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discussing habeas legal standard governing the right to present a defense citing cases
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00 Civ. 0402 (GBD) (AJP)
October 15, 2001
REPORT AND RECOMMENDATION
To the Honorable George B. Daniels, United States District Judge:
Petitioner Rosa Rodriguez, pro se, seeks a writ of habeas corpus from her 1995 conviction in Supreme Court, Bronx County, of second-degree murder, conspiracy and criminal solicitation. Rodriguez's habeas petition asserts two claims: (1) that the trial judge erred in finding that Rodriguez had not established a prima facie Batson claim that the prosecution was using peremptory challenges to exclude women from the jury, and (2) that the trial judge's ruling precluding Rodriguez from introducing a videotaped statement that she gave the prosecutor when she was arrested deprived her of a meaningful opportunity to present her insanity/battered woman defense. (Dkt. No. 1: Pet. ¶ 12, incorporating by reference Rodriguez 1st Dep't Br.)
For the reasons set forth below, Rodriguez's petiti on should be denied.
FACTS
On June 24, 1992, Rosa Rodriguez was arrested for arranging for the murder of her husband, Anderson Rodriguez. In October 1995, Rosa proceeded to trial in Supreme Court, Bronx County, before Justice Robert Straus and a jury.
To avoid confusion, this Opinion often will refer to members of the Rodriguez family by first name. No disrespect is intended.
Jury Selection
At the end of the first round of jury selection, fifteen prospective jurors remained in the box — nine women and six men. (VD 269, 387-88.) The trial judge entertained challenges for the individuals in seats 1-13, a group of seven women and five men (since one of the thirteen had been excused, leaving an seat 7 empty; see fn. 2 above). One woman (Loyda Perez, seat 9) was excused for cause (VD 389-90), leaving six women and five men.
References to "VD" are to the transcript of the jury voir dire.
The women (and their seat numbers) were: Brenda Morell (seat 1), Jacqueline Williams (seat 2), Dorothy Pizzaro (seat 3), Ollimae Campbell (seat 5), Loyda Perez (seat 9), Maria Mendoza (seat 11), Marie Natal (seat 12) and Mary Fields (seat 14) and Bernice Couzar (seat 16). (See VD 269.)
The men (and their seat numbers) were: George Muscetto (seat 4), Royce Williamson (seat 6), Walter Scienze (seat 8), Louis Paone (seat 10), Curtis Douglass, Jr. (seat 13) and George Vaughn (seat 15). (See VD 269.)
Initially, sixteen jurors were called into the jury box, ten women and six men. (VD 269-70.) Immediately after these sixteen people were called, one woman, Lorene White, was excused and replaced by another woman, Bernice Couzar. (VD 270; see VD 299-320, where the trial judge names each panel member as he questions them.) After the court's preliminary questions, one woman, Latisha Thomas (seat 7), was replaced with a man, David Trasoras. (VD 269, 329.) At the end of the first round, Trasoras was excused on consent (VD 387-88), leaving a group of nine women and six men (and seat 7 empty).
The prosecutor used peremptory challenges against four of the six women, but did not challenge any of the five men. (VD 390.) The defense challenged four of the five men, but did not challenge either of the remaining two women. (Id.) The trial judge then entertained challenges for the jurors in seats 14 through 16: a group of two women and one man. After denying defense counsel's for-cause challenge against the man (VD 391-93), the prosecution stated that it had no peremptories (VD 393), and the defense challenged the man and one woman (Bernice Couzar). (VD 394.) As a result, three women and one man were seated as the first four jurors. (VD 391, 394, 396.)
Brenda Morell (seat 1), Dorothy Pizzaro (seat 3), Maria Mendoza (seat 11) and Marie Natal (seat 12). (VD 390.)
George Muscetto (seat 4), Walter Scienze (seat 8), Louis Paone (seat 10) and Curtis Douglass, Jr. (seat 13). (VD 390.)
Mary Fields (seat 14), George Vaughn (seat 15), and Bernice Couzar (seat 16).
The women were Jacqueline Williams, Ollimae Campbell and Mary Fields; the man was Royce Williamson. (VD 391, 394, 396.)
In the second round, the trial judge initially solicited challenges for the individuals in seats 1 through 8, a group of seven women and one man. (VD 400, 491.) The prosecutor used peremptory challenges against four of the women and did not challenge the one man in the group. (VD 491.) After the defense challenged the one man and one additional woman (Elise Freeman, seat 3) (VD 491), the two remaining women (Virginia Munoz and Daisy Labroi) became the fifth and sixth selected jurors. (VD 491-92.)
The women (and their seats) were: Mary Gordon (seat 1), Rosetta Beckford (seat 2), Elise Freeman (seat 3), Bonnie Rosado (seat 4), Virginia Munoz (seat 6), Daisy Labroi (seat 7) and Betty Hartery (seat 8). The man, Feliz Jiminez, was in seat 5. (VD 400.)
Mary Gordon (seat 1), Rosetta Beckford (seat 2), Bonnie Rosado (seat 4) and Betty Hartery (seat 8). (VD 491.)
The trial judge next solicited challenges for seats 9 through 14 of the second round, a group of five women and one man. (VD 493; see VD 400.) The prosecutor used a peremptory challenge against four of these five women (e.g., all except Janet Goodwin). (VD 492.) This brought the prosecutor's peremptory challenges to twelve — all against women and none against the eight potential male jurors men considered to that point.
The women were Mary Collie (seat 10), Thelma Stark (seat 11), Paula Monterola (seat 12), Vanda Rovis (seat 13) and Janet Goodwin (seat 14). The man was Jose Pagan (seat 9). (VD 400.)
Defense counsel "ma[d]e an observation . . . [that] the district attorney [has] exercised a number of challenges in two rounds. And every person that the district attorney . . . challenged has been a female." (VD 492-93.) Defense counsel conceded that "this is a panel which include[s] numerous females" but stated that the prosecutor had made "every effort to exercise challenges against a specific group of individuals and that's females." (VD 493.) When the prosecutor in turn accused defense counsel of challenging all the men (id.), defense counsel responded:
[DEFENSE COUNSEL]: First of all, since I raised the issue it is appropriate to address it and not to make reference to what I have done. I think the issue is what you may have done. But beyond that, your statement is that I have challenged all the . . . men. That, Your Honor, is an inaccurate statement. . . . I haven't challenged Mr. Williamson.
(VD 494.) The trial judge noted that there had been "a lot of female prospective jurors," specifically nine of fifteen in the first round and thirteen of sixteen in the second round. (VD 494-95.) The trial judge also stated that since the "[d]efense has made an observation," there was "no action for me to take." (VD 494.) Defense counsel responded that he was "just taking the first step." (Id.) The defense exercised peremptory challenges against an additional man and a woman (VD 495), and no one was seated from seats 9 through 14 of the second round.
Jose Pagan (seat 9) and Janet Godwin (seat 14). (VD 495.)
One man and one woman remained in seats 15 and 16 of the second round. (VD 400.) The prosecutor peremptorily challenged the woman (who he said he had a hard time understanding because of her accent) (VD 495-96), and the defense challenged the man. (VD 497.) The prosecutor's challenge brought her total to thirteen, all of them against women.
Benjamin Velez (seat 15) and Josefina Flores (seat 16). (VD 400.)
Defense counsel "ma[d]e the observation once again" that with one man and one woman available of the last two individuals, the prosecutor had challenged the woman and not the man. (VD 496-97.) The prosecutor again countered that the defense had used a peremptory against each of the three men available in the second round. (VD 497.) The trial judge merely stated: "You have made your record. . . . And if you are challenging based on sex, I am surprised based on the experience level of both counsel. I think you are really shooting in the dark but I can't take it beyond that." (VD 497.)
Before the third-round challenges, the prosecutor asked defense counsel to state whether he was making a formal Batson objection. (VD 730-32.) Defense counsel responded that his "comments were not casual comments. My purpose in making the observation was to raise an issue and I believe that I did that." (VD 734.) The trial judge ruled that he would take no action until a mistrial motion or "formal objection" was made, and that defense counsel's "observations" would "not spur any action by the court." (VD 733, 735.)
The third round panel included six women and ten men. (VD 597.) The trial judge solicited challenges for seats 1 through 6, all of whom were women. (VD 597, 735.) The court excused two for cause (VD 735) and four women remained. The prosecutor exercised peremptory challenges to two women: Noraida Rivera (seat 4) and Jennifer Lobbon (seat 5). (VD 736.)
Evelyn Santiago (seat 1), Elizabeth West (seat 2), Loretta Husser (seat 3), Noraida Rivera (seat 4), Jennifer Lobbon (seat 5) and Margo Hayes (seat 6). (VD 597.)
Pedro Trinidad (seat 7), Daniel O' Rourke (seat 8), Vernon Morgan (seat 9), Mark Mayfield (seat 10), Rudolph Johnson (seat 11), Jeremiah O' Sullivan (seat 12), Monray Whiteside (seat 13), Carlos Munoz (seat 14), Larry Peoples (seat 15) and David Dillard (seat 16). (VD 597.)
Margo Hayes (seat 6) and Elizabeth West (seat 2). (VD 735.)
