Appendix — Lord v. DeLuca

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Appendix B

Decision and Order of the United States District Court

for the Southern District of New York (Ward, J.)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

90 Civ. 4026 (RJ W)

Sheila Ryan DeLUCA,

Petitioner,

against,

Elaine A. LORD, Superintendent of Bedford Hills

Correctional Facility and Robert Abrams, Attorney General

of the State of New York,

Respondents.

WARD, District Judge.

In this petition for a writ of habeas corpus, filed on June 13,

1990, petitioner Sheila Ryan DeLuca ("DeLuca") asserts that she

was (1) denied effective assistance of counsel and (2) deprived

of her Sixth and Fourteenth Amendment rights to present a

defense by the trial court's exclusion of expert testimony. This

Court initially referred the matter to Magistrate Judge Kathleen

A. Roberts, who conducted an evidentiary hearing and filed a

Report and Recommendation dated December 21, 1993 (the

"Report"). Magistrate Judge Roberts’ comprehensive and

detailed Report recommends that petitioner's application for a

writ of habeas corpus be denied. Pursuant to 28 U.S.C. §

636(b)(1), petitioner filed timely objections to the Report. After

conducting a de novo review, this Court grants the writ on the

grounds that petitioner was denied the effective assistance of

trial counsel.

BACKGROUND

I. The Uncontested Facts

On the evening of September 21, 1982, Sheila Ryan DeLuca,

a recently retired New York City police officer, met friends and

family at Pauline's Bar and Grill in the Bronx to celebrate her

forty-second birthday and her retirement from the police force,

as well as the Kingsbridge Women's Softball championship

which her team had won that afternoon.' Because DeLuca's

husband, Peter DeLuca, was not feeling well, she drove him

home early. However, Mr. DeLuca insisted that his wife return

to the party since she was the "guest of honor."

While DeLuca spent the night celebrating at Pauline's, Robert

Bissett ("Bissett") began the evening watching a televised New

York Yankee game and drinking a few beers with his friends

Eugene Murphy ("Murphy") and Robert Barrett ("Barrett").

After the game, the three friends climbed into Bissett's black

Ford van and drove to a bar called "Scotty's," where they drank

more beer and played pool. After Scotty's closed, the three

friends drove to an “after- hours club" located on East 231st

Street, near Albany Crescent, arriving between 4:30 and 5:00 on

the morning of September 22, 1982.

Shortly thereafter, DeLuca entered the same after-hours club

with her friend, Karyn Travelina, a schoolteacher, who had been

' The petitioner formally retired from the New York City Police

Department six weeks before, on August 6, 1982, after fifteen years of

service.

celebrating with her at Pauline’s. Although the three men did

not know DeLuca or Travelina, Bissett approached the two and

struck up a conversation.

By 6:30 or 7:00 a.m., DeLuca and her friend, along with the

three young men left the club. At some point, DeLuca got into

her light blue Cadillac with the three men and spent the early

morning hours driving around the Bronx. Bissett sat in the

passenger seat while Murphy and Barrett rode in the back.

Continuing to drink beer and wine, the four drove around for a

number of hours, eventually winding up at the Bronx Park Motel

where they rented a room.

At first, only Murphy and Barrett entered the motel, where

they drank more beer and watched a pornographic film.

Eventually, Bissett and DeLuca entered. Bissett then asked his

two friends to leave so that he could be alone in the room with

DeLuca. Locked outside, his friends quickly became angry and

began banging on the door. In fact, Murphy became so enraged

that he kicked in a window located three feet above the ground.

Hearing the disturbance, the motel manager told his clerk to call

the room and order the group to leave.

After that telephone call, Murphy and Barrett left the hotel on

foot. Meanwhile, DeLuca and Bissett drove in her car back to

Bissett's van, which was parked near the after-hours club. The

two entered his van, drove for some time, and finally parked in

a deserted area alongside the service road adjacert to the Major

Deegan Expressway near Fordham and Landing Roads. At

approximately 2:00 in the afternoon, DeLuca left the van and

headed towards Fordham Road, where she called her husband.

After being out all night, DeLuca arrived home in her own car

sometime around 2:30 on the afternoon of September 22nd. Her

husband, who had gone out looking for his wife, drove up

almost immediately afterwards. Shortly before 7:00 that

evening, Mr. DeLuca, himself a retired New York City Police

Captain, telephoned the 46th Precinct Detective Unit and told

the police that they would find a body in a van located behind

the Dale Oldsmobile Auto Dealership. The police investigated

the scene and found Bissett's dead body. He had been shot in

the head four times.

DeLuca's husband again called the police sometime around

8:00 p.m. and stated that the man in the van had raped his wife

at approximately 1:00 that afternoon. Mr. DeLuca told the desk

sergeant that he wanted to speak to the "Rape Squad". Shortly

thereafter, Sergeant Rudolph Eberhardt ("Eberhardt") of the

Bronx Sex Crimes Squad called the DeLucas. After answering

the telephone, Mr. DeLuca immediately handed the receiver to

his wife who described her abduction and rape to the sergeant.

According to Eberhardt, DeLuca told him that, as she left the

after-hours club, she was forced into a van by three men and

taken to a motel near the Bronx Zoo. She stated that one of the

men had subsequently forced her back into the van and taken her

to the vicinity of Fordham Road and the Major Deegan Express-

way where he had raped her. DeLuca also told Eberhardt that

she finally managed to escape by hitting the man on the head

with a bottle, which caused him to roll off of her. DeLuca stated

that when she left the van, Bissett was lying in the back,

bleeding. She then walked to a gas station, where she called her

husband to come get her. When he failed to appear, DeLuca

walked back to her car, and drove home. DeLuca then told

Eberhardt that she did not wish to say anything more without her

lawyer present.

The first police officers arrived at petitioner's home sometime

around 8:45 p.m. While Peter DeLuca introduced himself and

his wife as former officers and stated that "the bum in the truck

down there raped my wife this afternoon," petitioner remained

quiet. A few minutes later John Patten ("Patten"), the DeLucas'

newly retained attorney, telephoned and told the officers that he

did not want his clients speaking to the police prior to his

arrival.2 No further efforts were made to interview the DeLucas

after Patten's call.

Arriving at the DeLucas’ home, Patten announced that he

would not allow any questioning of petitioner or her husband,

but asked that the rape investigation proceed. John GaNun

("GaNun"), Patten's law partner, arrived soon after and the

DeLucas spent some time consulting privately with their

attorneys. Following Patten's advice, DeLuca then gave the

police the jeans, sneakers, sweater, and torn underpants she had

been wearing the previous evening. Eberhardt noticed that the

pant legs of the jeans were still damp up to a point approxi-

mately nine inches above their bottoms and that the sneakers

were also damp.

The DeLucas and their counsel accompanied the police back

to the 52nd Precinct where petitioner filled out a formal rape

complaint, in which she claimed that three men had abducted

her using a knife. After filling out her complaint, DeLuca was

taken to North Central Bronx Hospital for a medical examina-

tion and returned home with a Detective Fusilli sometime after

midnight.

Pursuant to an earlier agreement entered into with Patten's

consent, DeLuca went to her bedroom to retrieve her guns and

turn them over to the police. Peter DeLuca, who was waiting in

2 John Patten had never tried a murder case before being retained by

DeLuca. He began his career in 1969 at the Manhattan District Attorney's

Office, where he worked in the Rackets Bureau, Complaint Bureau, and

Criminal Court Bureau. He prosecuted perjury, extortion, robbery, and

assault cases, but never a homicide. During his time at the District Attorney's

Office, he tried a total of thirty jury trials. In 1974, he left to enter private

practice with Carmine Peratta, and finally, began his partnership with John

GaNun in 1978, handling primarily criminal cases. At the time he tried the

DeLuca case, he had tried approximately twenty-seven cases as a defense

attorney.

the living room with Fusilli, reached over a nearby hutch and

picked up a holstered, off-duty revolver which he gave to Fusilli.

Mr. DeLuca told the detective, "This is the gun you're looking

for." Detective Fusilli unloaded the .38 calibre revolver and

found that it contained five spent shells. Petitioner then came

out of the bedroom and produced two additional regular service

revolvers which were loaded with eleven live bullets.

Ballistics tests positively established that petitioner's off-duty

revolver, which contained the five spent shells, had been

recently fired and was the same gun that was used to kill Bissett.

Investigators searching petitioner's blue Cadillac discovered two

beer bottles and a beer can. A latent fingerprint lifted from a

Heineken bottle was identified as belonging to Robert Barrett.

On Friday, September 24, 1982, DeLuca was arrested for the

murder of Robert Bissett.

Il. Defense C I's Pre-Trial Investi

DeLuca first told Patten her version of the events of Septem-

ber 21 and 22, 1982 on the night that he was retained as her

counsel.’ After asking the police to cease their questioning of

DeLuca and her husband, Patten and GaNun had a private

conversation with the couple. During that meeting, DeLuca

’ Since this petition is at least partially premised on defense counsel's

failure to evaluate both the strength of the prosecution's case as well as the

possible defenses available to DeLuca, and because the test enunciated in

Strickland v. Washington, 466 U.S. 668 (1984) requires an examination of

the totality of the circumstances, this Court must review all the information

available to Patten prior to trial.

explained the facts and circumstances surrounding the shooting

of Bissett, an account she repeatedly discussed with her counsel

prior to trial.*

A. The Petitioner's Version of Events

DeLuca testified before Magistrate Judge Roberts that at

approximately 4 a.m., she and Travelina arrived at the af-

ter-hours club in her car. After entering the bar, they were

approached by Bissett and his friends, who offered to buy them

drinks. DeLuca and Travelina were polite but answered that

they already had drinks. Bissett, Murphy, and Barrett responded

by calling the two women "dykes" and "lesbians." DeLuca

overheard their remarks and answered "You don't know who we

are. You don't know what we're about. And I just wish you'd

leave us alone and stop calling [us] names."

DeLuca then moved to the black-jack table while Travelina

remained at the bar. According to petitioner's testimony, she

played cards for approximately two hours. Eventually,

Travelina told DeLuca that she needed to call a colleague, whom

she was supposed to drive to school in the morning. Since

Travelina did not want her friend to know why she was missing

school that day, she decided not to make the telephone call from

‘ At the evidentiary hearing held before Magistrate Judge Roberts on July

21, 22, 23, and 29, 1992, both Patten and GaNun testified that petitioner did

indeed tell them her version of the events. They further testified that the

account of rape and abduction given by DeLuca before the magistrate judge

was consistent with their unrefreshed recollection of what they were told in

1982. In addition, Ellen Yaroshefsky, Toni lovieno, and Flora Colao, all

witnesses who testified at petitioner's evidentiary hearing, confirmed that

DeLuca's current statements are consistent with the account they were each

told at various times prior to her 1982 trial. This version of events was also

recorded in the notes of Dr. Daniel Schwartz, a forensic psychiatrist with

whom Patten consulted shortly after being retained by DeLuca.

the noisy bar. DeLuca and Travelina walked out of the club and

petitioner offered to drive Travelina to the nearest telephone but

Travelina told her that she could use the walk. The two parted

company and DeLuca re-entered the club and resumed playing

cards.

