Opinion
00 Civ. 4843 (SAS)
February 16, 2001
Jaun Diaz, Beacon, New York, pro se.
Thomas R. Sofield, Assistant Attorney General, New York, New York, for Respondent.
OPINION AND ORDER
Pro se petitioner Juan Diaz seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises the following four claims: (1) a deprivation of his right to a fair trial; (2) trial court error in permitting the complainant to give sworn testimony; (3) prosecutorial failure to prove the petitioner's guilt beyond a reasonable doubt; and (4) his sentence of ten to twenty years incarceration was harsh and excessive under the circumstances. For the reasons stated below, the petition is denied.
I. BACKGROUND
A. Factual Background
At petitioner's trial before Judge Mary McGowan Davis, in Supreme Court, New York County, both the prosecution and defense introduced evidence. See Trial Transcript ("Tr.") at 180, 420. The first witness for the prosecution was the victim, Nefertiti Guillen, see id. at 180, who testified to the following events. In early 1994, when Nefertiti was nine years old, she lived with her mother (Liza Spates), her mother's boyfriend (petitioner), and three of her sisters. See Tr. at 183-86. Sometime in January, 1994, Nefertiti was left alone in the apartment with petitioner. See id. at 187-88. Petitioner told her to take off her pants or he would kill her mother. See id. at 188. He then took off his pants and got on top of her. See id. at 189. Petitioner then placed his erect penis about one half inch into her vagina. See id. at 189-91. Nefertiti testified that these same events occurred on two subsequent occasions, once in February, 1994, see id. at 195-201, and once in March, 1994. See id. at 201-06. Nefertiti did not tell anyone about these incidents until March 27, 1994, when she told her mother. See id. at 207-08. Nefertiti's mother took her to Columbia Presbyterian Hospital later that day. See id. at 208-09.
The prosecution later called Nefertiti's mother and Dr. Jocelyn Brown, a pediatrician specializing in child abuse cases.
During this first visit to the hospital, Nefertiti was examined by Dr. Eric Fethke. See Tr. at 421. Subsequently, on April 18, 1994, Nefertiti's mother took her back to the hospital where she was examined by Dr. Jocelyn Brown, see id. at 352-53, who was referred by Dr. Fethke. See id. at 428-29.
Petitioner testified on his own behalf. See id. at 496. He swore that during January, February, and March, 1994, he had not touched Nefertiti, ordered her to get undressed, seen her naked, or undressed in her presence. See id. at 514, 526, 573.
The petitioner also called three other witnesses: Dr. Eric Fethke, who examined Nefertiti on March 27, 1994, see Tr. at 421; Cesar Cevallos, who lived in another room of the same apartment as petitioner, see id. at 444-46; and New York City Police Officer Paul Bailey, who spoke with Nefertiti on March 27, 1994 and March 28, 1994. See id. at 466-67.
B. Procedural Background
Petitioner was charged by an indictment filed on September 8, 1994, in Supreme Court, New York County, with six counts of rape in the first degree and one count of endangering the welfare of a child. See Appellate Brief for Respondent ("Res. Brief"), Ex. B. to 10/17/00 Affidavit of Thomas R. Sofield, Assistant Attorney General, in Opposition ("Sofield Aff."), at 2. Petitioner pled not guilty to all charges. See Tr. at 175-76.
Petitioner was charged under counts one, three and five of the indictment with violating N.Y. Penal Law § 130.35(1) for forcibly compelling Nefertiti to engage in sexual intercourse. He was charged under counts two, four and six of the indictment, with violating N.Y. Penal Law § 130.35(3) for engaging in sexual intercourse with Nefertiti, who was less than eleven years old at the time. Petitioner was also charged with endangering the welfare of a child in violation of N.Y. Penal Law § 260.10(1) under count seven of the indictment.
A trial on these charges commenced on March 1, 1995 and concluded on March 9, 1995. See id. at 1, 582. The jury reached a verdict on March 10, 1995. See id. at 749. The unanimous verdict found petitioner guilty of six counts of attempted rape and one count of endangering the welfare of a child. See id. at 749-57. Petitioner was sentenced on April 24, 1995. See Transcript from April 25, 1995 Sentencing ("Sent. Tr.") at 1. He was sentenced to an indeterminate term of ten to twenty years imprisonment. See id. at 45-51.
Petitioner was found guilty of the lesser included offense of attempted rape on counts one through six of the indictment. See Tr. at 749-57.