Defense counsel formally objected and moved for a mistrial on the ground that the prosecutor had challenged fifteen of the twenty-five women considered to that point and none of the nine men:
[DEFENSE COUNSEL:] Judge, before I exercise the preempts if you require I will say that I formally object and I have it on the record, and if it requires in your estimation also [a] request [for] a mistrial . . . at this point on the basis that the district attorney is systematically exercising peremptory challenges in order to exclude women from the jury. Prior to today I believe the district attorney exercised thirteen challenges. In the panel although there were more women than men but every single one of the thirteen challenges was a challenge against a woman. She now has exercised two more challenges and those two challenges were against women. And I note that coming up in the normal progression of things is a line of men, almost exclusively and the appearance is that she is making an effort to exclude women on solely a gender basis.
(VD 736-37.)
The trial judge reserved decision until the end of the third round. (VD 737.) Defense counsel did not challenge either of the two women remaining from seats 1 through6 and they became the seventh and eighth jurors. (VD 737.) The next ten individuals in the third round were all men. (VD 597, 738.) The prosecutor challenged three of them. (VD 738-40.) The defense challenged six of the remaining seven men. (Id.) A man (Vernon Morgan) became the ninth selected juror. (VD 738.)
Evelyn Santiago (seat 1) and Loretta Husser (seat 3). (VD 597, 737.)
Mark Mayfield (seat 10), Rudolph Johnson (seat 11) and Larry Peoples (seat 15). (VD 738-40.)
Pedro Trinidad (seat 7), Daniel O'Rourke (seat 8), Jeremiah O'Sullivan (seat 12), Monray Whiteside (seat 13), Carlos Munoz (seat 14) and David Dillard (seat 16). (VD 738-40.)
At the end of the third round, the trial judge considered defense counsel's Batson motion. (VD 740.) The trial judge held that there was no prima facie case that the prosecutor was basing peremptory challenges on gender:
THE COURT: There was an objection to People's challenges, Ms. Rivera and Ms. Lobbon. On this particular group there were, excluding the challenges for cause, there were four females available. The People challenged two of the four, that does not constitute to me a pattern of discriminatory strikes against women. And based on the objection up to this point it has been about twenty female prospective jurors available in rounds one and two, not including this round of those the People challenged thirteen, the defense challenged three. This is my rough count. Of the thirteen challenged by the People they were not required to provide any gender neutral reason. Looking over those that were challenged I can see various reasons why under the circumstances of this case they might not be considered suitable jurors. I am really now dealing with these sixteen and I don't believe the People need to explain the two strikes, two out of the four available females because I don't find prima facie that the use of the peremptory challenges was discriminatory.
Actually, the prosecutor challenged thirteen of the twenty-one available women in rounds one and two and two of the four women in round three, for a total of fifteen out of twenty-five.
(VD 740-41, emphasis added.) The trial judge did not articulate any of the "various reasons" he could "see" that the female jurors challenged by the prosecution "might not be considered suitable jurors."
Defense counsel took exception to the trial judge's analysis and argued that the judge should look not just at the two of four women challenged by the prosecutor in the third round but rather at "the entire selection process and the pattern that becomes apparent from the very beginning of jury selection." (VD 741.)
The prosecutor objected that the defense was challenging the male potential jurors. (VD 741-42.) The trial judge noted that the defense had challenged no women and six of the ten men in the third round and eight of ten potential male jurors in rounds one and two (VD 742-43), but stated that there were reasons why the defense would not have wanted these men and held that there was no prima facie case that the defense was excluding jurors because of their gender. (VD 743-44.)
Actually, the defense challenged eight of nine available men in the first two rounds: Muscetta, Scienze, Paone, Douglass, Vaughn, Jimenez, Pagan and Velez. The defense did not challenge Royce Williamson.
The trial judge explained:
One of the males is going to Puerto Rico on November 20th, we might lose him as a juror. Another male has been pickpocketed and mugged a total of six times, that's O'Rourke. O'Sullivan has police officers, brother a police officer, friends police officers, or relative[s] that are police officers, relative with the FBI, his son took the test for NYPD; I can understand a peremptory as to him. . . . Mr. Munoz, he himself took the test for NYPD. . . . And Dillard has been a victim of a mugging, two friends were killed, and his friend also was strangled by an ex-boyfriend. I can understand a peremptory as to him. So of all the challenges the one that I might wonder about, Mr. Whiteside, but that's one out of six and that doesn't create in my mind a discriminatory pattern. And I have to go by that and allow the challenge without an explanation. So objection overruled.
(VD 743-44.)
The fourth round consisted of seven individuals. (VD 749.) After two women were removed for cause (VD 836-40), three men and two women remained. The prosecution, which had already used eighteen of its twenty peremptory challenges, did not exercise any peremptory challenges in the fourth round. After defense counsel challenged two men, two women and a man became the tenth, eleventh and twelfth selected jurors. (VD 841-42.)
Amilia Lewis (seat 1), Bernadette Stroud (seat 2), Estella Mention (seat 3), Carlos Miranda (seat 4), Louise Cancel (seat 5), Ismael Cruz (seat 6) and David Adley (seat 7). (VD 749.)
Bernadette Stroud (seat 2) and Estella Mention (seat 3). (VD 836-40.)
Carlos Miranda (seat 4) and Ismael Cruz (seat 6). (VD 841-42.)
Amilia Lewis (seat 1), Louise Cancel (seat 5) and David Adley (seat 7). (VD 841-42.)
The final jury contained nine women and three men. (See al so Rodriguez 1st Dep't Br. at 10; State 1st Dep't Br. at 48, 56, 60.) Not including prospective jurors excused on consent or for cause, the four-round venire totaled forty-nine individuals, of whom twenty-seven (55%) were women. (See Rodriguez 1st Dep't Br. at 10; State 1st Dep't Br. at 56.) The prosecutor used fifteen of the eighteen challenges she exercised (83%) against women and waived her two remaining peremptory challenges. (See page 8 fn. 18 page 10; see also Rodriguez 1st Dep't Br. at 10; State 1st Dep't Br. at 55, 58.)
To summarize the jury selection process:
Another panel was brought in for selection of the alternate jurors. (VD 846.) After two individuals (the man in seat three and the woman in seat thirteen) were excused on consent for cause (VD 963), eleven individuals remained — six women and five men. (VD 900.) Neither party used a peremptory challenge against the first individual, a woman (Joan Kuzniar), who became the first alternate juror. (VD 989-90.) After the prosecutor peremptorily challenged the woman in the second seat (Michelle Bronson), a man (Michael Gooley) was selected as the second alternate juror. (VD 990-91.) For the third alternate juror, the defense challenged another man (Raphael Rivera) and the prosecutor used a peremptory against a woman, Wendy Brown. (VD 991-92.)
Joan Kuzniar (seat 1), Michelle Bronson (seat 2), Wendy Brown (seat 6), Maritza Washington (seat 9), Thelma Crumler (seat 11) and Ruth James (seat 12). (VD 900.)
Defense counsel renewed his Batson motion and the following colloquy ensued:
[DEFENSE COUNSEL]: Judge, at this time I renew my objection. I am going to note that the district attorney has made two challenges during the course of challenging alternates and both of them have been women, Michelle Bronson and Wendy Brown. They appear to be qualified jurors and it would seem that this is a continuation of the pattern of excluding or attempting to exclude women. This is on a gender bias basis exclusively.
THE COURT: The question is, you know, I can see reasons for each of the challenges, for Ms. Bronson and for Ms. Brown as the basis for a peremptory challenge in each of their backgrounds. So even though they are women, one is extremely close to the whole field of psychology, the other is someone who had three years of nursing school and now a token clerk for the transit authority. And when I see something in the jury's background that would be for me a clear indication of a reason to exercise a challenge then I don't find a discriminatory pattern. And I don't see any need to ask for gender neutral reasons. So the objection is overruled.
[DEFENSE COUNSEL]: I understand, Your Honor, and I do have my exception. I would like to comment that Michelle Bronson is a high school graduate, three years of college, nursing, and she didn't indicate that she had any experience in psychology or psychiatry, who also indicated that that was in her past in any event. And that she would not go back to that field and that she is in a totally different field, she is a token clerk. Solid person who works, has a child, has sat on a prior criminal jury before. Even has a niece that's a cop. Candidly I don't see anything in there that would be objectionable except she happen[s] to be a female. I note that for the record, Judge.
THE COURT: I find no discriminatory incident inherent in the challenge itself. The appellate courts have placed us in an interesting position. We can stop and I guess I can take the time to protect the record and ask for a gender neutral reason. The Courts also tell us that even if the reason is ill-founded, even if the reason is not plausible for challenging a juror, even if it is based on hair style of the juror, clothing of the prospective juror, as long as it is not inherently discriminatory. Even though it is extremely personal to the attorney, as long as it is somehow trial related and reasonably specific it is acceptable. I frankly — And also it is not necessary for challenges to be internally consistent with each other. So the fact that one juror has a background in psychology, and another doesn't, it doesn't make it a legitimate challenge the one who doesn't have a background. So I am not going to stop as to that and ask for a reason in this case when based on the background of the juror I can understand why the DA challenged her.
(VD 992-94, emphasis added.)
After the defense challenged another man (Luis Ramirez), Robert Rodriguez was selected as the third alternate juror. (VD 996.) The prosecutor challenged Maritza Washington (VD 997), so that all three peremptory challenges used by the prosecutor in selecting alternates were against women. The defense again renewed its Batson challenge. (VD 997.) Although the trial judge initially asked the prosecutor to state a gender-neutral reason for challenging Ms. Washington (VD 997-98), the prosecutor objected that there was no prima facie case and would only provide her reasons if the trial judge found a prima facie Batson violation. (VD 998.) The trial judge responded:
THE COURT: I think what I am saying is, I see reasons why the juror would be challenged by the People in a criminal trial. But therefore, in my opinion there is no pattern of discriminatory use of peremptory challenges. So you don't have to state a reason if you don't want to. She in my opinion, her background, working for the department of the homeless might well be a reason for the People to challenge her in a case of this nature. Probably the safest thing to do in any case is to make . . . every side at any time state their reasons and perhaps the legislature will require that some day so that we don't have to perform this arcane function.