When DeLuca left the bar about a half hour later, she was

accosted by Barrett, Murphy, and Bissett. Bissett allegedly told

her, "We're going to have some fun. Get in the car and don't say

anything. My friends and I are going to have a party. Just do as

we say and you won't get hurt." They forced her into the driver's

seat of her Cadillac. Then, pushing her seat-back forward,

Barrett and Murphy climbed into the back of her car. Bissett ran

around the front of the car and got in the passenger seat beside

DeLuca. Once they were all in the car, either Bissett or Murphy

threatened DeLuca with a knife. There was an argument among

the men as to who should drive. Since she was the most sober,

DeLuca offered to drive and they all agreed with her suggestion.

The three men then ordered her to drive through the Bronx,

telling her "to turn at various places." During the ride, Barrett,

Bissett, and Murphy began talking about various sexual exploits

that they had engaged in with other women, which they referred

to as "gangbangs." The men discussed going up to the country

to do what they had done to another woman, including tying her

to a bed "and that type of thing." DeLuca recalled Bissett asking

her, "Wouldn't you like that?" From that moment on, DeLuca

stated that she did not speak to them at all. Angered that she

would not reply to his question, Bissett told his friends, "[t]his

one is not cooperative like the others," and told her, "I'll have

you know, killing is nothing to me, I've done it before." The

other men just laughed. DeLuca recalled that the men smoked

marijuana and snorted a white powder and it appeared to

DeLuca that Bissett was in charge.

DeLuca testified that she thought she was going to be raped

and killed. Escape did not seem possible. She thought about

crashing her car, but could not bring herself to do it and she saw

no police cars--to whom she could wave for help--while she was

driving. Although she recalled stopping to buy more beer, she

did not remember stopping at a paint store, nor stopping at the

Bissett home. DeLuca was not aware of how long she drove;

she knew only that it "seemed like forever" and that she was

"completely terrorized."

DeLuca continued driving until they reached the Bronx Park

Motel. While the other two men went into the room he had

rented, Bissett told DeLuca, "this is what it is going to be. [The]

four of us are going to go and we're going to have sex." DeLuca

begged him to let her go. He said, "behave yourself, and it will

be over soon ... I don't want to hear you talking above a whisper,

just walk into the room and do as I say when you get in there.

If you don't do as we ask, we're just going to kill you."

Hoping to isolate Bissett from the others so that she could

plead her case, DeLuca told him that she was "not used to this.

I'm not a hooker." She urged Bissett to get rid of Barrett and

Murphy because she would be more willing to have sex with

him alone. In apparent agreement, Bissett sent the other two

men out of the room, telling them that he would let them in

when it was their turn. Barrett and Murphy left reluctantly,

telling Bissett that they did not want to stand outside for long,

and that he better not keep DeLuca all to himself.

After Barrett and Murphy left, Bissett tried to take DeLuca's

top off. When she pulled away, he "smashed her" in the shoulder

or neck and reminded DeLuca that he had already warned her.

Barrett and Murphy started pounding on the door yelling for

Bissett to let them in. Murphy then kicked in the window.

Shortly thereafter, the telephone rang and Bissett picked it up.

After he hung up, he was “furious at everybody." Cursing

uncontrollably, Bissett yelled, "bitch, all you had to do was

cooperate. You said you would if I let those other two guys out,

and you went back on your promise." To Barrett and Murphy he

screamed, "you fucks, you screwed it up." Visibly and verbally

angry, he told DeLuca to get in the car, threatening, "if you dare

cause me any more trouble you're dead." Barrett and Murphy

left the motel on foot, while DeLuca and Bissett drove off in her

car with DeLuca at the wheel.

Although DeLuca is not sure how long she drove with Bissett,

she testified that they ended up back at Bissett's van, where he

repeated his warning that she better not try anything and ordered

her to get into the back of the van. She does not remember

seeing a weapon, but she did testify that as she climbed in, he

gave her "a good shove." Immediately, DeLuca glanced around

the inside of the van and saw that there were no doors other than

the two in front and the two in the very back. She also noticed

that there was no door handle on the front passenger door and

that the dashboard, floor, and walls were all carpeted.

Bissett climbed into the driver's seat and drove to the location

near Fordham and Landing Roads. There, Bissett punched

DeLuca several times, took off her clothes, and then forced her

to perform oral sex on him. He then threw her down and

attempted to anally rape her, but was unsuccessful. Finally, he

forced her to have vaginal intercourse. "He was on top of me for

a long time," she testified, "and then he just became still and

didn't move." At this point, DeLuca grabbed a bottle that was in

the back of the van and struck Bissett on the head, causing him

to roll off of her. DeLuca quickly put on as many clothes as she

could and climbed out of the front driver's side door. Petitioner

testified that she did not have her gun with her and did not

believe she hit Bissett hard enough to kill him.

DeLuca ran away from the van to a gas station on Broadway.

There, she called her husband and asked him to pick her up.

Realizing after she hung up that she had inadvertently given him

the wrong address, and aftaid that Bissett might chase her,

petitioner decided to walk back to her car.

DeLuca immediately headed for home but stopped when she

passed Travelina driving by in her car. By this time, Travelina

had learned that DeLuca had not returned home the night before

and was out looking for her. They waved to each other, pulled

over, and Travelina climbed into DeLuca's car. DeLuca then

told Travelina that she had been raped, but pleaded with

Travelina not to discuss what happened with anyone. She just

felt lucky to be alive and wanted to go find her husband. When

Travelina asked her why she did not kill her rapist, DeLuca told

her she did not have her gun. Leaving Travelina, petitioner

continued her drive home.

As she turned into her driveway, Mr. DeLuca pulled in right

behind her and asked her where she had been. DeLuca apolo-

gized to her husband for giving him the wrong address.

Noticing that the console of her car was twisted, he asked if

everything was alright. She told him there had been a problem

earlier, but that everything was alright now, an answer she

claims he accepted because their "relationship was based on

trust." |

DeLuca testified that she initially tried to forget what hap-

pened to her. She did not want to talk about the rape and just

kept thinking how lucky she was that the ordeal was over and

she was still alive and walking. After getting out of her clothes

and showering, DeLuca tried to take a nap. However, even

though she had been awake for over twenty-four hours, she was

too disturbed to fall asleep.

She decided to go into the living room where she spoke with

her husband. DeLuca said she tried to appear "as normal as I

possibly could be" during the conversation. When Mr. DeLuca

asked her where she had been, she told him about the after-hours

bar, which petitioner claims he "understood readily," since he

knew she liked to play cards.

It was not until Mr. DeLuca drove their housekeeper home,

however, that DeLuca began to break down. She started crying

and shaking violently. While she was still alone in the house,

she took another shower to calm down and relax. However, this

attempt at therapy did not work and she continued to weep

uncontrollably. When her husband returned, he was shocked to

see his normally stoic wife "go[ing] to pieces." Mr. DeLuca

immediately tried to comfort his wife and questioned her about

what happened. Petitioner testified that she tried to hold back,

but eventually broke down and told him about the abduction and

rape. She felt nauseated and was in pain. Fearing venereal

disease, she told her husband that she needed to go to the

hospital. Before leaving, she went to her bedroom and got her

gun because she "felt so vulnerable" and wanted protection.

Mr. DeLuca wanted to report the rape, but she told him she

did not want to talk to anybody. DeLuca testified that she felt

embarrassed about reporting the rape to the police, because, as

a former police officer from the Bronx, she was afraid someone

she knew might find out. Mr. DeLuca persisted, however, and

even offered to report the incident himself if his wife could tell

him where it took place. DeLuca told her husband that she did

not know the names of the streets where it happened, but agreed

to show him where she was raped so that he could report it.

On the way to the hospital, DeLuca directed her husband to

the site of the rape. As they neared the scene, DeLuca was

shocked when her husband pointed out that Bissett's van was

still there. DeLuca testified that she wanted to leave, but her

husband parked the car, got out, and walked towards the van,

heading around a puddle toward the driver's side door. Afraid

to be left alone, DeLuca followed, instinctively reverting to

police procedures--drawing her pistol and going to the other side

of the van. As her husband opened the front driver's side door,

DeLuca opened the front passenger door and they peered into

the van together, although, at first, they saw no one. Mr.

DeLuca told his wife that the van was probably stolen, but there

might be. fingerprints that they could use to track down her

assailant.

Suddenly, her husband, who was standing on the driver's side

running board, yelled, "There he is. Get out of there, you son of

a bitch!" DeLuca testified that she then saw Bissett lunge from

the back of the van, up and between the two front seats. He

shoved Mr. DeLuca away with his left arm, knocking him off

the running board and out of DeLuca's field of vision. DeLuca,

who was standing in a position to protect her gun, called out

"Don't move." Bissett ignored DeLuca's warning and pounced

at her, yelling, "Bitch, this time you're dead. I'm going to kill

you." He grabbed her left arm and started pulling her into the

van. Because she was caught off balance, DeLuca testified that

she feared Bissett would get her gun and kill both her husband

and herself. Although she cannot recall how many shots she

fired, she remembered that she shot more than once and fired as

rapidly as she could at his upper body and head.

Hearing the gunfire, Mr. DeLuca ran around the van, calling

out to his wife, "My God, I thought you were shot." DeLuca

testified that she does not know how her husband navigated the

puddle because she could not see him when he was behind the

van. Seeing his wife "visibly upset" and shaking uncontrollably,

Mr. DeLuca took the gun from her hand, climbed up to peer into

the van, shut the passenger door, and walked her back to their

car. The DeLucas immediately drove home where her husband

called the police.

B. Other Evidence Available To the Defense

In preparation for trial, Patten gathered additional evidence

in order to strengthen DeLuca's credibility and provide corrobo-

ration for her version of the events of September 21-22, 1982.

1. Peter DeLuca and Karyn Travelina's Testimony

Patten was aware that both Peter DeLuca and Karyn

Travelina were eyewitnesses to the events petitioner described

to him and both were available to verify her testimony. Mr.

DeLuca, like his wife, met with Patten and GaNun immediately

after the shooting and told them of his involvement in the

sequence of events leading up to Bissett's death. Karyn

Travelina would have been able to testify about the encounter

with the three men in the after-hours club and her discussion

with DeLuca when she ran into her on her way home.