Petitioner was sentenced to: four to eight years on counts one and two of the indictment, to run concurrently; three to six years on counts three and four, the time on those counts to run concurrently with each other but consecutively to the time imposed on counts one and two; three to six years on counts five and six, the time on those two counts to run concurrently with each other but consecutively to the time imposed on counts one and two and on counts three and four; and one year on count seven, which merged by operation of law. See Sent. Tr. at 45-51.
Petitioner appealed the judgment of conviction to the Appellate Division, First Department, raising the identical claims raised here. See Appellate Brief for Defendant-Appellant, Ex. A. to Sofield Aff., at 1. The judgment and sentence were unanimously affirmed by an Opinion dated October 29, 1998. See People v. Diaz, 681 N.Y.S.2d 234 (1st Dept. 1998). The Appellate Division stated that the "verdict was based on legally sufficient evidence and was not against the weight of the evidence." Id. at 234. Petitioner next sought leave to appeal to the New York Court of Appeals, see Res. Brief. at 12, which was denied on March 19, 1999. See People v. Diaz, 93 N.Y.2d 872 (1999).
II. LEGAL STANDARD
A federal court may grant a writ of habeas corpus if (1) the state court adjudication resulted in a decision that was "contrary to" clearly established federal law, as determined by the Supreme Court of the United States; or (2) the state court's decision involved an "unreasonable application" of clearly established federal law. See 28 U.S.C. § 2254(d). The Supreme Court of the United States recently confirmed and clarified this standard. See Williams v. Taylor, 529 U.S. at 412-13. A state court adjudication is "contrary to" clearly established federal law if: (1) the state court decision is contrary to a decision of the Supreme Court on a question of law; or (2) the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. See id. A state court's decision involves an "unreasonable application" of clearly established federal law if the state court identifies the correct governing legal principle, based on Supreme Court jurisprudence, but unreasonably applies that principle to the facts of a prisoner's conviction. See id. at 413.
Clearly established federal law, as determined by the Supreme Court, refers to "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).
It is important that the "contrary to" inquiry and the "unreasonable application" inquiry be treated as separate and independent questions. See id. at 410-11. The distinction lies in the difference between a state court adjudication that represents an objectively unreasonable application of federal law and a state court adjudication that is overtly inconsistent with federal law. See id. at 408-11. Petitioner has failed to show that his state court adjudication was contrary to clearly established federal law or that it involved an unreasonable application of that law.
III. DISCUSSION
A. Right to A Fair Trial
Petitioner claims that he was denied his right to a fair trial. Petitioner states that he was denied his right to a fair trial because the trial court did not make sufficient inquiry of a particular juror's ability to deliberate. See 12/15/00 Petitioner's Memorandum of Law in Response to the People's Opposition to Petitioner's Writ of Habeas Corpus at 3.
At petitioner's trial, juror number 12 sent a note to the Judge stating that he would like to speak to her about leaving for work that night. See id. at 745-46. Before the note was presented to the parties, juror number 12 informed the court officer that he would like to withdraw the note and "stick around." Id. at 746. A verdict was reached while the court was assembling the parties to discuss the note. See id. at 747. Prior to summoning the jury to read the verdict, the Judge questioned juror number 12 in open court about the note. See id. at 747-748. The juror stated that his concern about going to work did not affect his ability to judge the evidence or his ability to deliberate. See id. at 748-49.
The handling of any possible juror taint "is entrusted to the sound discretion of the trial court." Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 814 (2d Cir. 2000) (quoting United States v. Thai, 29 F.3d 785, 803 (2d Cir. 1994)). Here, the juror's note was read in open court, the petitioner was made aware of its contents, and defense counsel was permitted to offer suggestions on how the juror's concerns should be addressed. See Tr. at 745-49. Furthermore, although the Appellate Division later held that "no inquiry was necessary" because the note was withdrawn, see People v. Diaz, 681 N.Y.S.2d at 234, the trial court, in fact, conducted an inquiry of the juror sufficient to ensure that the juror's concern about work did not influence his ability to deliberate fairly. See id.
Diaz contends that the trial court should have made a more probing inquiry but does not cite any federal law in support of this argument. Nor does petitioner argue that the state court judgment was contrary to clearly established federal law or unreasonably applied clearly established federal law. Petitioner's first claim is therefore dismissed.
