed was excessive. See Dkt. No. 1, Petition at 6-11.*fn2

II. BACKGROUND

A. Facts

Accordingly to the testimony adduced at trial, M.U.*fn3 was ten years old in April 1999. See Trial Tr., dated October 6, 1999, at 2, 10, 100. On April 2, 1999, M.U. went to her friend A.D.'s home for an overnight visit. See id. at 14-17. Petitioner is A.D.'s step-father. See id. at 13.

M.U. wore black jeans, shorts under the jeans, a T-shirt, sweatshirt, socks and underwear. See id. at 20.

Petitioner prepared pizza pockets for the girls to eat. See id. at 17. After dinner, A.D. gave the victim a nightgown to wear to sleep, and the victim put it on. The girls played in A.D.'s bedroom until Petitioner called the girls downstairs, where they watched cartoons. See id. at 21-24, 47.

Petitioner inserted into the video cassette recorder a tape that depicted two females "humping each other." See id. at 21, 49, 153. A.D. almost immediately returned to her room, leaving the victim and Petitioner watching the movie. See id. at 21, 49-50. The victim eventually left Petitioner. See id. at 23-24. She went to A.D.'s room and put her jeans and other clothing back on because she "wanted to go home." See id. at 24-25, 58. The victim joined A.D. in her bed and fell asleep. See id. at 26, 59.

Petitioner entered the bedroom, woke the victim, and told her to go to his bedroom. See id. at 26-28, 61. Petitioner followed the victim into the bedroom and ordered her to lie on his bed. See id. at 29. Petitioner removed the victim's pants, shorts and underwear and then pulled his pants and underwear down to his knees. See id. at 30-32, 61. He lay down next to the victim, facing her back. He touched her "behind" with his penis. See id. at 34. While the victim lay on her back, Petitioner "hurt" her by "humping" her vaginal area with his penis. See id. at 34-35. The victim pushed on Petitioner's shoulders with both of her hands in an attempt to stop him, but she was unsuccessful. See id. at 36-38, 78-80. Petitioner warned the victim that "whatever happens at my [Petitioner's] house stays in my house." See id. at 154.

The doorbell rang, and Petitioner went downstairs to answer the door. See id. at 38-39, 154. The victim's grandfather, Robert Lipphardt, Sr., was at the door. See id. The victim's fifteen-year-old sister was also present. Mr. Lipphardt asked Petitioner if the victim's sister could use his bicycle. See id. at 85-86. The victim heard her grandfather's voice and yelled downstairs for him to wait. See id. at 39, 68, 88. The victim put on her underwear and shorts, ran down the stairs past Petitioner and her grandfather, and ran to her sister. See id. at 39, 89, 94. The victim told her sister that Petitioner tried to "kill" her and that he "tried raping her." See id. at 105-06. The victim was crying and stated that she wanted to go home. See id. at 112. After a brief conversation between Petitioner and Mr. Lipphardt, Petitioner shut the door in Mr. Lipphardt's face and refused to answer it when Mr. Lipphardt knocked. See id. at 90-91, 107-08. Mr. Lipphardt called the police and took the victim to the hospital. See id. at 91-93.

The victim changed most of her clothing before going to the hospital, but she kept on the same underwear. See id. at 42, 94-95, 100. The police collected the victim's underwear before she was treated. See id. at 112-128, 132-35, 136-37, 182-98; Trial Tr., dated October 7, 1999, at 14-23. The victim was examined at the hospital and a rape evidence kit was prepared. The examination showed redness in the perineal area, which is usually caused by "some kind of irritation or contact." See id. at 123. The redness subsided in the hour that passed between the initial examination and the examination by attending emergency room physician Michael Salvana. See Trial Tr., dated October 7, 1999, at 9-11.

The rape kit and the victim's underwear were secured and sent to the New York State Police Forensics Investigations Center. See Trial Tr., dated October 6, 1999, at 112-28, 132-35, 136-37, 182-98; Trial Tr., dated October 7, 1999, at 14-23. Dr. Alison Eastman, a serologist and DNA analyst, found a fingernail, a hair and a blue cloth fiber inside the underwear. See Trial Tr., dated October 7, 1999, at 24-50. Melissa Lee, a forensic scientist, performed a DNA analysis of the hair and fingernail. See id. at 57-76. The fingernail matched the victim's DNA, and the hair matched Petitioner's DNA. See id. at 67-68, 70. Fingernail scrapings taken from the victim's right hand also matched Petitioner's DNA. See id. at 67-69. Ms. Lee noted that it is very difficult for DNA to be lodged under fingernails, making its presence under the victim's nails indicative of a possible "struggle." See id. at 74-75.