Throughout the pretrial period, Mr. DeLuca expressed his

desire to testify in his wife's defense. In furtherance of that

desire, Mr. DeLuca provided counsel with notes summarizing

his recollection of the events. A review of those notes indicates

that, at trial, Mr. DeLuca could have testified about: (1) his

wife's telephone calls in the early afternoon of September 22,

1982; (2) her complaint of rape later that afternoon and her

fragile emotional and physical state at the time; (3) their trip to

the area where the van was parked as well as their unexpected

encounter with Bissett; and (4) the early evening time of the

shooting, which was contrary to the prosecution's theory.

Shortly after her arrest, he was diagnosed as having cancer,

and the trial date was adjourned several times because his

medical condition made his ability to testify questionable.

Ultimately, Mr. DeLuca had the nerve endings in his back

severed, so that he would be able to testify without suffering too

much pain.

2. Medical and Physical Evidence

Patten was also aware that Dr. Guidetti, the physician at North

Centrai Bronx Hospital who examined DeLuca the night she

reported the rape to the police, as well as her attending nurse,

were available to testify that DeLuca was in severe pain and

suffered vaginal redness and bleeding.

In addition, photographs, taken on September 24, 1982, which

showed bruising on DeLuca's body were available to defense

counsel. On the day the photographs were taken, DeLuca was

examined by Dr. William Clyne, her family physician. Dr. Clyne

signed an affidavit stating that he specifically remembered

several large bruises and several smaller bruises on various areas

of DeLuca's body, particularly her breasts and thighs and that he

did not believe these injuries to be self-inflicted.

3. Character Evidence

Many acquaintances of petitioner made it known to Patten

that they were willing to testify to DeLuca's good character and

reputation in the community for truth and honesty. Among

these prospective witnesses were police officials, former

teachers, and members of the Franciscan religious order where

DeLuca had trained.

4. Prior Similar Conduct by Bissett

To support DeLuca's claims that Bissett, Barrett, and Murphy

had threatened her with tales of past "sexual exploits they had

~ had with other women--gang bangs," both Patten and DeLuca

investigated Bissett's past.° That investigation led them to a

woman named Elizabeth Kochovos ("Kochovos") who- told

them she would be willing to testify at petitioner's trial.

> According to DeLuca, Bissett and his companions described having

taken another woman "up to the country," where she was tied to a bed and

raped. Bissett also threatened to kill DeLuca if she was not cooperative,

saying that “killing is nothing to me, I've done it before.”

After reading of Bissett's death, Kochovos called her local

precinct to report that, two years earlier, Bissett had abducted

and attempted to assault her. Kochovos explained that she did

not pursue her claim against Bissett, because his mother, Helen

Bissett, called Kochovos's mother and pleaded with her-not to

press charges.® The defense learned of this report, and later

obtained a statement from Kochovos. In her statement, Ms.

Kochovos described how Bissett became enraged and would not

let her leave his car. According to Kochovos, Bissett beat her,

tore her shirt and underwear, and threatened to take her "to visit

some friends."

5. Rape Trauma Syndrome Evidence

Concerned with his client's apparent lack of an immediate

. outcry, Patten also sought out evidence on Rape Trauma

Syndrome, the symptoms exhibited by victims following a rape.

During this search, he was put in contact with Flora Colao, an

expert in the field and founder of the St. Vincent's Hospital Rape

Crisis Center. In preparation for trial, DeLuca met with Colao

on several occasions. Colao was expected to testify at trial that

rape victims often do not "cry out" to the first person they see —

following a rape, and initially try to resume their normal

activities with no mention of the assault.

6. Evidence Concerning DeLuca's Sexual Orientation

Finally, petitioner stated at the hearing before Magistrate

Judge Roberts that she was a homosexual and did not have a

traditional sexual relationship with her husband. Although

Patten does not recall being told this by DeLuca, he does

remember having explicit discussions with her about her

sexuality. Patten testified that he was aware that DeLuca was

not interested in "traditional" heterosexual relations with men

* When cross-examining Helen Bissett at trial, Patten established that she

had, in fact, contacted Kochovos' mother. However, he never developed this

line of questioning beyond Mrs. Bissett's initial contact.

and that her only intimate heterosexual contact had occurred

when she was abused by an older man when she was eight or

nine years old. He also believed that his client's marriage to

Peter DeLuca was more akin to a father/daughter relationship,

and characterized it in those terms when speaking to Dr. Daniel

Schwartz concerning petitioner.’

Ill. The Evidence Presented At Trial

A. The Prosecution's Case

The State's case at trial was built entirely on circumstantial

evidence. Largely through the testimony of Murphy and Barrett,

as well as the testimony of the after-hours club's blackjack

dealer, Bissett's mother, the Bronx Park Motel's clerk and

manager, a paint store owner, and the police officers and city

officials investigating this case, the prosecution attempted to

portray DeLuca as a loose woman, who had gone on a "partying

spree,” had "hit on" Bissett, and after satisfying her sexual

desires, had murdered him in cold blood. As the prosecutor put

it in his closing argument:

Strange combination, isn't it? Bissett and Sheila Ryan

DeLuca--42 year old married woman, 28 year old single

man. A probationary fireman who had three months to

go until he became full fledged as a fireman in the New

York City Fire Department as opposed to the fifteen year

veteran cop who had left her husband when he went

- home after the bar and she went out for more fun and

more partying. She got what she wanted. What did

7 Patten consulted Dr. Schwartz, a forensic psychiatrist, in preparation for

trial. The notes taken by Dr. Schwartz during that meeting reveal that

DeLuca had described herself to Patten as “asexual” and considered

heterosexual relations "dirty."

Bissett want with a 42 year old heavyset blonde woman

when he's got his girlfriend? What does she want with

a 28 year old good-looking fireman? I leave that to you

to consider.

Both Barrett, a 22 year-old part-time housepainter, and

Murphy, a New York City Emergency Medical Services

Paramedic, testified that they spent the night of September 22

with their friend Robert Bissett. They both stated that DeLuca

and Travelina entered the after-hours club shortly after they had

arrived there in the early morning hours of September 22.

Although neither Barrett nor Murphy knew DeLuca or

Travelina, Bissett struck up a conversation with them and spoke

with DeLuca at the club's blackjack table, while Barrett and

Murphy continued to talk at the bar.

According to the testimony of Barrett, Murphy, and Michael

Belloise ("Belloise"), the club's blackjack dealer, the group left

the after-hours club together at approximately 6:30 a.m. As

petitioner was walking out, Belloise noticed that Travelina

seemed upset and heard DeLuca tell one of the three men, "that

he shouldn't have called her girlfriend a dyke." The young men

laughed it off and then exited.

When they emerged from the after-hours club, Barrett and

Murphy testified, they walked directly across the street to

Bissett's van, while he remained behind to speak to the women.

After a few minutes, Bissett crossed to the van and let his

friends in, telling them to wait there until he returned. Bissett

then climbed into the back of DeLuca's blue Cadillac and drove

away with the two women.

Although neither Barrett nor Murphy made any mention of

DeLuca re-entering the club once the group had left, according

to Belloise and Robert Safian, the club owner, DeLuca returned

within five or ten minutes of leaving the bar to use the ladies

room. When she came out of the bathroom, she stopped at

Belloise's blackjack table where Arthur Fuhst and a customer

named Diane were still playing. After either Fuhst or Diane said

something to petitioner, Belloise testified that he heard her say,

"I'm an ex-cop and these guys better not fuck with me because

I'll kill them."* Petitioner then went back outside.

According to Barrett and Murphy's testimony, DeLuca and

Bissett returned approximately twenty minutes to a half-hour

later without Travelina. DeLuca pulled her Cadillac alongside

the van and Bissett, who was now in the front passenger seat,

told Barrett and Murphy to get into the car. For about fifteen

minutes, the four just sat there parked by the van, passing

around some "sparkling wine" which DeLuca and Bissett had

been drinking.

Leaving the van parked by the after-hours club, DeLuca and

the three men began driving around. Barrett and Murphy

claimed that petitioner and Bissett "seemed to sort of hit it off,"

and they were "sort of left out of the conversation." As they were

being driven around, both Barrett and Murphy dozed off. At

one point, Barrett awoke and Bissett gave him money to buy

beer in a superette on Fordham Road.

* Testifying before the grand jury only three weeks after the incident,

Belloise reported the statement somewhat differently. At that time, Belloise

did not mention DeLuca saying anything about killing anyone. Instead, he

told the grand jury, "After she used the bathroom she came out and she said

to nobody in particular~I don't know if anyone knew her--in general she just

said that she was an ex-cop and the guys outside better not fuck with her

because she wouldn't take any shit from them and she might get them back or

something.” In addition, Belloise made no reference to DeLuca's alleged

statement when he was questioned by police immediately after the killing.

Belloise attempted to explain the discrepancy on re-direct examination,

stating that, before the grand jury, he had used his own words but at trial, he

wanted to use the actual words he remembered her saying.

At 8:30 a.m., Helen Bissett testified, she was awakened when

she heard her son and a woman enter the house. Mrs. Bissett

testified that she could not see them, but heard them speaking

softly in the entrance foyer. When Bissett came into his

mother's bedroom, she asked him who the unseen visitor was.

Her son told her that the woman had to go to the bathroom and

that he was then going to take her home. Before leaving, Bissett

asked his mother for some money to buy paint, and she gave her

son a blank check. Bissett then kissed his mother goodbye and

left the house.” -

According to the testimony of William Lipton, the owner of

the Blue Store, Bissett stopped by the store sometime between

7:00 and 9:00 on the morning of September 22. Bissett cashed

the blank check his mother had given him and used some of the

money to pay for an outstanding bill. During the transaction,

Bissett had a brief "friendly" chat with Lipton, and, according to

Lipton, did not appear to be drunk or "high.""®

Barrett and Murphy testified that the group continued to drive

around the Bronx while drinking more beer and smoking

marijuana until they reached the Bronx Park Motel, located on

Fordham Road and Crotona Avenue. Bissett told the motel

clerk that he needed a room with a waterbed for a "short stay”

and asked for an x-rated movie. When asked to pay, the hotel

clerk testified, Bissett flashed his fireman's badge. At first, only

Barrett and Murphy went into the hotel room. They testified

° Neither Murphy nor Barrett testified that they had stopped at Bissett's

house. Under the prosecutor's theory, they had presumably "dozed off"

during this rest stop. However, Patten did not pursue this question on

cross-examination.