The only case petitioner cites in support of this argument is People v. Buford, 69 N.Y.2d 290 (1987), where the New York Court of Appeals held that in the case of a grossly unqualified juror, the trial court should generally question the juror in camera and "consider the juror's answers and demeanor to ascertain whether her state of mind will affect her deliberations." Id. at 299. An in camera inquiry is generally not needed, however, in cases involving obviously trivial matters. Id. at 299, n. 4.
B. Permitting Complainant to Testify
Petitioner next contends that the trial court erred in allowing the complainant to testify. Petitioner asserts that the complainant, then ten-year old Nefertiti Guillen, did not understand the oath and should not have been permitted to testify.
The Confrontation Clause of the Sixth Amendment guarantees the right of a criminal defendant to be confronted with all the witnesses against him. See Maryland v. Craig, 497 U.S. 836, 844 (1990). This right also "insures that the witness will give [her] statements under oath — thus impressing [her] with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury . . . ." Id. at 845-46.
In general, the competence of a witness to testify depends upon the witness's capacity to observe, remember, communicate and understand the nature of the oath and the duty it imposes to tell the truth. See Fed.R.Evid. 601; see also United States v. Roman, 884 F. Supp. 126, 127 (S.D.N.Y. 1995). While the determination of competency is for the judge, the issue of credibility is for the jury. See Roman, 884 F. Supp. at 127; see also SEC v. Downe, 969 F. Supp. 149, 158 n. 6 (S.D.N.Y. 1997), aff'd, 151 F.3d 42 (2d Cir. 1998). Children may be cross-examined and their competency challenged as with any other witness, but a jury must decide what weight to accord their testimony. See United States v. Butler, 56 F.3d 941, 945 (8th Cir. 1995).
The threshold determination in allowing a child to testify is whether the child is capable of understanding the oath. The Supreme Court's holding in Wheeler v. United States, 159 U.S. 523 (1895), was controlling. In Wheeler, the Supreme Court stated that competency "depends on the capacity and intelligence of the child, [her] appreciation of the difference between truth and falsehood, as well as of [her] duty to tell the former." Id. at 524.
Wheeler pre-dates the enactment of Federal Rule of Evidence 601 and 18 U.S.C. § 3509 and thus no longer completely states the applicable standard for determining the competency of a child witness. "Now children are presumed competent and the party seeking to prevent a child from testifying has the burden of providing a compelling reason for questioning the child's competence." United States v. Allen J., 127 F.3d 1292, 1295 (10th Cir. 1997) (citing 18 U.S.C. § 3509(c)(2), (4)). At the time of the trial, however, Wheeler was the controlling standard.
A review of the record here reflects that Nefertiti, despite her age, possessed the capacity to know the difference between truth and lies. See Tr. at 136-37. More importantly, she demonstrated that she understood the importance of telling the truth in court, knew that an oath meant a promise to tell the truth, and understood the ramifications of telling lies. See id. at 137-41. The voir dire, as well as the testimony which followed, was conducted with the petitioner present, in full view of the jury, and with the opportunity for participation by all trial counsel. In addition, on March 6, 1995, Judge Davis examined Nefertiti outside the presence of the jury and determined that she was competent to testify under oath. See Tr. at 132-49.
While there may have been inconsistencies between Nefertiti's prior statements and her trial testimony, this was something for the trier of fact to evaluate in determining the weight to give her testimony. Such inconsistencies, however, do not prove that Nefertiti was incompetent to testify. See United States v. Allen J., 127 F.3d at 1296 ("Any inconsistencies in the [child] victim's story or problems with her testimony, however, raise questions of credibility, not competence."). Based upon the questioning of this witness and the circumstances surrounding that questioning, the trial court reasonably found that Nefertiti possessed the requisite capacity to testify in this trial. Once again, petitioner has failed to show that the state court acted contrary to clearly established federal law or unreasonably applied clearly established federal law in permitting the child to testify. Therefore, petitioner's second claim is without merit and is dismissed.
C. Proof Beyond a Reasonable Doubt
Petitioner next claims that his guilt was not proven beyond a reasonable doubt. A defendant's Fourteenth Amendment right to due process of law is violated if he is convicted based upon legally insufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 316 (1979). Sufficient proof of guilt exists if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319.