On April 5, 1999, Petitioner voluntarily accompanied Investigator Steven Conley of the Oneida County Sexual Abuse Task Force to the police station. Petitioner was given his Miranda*fn4 warnings, and Petitioner agreed to make a statement. See Trial Tr., dated October 6, 1999, at 142-50. He told Investigator Conley that the victim came downstairs while he was watching a pornographic movie and masturbating and that she told him she wanted to watch the movie because "she learns things from them." He stated that, although he thought about engaging in sexual intercourse with the victim, he did not do so because he knew that he "would get into trouble." See id. at 151-55. Petitioner gave the pornographic tape to Investigator Conley. See id. at 155-56. He was arrested two days later on April 7, 1999. See id. at 163, 172.

B. State-Court Proceedings

On April 20, 1999, Petitioner voluntarily appeared before an Oneida County grand jury and reiterated much of his written statement to police. See Trial Tr., dated October 7, 1999, at 77-100. On April 29, 1999, the grand jury returned an indictment charging Petitioner with two counts of attempted first degree rape, see N.Y. Penal Law §§ 110.00/130.35(1) (attempted sexual intercourse with a female less than eleven years old), §§ 110.00/135(3) (attempted sexual intercourse with a female by forcible compulsion); two counts of first degree sexual assault, see N.Y. Penal Law § 130.65(1) (sexual contact with a female by forcible compulsion), § 130.65(3) (sexual contact with a female less than eleven years old); and endangering the welfare of a child), see N.Y. Penal Law § 260.10(1).

Oneida County Court Judge Barry M. Donalty presided over Petitioner's trial proceedings. After holding a Huntley*fn5 hearing, the trial court issued a Decision and Order on June 8, 1999, denying the motion to suppress Petitioner's statement to Investigator Conley.

Prior to trial, defense counsel brought a motion in limine requesting the redaction of specific portions of Petitioner's grand jury testimony (at pages 51, 55, 56, 69, 70, 71, 73). The challenged portions contained Petitioner's own references to past sexual crimes and problems. Counsel argued that these references were "extremely prejudicial." See Transcript of Hearing on Redaction ("Redaction Tr."), dated October 4, 1999,at 6-12. The trial court granted the motion in part and redacted Petitioner's direct references to his prior criminal record and subsequent punishment. See id. at 10-12. It denied the motion to redact other portions of the testimony, finding that those portions were part of Petitioner's voluntary narrative and that redacting them would render Petitioner's testimony "disjointed" and meaningless. See id. at 6-9.

A jury trial occurred from October 5-8, 1999. The jury convicted Petitioner of all counts of the indictment. See Trial Tr., dated October 8, 1999, at 78-80. On November 22, 1999, Petitioner appeared before Judge Donalty for sentencing. See Transcript of Sentencing ("Sentencing Tr."), dated November 22, 1999. Defense counsel moved to set aside the verdict, claiming that Petitioner suffered prejudice based upon the trial court's ruling that permitted the prosecutor to read portions of Petitioner's grand jury testimony during trial. See id. at 2-3. The court denied that motion. See id. The court sentenced Petitioner as a second violent felony offender to an aggregate determinate term of fifteen years in prison followed by five years of post-release supervision. See id. at 10-11.

C. Proceedings in this Court

On or about October 5, 2004, Petitioner filed a pro se petition in the United States District Court for the Western District of New York seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Dkt. No. 1. The case was transferred to this District by Order dated October 20, 2004. See Dkt. No. 3. In an Order dated November 24, 2004, this Court directed Respondent to file his response to the petition. See Dkt. No. 5. On February 10, 2005, the Office of the Attorney General of the State of New York, acting on Respondent's behalf, filed a motion to file a response, memorandum of law, and the relevant state-court records under seal due to the nature of the charges at issue in this case and the victim's age. See Dkt. Nos. 11-12. By Order dated February 14, 2005, the Court granted that motion. See Dkt. No. 13. Respondent filed his response and memorandum of law in opposition to the petition, along with the relevant state-court records, under seal on February 22, 2005. On April 16, 2005, Petitioner filed a Traverse. See Dkt. No. 16.

III. DISCUSSION

A. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may not grant habeas relief to a state prisoner on a claim unless the state courts adjudicated the merits of the claim and such adjudication either

(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; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence ...


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