'° Again, as was the case with the stop at Bissett's home, neither Barrett

nor Murphy made any mention in their testimony of a visit to the Blue Store,

nor did Patten pursue this discrepancy in his questioning of them.

that they started to watch the porn film and continued to drink

beer.

After approximately fifteen or twenty minutes, Bissett came

to the door and asked the other two men to leave the room.

Barrett and Murphy immediately picked up their beer and left.

Claiming that they became bored and angry because they wanted

to go home and were left standing in the parking lot, Murphy

and Barrett testified that they began to bang on the door, yelling

"let's go" to Bissett. Then Murphy kicked in the window. When

Bissett came to the window, looking a "little angry,” the two

took their beer and left on foot. Neither Barrett nor Murphy had

ever seen DeLuca with a gun during the time they were with her

that morning.

Both the motel clerk and manager verified that Bissett had

rented the room at 10:00 a.m., and that there was a disturbance

about a half hour later. The motel manager, who had observed

Murphy kicking in the room's window, ordered his clerk to call

the room and tell its occupants to leave, or he would call the

police. The motel clerk called Bissett and told him to come to

the office for a refund. In response to this call, DeLuca and

Bissett left the motel room and got into her car. Although the

motel clerk had taken the refund money from the drawer, Bissett

never returned to claim it.

Sometime between 1:00 and 1:30 p.m., a team of workers

from the New York City Department of Water Supply arrived at

the service road adjacent to the Major Deegan Expressway. One

of their trucks descended a "ramp" into a gully-like, relatively

desolate area. Near the bottom of the ramp, about twenty-five

feet away from where they parked the truck, the workers saw

Bissett's van and noticed that it was moving around and bounc-

ing up and down. On the van's door was a sign that read, "Don't

laugh, your daughter might be in here" and the crew joked that,

"somebody was getting laid in the van." Stanley Berman, one of

the workers, testified that the front of the van was up on a

two-inch curb. Both doors were closed. Berman stated that the

van was surrounded by a large puddle of water.

A Department of Sanitation front-end loader was also in the

area of the van between 1:30 and 2:00 that afternoon. Basil

Meola, the operator of the front- end loader, testified that he saw

Bissett's van parked "half in and half out" of a large puddle of

water. Meola noticed that both front doors were closed, but that

the back window was slightly open. Like the water supply

workers, he noticed that the van was bouncing up and down.

At about 2:00 p.m., one of the water department workers, who

was still sitting in his truck, looked up and briefly noticed a tired

looking woman matching DeLuca's appearance (heavyset with

dark blond hair) stumbling up the ramp. The woman staggered

past the two other crew members who had gone to the top of the

ramp to do some work. Neither the water department workers,

nor Meola heard any gunshots. In addition, none of the water

department employees who saw the woman leave noticed a gun

in her hands."' At trial, the workers were unable to identify the

woman as DeLuca.

Ann O'Byrne ("O'Byrne"), an exchange student from Ireland

who spent the summer of 1982 in the United States, testified that

she worked one day a week as a house cleaner for the DeLucas.

On the morning of September 22, O'Byrne met Travelina at

'! The prosecution theorized that the workers were unable to hear the

gunshots as a result of the high level of noise in the area. The Department of

Sanitation's front-end loader’s diesel engine was quite noisy. Despite the fact

that the water supply truck was closer to the van than it was to the front end

loader and that the workers were able to hear each others conversation, the

prosecution argued that, combined with the nearby highway truck traffic, the

fairly high level of noise in the immediate area drowned out the sound of

gunfire. In addition, the prosecution pointed out that the gunshots would

have been muffled by the carpeting in the van.

a ee ee

Pauline's where she reluctantly accepted Travelina's offer to

drive her to the DeLuca home, even though Travelina appeared

drunk.

When the two arrived, Mr. DeLuca told O'Byrne that his wife

was not yet awake. After Travelina left, Mr. DeLuca confided

in O'Byrne that his wife had not yet returned home from the

night before. Sometime around 1:00 p.m., the telephone rang.

When Mr. DeLuca answered it, O'Byrne heard him say, "What's

wrong with you now?" O'Byme did not listen to the rest of Mr.

DeLuca's conversation, but when he hung up he told her that "he

was going out looking for Sheila."

At approximately 1:30 p.m., O'Byrne received a telephone

call from Mr. DeLuca "to see [whether] Sheila [had] called or

come home yet." O'Byrne informed him that she had not heard

from her, to which Mr. DeLuca replied, "If she calls or comes

home, tell her I'm on my way back." He arrived home five

minutes later and told O'Byrne that he'd been "everywhere

looking for Sheila, down by 207th Street by the Mobil gas

station." Mr. DeLuca again drove off in search of his wife.

O'Byrne saw DeLuca pull into the driveway in her car

sometime around 2:20 p.m. Almost immediately thereafter, Mr.

DeLuca pulled up in his tan Ford. O'Byrme noticed that "[t]hey

stayed talking in the garden for a few minutes." Then petitioner

entered the house alone and immediately went to her bedroom

where she undressed and put on a bathrobe.

After getting out of her clothes, DeLuca emerged from her

bedroom and told O'Byrne to go downstairs and clean the

basement. From the basement, O'Byrne heard the DeLucas, who

were in the living room above, speaking in high-pitched tones.

After finishing her cleaning around 3:45, O'Byrne returned to

the living room, where she sat between the DeLucas on the

couch and drank coffee. O'Byrne noticed that Mr. DeLuca

"wasn't his usual self at all" and that he "didn't say much." She

also noticed that he was still wearing the same clothing that he

————————E

had worn earlier in the afternoon, and that there were no water

or mud stains on his pant legs.

They all spoke briefly about gambling in Atlantic City, where

O'Byrne was planning to go wiu: her aunt that Friday. After

suggesting that his wife take a look at an article he had veen

reading about "an after hours gambling place," Mr. DeLuca

drove O'Byrne home sometime around 4:30 p.m.

The police officers who investigated the case testified to

receiving a series of calls from Mr. DeLuca between 7:00 and

8:00 p.m., in which Mr. DeLuca reported the body left in the van

and Mrs. DeLuca's rape. Sgt. Eberhardt recounted the account

of rape that petitioner had conveyed to him that night.

The officers who first arrived at the crime scene testified that

they found Bissett's van still parked in a pool of water, where it

had been observed earlier in the day by the Water Supply crew.

The driver's side door was open and the windows of both doors

were down. Looking inside the van, the police found Bissett's

fully clothed body, slumped face down between the two front

seats, appearing as if he had been coming from the rear of the

van when he was killed. According to the police report, blood

was found "splattered in the front area of the van." Two

partiaily deformed bullets were recovered from the interior of

the van, one in the rear section and the other under Bissett's

head. Ballistics tests, entered into evidence, established that the

bullets had come from DeLuca's off-duty revolver. Three bottles

of Riunite wine were also recovered from the back of the van.

Dr. Beverly Leffers, Deputy Chief Medical Examiner,

testified that the autopsy she performed on Bissett revealed four

close "in and out" bullet wounds, caused by four separate

bullets. Each entry wound was on the right side of the head.

One bullet had entered "towards the front of the head between

the eye and the ear" and "traveled leftwards and backwards and

exited from the back of the head." The other three bullets

entered above and behind Bissett's right ear, traveled straight

across his head, and exited near his left ear. She also testified

that gunpowder was found in Bissett's wounds, indicating that

the shots were fired from a distance of twelve to eighteen inches.

Evidence of cocaine use was al:« discovered in ‘tissett's body.

Finally, Dr. Leffers confirmed that a "very Snall bruise was

found on the back of Bissett's head, consistent with his being

struck with a bottle." Unfortunately, the precise time of his death

could not be determined because Bissett's body had been

refrigerated to prevent decomposition and this altered the

progression of signs that appear after death.

Dr. Robert Shaler, the Director of Serology for the Medical

Examiner's Office, testified that serology tests he performed

revealed that Bissett had engaged in both vaginal and oral sex

some time before his death. Tests on DeLuca's torn underpants

showed that they contained seminal fluid from a man with type

O blood, Bissett's blood type.

B. The Defense Case

At the close of the State's case, defense counsel unsuccess-

fully sought to call Flora Colao, petitioner's expert witness on

rape trauma syndrome. Patten wanted Colao to testify in order

to rebut the prosecution's theory that DeLuca fabricated her rape

claim in order to hide her guilt. However, Justice Lawrence

Tonetti, the trial judge, denied the request.

Confident that the prosecution was wrong about the time the

shooting occurred,'? and that the State had not completely

12 While it is obvious from their testimony that both Patten and GaNun

found the fact that the prosecution was "wrong" about the time of the

hooting significant, this Court is at a loss to understand why they believed

.t would be equally significant to the jury. The attorneys knew from their

wonversations with their clients that the shooting actually took place in the

evening. However, since the jurors were not privy to this information and no

(continued...)

refuted the possibility that Peter DeLuca had killed Bissett,"’ the

defense rested, presenting no evidence to the jury.

On April 18, 1984, the jury found petitioner guilty of Murder

in the Second Degree, in violation of N.Y. Penal Law s

125.25(1). DeLuca is currently incarcerated at Bedford Hills

Correctional Facility, serving a sentence of twenty years to life.

Peter DeLuca died shortly after his wife was sentenced.

IV. Post-Conviction Proceedings

On May 15, 1984, petitioner moved to set aside her verdict

pursuant to N.Y.Crim.Proc.L. § 330.30. The motion was denied

on May 18, 1984, and petitioner was sentenced as set forth

above. Petitioner's conviction was affirmed by the Appellate

Division without opinion on April 11, 1985. People v. DeLuca,

488 N.Y.S.2d 529 (1st Dep't 1985). Subsequently, DeLuca's

application for leave to appeal to the Court of Appeals was

denied. People v. DeLuca, 65 N.Y.2d 978 (1985) and certiorari

was denied on February 24, 1986. DeLuca v. New York, 475

U.S. 1012 (1986).

On May 3, 1989, DeLuca moved to vacate her conviction

pursuant to N.Y.Crim.Proc.L. § 440.10, raising, for the first

time, a claim of ineffective assistance of trial counsel, and

publicly admitting, for the first time, that it was she who shot

'2(._.continued)

evidence was presented by the defense establishing the "real" time of the

shooting, the jury had no reason to question the time hypothesized by the

prosecution, let alone find that their "mistake" was significant.

'? No evidence was presented at trial implicating Mr. DeLuca in the

shooting of Bissett. Patten's confidence rested solely on the fact that, as her

husband, Mr. DeLuca had access to petitioner's gun and likewise had a

motive to kill his wife's rapist. However, the State had shown that nobody

fitting Mr. DeLuca's description was seen near the van at the time that they

theorized the shooting took place.

and killed Bissett. The § 440 motion was den‘! on August 24,

Department, denied petitioner's application fur leave to appeal

the denial of her § 440 motion.