Objection overruled for the reason stated.
(VD 998-99, emphasis added.)
The defense used a peremptory challenge against a man (Arnold Griffin), which resulted in a woman (Thelma Crumler) becoming the fourth (and final) alternate juror. (VD 999-1000.)
The People's Case at Trial
Vanessa Ramos, who had pled guilty to first-degree manslaughter for her role in killing Anderson Rodriguez, testified against Rosa Rodriguez in exchange for a promised sentence of seven to twenty-one years imprisonment. (Ramos: Tr. 1241-42.) Ramos is Rosa's niece; Ramos' mother, Lydia Ramos, is Rosa's sister. (Id. at 972-74.) Rosa Rodriguez was married to Anderson Rodriguez. (Id. at 972.) Two of their sons, Amilcar and Leonel, lived at home at 1738 Weeks Avenue in the Bronx. (Ramos: Tr. 973; L. Rodriguez: Tr. 460; Am. Rodriguez: Tr. 648-49.) Leonel's girlfriend, Raquel Zambrana, lived there also. (Zambrana: Tr. 41; Ramos: Tr. 973.) Amilcar was twenty and Leonel was twenty-one at the time of trial. (Am. Rodriguez: Tr. 644; L. Rodriguez: Tr. 456-58.) An older son, Alexis, lived with his wife on Staten Island; he was twenty-four at the time of trial. (Al. Rodriguez: Tr. 386-88; 413-14.)
The evidence at trial showed that Rosa Rodriguez suffered a long history of physical abuse at the hands of her husband. Rosa's three sons and Zambrana all testified to seeing Anderson hit Rosa on various occasions. (Zambrana: Tr. 229-235, 267-89; Al. Rodriguez: Tr. 414-20, 428-34; L. Rodriguez: Tr. 572-74; Am. Rodriguez: Tr. 820-65.)
In August 1990, Rosa fell in a homeless shelter and sued New York City. (Al. Rodriguez: Tr. 401-03; L. Rodriguez: Tr. 530-31.) According to her sons, Rosa believed that she would recover "a lot of money," perhaps one or two million dollars from the lawsuit. (Zambrana: Tr. 201; Al. Rodriguez: Tr. 405; L. Rodriguez: Tr. 531; Am. Rodriguez: Tr. 742-45.) Rosa and Anderson argued frequently about how to spend the money. (L. Rodriguez: Tr. 530-35; Am. Rodriguez: Tr. 742-45.) Leonel testified that Rosa started telling him that she did not want Anderson to touch the money and was going to have Anderson killed. (L. Rodriguez: Tr. 535; Am. Rodriguez: Tr. 746-47.)
In December 1991, Rosa spoke to her niece Vanessa Ramos, who was dating drug dealer Samuel Moya, about having Moya arrange to kill Anderson. (Ramos: Tr. 971, 975, 977-79, 1129.) Ramos testified that Rosa said she expected to get half a million dollars from her lawsuit and that she did not want Anderson to take any of that money. (Id. at 981-83, 1126.) Ramos also testified that Rosa told her that she "needed to kill her husband before he killed her." (Id. at 1272.) Ramos decided to help Rosa because Rosa told her that Anderson was beating her. (Id. at 1126.) Ramos also admitted, however, that she expected that Rosa would share her lawsuit money with Ramos' mother, Lydia. (Id. at 1331.)
On Sunday, January 19, 1992, Anderson drove Rosa, Leonel and Raquel Zambrana to Lydia Ramos' home. (Zambrana: Tr. 193; L. Rodriguez: Tr. 536-37; Ramos: Tr. 1149.) After Anderson left, Rosa locked herself in a bedroom with Lydia Ramos, Vanessa Ramos and Moya. (Zambrana: Tr. 194; L. Rodriguez: Tr. 538-39.) According to Ramos, Rosa promised to pay $5,000 to Moya and $25,000 to his friend, Ruben Diaz a/k/a "Spock," who was going to do the shooting. (Ramos: Tr. 1141, 1151.) Rosa said she would pay from the lawsuit money. (Id. at 1147.)
On the way home, Rosa told Leonel and Zambrana that she wanted to have Anderson killed because she was "tired of him," he was "always threatening her and always mistreating her" and he wanted to take her lawsuit money. (Zambrana: Tr. 195-96.) Leonel and Amilcar recounted four to ten other occasions when Rosa told them she wanted to have Anderson killed. (L. Rodriguez: Tr. 535; Am. Rodriguez: Tr. 746-47.)
In February 1992, Ramos asked Rosa for a photograph of Anderson for Moya and Spock. (Ramos: Tr. 1154-57.) During that conversation, Rosa and Ramos discussed various ways to kill Anderson; for example, Rosa suggested shooting her husband early in the morning before he went to work. (Id. at 1158-60.) Rosa also told Ramos that she did not want Anderson's murder to occur in her home because she did not want any blood in the house and did not want to be connected to the murder. (Id. at 1159-60.) Late in February 1992, Moya told Ramos that another acquaintance, Dwayne Malave, known as "Uzi," was going to do the killing and share the money. (Id. at 1165-66.) After rejecting a plan for a drive-by shooting (id. at 1167-68), Ramos asked Rosa for a key to her building. (Id. at 1174.) Rosa refused because Anderson or the police might realize she no longer had her key. (Id.)
Rosa was hospitalized at Bronx Lebanon Hospital for treatment of a broken finger and her "nerves" from March 7, 1992 until March 25, 1992, the eve of the murder. (Zambrana: Tr. 197; Ramos: Tr. 1179-81.) Ramos visited Rosa in the hospital and asked Rosa for $15,000 as half payment for the killing. (Ramos: Tr. 1182-83.) Rosa offered to give Moya $300 to $600 from her next Social Security check, but also told Ramos to wait until she got the money from the lawsuit. (Id. at 1182, 1184). According to Ramos, Rosa said, "Don't do it, don't do it unless I give you a green light." (Id. at 1184, 1285.) Ramos testified that the "green light" was "until she got the money in her hand." (Id. at 1285-86.) Ramos also testified that Rosa "never gave the green light." (Id. at 1287.)
Ramos thus was "surprised" when Moya came to her on March 26, 1992 to tell her that Anderson was dead. (Id. at 1187-88, 1288-89.) Ramos told Moya "you weren't supposed to do it yet." (Id. at 1289.) Moya told Ramos that Spock and Uzi had gone to the Rodriguez's home. (Id. at 1188.) While Spock waited outside, Uzi got inside by pretending to be a police officer looking for a suspect, got Anderson into the hall and shot him twice. (Id. at 1188-89.) Moya also told Ramos that Uzi had lost his wallet. (Id. at 1190.)
Ramos' recitation of Moya's account of the murder was consistent with the testimony of Amilcar, Leonel and Zambrana. They were home at 5:00 a.m. on the morning of March 26, 1992 when a man whom they later identified as Dwayne Malave or Uzi (Zambrana: Tr. 183-85; L. Rodriguez: Tr. 505; Am. Rodriguez: Tr. 664, 734-35) rang the buzzer and told them he was a police officer looking for a suspect; after looking around the second floor apartment, Uzi asked Anderson to go out in the hall with him, leaving Zambrana and the two brothers in the kitchen with Rosa. (Zambrana: Tr. 46-66, 117-20; L. Rodriguez: Tr. 465-85; Am. Rodriguez: Tr. 649-64.) They heard five shots. (Zambrana: Tr. 120; L. Rodriguez: Tr. 486, 490; Am. Rodriguez: Tr. 664.) Rosa blocked the door but Leonel pushed her aside, and he and Amilcar went into the hall and down to the first floor entrance. (Zambrana: Tr. 121-22, 124-25, 220; Am. Rodriguez: Tr. 664-65; L. Rodriguez: Tr. 486, 488-89, 492.) Leonel found a wallet on the floor near the front door containing The wallet contained identification papers for Dwayne Malave, Uzi's real name. (Zambrana: Tr. 126-29, 222; L. Rodriguez: Tr. 486, 492; Am. Rodriguez: Tr. 668-70.) Leonel confronted Rosa and asked if she had anything to do with the shooting. (L. Rodriguez: Tr. 496-97.) Rosa begged Leonel not to turn the wallet over to the police. (Zambrana: Tr. 131-34; L. Rodriguez: Tr. 497-500; Am. Rodriguez: Tr. 671.)
When Detective Denis O'Sullivan responded to the scene at about 5:45 a.m. on March 26, 1992, Leonel handed over a black leather wallet. (O' Sullivan: Tr. 313, 317-25.) Rosa "was crying but she was under control." (Id. at 327-28.) A short time later, however, she fell to the ground and began flailing her arms and legs and screaming. (Id. at 328; Zambrana: Tr. 131-34, 226; L. Rodriguez: Tr. 503.) Detective O' Sullivan called a second ambulance for Rosa, who was again hospitalized at Bronx Lebanon Hospital. (O'Sullivan: Tr. 329, 346; Zambrana: Tr. 134-35; L. Rodriguez: Tr. 503; L. Rodriguez: Tr. 518.)
