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Aaron Voymas v. David Unger

July 7, 2011


The opinion of the court was delivered by: Michael A. Telesca United States District Judge


I. Introduction

Petitioner, Aaron Voymas ("Voymas" or "Petitioner"), has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner's state custody arises from his conviction on charges of first degree rape and third degree sexual abuse in connection with his repeated acts of incest against his younger sister.

II. Factual Background

The victim, M.V., was born on March 19, 1985. T.148-49 (Numbers preceded by "T." refer to pages from the transcript of Petitioner's trial.) . When M.V. was four or five years old, her parents, John Voymas and Deirdre Voymas (now Dye), divorced, and M.V. went to live with her father in Michigan for "a year or two."

T.148-51. Subsequently, her mother regained custody of M.V., remarried, and the family, including M.V., her two older brothers, her mother, and her stepfather, moved from Michigan to Tonawanda, New York in Erie County. T.151. They later moved to four different locations in Canandaigua, New York.

M.V.'s two brothers, Petitioner and Adam Voymas, are approximately two and a half and five years older than M.V., respectively. When M.V. was around five years old, her brothers began to touch her inappropriately. T.149, 153-54. When she was about seven, both of her brothers "start[ed] being very forcible," "aggressive[ly]" abusing her. T.154-55. Her brothers would "[t]ake [her] pants off and [her] panties," "grab at [her] genitals," and "force their penises into [her] vagina." T.154-56. At first, M.V. "tried to fight it, fight it off . . . [b]y trying to hold them back or push them off and kick them." (T.155-56). However, she was never able to prevent their assaults because both brothers were bigger than she was. T.155-56.

The abuse continued at the various locations to which M.V.'s family moved. T.155. M.V. recalled one incident in particular that occurred at their home on West Lake Road in Canandaigua when she was thirteen-years-old. T.156-57, 164, 190-91, 200. Her parents were not at home, and she was sitting on a bed playing a video game. Petitioner came up from behind her, pushed her down on her stomach, pulled her pants and panties down, and raped her from behind as he held her down. T.157-60, 191-92. M.V. pleaded with him to stop, but he ignored her and continued to penetrate her until he ejaculated. T.157-62, 192. She did not try to escape "because he was bigger than [M.V.] and . . . it happened all the time, so [physical resistance] was pointless." T.160.

M.V. testified this rape took place in May of 1998, when she was in eighth grade. T.185-86. She was able to determine that the rape occurred between March 19, 1998, and late June 1998, when she was thirteen and Petitioner was fifteen, because she specifically remembered that it took place in the springtime, after her 13th birthday (i.e., March 19th), on the same day that her brother, Adam, had also molested her, and shortly before Adam graduated from high school in June. T.162-64. M.V. also remembered that it took place at the house on West Lake Road, from which the family moved in July 1998. T.144-48, 164.

M.V. described another incident which occurred at the family's Parrish Street house in Canandaigua. T.165. Petitioner, who was then sixteen, grabbed M.V.'s breasts and fondled her vagina over her pants for a "few minutes." T.165-67, 200-02, 212. M.V. was thirteen or fourteen at the time. She remembered the event because it was the last time that Petitioner sexually abused her. T.165-68. M.V. did not physically resist because resistance "was pointless," as Petitioner "always did it and got away with it and he was bigger than [M.V.]." T.167. However, because M.V. "was standing there rigid and still . . . [Petitioner] knew that it wasn't consensual." She surmised "he felt guilty about it because . . . he just stopped" and said "something like . . . 'I know this has been wrong and I'm not going to do it anymore.'" T.167-68.

In May 1998, M.V. was being treated with medication for depression, and the doctors "were always switching medications because nothing was working." T.187-88. M.V. acknowledged that she was "a disciplinary problem in school" beginning in the eighth grade. T.188. She would often deliberately misbehave at school in order to receive after-school detention, because the extra hour at school "would lessen the likelihood [that she] would be raped and molested" by her brothers. T.213-14.

Soon after she turned eighteen, M.V. got married and moved to Texas with her husband. T.168-70. While in counseling, she eventually revealed details regarding the repeated sexual abuse by her brothers. T.171. As a result of those conversations, she contacted the authorities in Texas and later in Canandaigua.


It was suggested that M.V. separately call both Petitioner and her brother Adam and record their conversations. T.172-73, 198-99. On January 11, 2005, M.V. telephoned Petitioner, who was stationed at an army base in Kentucky, and recorded the call using equipment supplied by the Abilene Police Department. T.172-74. M.V. was not able to record the entire call, because "the tape ran out and [she] didn't know how to flip it over," but only a minute or two at the end of the conversation went unrecorded. T.175, 199-200. The audiotape was played in court, and the jury was provided with a transcript of the recording. The trial court instructed the jury that the transcript was "not evidence" and was only provided to "assist [the jury] in listening to the actual tape recording."


During the recorded conversation, Petitioner admitted that he first started "having sex" with M.V. when they lived in Tonawanda, New York (i.e., the town where the family first lived after moving from Michigan when M.V. was six or seven years old). He stated that he realized that what he did to M.V. was wrong and pointed out that he was no longer abusing M.V. He apologized for what he had done but advised her to "[a]ccept that you got raped" and "that your perception of your brothers is always going to be that they're scum . . . ." Court Exhibit B at 2-4, 9, 10. Petitioner acknowledged that, during the time he was raping M.V., he was, in fact, "scum." Id.

On February 10, 2005, detectives from the Canandaigua Police Department traveled to the Kentucky Army base where Petitioner was stationed. T.219-21, 241. Petitioner waived his rights and gave a written statement confessing to having had "sexual intercourse" with his sister "between six and eight times" at several locations beginning when she was about seven years old. T.234-38. In the first incident, when M.V. was approximately seven and Petitioner was approximately nine, both Petitioner and his brother had "sexual intercourse" with M.V. T.234-35. Petitioner also acknowledged one particular incident in which he had "[s]exual intercourse" with M.V. at the family's West Lake Road house, during which M.V. "[m]ost likely" asked petitioner to stop. T.236-37. Petitioner further stated that his "sexual relationship" with M.V. ended when Petitioner was approximately sixteen. T.236.

Petitioner, 210 pounds and 5'11"-tall at the time of trial, took the stand and denied having had a sexual relationship with M.V. He also denied knowing whether his brother Adam had molested her. T.267, 323, 346. He recalled the January 11, 2005 telephone conversation with M.V. that she had recorded. T.268, 270. He claimed, however, that he had been "groggy" during the conversation because he had been roused from sleep to answer the call. T.270, 326, 333, 337, 347. Petitioner also claimed, among other things, that M.V. had earlier told him that in 2004 she had been raped in Abilene, Texas, so in the recorded conversation he had "tr[ied] to help her with" that incident. T.272, 347, 357-58. Petitioner claimed that he had apologized to M.V. during the call not because he had actually done anything wrong, but because it was his "understanding that she thought [he] had wronged her." T.275, 345.

Petitioner insisted that he did not remember making various statements recorded on the audiotape. T.274-79. He claimed that during the call, he had "gotten wrapped up in [M.V.'s] wording and did not pay attention to it." T.281-82, 349-50, 356, 359-61. He also claimed that his sister "tricked" him into making certain admissions. T.361-62.

When Petitioner finally realized that M.V. was accusing him of having had "sexual experiences" with her, he thought she was "delusional" and fabricating these allegations. T.352-53. Petitioner explained that he did not deny her accusations because his "only understanding of delusional people is you can't reason logic with them . . . ." T.353. Petitioner stated that he was just "playing along," trying to "placate" her. T.353-54, 357.

With regard to his written statement to the police, Petitioner testified that he had slept "[o]nly a little bit" on the night before his interview, and that his rights had not been read to him until after the statement was written. T.283-84, 289, 363-64. According to the detectives, Petitioner "did not appear tired" or "drowsy" at the time of the interview, and did not "complain about . . . lack of sleep." T.250, 261. Moreover, Petitioner had brought his own food to the interview, and he conceded that the interviewers never touched him. T.371-72.

Petitioner claimed that he signed the confession because he "became weary after being questioned" for "[o]ver an hour," and "just wanted to give [the police] the answers they were asking for." T.289-90, 292-94, 368, 371-75. He claimed that the police refused to "believe [him] when [he] told them the truth," so he gave them the answers that "[t]hey wanted." T.295-96, 298-311. He also claimed that he was "confused" and "rattled" during the interview. T.299-300, 374-77.

The jury disbelieved Petitioner's version of events and returned a verdict convicting him of all counts: first-degree rape, incest, and third-degree sexual abuse.

The court sentenced Petitioner, as a Juvenile Offender, to a term of three to nine years imprisonment on the rape count. The court dismissed the incest count.*fn1 Because Petitioner committed the sexual abuse crime while he was an adult (i.e., sixteen-year-old), the trial court determined that he should be sentenced as an adult, although, being less than eighteen, he was eligible for Youthful Offender status.

On appeal, the Appellate Division found that the trial court erred in failing to grant that part of Petitioner's omnibus motion seeking to dismiss the third count of the indictment, charging him with sexual abuse in the third degree, on the ground that it was facially defective in that it failed to set forth a time interval that reasonably served the function of protecting defendant's constitutional right to be informed of the nature and cause of the accusation. People v. Aaron V., 48 A.D.3d 1200, 1201, (App. Div. 4th Dept. 2008)(citations omitted). The Appellate Division held that the 12-month period was unreasonable in view of the fact that the victim was thirteen- or fourteen-years-old during that time period and thus was capable of discerning, if not exact dates, at least seasons, school holidays, birthdays, or other events which could establish a frame of reference to assist her in narrowing the time spans alleged. Id. (citations omitted). The remaining convictions were affirmed. Id.

III. Discussion of the Petition

A. Defective Indictment

Petitioner argues that the indictment under which he was charged was not specific enough to meet the Sixth Amendment guarantee that a defendant be "informed of the nature and cause of the accusation" against him. In particular, Petitioner alleges that the indictment was defective in that it contained a bare recitation of the language of the statute; alleged a time frame of 41/2 months on the rape charges and one year on the sexual abuse ...

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