On June 13. 1990, DeLuca filed this petition for a writ of

habeas corpus. Petitioner claimed, as she did in her § 440

motion, that she had been denied effective assistance of counsel

by various errors of her trial attorney which deprived her of the

right to make critical decisions in her case, including the

decision whether ‘o testify and present her account of rape to the

jury. DeLuca also argued that the trial court's refusal to allow the

rape trauma syndrome expert to testify had deprived her of her

right to present a defense.

This Court referred the matter to Magistrate Judge Roberts on

January 24, 1991 and an evidentiary hearing was held on July

21, 22, 23 and 29, 1992. As noted above, on December 21,

1993, Magistrate Judge Roberts issued her Report recommend-

ing that the petition be denied. The Report found that the

performance of petitioner's counsel had not been constitutionally

deficient, and that the refusal to allow rape trauma syndrome

evidence had not deprived petitioner of any constitutional rights.

Petitioner has filed objections with the Court, in which she

argues that the magistrate judge's factual findings overlooked

critical portions of the record and that her legal recommenda-

tions are not supported by the facts in this case or the law. She

urges that the petition be granted and that this Court order a new

trial.

ny aaa i it

DISCUSSION

I. Standards for Reviewing a Magistrate Judge's Report and

Recommendation

When timely objection has been made to a portion or portions

of a magistrate judge's report, the district judge must "make a de

novo determination ... of any portion of the magistrate's disposi-

tion to which specific written objection has been made." Rule

72(b), Fed.R.Civ.P. See also, 28 U.S.C. § 636(b)(1). In

addition, 28 U.S.C. § 636(b)(1) affords the district court broad

latitude in considering a magistrate judge's recommendation,

even if no party objects to it. Grassia v. Scully, 892 F.2d 16, 19

(2d Cir.1989). The judge may then accept, reject, or modify, in

whole or in part, the magistrate judge's proposed findings and

recommendations.

However, the district court's obligation to make a de novo

determination of properly contested portions of a magistrate

judge's report does not require the judge to conduct a de novo

hearing on the matter. United States v. Raddatz, 447 U.S. 667,

676 (1980). It is sufficient that the district court "arrive at its

own, independent conclusion about those portions of the

[magistrate judge's] report to which objection is made."

Hernandez v. Estelle, 711 F.2d 619, 620 (Sth Cir.1983).

II. Ineffective Assistance of Counsel

In Strickland v. Washington, 466 U.S. 668, 689 (1984), the

Supreme Court established a two pronged test for analyzing

ineffective assistance of counsel claims. First, petitioner must

show that her counsel's conduct was objectively unreasonable.

Second, she must demonstrate that her counsel's deficient

performance prejudiced her defense. In other words, she must

prove that "there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different." Id. at 694. This is no light burden.

In order to prevail on her claim, DeLuca must overcome the

"strong presumption that [her] counsel's conduct falls within the

wide range of reasonable professional assistance." Id. at 689.

Lest reviewing courts inflexibly apply this standard, the

Supreme Court emphasized that the goal of the effective

assistance guarantee of the Sixth Amendment is to ensure

fundamental fairness.

Most important, in adjudicating a claim of actual inef-

fectiveness of counsel, a court should keep in mind that

the principles we have stated do not establish mechani-

cal rules. Although those principles should guide the

process of decision, the ultimate focus of inquiry must

be on the fundamental fairness of the proceeding whose

result is being challenged. In every case the court should

be concerned with whether, despite the strong presump-

tion of reliability, the result of the particular proceeding

is unreliable because of a breakdown in the adversarial

process that our system counts on to produce just results.

Id. at 696.

Recognizing that "[t]here are countless ways to provide

effective assistance in any given case," the Supreme Court did

not attempt to specifically define the types of professional

conduct that constitute "adequate assistance." Id. at 689. Rather,

Strickland instructs examining courts to judge each claim

individually by looking to the legal profession's "prevailing

norms of practice" in order to determine whether, under the

particular circumstances present, the attorney's actions constitute

reasonable assistance.

This does not mean that Strickland gives no explicit guidance.

Some duties, the Court noted, are so basic as to be obvious. For

instance, all counsel representing criminal defendants have a

"duty to advocate the[ir] defendant's cause and the more

particular duties to consult with the defendant on important

decisions and to keep the defendant informed of important

developments in the course of the prosecution." Id. at 688.

It must be remembered, however, that, regardless of the

behavior of counsel, the focus of any reviewing court's analysis

must be on the fairness of the trial itself. It is not "the purpose

of the effective assistance guarantee of the Sixth Amendment ...

to improve the quality of legal representation, although that is a

goal of considerable importance to the legal system.... The

object of an ineffectiveness claim is not to grade counsel's

performance." Id. at 689.

Thus, even if counsel's behavior manifests a total lack of

concern for his client and clearly falls far below acceptable

professional norms, his client's ineffectiveness claim will fail if

she suffered no prejudice from her attorney's behavior. In fact,

under Strickland, the reviewing court need not even consider

counsel's behavior, if it first determines that no prejudice was

suffered by the defendant. "If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient

prejudice, which we expect will often be so, that course should

be followed." Id. at 697.

By the same token, even if the most well-intentioned lawyer

earnestly pursues a strategy that he believes to be in the best

interest of his client, an ineffective assistance of counsel claim

will lie if that strategy is objectively unreasonable under

professional norms, and as a result, his client suffers prejudice.

Such was the case in John Patten's representation of Sheila Ryan

DeLuca during her murder trial in the Supreme Court of New

York, Bronx County.

It is clear from his testimony at the evidentiary hearing that

Patten believed and continues to believe in DeLuca's innocence.

Driven by that belief, the record reveals that he zealously

attempted to secure his client's acquittal. However, when

representing a client, zeal can prove to be a liability if it eclipses

the concerns and wishes of the defendant and leads to the

stubborn pursuit of an objectively unreasonable strategy. If the

pursuit of the objectively unreasonable strategy leads counsel to

breach his duty to make a "thorough investigation of [the] law

and facts relevant to plausible options," and to inform and

consult with his client about important decisions, then counsel

has failed to render effective assistance. Id. at 690-91.

According to Patten's testimony, he believed that there were

two possible defense theories from the very beginning. First, he

could argue that the State failed to prove its case beyond a

reasonable doubt. Second, he could claim that DeLuca acted in

self-defense. Ultimately, he decided to pursue the former

strategy. In so doing, Patten seriously overestimated the

effectiveness of the reasonable doubt defense, and likewise,

grossly underestimated the strength of the State’s case against

his client. As a result, the jury was given no theory--other than

the State's--to consider in evaluating the strong circumstantial

evidence implicating DeLuca."

DeLuca contends in this habeas petition that her counsel's

erroneous reliance on the strength of his "whodunit" defense

deprived her of her right to present a "factually compelling, and

legally viable defense that likely would have resulted in an

outright acquittal or, at worst, a manslaughter conviction."

Specifically, she argues that Patten failed to explain the possibil-

ity of pursuing an extreme emotional disturbance ("EED")

defense, and likewise, failed to advise her that she had the

‘4 Judge Tonetti summed up the power of the prosecution's theory during

a discussion on the admissibility of Flora Colao's testimony.

That this defendant had access to the deceased, was last seen with the

deceased, left the vicinity of the deceased prior to his demise, and that

her gun killed him. That's the theory of the prosecution.

ultimate right to decide whether or not she would testify on her

own behalf.

This Court is well aware that it must "judge the reasonable-

ness of counsel's challenged conduct on the facts of the particu-

lar case, viewed as of the time of counsel's conduct." Strickland,

466 U.S. at 690. Mindful that it must make every effort to

eliminate the distorting effects of hindsight, this Court nonethe-

less finds that counsel's failure to adequately consider and

inform his client of an important defense option in the face of

the prosecution's damning evidence resulted in a "breakdown in

the adversarial process that our system counts on to produce just

results." Id. at 696. It is not hindsight that allows this Court to

conclude that Patten's failure to understand the significance of

the EED defense was tantamount to deficient assistance, it is

common sense.

A. Extreme Emotional Disturbance”’

At the hearing before Magistrate Judge Roberts, Patten

testified that, although he could not recall her reaction to the

suggestion, he had discussed the EED defense with DeLuca. He

was certain of this fact because in order to discuss the murder

charge she faced, he had to read New York State's murder

statute. Since the EED defense is listed in the statute under

'S The EED defense is available to an individual whose mental state does

not rise to the level of "insanity," but who "is exposed to an extremely

unusual and overwhelming stress," and "has an extreme emotional reaction

to it as a result of which there is a loss of self-control and reason is overborne

by intense feelings, such as passion, anger, distress, grief, excessive agitation,

or other similar emotions." People v. Shelton, 385 N.Y.S.2d 708, 717

(1976). Unlike the older "heat of passion" defense, the EED defense does not

require the defendant to act spontaneously and immediately after exposure to

the stress or trauma. Thus, a "cooling off" period is not fatal to an EED

defense. See People v. Patterson, 39 N.Y.2d 288, 302-03 (1976).

eG J

Subdivision 1, he had to tell her it existed. While sure that they

discussed the EED defense, Patten stated "[w]hether she

understood me or not, I don't know." When asked by Magistrate

Judge Roberts what ultimately caused him to abandon this

defense option, Patten answered that it was because DeLuca had

an "absolute aversion to meeting with psychiatrists."

According to DeLuca's testimony, Patten discussed a possible

insanity defense which he referred to as "EEP" or "EDP.""®

Patten illustrated how this potential defense would work by

recounting the story of a police officer who had shot a young

boy. He told DeLuca that the officer successfully asserted the

defense and as a result, he was institutionalized for less than a

year. Since petitioner did not consider herself to be "crazy," she

told Patten that she would not consent to any type of insanity

defense. In her view, there was no way "that anyone could deem

me insane."

In her Report, Magistrate Judge Roberts resolved this

apparent conflict between the accounts of Patten and DeLuca by

crediting Patten's testimony and rejecting DeLuca's assertion that

she was not informed of the EED defense, as she now under-

stands it, prior to trial. The Report concluded that Patten did not

pursue the EED defense because "the successful assertion of the

([EED] defense is difficult, if not impossible, without [psychiat-

ric evidence] and petitioner refused to meet with a psychiatrist."

After reviewing the entire record de novo, this Court agrees

with petitioner's assertion that the Report's findings are contrary

to the weight of the evidence presented. Although this Court

believes that Patten made some reference to the EED defense in

his early discussions with his client, it is not convinced that he

adequately explained the option to DeLuca, nor is it persuaded

‘6 Petitioner thought she remembered Patten calling it the "EDP" defense

because she recognized that terminology as police shorthand for emotionally

disturbed person.

that he, himself, completely understood the defense. Further-

more, the Court does rt accept Patten's purported rationale for

failing to pursue the option of an EED defense, especially when

the facts of this case so obviously demanded it.

Much of the testimony at the hearing suggests that Patten

never fully comprehended the usefulness of the EED defense.

When asked by the magistrate judge whether it was he or

DeLuca that had ultimately made the decision not to pursue an

EED defense, Patten replied, "I don't believe we ever decided to

present it at all, Judge. We were going with the--either no

defense, or the defense of justification."

After initially discussing the possible defenses with DeLuca,

Patten testified that he consulted with Dr. Daniel Schwartz, a

psychiatrist, "to explore what was the state of [DeLuca's] mind

at the moment that trigger was pulled." Presumably, it was with

Dr. Schwartz that Patten explored the psychiatric defenses

available to DeLuca. However, the notes Dr. Schwartz took

during his consultation with Patten make no mention of an EED

defense. Rather, they focus once again on what Patten appears

to have determined were the only viable defenses. Page five of

Dr. Patten's notes state:

2 possible defenses:

1) no proof beyond a reasonable doubt

2) self-defense

On the final page of his notes, Dr. Schwartz wrote "psychiatric

issue--would it be unreasonable for her to believe he was

lunging at her and she had to defend herself." This documentary

evidence strongly suggests that Patten was not actively investi-

gating the EED defense at the time he consulted with Dr.

Schwartz and seriously undermines the Report's finding that

Patten's only reason for deciding not to pursue the EED defense

was that DeLuca refused to meet with Dr. Schwartz.

In addition, DeLuca's version of events is buttressed by the

testimony of other witnesses at the hearing who were privy to

attorney-client conversations between Patten and DeLuca.

Frank GaNun, Patten's law partner, testified that after hearing

DeLuca's account of the rape and shooting, he and Patten had

several discussions about potential defenses.'’ However, GaNun

had no recollection of any discussions concerning an EED

defense and he testified that he did not believe that he was\ever

a participant in such discussions.

Nor did Ellen Yaroshefsky, a lawyer specializing in battered

women's self- defense cases, who met with Patten and petitioner

in late 1982 or early 1983 to discuss possible defense strategies.

Yaroshefsky testified that the EED defense was never mentioned

during that meeting. Flora Colao, who had met with Patten

several times prior to trial, both with and without DeLuca

present, testified that Patten never discussed the EED defense

strategy. If he had, she was certain that she would have recog-

nized it since the EED defense had been used in a case on which

she had recently consulted.

Of course, none of this testimony, on its own, is dispositive

in determining whether or not Patten fulfilled his duty "to

consult with the defendant on important decisions and to keep

the defendant informed of important developments in the course

of the prosecution," or his duty to make a "thorough investiga-

'7 Like Patten, GaNun was attracted to the justification defense and the

two considered whether they should present a case of self-defense, using

DeLuca's testimony as support. GaNun remembered that he and Patten had

no concerns about DeLuca's credibility. According to GaNun, DeLuca was

prepared to testify and both he and Patten planned to have her take the stand.

Likewise, he considered Peter DeLuca to be a credible eye witness to the

shooting. In addition to several character witnesses, he recalled that Karyn

Travelina was a witness who could corroborate DeLuca's version of the

events at the after-hours club. GaNun also testified that he did not recall any

evidence that suggested that Mr. DeLuca was responsible for the shooting.

Nor did DeLuca ever suggest to him that her husband had pulled the trigger.

aaa a,

tion of [the] law and facts relevant to plausible options."

Strickland, 466 U.S. at 688, 690. Patten could have fully

researched the EED defense and discussed it privately with

DeLuca. Nonetheless, the absence of any mention of the EED

defense in the presence of others involved in the preparation of

DeLuca's trial defense must militate in favor of crediting her

version of events and cast doubt on the accuracy of Patten's

recollection.

This Court is also not persuaded by the magistrate judge's

conclusion that Patten's reason for failing to pursue the EED

defense was DeLuca's "absolute aversion to going to psychia-

trists" and her refusal "to meet with Dr. Schwartz or, for that

matter, any psychiatrist." As Magistrate Judge Roberts correctly

stated, psychiatric testimony, although often helpful, is not

legally necessary to establish the EED defense in New York

State. People v. Moye, 498 N.Y.S.2d 767, 769 (1985). Thus,

even if Patten's factual allegations were true, it would not

necessarily excuse him from failing to pursue this option.

More troublesome, however, is that Patten's claim that

DeLuca had an "absolute aversion" to psychiatrists is contrary

to other evidence in the record. For instance, DeLuca met

willingly with Colao, a therapist whose interaction with peti-

tioner was comparable to any session with a psychiatrist.

Furthermore, DeLuca testified that she underwent psychiatric

treatment when she was first incarcerated at Riker's Island.

Viewed in its entirety, the evidence suggests that DeLuca was

"absolutely adverse" to an insanity defense, not to psychiatrists.

According to petitioner's testimony, she told her attorney, "if you

want me to talk to a psychiatrist, I'll talk to a psychiatrist." If

Patten wished her to visit Dr. Schwartz in order to prepare an

EED defense, the Court believes DeLuca would have done so

willingly.

In rejecting DeLuca's assertion that Patten led her to believe

that EED was a type of insanity defense, the magistrate judge

Aare ~ <n

found that "[i]n light of petitioner's training and experience as a

police officer, her claims that she did not understand the

difference between an EED defense and an insanity defense is

simply incredible." This Court does not share the magistrate

judge's incredulity and finds her reasoning flawed.

Although DeLuca served 15 years as a New York City police

officer, neither her training nor r experiences introduced her

to the intricacies of murder defense theories. Her legal training

is limited to that which she received at the police academy in

1967--approximately 15 years before her arrest. The magistrate

judge noted that as part of her training, "she had a penal law

book and learned to properly cite crimes." However, this fact,

standing alone, cannot support a finding that petitioner under-

stood the fine distinction between an insanity defense and the

EED doctrine. DeLuca spent most of career as a youth officer

working with juveniles. She had virtually no experience

testifying in court and there is absolutely no suggestion in the

record that she had ever aided any homicide prosecutions where

she might have come across the EED defense.

Assuming all police officers have a detailed knowledge of the

various legal defenses available in homicide prosecutions is akin

to expecting all lawyers, be they merger and acquisitions

specialists or public defenders, to be familiar with the booking

procedures at local precincts. It is true that police officers and

lawyers are both part of the criminal justice system. However,

they are separate and discrete parts and each serves a distinct

function. The knowledge that each part must have in order to

serve its function is limited by its particular role in the system.

Thus, while knowledge of the distinction between an EED

defense and an insanity defense may be essential to a defense

attorney in order to fulfill his role as an effective representative

of an accused murderer, it is unnecessary for a police officer to

fulfill her role as enforcer of society's laws. Consequently, such

knowledge cannot be imputed to DeLuca merely because she

happens to be a former police officer.

Based on her findings of fact, the magistrate judge concluded

that DeLuca "clearly understood the EED option, and rejected it

because of her aversion to psychiatrists, because it would have

required her te adm’? the shooting, and because even if success-

ful, the EED deferiex would have resulted in a manslaughter

conviction." However, these conclusions are likewise contrary

to the evidence.

DeLuca testified that, throughout the case, she intended to tell

her version of Bissett's shooting, and made that desire "very

clear." Several witnesses corroborated her on this point,

including GaNun, who testified that he and Patten had intended

to have her testify. This evidence contradicts the magistrate

judge's conclusion that she would have forsaken the EED

defense because "it would have required her to admit the

shooting."

Most damning to Patten's asserted rationale for abandoning

the EED defense option, however, is his admitted intention of

pursuing the justification defense. As is the case with the EED

defense, psychiatric testimony is not legally necessary to present

a justification defense. Nonetheless, the testimony of a noted

psychiatrist would have been very helpful in explaining why

DeLuca feared for her life, despite the fact that she was the one

who had the gun. Obviously Patten thought so, since he

consulted Dr. Schwartz about this very issue.'* Yet, despite

DeLuca's supposed aversion to psychiatrists and Patten's

repeated concerns about the time gap between the rape and the

shooting, he continued to consider the justification defense a

viable option right up to the point the defense rested.

'* As previously noted, Dr. Schwartz's notes indicated on the final page,

"psychiatric issue--would it be unreasonable for her to believe he was lunging

at her and she had to defend herself."

In addition, the justification defense would also have required

DeLuca to admit to the shooting. Thus, it is unreasonable to

assume that DeLuca abandoned the EED defense because of this

consequence while, at the same time, she eagerly awaited the

chance to pursue her self-defense claim in spite of it.

It is equally unpersuasive that petitioner would have rejected

the EED defense because it would, at best, have resulted in a

manslaughter conviction. Presumably, petitioner would have

presented the EED defense in tandem with a justification

defense. Thus, once the decision was made to present peti-

tioner’s testimony, the inclusion of an EED defense would have

merely allowed DeLuca to be convicted of a less severe offense

had her justification defense failed. However, a decision to

pursue the EED strategy would not have foreclosed the possibil-

ity of an outright acquittal--either under the justification doctrine

or the principle of jury nullification.

It should have been plainly obvious to Patten that his client

understood the EED option to be an insanity defense, or, at the

very least, was confused about its operation. This Court

believes that petitioner's confusion was the result of her attor-

ney's failure to adequately explain the EED defense to his client.

However, even accepting Patten's assertion that he explained the

option to DeLuca, his hands-off disclaimer "{w]hether she

understood me or not, I don't know," evidences an insufficient

attempt to meaningfully "consult with his client on [an] impor-

tant decision.” Strickland v. Washington, 466 U.S. at 688.

Nor can it be doubted that petitioner was prejudiced by this

failure of her counsel. Had DeLuca been properly advised

concerning the EED defense, there is every reason to credit her

claim that she would have testified, hoping for an outright

acquittal, but willing to accept a manslaughter conviction under

the EED doctrine as an alternative option. Presentation of the

EED defense would have been perfectly consistent with

DeLuca's often expressed desire to take the stand and tell her

side of the story.

Given the vast array of weapons in the defense arsenal, this

Court is convinced that, had DeLuca testified, there is at least a

reasonable probability that "the result of the proceeding would

have been different." Id. at 694. In addition to humanizing her

presence before the jury, DeLuca's testimony would have: 1)

provided the jury with an explanation of her behavior during the

morning and early afternoon of September 22, 1982; 2) called

into question the credibility of the State's two star witnesses,

Murphy and Barrett; 3) completely contradicted the State's

theory about both the timing and the circumstances surrounding

the shooting; 4) explained why Bissett was shot with her

weapon; and, 5) revealed why her husband had called the police

to report the shooting. Most importantly, her tale of abduction

and rape would have provided the jury with evidence to consider

in determining whether DeLuca was, in fact, suffering from an

extreme emotional disturbance at the time of the shooting.

Judging by the testimony given at the evidentiary hearing,

DeLuca would have been a very compelling witness. Patten's

investigation into his client's background revealed that she had

no prior criminal record, and both Patten and GaNun testified

that they had no reason to fear her impeachment based on

anything in her past. In addition to her fifteen years as a New

York City policewoman, she had served as a nun, schoolteacher,

and basketball coach. Many of the people whom she knew from

those experiences, including police officials, former teachers,

and members of the Franciscan order, were willing to testify

about her good character and reputation as a truthful and honest

member of the community.

In addition, DeLuca's testimony would not have stood alone.

Peter DeLuca, a twenty-eight year veteran of the police force,

was an eyewitness to the shooting and could have verified his

wife's account of the events of that afternoon and early evening.

In support of both a justification defense and an EED defense,

Mr. DeLuca could have described his wife's fragile emotional

and physical state when he returned home after driving O'Byrne

home. He also could have confirmed that he and his wife

returned to the scene of the rape at his insistence, and that the

shooting was not a cold-blooded, premeditated murder. Like his

wife, Mr. DeLuca probably would have been an impressive

witness. Both defense counsel testified that they were unaware

of anything in Mr. DeLuca's background that might have called

his credibility into question.

Karyn Travelina could have confirmed DeLuca's account of

the hostile nature of their initial meeting with Bissett, Barrett,

and Murphy at the after hours club, as well as the fact that they

left separately and that Travelina was never in the same car as

Bissett. This testimony would have rebutted important aspects

of the testimony given at trial by Barrett and Murphy.

Travelina also could have testified about meeting DeLuca as

she was driving home on the afternoon of September 22. In that

meeting, DeLuca allegedly told her that she had been raped, and

pleaded with Travelina not to discuss it with anyone. Combined

with the testimony of Flora Colao, the rape trauma expert, this

testimony would have rebutted the prosecution's theory that

DeLuca's behavior and demeanor following the alleged assault

were inconsistent with that of a rape victim, and that her rape

complaint, filed with Sergeant Eberhardt, was a fabricated

exculpatory statement evidencing a guilty mind. In addition,

DeLuca told Travelina that she did not have her gun at the time,

even though under the prosecution's theory the shooting had

already occurred. Finally, Travelina could have testified that she

saw no gun in DeLuca's possession.

Colao's testimony would have been useful, not only in

explaining DeLuca's behavior after the rape, but in strengthening

her affirmative defense claim of extreme emotional distress.

According to Colao, rape victims who encounter their assailant

100

hours after the initial incident commonly suffer a retrauma. This

retriggering event wrenches the victim out of denial. Colao

testified that the shock may cause a victim to fall apart or go into

a rage.

Patten also had medical and physical evidence which he could

have presented to corroborate DeLuca's account of abduction

and rape. In addition to the medical testimony introduced by the

prosecution at trial, which suggested that DeLuca and Bissett

had engaged in oral and vaginal sex, Patten could have offered

the testimony of Dr. Guidetti, the physician who examined

DeLuca the night she reported the rape to the police. Dr.

Guidetti, as well as her attending nurse, could have testified that

DeLuca suffered vaginal redness and bleeding. Furthermore,

Patten could have argued that petitioner's claim of forcible rape

was substantiated by her torn underwear. Evidence of that claim

could also have been entered in the form of photographs, taken

shortly after the incident, which showed bruising on DeLuca's

body, and the affidavit of Dr. Clyne, which stated that he did not

believe that the bruises on her breasts and thighs were

self-inflicted.

DeLuca's version of events was also supported by the physical

evidence at the scene of the shooting. Bissett had been found

fully dressed, facing forward, with his head between the two

front seats of the van. Four bullet holes were found in the right

hand side of his head, one of which entered towards the front of

his head and exited out the back. The blood found in the van

was located in the front section. The driver's side door to the

van was open, as were the windows of both doors, which should

have made gunshots fired inside the van audible. This descrip-

tion of both the body and van seems oddly incompatible with the

State's theory that DeLuca shot Bissett immediately after they

had enjoyed consensual sex. Conversely, it seems perfectly

consistent with DeLuca's claim that she shot Bissett, well after

the rape, from outside the right-hand side, front door of the van.

101

Evidence of DeLuca's sexual orientation could have been

useful in attacking the prosecution's theory that DeLuca had

willingly accompanied three strange men to an adult motel

because she was interested in having sex with one or more of

them. In fact, Patten testified at the hearing that he considered

the question of DeLuca's sexuality a "major part” of a potential

defense, because, if petitioner was not a heterosexual, it "made

no sense whatsoever" for her to initiate a sexual encounter with

Bissett and his two friends. The platonic nature of her marriage

to Mr. DeLuca may also have refuted the prosecution's insinua-

tion that she was being unfaithful to her husband.

Finally, Patten may have attempted to admit evidence of prior

similar conduct by Bissett in order to bolster petitioner's EED

claim. While much of the information that Patten and DeLuca

uncovered would clearly have been inadmissible at trial, the

testimony of Elizabeth Kochovos may have been admitted in

conjunction with a justification defense to show DeLuca’s state

of mind at the time of the shooting.”

This Court has no doubt that, had an EED defense been

presented, the result of the proceeding would have been differ-

ent. DeLuca's account of her abduction and rape would clearly

'7 Respondents argue that all of this evidence, including Kochovos'

testimony, would have been inadmissible under People v. Miller, 384

N.Y.S.2d 741, 747 (1976), which requires the defendant to have knowledge

of the victim's prior violent acts in order to have them admitted at trial. Since

petitioner discovered Bissett's previous acts after the shooting, they argue, she

cannot claim that they had an impact on her mental state.

Petitioner would likely argue that the threats Bissett and his friends made

to DeLuca during their car ride gave her the requisite knowledge of their

previous acts. Whether this would be sufficient to meet the standard of

Miller is a matter for the trial court to decide. It is sufficient for this Court's

review that Patten could have reasonably attempted to have this evidence

admitted, and had it been, it could have helped petitioner's cause.

102

allow the jury to find that she had "been exposed to an extremely

unusual and overwhelming stress" and had "an extreme emo-

tional reaction to it, as a result of which, [she suffered] a loss of

self-control and [her] reason [was] overborne by intense

feelings, such as passion, anger, distress ... or other similar

emotions." People v. Shelton, 385 N.Y.S.2d at 717. The

overwhelming amount of corroborating evidence that Patten

would have been abie to present in support of that account

creates at least a reasonable probability that the jury would have

found her version credible.

Given these circumstances, the EED defense was obviously

a potentially meritorious defense strategy that deserved serious

consideration. ;

A strong case can indeed be made that failure to advise

a criminal defendant of the availability of an affirmative

defense when facts known to an attorney suggest that the

defense may be meritorious does not constitute "reason-

ably effective assistance" when judged "under prevailing

professional norms."

Mitchell v. Scully, 746 F.2d 951, 954 (2d Cir.1984) (quoting

Strickland v. Washington, 466 U.S. at 690). In this case, with

facts that made the EED defense such a compelling option,

Patten had a duty to make sure his client fully understood the

benefits and costs of that strategy, before he rejected the option.

In failing to do so, Patten rendered ineffective assistance to his

client.

B. Right to Testify

Petitioner's second argument in this petition is that she was

deprived of the effective assistance of counsel by her attorney's

failure to inform her that the ultimate right to decide whether or

not to testify belonged personally to her and not to her lawyer.

Se ere ee SE ee mS ake Sel ere ag

103

In other words, DeLuca claims that she was never told that,

notwithstanding her attorney's strong recommendation to the

contrary, she had the right to decide to testify. Indeed, there

does not seem to be any factual dispute regarding her assertion.

According to the testimony provided at the evidentiary

hearing, the decision not to present a defense was made over

lunch during a trial recess. DeLuca contends that Patten

indicated that the State had failed to meet its burden of proof

and that the case was won. DeLuca testified that she was very

surprised at Patten's decision, because she had always wanted

and expected to testify. She felt that the jury needed to hear her

explanation of the events of September 21 and 22, 1982 in order

to understand what happened. However, since she believed that

her attorney had the authority to decide whether or not she

would testify, she yielded to his advice, despite her reservations

about his optimistic outlook.

While Patten was understandably unable to recall the specific

meal at which this discussion took place, he did remember that

he was the one who made the decision not to present a defense

after he determined that Justice Tonetti was not going to let

Flora Colao testify. According to Patten, Colao's testimony

would have functioned as a backdrop in which DeLuca's story

would be met with sympathy. Since he was unwilling to have

DeLuca take the stand without the benefit of Colao's testimony,

Patten decided to rest. More importantly, he believed that the

"whodunit" defense was "going to fly."

Patten testified that he made this decision for purely strategic

reasons. He did not believe that DeLuca would perjure herself,

nor did he have any concerns about her credibility as a witness.”

20 DeLuca testified that Patten told her that he did not believe that anyone

could honestly impeach her. However, he was concerned that, if she testified,

the prosecution might put someone on the stand who would lie about her

(continued...)

104

When questioned on this issue at the evidentiary hearing, Patten

stated "I believed Mrs. DeLuca's story then and I believe it

today. And I had no doubts about it ... I had no doubt that if I

put her on that stand, that she would do well. I didn't think [that

the prosecution proved its case]. It was that simple."

Patten recalled himself saying, "Sheila, I'm not putting you on

the stand,” a decision in which DeLuca eventually "acquiesced."

He testified that, in the midst of a trial, he is very "strong willed"

and very clear as to whether he wants his clients to testify or not,

because he figures, "I'm trying the case, it's their life but I'm

trying the case." However, he would never prevent his clients

from testifying if they "persist" in demanding to exercise the

right. "If they don't persist, many times they are just following

what I tell them to do."

Although the testimony of DeLuca and Patten was not

consistent in all respects, they agreed on one point critical to this

habeas application. At the hearing, Patten candidly admitted

that he had never explicitly told DeLuca that it was ultimately

her right to decide whether or not to testify in her own defense.

The question this Court must now decide is whether, in failing

to do so, Patten rendered constitutionally ineffective assistance.

1) Is the right to testify fundamental?