Uzi was arrested on March 27, 1992. (McGibney: Tr. 1006, 1011-12.) Spock asked Ramos to find Rosa and get money for Uzi's bail. (Ramos: Tr. 1194-95.) On March 28, 1992, Ramos went to Bronx Lebanon Hospital and Rosa screamed at her, asking why the killing occurred at her home. (Id. at 1195-201.) Rosa feared that the police would realize that she was involved. (Id. at 1201.) When Ramos asked for money, Rosa said that she would not get the money from the lawsuit until April, but again offered several hundred dollars of "extra side money." (Id. at 1201-02.) Upon arriving at Rosa's hospital room, Leonel and Zambrana overheard Rosa talking with Ramos. (Id. at 1203; Zambrana: Tr. 186-87, 189; L. Rodriguez: Tr. 520-22.) Leonel demanded an explanation, and Rosa admitted her participation in the murder and said that she acted because Anderson mistreated her and wanted to take her money. (Zambrana: Tr. 190; L. Rodriguez: Tr. 522-24.) Rosa asked Leonel to forgive her and made him promise not to go to the police. (Zambrana: Tr. 190; L. Rodriguez: Tr. 521-25.)
When Rosa left the hospital, she first relocated to Staten Island with her son Alexis (Al. Rodriguez: Tr. 394-95), then flew to Puerto Rico, where Ramos spoke to her on May 18, 1992; according to Ramos, Rosa thanked her for her new life and promised to turn over the money from her lawsuit. (Ramos: Tr. 1222-24.)
On May 21, 1992, the police arrested Spock, who was carrying the murder weapon. (Ortiz: Tr. 1392-93; Tota: Tr. 888-95.) On June 24, 1992, when she returned from Puerto Rico to New York, Rosa was arrested and brought to the Bronx District Attorney's Office. (McGibney: Tr. 1027, 1044-45; Walsh: Tr. 1099, 1103, 1114-15.)
The Defense Case
Rosa Rodriguez did not testify at trial. The defense raised psychiatric defenses of insanity and extreme emotional disturbance, calling two expert witnesses, Dr. Deborah Kaiser and Dr. Gertrude Morales.
Dr. Kaiser's Testimony
Dr. Kaiser is a forensic clinical psychiatrist and former chief of the Creedmore Psychiatric Center Forensic Unit handling the criminally committed. (Kaiser: Tr. 1465-70.) Dr. Kaiser determined that Rosa (1) "suffer[ed] from schizophrenia with paranoid features," (2) "suffer[ed] from post-traumatic stress disorder, a sub-variety of the battered women syndrome," and (3) "suffer[ed] from borderline intellectual functioning." (Id. at 1515-16.) Dr. Kaiser further determined that Rosa's schizophrenia between November 1991 and March 1992 deprived her of a "substantial capacity to know or appreciate either the nature and consequences of her conduct or that such conduct was wrong," and that she suffered from "extreme emotional disturbance." (Id. at 1600-01.)
Dr. Kaiser based her opinion on: her examination of Rosa on five occasions totaling nine hours between 1993 and 1995; her review of Rosa's medical records from Woodhull Hospital (April 1988), Elmhurst Hospital (1992), and the Montefiore Mental Health Clinic at Riker's Island (1992 through 1995); and her review of a videotaped conversation between Rosa and ADA Dale Hunt that took place between 9:40 p.m. and 10:59 p.m. on June 24, 1992, the day of Rosa's arrest. (Id. at 1489-91, 1536-46, 1570-71, 1576-77, 1582-83, 1603.)
With respect to the hospital records, Dr. Kaiser stressed that Rosa had consistently reported auditory hallucinations or hearing voices: In the medical records "starting with Woodhull in 1987 . . . straight through the records of the Rikers Island Hospital . . . which run into October of 1995, Rikers Island-Montefiore prison psychiatric unit, consistently [Rosa] talks about hearing the voices and consistently they are saying the same thing at all these different hospital records of all these years." (Id. at 1536; see also id. at 1577.) Dr. Kaiser also reported that the records for Rosa's hospitalization in early March 1992, before the murder, indicated that Rosa "was hearing voices, and that she was seeing things, things that were not there. . . . The voices were telling her both to kill herself . . . and separately to kill her husband if she wanted to be happy." (Id. at 1558.) Rosa also had complained at that time about spousal abuse. (Id. at 1559.)
Dr. Kaiser testified that Rosa's demeanor during the videotaped conversation with ADA Hunt and Detective McGibney also "caused [her] to form [her] opinion that [Rosa] is psychotic." (Kaiser: Tr. 1537-38.) Dr. Kaiser noticed that:
[Rosa's] gross behavior, the responses that she gives, how she's behaving doesn't match what's being said on the tape. She at times when she sees the detectives that brought her there is joking and laughing and happy. At other times she's tearful. That really doesn't seem to do with the serious aspect of what she's being asked at those times. She is very matter of fact, very flat, very matter of fact. She shows some range of emotion, but the emotion isn't connected with what it ought to be. So there's very much of an inappropriateness in her emotional expression.
(Id. at 1538.) Dr. Kaiser further observed that later in the videotape, Rosa was "rocking back and forth, her whole body rocking. This is often seen in psychosis." (Kaiser: Tr. 1539.) The rocking occurred "[m]ore frequently toward the end [of the tape] as she perhaps became tired, perhaps becomes stressed." (Id.) Dr. Kaiser also testified that "[m]ore as the tape went on she was holding her back first with one hand, then with the other hand. She was distractedly running her fingers through her hair. She was squirming in her seat and rocking and she looked like she was in a great deal of discomfort." (Id.) Dr. Kaiser also noticed on the tape signs of "tangential thinking," another symptom of schizophrenia. (Id. at 1542.) As one example, Dr. Kaiser described how Rosa confused people who wanted $100,000 from her: "She starts off talking about one [person] and talks about another and you think goodness, how did we get here. And that is tangential thinking on the tape." (Id. at 1543; see also id. at 1544.) Dr. Kaiser also described Rosa Rodriguez's "general attitude" on the tape:
[Rosa's] general attitude was one of cooperativeness, of being very, very compliant, giving in to any sort of demand and when she clearly — when she felt an answer wasn't a very good answer, she would try to rephrase it and re-do it. At times she almost seemed to be — she did seem to be a distressed little girl who saw people who she recognized and so she would happily; namely, the detectives, happily even wave to them, you know, how are you, and laughing and her general attitude, as I said before, was not appropriate.
(Id. at 1546.)
The Defense's Offer of Rosa Rodriguez's Videotaped Statement
Prior to the experts' testimony, the defense sought to introduce Rosa's videotape itself as evidence of Rosa Rodriguez's mental state. (Tr. 988-96, 1355-67, 1422-26.) Defense counsel argued: "The statement is key to the defense. It is one of the items which was used by an expert that I intend to use at the trial, Doctor Kaiser, to form her opinion and she formed her opinion based on what was said, how it was said, the defendant's demeanor during that statement." (Tr. 1355-56.) The trial judge ruled that the defense would be limited to having Dr. Kaiser describe what she saw on the tape without the tape itself being shown to the jury:
THE COURT: It is my feeling now, although I can't really find cases on point, because an expert can make reference to this type of material as helpful to the expert in forming a diagnosis. If the expert testifies foundationally that it is the type of automatic out of court material or hearsay material that a witness . . . can give testimony about viewing the tape without actually showing the entire tape to the jury and testify to what aspects of it assists the witness in formulating the witness' opinion.
Showing the entire tape I think is unfair to the People because it is in evidence under the evidentiary rules a self-serving declaration. However, it ends up having a dual purpose, ends up having a dual purpose and legitimate purpose for the defense in being something that an expert might rely on in formulating an opinion as to state of mind.
(Tr. 1358-59; see also id. at 1359-60.)
Defense counsel responded:
Judge, certainly you have given instructions to the jury limiting the purpose that evidence has to come in on this case. It is certainly in your power to give a limiting instruction as to the purpose [for which] the tape is coming in. In my conversations with the doctor, it is clear to me that her opinion is based not only on the words that were spoken but on how the words were spoken and the defendant's demeanor and changing demeanor throughout the tape.
Now I don't want to be put in a position where my expert comes in, is compelled to describe verbally what the demeanor of a person over an hour and forty minute period when there are changes in demeanor and subtle variations. I don't want to find myself in that situation where I make reference or she makes reference to what happened during the statement, their doctor decides they view it differently, and now it's left to a swearing contest. I think the jury has a right to question it and make its own determination and decide which expert they want to believe or if they want to reject them both.
(Tr. 1360-61.)
The trial judge preliminarily ruled that the videotape would not be played for the jury but agreed to "consider the situation." (Tr. 1363-67.) Several days later, the videotape was again discussed:
THE COURT: I was provided on Monday, yesterday, with a copy of a video tape of a question and answer session with Rosa Rodriguez conducted by ADA Hunt, the transcript of which I also have in my possession. I have reviewed the interview that occurred on June 24, 1992, approximately three months after the date of occurrence concerning Anderson Rodriguez. The content of the interview contains what I would consider many statements by the defendant of a self-serving nature, that are also not part of the trial testimony. There are statements to the effect that money was offered, three hundred dollars was offered only so that — only so that the other co-conspirators would simply leave her alone and for no other purpose. That Anderson had shown a gun to Leonel, supposedly the gun that he would use to kill her, several references to Anderson Rodriguez selling drugs and using drugs, to taking her SSI money, several references to the defendant saying no to the plan — effectively saying no the plan to kill Anderson Rodriguez. And other matters that are not part of the trial record and that would be self-serving statements.