In New York, "a male is guilty of rape in the first degree when he engages in sexual intercourse with a female: (1) by forcible compulsion; or . . . (3) who is less than eleven years old." N.Y. Penal Law §§ 130.35(1), (3) (McKinney 1997). "A person is guilty of an attempt to commit a crime, when with intent to commit the crime, he engages in conduct which tends to effect the commission of such crime." N.Y. Penal Law § 110.00 (McKinney 1997). "A person is guilty of the crime of endangering the welfare of a child when: (1) he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than 17 years old . . . ." N.Y. Penal Law § 260.10(1) (McKinney 1999).
At petitioner's request, the court charged the jury as to the lesser included offense of attempted rape for each of the six counts of rape. See Tr. at 584-85, 688-92, 696-700.
Nefertiti testified that the petitioner ordered her to remove her clothing, removed his own clothing, laid on top of her, and inserted his erect penis about one half inch into her vagina. This testimony clearly establishes that petitioner intended to engage in sexual intercourse with her and took steps to effect that act. Additionally, such acts satisfy the elements of endangering the welfare of a child. It is therefore not unreasonable to conclude, as the jury did, that there was sufficient proof to find petitioner guilty of the crimes charged. Therefore, petitioner's third claim is dismissed.
D. Excessive Sentence
Petitioner also asserts that his sentence was harsh and excessive under the circumstances. Under the Eighth Amendment, "a criminal sentence must be proportionate to the crime for which the defendant has been convicted." United States v. Ortiz, 742 F.2d 712, 714 (2d Cir. 1984) (quoting Solem v. Helm, 463 U.S. 277, 290 (1983)). The Supreme Court "has found this principle to be violated only in extreme circumstances." United States v. Jackson, 856 F. Supp. 176, 178 (S.D.N.Y. 1994) (citing Solem v. Helm) (life sentence without the possibility of parole for a seventh nonviolent felony violated the Eighth Amendment), aff'd, 59 F.3d 1421 (2d Cir. 1995). Moreover, substantial deference is given to decisions of a sentencing court, who has "broad discretion to mete out penalties at or below the statutory maximum." United States v. Persico, 853 F.2d 134, 138 (2d Cir. 1988) (quoting United States v. Bonnet, 769 F.2d 68, 71 (2d Cir. 1985)). Thus, "[w]hen a defendant's sentence falls within the statutory range, it will not be set aside on appeal absent extraordinary circumstances." United States v. DiTommaso, 817 F.2d 201, 217 (2d Cir. 1987).
Petitioner's sentence falls within the range prescribed by state law. See N.Y. Penal Law § 70.06(3)(b) (McKinney 1997). Moreover, it is legally permissible to impose consecutive sentences. See N.Y. Penal Law § 70.25 (McKinney 1997). Had the court imposed consecutive maximum prison terms for the three distinct sexual attacks, petitioner would have received a sentence of twenty-two and a half to forty-five years. In fact, he only received a sentence of ten to twenty years.
Moreover, state court sentencing decisions are ordinarily not subject to federal review. See Campo v. Greiner, No. 97 Civ. 2984, 1998 WL 748318, at *1 (S.D.N.Y. Oct. 20, 1998). Accordingly, a petitioner seeking to challenge a sentence within the statutory limits, must show that the state court's sentencing decision was "wholly devoid of discretion or amounted to an arbitrary or capricious abuse of discretion, or that an error of law resulted in the improper exercise of the sentencer's discretion and thereby deprived the petitioner of his liberty." Mitchell v. Herbert, No. 97 Civ. 5128, 1998 WL 186766, at *7 (S.D.N.Y. Apr. 20, 1998) (quoting Jones v. Hollins, 884 F. Supp. 758, 761-62 (W.D.N.Y. 1995) aff'd, 89 F.3d 826 (2d Cir. 1995)). Petitioner presents no reasonable argument that his sentence was disproportionate to the crimes for which he was convicted. Nor does he offer any convincing arguments that the decision of the sentencing judge amounted to an arbitrary and capricious abuse of discretion so grossly erroneous as to wrongly deprive him of his liberty. Accordingly, petitioner's fourth claim is also dismissed.
IV. CONCLUSION
For the reasons stated above, the petition for habeas relief is denied. A certificate of appealability is also denied as petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000) (holding that substantial showing exists where (i) the issues involved in the case are debatable among jurists of reason, or (ii) a court could resolve the issues in a different manner, or (iii) the questions are adequate to deserve encouragement to proceed further); Clark v. Garvin, No. 99 Civ. 9075, 2000 WL 890272, at *6 (S.D.N.Y. June 30, 2000). The Clerk of the Court is directed to close this case.
SO ORDERED: