United States District Court, N.D. New York
JAMES K. SINGLETON, Jr., Senior District Judge.
David Newkirk, a New York state prisoner represented by counsel, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Newkirk is currently in the custody of the New York State Department of Corrections and Community Supervision and is incarcerated at Sing Sing Correctional Facility. Respondent has answered, and Newkirk has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On August 17, 2005, Newkirk was charged with three counts of rape in the first degree, in violation of New York Penal Law § 130.35(1), and three counts of sexual abuse in the first degree, in violation of Penal Law § 130.65(1). The charges were based upon allegations that, on three dates in May 2005, Newkirk raped his stepdaughter and sexually abused her by rubbing his penis between her legs while using forcible compulsion.
Prior to trial, the prosecution moved pursuant to Molineux, Ventimiglia, and Sandoval  to introduce evidence alleging that Newkirk had been raping and sexually abusing the victim since she had been in the second or third grade, that the victim believed the baby she bore in July 2004 was Newkirk's, that Newkirk had placed recording devices in the victim's bedroom, and that he had made a Polaroid photo of the victim's naked buttocks. The trial court denied the motion, concluding:
The Court finds that it is not highly probative and that the danger of unfair prejudice far outweighs the need for such evidence. In fact, to admit that evidence, in the Court's view, there is no limiting instruction which could adequately protect the defendant from the juror's abhorrent rage relative to alleged conduct which could have been charged by the People and would have obviated the hearing....
So the Decision and Order of the Court is that the defendant is charged with six distinct crimes. That motive, intent, forcible compulsion, everything else is readily apparent [from] the nature of the acts itself, and that the danger of unfair prejudice to the defendant is so great that it's frankly the Court's opinion that those acts are so prejudicial that it would virtually ensure the defendant's conviction on the instant crimes, whether he committed them or not.
The trial court denied the prosecution's Sandoval application for the same reasons, and the case then proceeded to jury selection and opening arguments.
The prosecution presented, among other evidence, testimony from the victim, testimony from the sexual assault nurse examiner regarding vaginal tearing, and blood evidence that had been found on the victim's sheets and mattress pad.
On direct examination, the prosecution had the following exchange with the victim:
Q Now, let me ask you, during the course of each of these incidents that you described on May 2nd, May 4th, and May 6th, did you scream and yell?
Q Did you scream and yell after he got off you and left the room?
Q How come?
A Because it was something that always happened.
Q Let me ask you, did you, how come you didn't tell your mom in the days after that up until that time that the police came?
A Because it's been going on -
Defense counsel then approached the bench and moved for a mistrial on the grounds that the victim's testimony violated the court's Molineux/Ventimiglia ruling and that no curative instruction would be sufficient to cure the prejudice that would flow from any inference that the jury might make regarding prior acts. The trial court agreed that the victim had violated the ruling but reserved ruling on the defense's motion for a mistrial and invited defense counsel to move to strike the testimony or request a curative instruction. Defense counsel moved to strike the victim's last two answers, which the court immediately granted. On cross-examination, the victim admitted that twice when she was interviewed about the events she responded that Newkirk's penis never went into her vagina on any of the three dates.
The sexual assault nurse examiner testified that the medical team performing the victim's vaginal physical exam was "looking for injuries such as bruising, tearing, discharge, [and] blood" but that she did not believe they had any findings. The prosecution then asked, "Now you talked about tearing. What specifically does that mean?" Defense counsel objected, arguing that "[s]he just said it wasn't present. I don't see the relevance in describing what that means." The trial court overruled the objection, and the nurse testified, "Tearing is a form of laceration or a cut injury that can happen with sexual assault."
The prosecution also introduced the testimony of a forensic scientist who testified about the contents of certain biological evidence bags and the tests she performed on them, under which she determined that the bedding and underwear within "were positive for either blood or seminal fluid." Prior to trial, defense counsel had argued that the admission of blood testimony would be highly prejudicial because it would "scream to the jury that... there was some kind of injury based on whatever sexual acts did or didn't occur" and that the prosecution should be barred from introducing such evidence because testimony regarding DNA evidence of seminal fluid and semen would be "more than sufficient" in this case. The trial court ruled that the evidence was admissible ...