The interview itself, my observations of the interview itself indicate that the defendant sat through the interview in a non-exceptional way. My meter counter is broken on my VCR, so I . . . have the background clock in the video tape just to note some things and there are some times, some occasions, I think around 10:15 on the clock and/or 10:25 on the clock when she does move her body back and forth or rocks a little bit back and forth. Later on in the interview at about 10:45 on the clock she holds her back with her left hand continues to move. It looks like her back might be hurting. She seems generally composed, although she did cry, I think, about 10:15 — also seemed to do that, 10:15, and then about 10:50 on the clock she holds her back with two hands and moves her body. But she listens to the questions that were asked of her and answered responsively.
From my vantage point, I don't see anything extraordinary in the tape itself that couldn't be described verbally by a witness, if the witness feels that there is some significance . . . vis-a-vis a medical diagnosis or psychological diagnosis or opinion.
Okay, now what else?
[DEFENSE COUNSEL]: On that issue it was my intention, as I indicated to the Court, to offer the tape for all the reasons that I previously stated to the Court. I think it's important to demonstrate state of mind. It's important because the witness used the tape in its entirety to demonstrate state of mind. It was my intention to offer it into evidence.
Is your Honor ruling I am precluded from using the tape or any portion thereof?
THE COURT: Based on the offer of proof that I have, yes, for the reasons stated. It has many self-serving statements. It has some degree of questionable relevance since the interview occurred three months after the date of occurrence and there's nothing specifically about it that I know of that relates to diagnos[is] or opinion of an expert that couldn't be explained verbally. So, I feel that it should be precluded on balance.
[DEFENSE COUNSEL]: [A] picture is worth a thousand words, but it's one thing to describe your impressions. It's another thing to actually point out specific behaviors and specific language used by the defendant, the intonations of the voice, the appearance of the defendant when she held her back, when she cried, when she rocked back and forth in a method which I think is consistent with psychotic behavior, et cetera. It makes a certain impact. I will be prevented from showing that through this witness and for that reason I certainly would note my exception.
(Tr. 1422-26, emphasis added.)
The issue of the videotape and Rosa's demeanor arose again prior to Detective McGibney re-taking the stand as a defense witness. (See Tr. 1776-78.) Defense counsel argued that if the prosecution asked Detective McGibney questions about Rosa's demeanor, it would open the door to allow the defense to put in the videotape:
[DEFENSE COUNSEL]: [T]he best evidence of the behavior is the video tape because you can see it and evaluate it for yourself. If the District Attorney is going to have someone testify that I was there and I could tell you what she was doing, I think that certainly does open the door . . . to putting in the video because that's the evidence of what her demeanor was two hours later.
THE COURT: I don't believe it opens the door. It is perhaps already stated. I don't believe it opens the door to the video tape.
(Tr. 1778-79.) The trial judge ruled that Detective McGibney could be asked about his observations of Rosa's demeanor when she was arrested but not during the time of the videotaped interview. (Tr. 1779-84.)
Detective McGibney testified on defense questioning that he escorted Rosa to a pharmacy on June 24, 1992 and took an unrecorded statement from her at 5:45 p.m. and a videotaped statement at 9:40 p.m. (McGibney: Tr. 1789-94.) On cross-examination by the prosecution, Detective McGibney described Rosa's demeanor when he interviewed her at 5:45 p.m. as "calm, relaxed. She was cooperative and forthcoming. She appeared to understand the questions as far as I could understand. That was about it. She appeared calm and relaxed to me." (Id. at 1794-95.) Detective McGibney said that Rosa did not rock back and forth during the first (non-videotaped) interview. (Id. at 1797.) On redirect, defense counsel questioned Detective McGibney about Rosa's demeanor during the videotaped statement. (Id. at 1801.) When defense counsel asked if Rosa had rocked back and forth in her chair on "a couple of occasions" during that videotaped statement, the detective answered that he did not recall her rocking other than at the end of the interview. (Id. at 1802.) The trial judge sustained the prosecution's objection when the defense asked if viewing the videotape would refresh the detective's memory about Rosa's demeanor. (Tr. 1803.)
The People's Rebuttal Case
In rebuttal, the prosecution called Dr. Robert H. Berger, Director of the Bellevue Hospital Forensic Psychiatry Service, who opined that Rosa was neither unable to appreciate the nature or consequences of what she was doing nor suffering from extreme emotional disturbance at the time of the crime. (Berger: Tr. 1985-90, 2072-73.) Dr. Berger testified that Rosa was not schizophrenic, but instead suffered only from a "borderline personality disorder." (Id. at 2051, 2071-72.) He defined this diagnosis as describing "a person who has intense and unstable interpersonal relationships." (Id.) While acknowledging evidence that Anderson "certainly" beat Rosa (id. at 2029), Dr. Berger did not believe that Rosa fit the profile for the battered woman syndrome, particularly because she did not demonstrate the passivity associated with the syndrome. (Id. at 2029-32, 2072.) Rather, Dr. Berger concluded that money was "a theme here" in understanding Rosa. (Berger: Tr. 2061-64.)
Dr. Berger acknowledged that Rosa's hospital records contained complaints about hearing voices urging her to kill herself, but he attributed those voices to depression and culture rather than schizophrenia. (Berger: Tr. 2033-35, 2043-46, 2059-61.) Dr. Berger found the possibility that Rosa acted at the command of voices illogical. "[A] voice doesn't tell you something which then you spend the next several months planning to carry out." (Id. at 2060.) According to Dr. Berger, "planning is not consistent with the loss of control that I understand is needed to have extreme emotional disturbance." (Id. at 2067.)
Dr. Berger relied, in part, on his assessment of Rosa's demeanor on the videotape. (Berger: Tr. 2014-15.) Dr. Berger testified as follows:
What are other features of the borderline? Marked shifts in mood. Baseline to happy to crying to angry. Constant throughout the record is demonstration of those kinds of marked variability and shifts in her mood. It was even testified to. Was she crying at that time? Answer, yes. The videotape, how does she appear? She's calm in her videotaped statement, answering questions spontaneously. Asked one question, [she] goes on and talks, gives a whole account of things systematically, coherently, logically, relevantly, self-servingly, only things that assist her position; and then when confronted with certain things by the examiner, becomes tearful, becomes irritable, appears frightened. Normal response in that kind of a situation being accused of a very serious crime like that for somebody to feel nervous in that way; but Miss Rodriguez expresses her emotions when she does. We might feel that kind of way, but not be so demonstrative of it, demonstrate it like that. So that when all these different doctors see her, you know, they see these features, oh, the borderline personality.
(Id. at 2052-53.)
Verdict and Sentence
The jury found Rosa Rodriguez guilty of second-degree murder, conspiracy and criminal solicitation. (Tr. 2500-03.) On January 23, 1996, the trial judge sentenced Rosa to concurrent sentences, the longest of which was twenty years to life imprisonment. (1/23/96 Sentencing Tr. at 26.)
Direct State Appeal
In her counseled direct appeal to the First Department, Rosa Rodriguez raised two claims: (1) that "[t]he court erred in summarily denying [her] motion for a mistrial without requiring the prosecutor to offer gender-neutral reasons for using fifteen of her first fifteen peremptory challenges against women" (Rodriguez 1st Dep't Br. at 33; see also id. at 33-41), and (2) that "[t]he court erred in precluding [her] videotaped pretrial statement as 'self-serving' and hearsay even though [she] was not offering the videotape statement for its truth, but as evidence of insanity" (id. at 41; see also id. at 41-49).
The First Department affirmed Rosa Rodriguez's conviction. People v. Rodriguez, 258 A.D.2d 270, 685 N.Y.S.2d 45 (1st Dep't 1999). As to Rosa's Batson claim, the First Department stated in full that:
The [trial] court properly found that the defense did not meet its burden of presenting a prima facie case of purposeful discrimination in the prosecution's exercise of peremptory challenges. Defendant did not offer facts and other relevant circumstances sufficient to raise an inference that the prosecution used its peremptory challenges to exclude potential jurors because of their gender. As noted by the court, since there was, in general, a substantially greater number of female venirepersons available, the fact that a disproportionate number of peremptory challenges were exercised against females did not reflect an impermissible discriminatory motive. The remaining circumstances, including the challenged venirepersons' characteristics, did not support a prima facie case of discrimination.
Id. at 270, 685 N.Y.S.2d at 46 (citations, alterations internal quotations omitted).
As to the exclusion of the videotape, the First Department held in full:
The court's ruling precluding admission of defendant's videotaped statement made after her arrest did not prevent defendant from presenting state of mind evidence in support of the psychiatric defenses claimed. Rather, defendant offered extensive state of mind evidence for the jury's consideration, and thus the precluded videotape would have been cumulative evidence on this issue and there was no reasonable possibility that it could have affected the verdict. Further, in light of the self-serving nature of the videotaped statement, made approximately three months after the incidents in question, the court properly precluded it on the ground that any probative value it might have on the issue of state of mind was far outweighed by the strong likelihood of undue prejudice to the prosecution.
Id. (citations omitted).
The New York Court of Appeals denied leave to appeal on April 9, 1999. People v. Rodriguez, 93 N.Y.2d 902, 689 N.Y.S.2d 714 (1999).
Rodriguez's Current Federal Habeas Petition
Rosa Rodriguez's current pro se federal habeas petition raises the same two claims that she presented to the First Department: (1) that the trial judge erred in finding that she had not established a prima facie Batson claim and not requiring the prosecutor to offer gender-neutral reasons for using all of her first fifteen peremptory challenges against women, and (2) that the trial judge erred in precluding Rosa's videotaped pretrial statement when she was arrested as "self-serving" even though she was not offering the videotape statement for its truth, but in support of her insanity/battered woman defense. (Dkt. No. 1: Pet. ¶ 12, incorporating Rodriguez 1st Dep't Br.) Indeed, Rodriguez's habeas petition merely attaches her counsel's brief to the First Department, with no new or independent argument. (Id.)
ANALYSIS
I. THE STATE COURTS' DETERMINATION THAT ROSA RODRIGUEZ DID NOT ESTABLISH A PRIMA FACIE BATSON CASE WAS NOT AN UNREASONABLE APPLICATION OF SUPREME COURT PRECEDENT
Before the Court can determine whether Rosa Rodriguez is entitled to federal habeas relief from the First Department's decision upholding the trial court's finding that she failed to establish a prima facie Batson case, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").
A. The AEDPA Review Standard
In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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 . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1)-(2).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404, 120 S.Ct. at 1519. Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 405, 120 S.Ct. at 1523.
As to the "contrary to" clause:
A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.
Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.
In Williams, the Supreme Court explained that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523. However, "[t]he term 'unreasonable' is . . . difficult to define." Id. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409, 120 S.Ct. at 1522.
The Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required, . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)); see also, Loliscio v. Goord, 263 F.3d at 184.
Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.
Sellan v. Kuhlman, 261 F.3d at 312.
B. Batson v. Kentucky and Its Progeny: An Introduction
In Batson v. Kentucky, 476 U.S. 79, 84, 106 S.Ct. 1712, 1716 (1986), the Supreme Court reaffirmed that a state's purposeful exclusion of jurors based on race violates the Equal Protection Clause of the Constitution. In J.E.B. v. Alabama, 511 U.S. 127, 128-46, 114 S.Ct. 1419, 1421-30 (1994), the Supreme Court extended Batson to prohibit gender-based discrimination in the exercise of peremptory challenges.
As the Second Circuit recently reiterated, "[t]he Supreme Court has set forth a three-part test trial courts are to employ when evaluating whether a party exercised a peremptory challenge in a discriminatory manner." Galarza v. Keane, 252 F.3d 630, 635 (2d Cir. 2001). The Second Circuit has summarized that test as follows:
[Step 1:] First, a trial court must decide whether the party challenging the strike has made a prima facie showing that the circumstances give rise to an inference that a member of the venire was struck because of his or her race [or gender]. Such a prima facie case may be established, for example, by showing a pattern of strikes against minority prospective jurors . . . .
[Step 2:] If the party making the Batson challenge establishes a prima facie case, the trial court must require the non-moving party to proffer a race [or gender]-neutral explanation for striking the potential juror. The second step does not require the party to give an explanation that is persuasive or even plausible.
[Step 3:] Finally, if the non-moving party proffers a race [or gender]-neutral explanation, the trial court must determine whether the moving party has carried his or her burden of proving that the strike was motivated by purposeful discrimination.
Galarza v. Keane, 252 F.3d at 636 (citations omitted); see, e.g., Batson v. Kentucky, 476 U.S. at 96-98, 106 S.Ct. at 1723-24; Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 1770-71 (1995); Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 1865-66 (1991); Alverio v. Sam's Warehouse Club, Inc., 253 F.3d 933, 939-40 (7th Cir. 2001); United States v. Raysor, Nos. 99-1503, 99-1504, 2001 WL 357030 at *1 (2d Cir. Apr. 10, 2001); Moore v. Walker, No. 99-2754, 234 F.3d 1262 (table), 2000 WL 1721120 at *1 (2d Cir. Nov. 16, 2000); Jordan v. LeFevre, 206 F.3d 196, 200 (2d Cir. 2000); Barnes v. Anderson, 202 F.3d 150, 155 (2d Cir. 1999).
The Second Circuit has held that a Batson claim "is a structural error that is not subject to harmless error review." Tankleff v. Senkowski, 135 F.3d 235, 248 (2d Cir. 1998); accord, e.g., Galarza v. Keane, 252 F.3d at 638 n. 8; Harris v. Kuhlmann, 115 F. Supp.2d 326, 338-39 (E.D.N.Y. 2000).
C. Rodriguez's Batson Claim Should be Analyzed Under the AEDPA's "Unreasonable Application" Clause
The trial court found that Rosa Rodriguez failed to establish a prima facie case, the first step of the Batson analysis, and therefore did not ask the prosecutor to provide a gender-neutral reason for its peremptory challenges. (See pages 8-9 above.) The Second Circuit has stated that "the threshold decision concerning the existence of a prima facie case of discriminatory use of peremptory challenges involves both issues of fact and an issue of law," meaning that once the fact-finding has been performed, "the judge must then determine, as a matter of law, whether these underlying facts suffice to establish a prima facie case." United States v. Alvarado, 891 F.2d 439, 443 (2d Cir. 1989), judgment vacated on other grounds, 497 U.S. 543, 110 S.Ct. 2995 (1990). As district court decisions in this Circuit have noted, "[t]his appears to place the Second Circuit in the camp of those courts that recognize that the Batson prima facie issue is one of mixed law and fact, rather than a purely factual determination." Overton v. Newton, 146 F. Supp.2d 267, 277 (E.D.N.Y. 2001).
On federal habeas review, mixed questions of law and fact translate to "mixed constitutional questions (i.e., application of constitutional law to fact)," Williams v. Taylor, 529 U.S. 362, 400, 120 S.Ct. 1495, 1516 (2000) and, under the AEDPA, are reviewed under the standard set forth in 28 U.S.C. § 2254(d)(1), requiring a habeas court to determine whether the state court's decision "was contrary to or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." E.g., Collado v. Miller, 157 F. Supp.2d at 231-34 (applying § 2254(d)(1)'s "unreasonable application" standard to claim that state court improperly found that defendant failed to establish prima facie Batson case); accord, e.g., Gonzalez v. Portuondo, 2001 WL 856600 at *8-9; Overton v. Newton, 146 F. Supp.2d 272-73; Millan v. Keane, 1999 WL 178790 at *3-7.
Here, the trial court and the First Department identified the correct governing law with respect to Rosa Rodriguez's Batson claim. The question before this Court, therefore, is whether the state court decisions involved an "unreasonable application" of the legal principles established by the Supreme Court in Batson and its progeny.
D. Application of the AEDPA's "Unreasonable Application" Clause to Rodriguez's Batson Claim
In order to establish a prima facie case under Batson and its progeny, a defendant must show that the circumstances surrounding the peremptory challenges raise an inference of discrimination. (See cases cited at page 36 above.) In Batson, the Supreme Court stated that "[i]n deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances." Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 1723 (1986). The Supreme Court in Batson elaborated as follows:
For example, a "pattern" of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors.
Id. at 97, 106 S.Ct. at 1723. In oft-quoted language, the Second Circuit explained:
In considering whether a defendant has made out a prima facie case . . ., we believe that courts should consider how many members of the cognizable racial group are in the venire panel from which the petit jury is chosen, the pattern of strikes against racial group jurors in the particular venire, the prosecutor's statements and questions during selection, as well as any other relevant circumstances.
Tankleff v. Senkowski, 135 F.3d 235, 249 (2d Cir. 1998).
1. Pattern of Strikes
In making her Batson challenge, Rosa Rodriguez relied solely on statistical evidence: the prosecution had exercised all of its first fifteen peremptory challenges against women. (See VD 736-37; see also VD 492-93, 496-97, 740-41, 992-94.) In Batson, the Supreme Court noted that "a 'pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination" that can establish a prima facie case. Batson v. Kentucky, 476 U.S. 79, 97, 106 S.Ct. 1712, 1723 (1986); see also, e.g., Galarza v. Keane, 252 F.3d 630, 636 (2d Cir. 2001) ("a prima facie [Batson] case may be established . . . by showing a pattern of strikes against minority prospective jurors"); Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir. 2000) (prima facie case can be established "from a pattern of strikes against minority jurors."). Cases in this Circuit make clear that statistical evidence showing a pattern of discriminatory strikes can be used to establish a prima facie case. E.g., Tankleff v. Senkowski, 135 F.3d 235, 249 (2d Cir. 1998) ("In the case before us, we have little to go on besides the statistics because the trial court cut off defense counsel before he could complete his argument. Nevertheless, the fact that the government tried to strike the only three blacks who were on the panel constitutes a sufficiently dramatic pattern of actions to make out a prima facie case."); United States v. Alvarado, 923 F.2d 253, 255 (2d Cir. 1991) ("[A] challenge rate nearly twice the likely minority percentage of the venire strongly supports a prima facie case under Batson."); United States v. Alvarado, 891 F.2d 439, 444 (2d Cir. 1989) ("statistical disparities are a relevant factor in making a prima facie case" under Batson), judgment vacated on other grounds, 497 U.S. 543, 110 S.Ct. 2995 (1990).
The Second Circuit has made clear, however, that while Batson "indicates that statistical disparities are to be examined," nevertheless "[o]nly a rate of minority challenges significantly higher than the minority percentage of the venire would support a statistical inference of discrimination." United States v. Alvarado, 923 F.2d at 255; accord, e.g., United States v. Diaz, 176 F.3d 52, 77 (2d Cir.), cert. denied, 528 U.S. 875, 957, 120 S.Ct. 181, 314, 315, 386 (1999); Collado v. Miller, 157 F. Supp.2d 227, 233 (E.D.N.Y. 2001); Overton v. Newton, 146 F. Supp.2d at 274; Hernandez v. Dufrain, 95 Civ. 2487, 1996 WL 63054 at *4 (S.D.N.Y. Feb. 13, 1996); United States v. Santopietro, 809 F. Supp. 1016, 1019 (D.Conn. 1992).
Here, when Rosa Rodriguez made her Batson challenge at the end of the third round of voir dire, the prosecution had used 100% of its peremptory challenges against women (the prosecutor challenged fifteen women), while women made up 57% of the venirepersons against whom the prosecution could have exercised peremptories. After four rounds, 49 jurors were considered, of which 27 were women and 22 men; the prosecutor challenged fifteen women and three men (and did not use two peremptory challenge prospective female jurors (15 of 27) when females made up 55% of the jury venire (27 of 49). (See pages 10-11 fn. 25 above.)
The prosecution thus exercised its challenges against women at a rate approximately 50% greater than their representation on the venire. This disparity is not as great as some cases where statistical differences were found to be significant. See, e.g., Turner v. Marshall, 63 F.3d 807, 813 (9th Cir. 1995) (prima facie case established where government used 56% of its peremptory challenges against African-Americans where African-Americans made up approximately 30% of venire), cert. denied, 522 U.S. 1153, 118 S.Ct. 1178 (1998), overruled to a limited extent on different grounds, Tolbert v. Page, 182 F.3d 677, 685 (9th Cir. 1999); Alvarado v. United States, 923 F.3d at 256 (challenge rate against minorities was 50% while minority population of the district, used as a proxy for the minority percentage of the venire, was 29%; "a challenge rate nearly twice the likely minority percentage of the venire strongly supports a prima facie case under Batson"). On the other hand, some cases have found similar disparities to be insufficiently significant to compel a finding of a prima facie Batson violation. See, e.g., United States v. Diaz, 176 F.3d at 77 (affirming district court's decision "that there was no statistical inference of racial discrimination because the government's 25% rate of minority strikes was not significantly higher than the 23% minority population of the venire"); Hernandez v. Dufrain, 1996 WL 63054 at *4 (no Batson claim where challenge rate for minorities was between 19% and 31% while minority venire was 13%).
This Court finds that while the rate at which the prosecution exercised peremptories against women would support an inference of discrimination, it was not unreasonable for the state trial and appellate courts to find that this statistic, standing alone, did not compel finding of a prima facie case. See, e.g., Collado v. Miller, 157 F. Supp.2d at 234 (prosecution at most used 39% (7 of 18) of its challenges to strike Hispanic jurors while the Hispanic population of county from which the jury was drawn (used as a proxy for the racial composition of the venire) was 25%; "Absent any other indicia or racial bias, the disparity here between the rate of the prosecution's challenges of Hispanics and the racial composition of the venire is not sufficiently significant for this Court to find that the state court's decision was per se incorrect. Although another court might find a prima facie Batson violation based on the statistical disparity in petitioner's case, the state court did not necessarily err in concluding otherwise, and certainly did not advance an 'objectively unreasonable' application of Batson. Accordingly, the Court will not disturb the state court's determination in this case."). The Court therefore must look at the other factors that the state courts here considered, particularly the characteristics of the challenged jurors.
2. Characteristics of the Challenged Jurors
The Supreme Court counseled in Batson that "[i]n deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances." Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 1723 (1986); see also cases cited at pages 40-41 n. 45 above. In determining whether a prima facie case has been established, courts may consider race-neutral or gender-neutral reasons for striking a juror apparent in the record of the voir dire. See, e.g., Mahaffey v. Page, 162 F.3d 481, 483 n. 1 (7th Cir. 1998) (recognizing existence of cases where apparent reasons for strikes would "negate an inference of discrimination," i.e., where "the apparent reasons might be sufficiently convincing that the court would not require the prosecutor to come forward with actual reasons"), cert. denied, 526 U.S. 1127, 119 S.Ct. 1786 (1999); Johnson v. Campbell, 92 F.3d 951, 953-54 (9th Cir. 1996) (considering "obvious reason" for the peremptory challenge in determining whether prima facie Batson case was established); Capers v. Singletary, 989 F.2d 442, 446-47 (11th Cir. 1993) ("Guided by Batson . . ., we conclude that the district court did not err by considering the probable reasons for the state's challenges when determining whether the defendants had established a prima facie showing . . . ."); United States v. Jackson, No. 92-5215, 983 F.2d 1069 (table), 1993 WL 8152 at *3-4 (6th Cir. Jan. 15, 1993) (despite statistical evidence, "there were more factors tending to refute the inference of discrimination than those supporting it"), cert. denied, 508 U.S. 913, 113 S.Ct. 2350 (1993); Bailey v. NYC Dep't of Transp., 93 Civ. 1121, 1998 WL 472010 at *1 (S.D.N.Y. Aug. 3, 1998) (Sand, D.J.) (in employment discrimination case, declining to inquire as to defendant's reasons for striking juror where, inter alia, "there were obvious non-race related grounds on which the defendant might find [the juror] undesirable"), aff'd mem., 173 F.3d 843 (2d Cir. 1999); Millan v. Keane, 97 Civ. 3874, 1999 WL 178790 at *5-7 (S.D.N.Y. Mar. 31, 1999) (the trial court properly inferred from the prosecutor's statements, questions during voir dire and the fact that "the defendant, the victim, and all of the eyewitnesses" were Hispanic that "the circumstances of this case did not suggest any motive that would have led the prosecutor to exercise peremptory challenges in a discriminatory fashion"), aff'd mem., 208 F.3d 203 (2d Cir. 2000), cert. denied, 531 U.S. 1084, 121 S.Ct. 789 (2001).
Here, the trial judge stated that "[l]ooking over those that were challenged I can see various reasons why under the circumstances of this case they might not be considered suitable jurors." (VD 741.) While it would have been better if the trial judge had stated what these "various reasons" were, the trial court's conclusion was not unreasonable. Nor was the First Department's affirmance which stated that "the challenged venirepersons' characteristics did not support a prima facie case of discrimination." People v. Rodriguez, 258 A.D.2d 270, 270, 685 N.Y.S.2d 45, 46 (1st Dep't), appeal denied, 93 N.Y.2d 902, 689 N.Y.S.2d 714 (1999).
There are reasons apparent from the voir dire record why the prosecution would find many of the fifteen women peremptorily struck unsuitable or undesirable. First, "courts have generally upheld challenges based on employment as nondiscriminatory and plausible," Cruz v. Artuz, No. CV 96-5209, 1997 WL 269591 at *6 n. 7 (E.D.N.Y. Apr. 21, 1997), aff'd mem., 133 F.3d 906 (2d Cir. 1997), and prosecutors often consider persons in the "helping professions" to be defense oriented. Three of the women (Rosetta Beckford, Thelma Stark and Jennifer Lobbon) were in the helping professions. Second, four of the women (Dorothy Pizzaro, Maria Natal, Mary Collie, and Vanda Rovis) came forward during the screening to express doubts about their ability to serve. Finally, two of the women (Betty Hartery and Josefina Flores) told the court that they had personal experience with abusive marriages. (VD 464-65.) None of the nine prospective male jurors in the venire had these characteristics — i.e, none of them had come forward during screening to express concerns about their ability to serve, were in the helping professions, or had personal experience with spousal abuse. See, e.g., United States v. Diaz, 176 F.3d 52, 77 (2d Cir.) (in upholding district court's decision that defendant had failed to establish prima facie case, noting that "[t]he record reflects that the answers given by [the African-American jurors peremptoril y struck by the prosecution] differed in substance from those provided by other members of the venire"), cert. denied, 528 U.S. 875, 957, 120 S.Ct. 181, 314, 315, 386 (1999).
While the statistical evidence here might support a prima facie case, there are gender-neutral reasons in the record that support the trial court's finding that the defense did not establish a prima facie case. The deferential AEDPA review standard has significant impact on this case. This Court agrees with Judge Amon in Collado v. Miller, who stated: "Although another court might find a prima facie Batson violation based on the statistical disparity in petitioner's case, the state court[s] did not necessarily err in concluding otherwise, and certainly did not advance an 'objectively unreasonable' application of Batson.
Accordingly, the Court will not disturb the state court's determination in this case." Collado v. Miller, 157 F. Supp.2d 227, 234 (E.D.N.Y. 2001). The Court does, however, also recommend granting Rosa Rodriguez a certificate of appealability limited to this Batson issue. (See page 60 below.)
II. THE TRIAL COURT'S EXCLUSION OF ROSA'S VIDEOTAPED STATEMENT DID NOT DEPRIVE HER OF HER RIGHT TO PRESENT A DEFENSE
Rosa Rodriguez contends that "[t]he court erred in precluding [her] videotaped pretrial statement as 'self-serving' and hearsay even though [she] was not offering the videotape statement for its truth, but as evidence of insanity." (Rodriguez First Dep't Br. at 41.) She couches this argument in federal constitutional terms by claiming that "[t]his restriction of the jury's fact-finding role violated [her] due process right to a fair trial and deprived [her] of a meaningful opportunity to present her insanity defense." (Rodriguez First Dep't Br. at 49 (citing U.S. Const. Amend. VI, XIV).)
A. The Legal Standard
"Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.' . . . [A]n essential component of procedural fairness is an opportunity to be heard." Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146-47 (1986) (citations omitted); accord, e.g., Rosario v. Attorney General of the State of New York, 00 Civ. 6681, 2001 WL 267641 at *11 (S.D.N.Y. Mar. 19, 2001) (Peck, M.J.), report rec. adopted, 2001 WL 521828 (S.D.N.Y. May 15, 2001) (Kaplan, D.J.); Cruz v. Greiner, 99 Civ. 7939, 1999 WL 1043961 at *32 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Gillette v. Greiner, 76 F. Supp.2d 363, 373 (S.D.N Y 1999) (Stein, D.J. Peck, M.J.).
However, "[t]he Sixth Amendment right to present a defense is not unqualified; [it is] subject to countervailing public interests." Lurie v. Wittner, 228 F.3d 113,133 (2d Cir. 2000) (internal quotations omitted). "Restrictions on a defendant's presentation of evidence are constitutional if they serve 'legitimate interests in the criminal trial process,' and are not 'arbitrary or disproportionate to the purposes they are designed to serve.'" United States v. Almonte, 956 F.2d at 30 (quoting Rock v. Arkansas, 483 U.S. 44, 55-56, 107 S.Ct. 2704, 2711 (1987)); accord, e.g., United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 1264 (1998); Michigan v. Lucas, 500 U.S. 145, 151, 111 S.Ct. 1743, 1747 (1991); Taylor v. Illinois, 484 U.S. 400, 424, 108 S.Ct. 646, 660-61; Williams v. Lord, 996 F.2d at 1483; Rosario v. Attorney General, 2001 WL 267641 at *12; Cruz v. Greiner, 1999 WL 1043961 at *32.
The Supreme Court has "acknowledge[d] also our traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts. In any given criminal case the trial judge is called upon to make dozens, sometimes hundreds, of decisions concerning the admissibility of evidence. . . . [T]he Constitution leaves to the judges who must make these decisions 'wide latitude' to exclude evidence that is 'repetitive . . ., only marginally relevant' or poses an undue risk of 'harassment, prejudice, [or] confusion of the issues.'" Crane v. Kentucky, 476 U.S. at 689-90, 106 S.Ct. at 2146. "Moreover, we have never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability — even if the defendant would prefer to see that evidence admitted." Crane v. Kentucky, 476 U.S. at 690, 106 S.Ct. at 2146; accord, e.g., Rosario v. Attorney General, 2001 WL 267641 at *12; Gillette v. Greiner, 76 F. Supp.2d at 373.
Whether the exclusion of evidence violates a defendant's "right to present a defense depends upon whether the omitted evidence [evaluated in the context of the entire record] creates a reasonable doubt that did not otherwise exist. Thus, where 'the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.'" Justice v. Hoke, 90 F.3d 43, 47 (2d Cir. 1996) (citations omitted, brackets in original); accord, e.g., Washington v. Schriver, 255 F.3d 45, 56 (2d Cir. 2001); Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000); Morales v. Portuondo, 154 F. Supp.2d 706, 723-24 (S.D.N.Y. 2001); Rosario v. Attorney General, 2001 WL 267641 at *12; Gillette v. Greiner, 76 F. Supp.2d at 373. "It is the materiality of the excluded evidence to the presentation of the defense that determines whether a defendant has been deprived of a fundamentally fair trial." Rosario v. Kuhlman, 839 F.2d at 925; accord, e.g., Rock v. Arkansas, 483 U.S. at 52, 107 S.Ct. at 2709.
B. Application of the Legal Standard to Rosa Rodriguez's Case
This Court cannot say that the admission of Rosa Rodriguez's videotaped statement would have created a reasonable doubt that did not otherwise exist or that its exclusion denied Rosa Rodriguez a meaningful opportunity to present a complete defense.
The trial evidence against Rosa was overwhelming. Rosa offered two defenses to the charge of murder — that she was not criminally culpable at all because of severe mental illness and that she was not guilty because she suffered from battered woman's syndrome and was in extreme emotional distress at the time of her crimes. (See pages 20-28 above.) The defense's two expert witnesses testified at length regarding Rosa's alleged psychosis, battering and emotional distress. (Id.) This Court has viewed the excluded videotape, which shows Rosa speaking (through a Spanish interpreter) to a prosecutor after her arrest on June 24, 1992. The videotape was offered by the defense to show Rosa's demeanor which, according to the defense, was consistent with someone suffering from severe mental illness and battered woman's syndrome. (See pages 24-28 above.) The probative value of this evidence was limited given that the tape was made on June 24, 1992, more than six months after Rosa began planning Anderson's murder in December 1991 and nearly three months after Anderson's March 26, 1992 murder, and was cumulative of other evidence already before the jury regarding Rosa's mental state, including the defense psychiatrist's testimony discussing Rosa's demeanor during the videotape and the expert's conclusions therefrom. (See pages 26-28 above.)
The exclusion of the videotape served "legitimate interests in the criminal trial process." In the videotape, Rosa admitted that she spoke to Ramos and Moya about killing Anderson but said that they were not supposed to do it until she gave the go ahead, which she never did; in fact, she said that while she was in the hospital before the murder, she told Ramos not to kill Anderson. In the videotape, Rosa said that when she was hospitalized for a nervous breakdown after Anderson's murder and Ramos came to visit her in the hospital, Rosa asked Ramos why she did it since Rosa had told her not to. Rosa's videotaped statement repeatedly referred to Anderson's abuse of her, including his trying to kill her, his drug use and sale of drugs, and his desire to take her money. Indeed, Rosa was most upset on the video when talking about how Anderson wanted her money, which she wanted for her children. Because the videotape was being offered to show Rosa's demeanor, not for the truth of the matters asserted, and Rosa did not take the stand, these self-serving exculpatory statements could not be cross-examined.
Rosa's demeanor on the videotape is easily describable, and was described by the defense and prosecution psychiatrists. Rosa occasionally rocked back and forth in her chair, particularly near the end of the 80 minute interview. She put one and sometimes both hands behind her back, again particularly near the end of the session. That might be explained by her response to the question at the end of the interview, of how she felt, to which she said tired and sleepy (it was about 11:00 p.m.) and that she had back pain. I would describe Rosa's conduct in the last ten minutes of the taped interview as fidgeting or "antsy."
Rosa's demeanor and physical conduct were capable of description (and were described) by the psychiatrists and such oral descriptions could be easily understood by the jury.
Given the limited probative value of the videotape, its exclusion was not inappropriate in order to avoid unfair prejudice to the prosecution from Rosa's non-cross-examined self-serving statements. Accordingly, the trial judge's ruling — that the videotape "should be precluded on balance" based on his finding that the videotape was "self-serving" and of "questionable relevance" (Tr. 1425) — was neither erroneous nor unreasonable. See, e.g., Anguiano v. Morales, No. C 98-4751, 2000 WL 630870 at *8-9 (N.D.Cal. May 2, 2000) (in a case factually similar to Rodriguez's, denying habeas petition where trial court excluded videotaped statement by defendant to police, and, going even further than the trial judge here, also precluded the defense psychiatrist from testifying based on the videotape); see also, e.g., Williams v. Lord, 996 F.2d 1481, 1484 (2d Cir. 1993) (finding that goals served by state court's exclusion of evidence, along with the evidence's limited relevance, justified its exclusion and did not violate petitioner's right to present a defense); Lagasse v. Vestal, 671 F.2d 668, 669 (1st Cir.) (exclusion of evidence did not deprive petitioner of fair trial where the exclusion of the proffered evidence "was a rational means of barring marginally relevant but highly prejudicial evidence"), cert. denied, 457 U.S. 1122, 102 S.Ct. 2939 (1982); Gordon v. Greiner, 00 Civ. 8927, 2001 WL 775962 at *4-5 (S.D.N.Y. July 9, 2001) (trial court's exclusion of videotaped grand jury testimony of an unavailable witness, proferred by the defendant to show the witness's demeanor, did not merit habeas relief).
CONCLUSION
For the reasons set forth above, Rosa Rodriguez's habeas petition should be denied. Because the question of whether Rosa Rodriguez established a prima facie case under Batson is a close one, however, this Court recommends that a certificate of appealability be granted limited to that issue. See, e.g., v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir.) (certificate of appealability should issue "if the issues involved in a petition are debatable among jurists of reason, could be resolved in a different manner, or are adequate to deserve encouragement to proceed further."), cert. denied, 531 U.S. 873, 121 S.Ct. 175 (2000); Millan v. Keane, 97 Civ. 3874, 1999 WL 178790 at *7, 12 (S.D.N.Y. Mar. 31, 1999) (denying relief under Batson but granting a certificate of appealability "given the emphasis in the Court of Appeals' decision in Tankleff on the percentage of potential jurors in a cognizable racial group who were peremptorily excused"), aff'd mem., 208 F.3d 203 (2d Cir. 2000), cert. denied, 531 U.S. 1084, 121 S.Ct. 789 (2001).
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See al so Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels, 40 Foley Square, Room 410, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Daniels. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
Round Potential Potential Potential Prosecutor Jurors Women Male Peremptory After Jurors Jurors Challenges Cause of Women 1 14 8 6 4 2 16 13 3 9 3 14 4 10 2 4 5 3 4 0 TOTAL 49 27 22 15Joan Kuzniar (seat 1), Michelle Bronson (seat 2), Wendy Brown (seat 6), Maritza Washington (seat 9), Thelma Crumler (seat 11) and Ruth James (seat 12). (VD 900.)