In Rock v. Arkansas, 483 U.S. 44, 49-53 (1987), the Supreme

Court held that criminal defendants have a constitutional right

to testify in their own behalf rooted in the Fifth, Sixth, and

Fourteenth Amendments. The precise nature of that right,

however, is still uncertain in the Second Circuit. As the

magistrate judge correctly pointed out in her Report, little has

°(...continued)

character, in the same way that Barrett and Murphy lied during the State's

case.

105

been written by the Supreme Court or this Circuit to explicitly

flesh out the implications of Rock.”'

However, in United States v. Vargas, 920 F.2d 167 (2d

Cir.1990), the Second Circuit decided to publish its opinion

rather than decide it by summary order solely "to express [its]

substantial doubt about the correctness" of the prosecution's

"proposition that a defendant's failure to object at trial to

counsel's refusal to allow him to take the stand constitutes a

waiver of the defendant's constitutional right to testify on his

own behalf." Id. at 170. The Second Circuit's opinion in Vargas

appears to indicate that the court is leaning towards finding that

the right to testify may be fundamental in nature and hence,

personal to the defendant. However, since resolution of that

question was not necessary to decide the case, the Second

Circuit "le[ft] that issue for another day." The facts of this

habeas petition have now put that issue squarely before this

Court.

Rock, itself, emphasizes that the right to testify "is one of the

rights that ‘are essential to due process of law in a fair adversary

process’ " and that it is "[e]ven more fundamental to a personal

defense than the right of self-representation." Rock v. Arkansas,

483 U.S. at 51-52 (quoting Faretta v. California, 422 U.S. 806,

819 n. 15 (1975)).

Furthermore, the Supreme Court acknowledged that "[o]n

numerous occasions the Court has proceeded on the premise that

the right to testify on one's own behalf in defense to a criminal

charge is a fundamental constitutional right." Rock v. Arkansas,

483 U.S. at 53 n. 10. One such occasion was Jones v. Barnes,

While the Second Circuit has yet to speak on the nature of the

constitutional right to testify, it has previously recognized that "the statutory

‘privilege’ to testify in one’s own behalf has come to be recognized as having

an importance similar to the right to be present at one's trial and to present a

defense." United States v. Bentvena, 319 F.2d 916, 943 (2d Cir.1963).

~ - = « 2

106

463 U.S. 745 (1983), in which the Supreme Court held that "the

accused has the ultimate authority to make certain fundamental

decisions regarding the case, as to whether to plead guilty, waive

a jury, testify in his or her own behalf, or take an appeal." Id. at

751. See also Nix v. Whiteside, 475 U.S. 157, 164 (1986)

("{a]lthough this Court has never explicitly held that a criminal

defendant has a due process right to testify in his own behalf...

the right has long been assumed"); Wainwright v. Sykes, 433

U.S. 72, 93 n. 1 (1977) (Burger, C.J., concurring) ("Only such

basic decisions as whether to plead guilty, waive a jury, or

testify in one's own behalf are ultimately for the accused to

make."); Brooks v. Tennessee, 406 U.S. 605, 612 (1972)

("whether the defendant is to testify is ... a matter of constitu-

tional right."); Harris v. New York, 401 U.S. 222, 225 (1971)

("Every criminal defendant is privileged to testify in his own

defense, or to refuse to do so.").

This Court finds that Rock, especially when read in light of

the Supreme Court's earlier precedent, supports the contention

that the right to testify is indeed fundamental in character.” As

2 The fundamental nature of the right to testify is also embodied in the

American Bar Association's Standards for Criminal Justice ("ABA Stan-

dards") and the American Bar Association's Model Rules for Professional

Conduct ("ABA Model Rules"). For example, the ABA Standards provide:

(a) Certain decisions relating to the conduct of the case are ulti-

mately for the accused and others are ultimately for defense counsel.

The decisions which are to be made by the accused after full

consultation with counsel are: (i) what plea to enter; (ii) whether to

waive jury trial; and (iii) whether to testify in his or her own behalf.

1 Standards for Criminal Justice Standard 4-5.2(a) (2d ed. 1980) (emphasis

added).

Commentary to this provision further states that "because of the funda-

mental nature of these three decisions, so crucial to the accused's fate, the

(continued...)

+. > Tas ee een

107

a fundamental constitutional right, the right to testify is personal

to the defendant and may not be waived by counsel on the

defendant's behalf, regardless of strategic or tactical consider-

ations. Furthermore, as is the case with other fundamental

constitutional guarantees, waiver of the right to testify must be

both knowing and voluntary. Cf., e.g. Boykin v. Alabama, 395

U.S. 238, 242-43 (1969) (defendant's guilty plea must be made

intelligently and voluntarily because it implicates fundamental

constitutional rights); Johnson v. Zerbst, 304 U.S. 458, 464-65

(1938) (waiver of right to counsel must be made intelligently

and competently).

While the Second Circuit has not yet considered the nature of

the right to testify, the vast majority of circuit courts which have

addressed this question have explicitly held that the right to

testify is fundamental. See e.g., Foster v. Delo, 11 F.3d 1451

(8th Cir.1994); United States v. Moody, 977 F.2d 1425, 1430

(11th Cir.1992); United States v. McMeans, 927 F.2d 162, 163

(4th Cir.1991); Rogers-Bey v. Lane, 896 F.2d 279, 283 (7th

Cir.), cert. denied, 498 U.S. 831, (1990); United States v.

Martinez, 883 F.2d 750, 754-55 (9th Cir.1989); vacated on

other grounds, 928 F.2d 1470 (9th Cir.), cert denied, 501 U.S.

1249, 111 S.Ct. 2886 (1991); Galowski v. Murphy, 891 F.2d

629, 636 (7th Cir.1989); United States v. Bernloehr, 833 F.2d

749, 751 (8th Cir.1987); see also, Lema v. United States, 987

2(_. continued)

accused must make the decisions." Id. commentary. (emphasis added).

Likewise, Rule 1.2(a) of the ABA's Model Rules states:

In a criminal case, the lawyer shall abide by the client's decision,

after consultation with the lawyer, as to a plea to be entered,

whether to waive jury trial and whether the client will testify.

Since this petition raises an ineffective assistance of counsel claim, these

professional standards are particularly probative in determining the adequacy

of counsel's conduct. Strickland 466 U.S. at 688.

lll i

108

F.2d 48, 53 n. 4 (1st Cir.1993) (assuming, without deciding, that

the right to testify is fundamental and may not be waived by

counsel).

Perhaps the most comprehensive examination of this issue

was undertaken by the Eleventh Circuit in United States v.

Teague, 953 F.2d 1525 (11th Cir.) (en banc), cert. denied, 113

S.Ct. 127 (1992). In Teague, the court exhaustively reviewed the

development of the right to testify and reaffirmed that it is a

recognized fundamental constitutional right, personal to the

defendant, and one that cannot be waived by the trial court or

defense counsel. Teague relied on Rock's holding that the right

to testify is "a necessary corollary to the Fifth Amendment's

guarantee against compelled testimony" and added that "[u]nder

the Supreme Court's reasoning in Rock, the right to testify

essentially guarantees the right to ultimately choose whether or

not to testify." Id. at 1525 (quoting Rock v. Arkansas, 483 U.S.

at 52.).

A criminal defendant clearly cannot be compelled to

testify by defense counsel who believes it would be in

the defendant's best interest to take the stand. It is only

logical, as the Supreme Court has recognized, that the

reverse also be true: A criminal defendant cannot be

compelled to remain silent by defense counsel.

United States v. Teague, 953 F.2d at 1525.

While case law clearly demonstrates that the right to testify is

fundamental, the more difficult question concerns what actions

must be taken by courts and counsel to protect that right. In

Johnson v. Zerbst, 304 U.S. 458 (1938), the Supreme Court

emphasized the importance of protecting fundamental constitu-

tional rights during the course of a trial.

109

It has been pointed out that "courts indulge every

reasonable presumption against waiver" of fundamental

constitutional rights and that we "do not presume

acquiescence of the loss of fundamental rights." A

waiver is ordinarily an intentional relinquishment or

abandonment of a known right or privilege.

Id. at 464 (citations omitted).

Three suggested methods have been developed in case law

and academic literature to protect the defendant's fundamental

right to testify. The first, adopted by the majority in Teague,

holds the defense attorney primarily responsible for safeguard-

ing his client's right to testify. Under this theory, an ineffective

assistance of counsel claim, on either direct or collateral review,

is the proper remedy for any violation of that right. While

assuring that the defendant's waiver of her right is both knowing

and voluntary, this model would prevent the court from invading

the attorney-client relationship or unintentionally inducing the

defendant to abandon her right to remain silent. See also, Foster

v. Delo, 11 F.3d 1451, 1456-59 (8th Cir.1994).

The second method places the burden of protecting the right

to testify on the trial courts. Analogizing to the protections

afforded other fundamental constitutional rights, this approach

would employ the procedural safeguard of an on-the-record

colloquy between the trial judge and the defendant to ensure that

waiver of the right is both knowing and intelligent. See Boykin

v. Alabama, 395 U.S. 238, 242 (1969) (holding that the record

must affirmatively show that the defendant validly waived those

constitutional rights necessarily waived by entry of a guilty plea,

including the right to go to trial and the right to trial by jury);

Carnley_v. Cochran, 369 U.S. 506, 516 (1962) (requiring

evidence that showed that the "accused was offered counsel, but

intelligently and understandingly rejected the offer"); Adams v.

United States ex rel. McCann, 317 U.S. 269 (1942) (on the

110

record colloquy required to waive jury trial); Johnson v. Zerbst,

304 U.S. 458, 58 (1938) ("Whether there is a proper waiver [of

the right to counsel] should be clearly determined by the trial

court and ... that determination [should] appear upon the

record.")

In addition to protecting the defendant's fundamental right,

the existence of an on-the-record waiver would have the added

benefit of "foreclosing subsequent collateral proceedings” that

would become "an after-the-fact swearing contest between the

defendant and counsel as to whether the defendant validly

waived the right to testify." United States v. Teague, 953 F.2d

at 1544. (Clark, J., concurring in part and dissenting in part).

See also, United States v. Martinez, 883 F.2d 750, 764 (9th

Cir.1989) (Reinhardt, J., dissenting), vacated, 928 F.2d 1470

(9th Cir.1991); Hollenbeck v. Estelle, 672 F.2d 451 (Sth

Cir. 1982) (noting that state trial judge's colloquy with defendant

was "a model of appropriate judicial concern for the constitu-

tional rights of a criminal defendant.").

Finally, the third approach ultimately rests the burden of

protecting the fundamental right to testify on the defendant,

herself. Under this theory, the right to testify, merely a subordi-

nate reciprocal right of the right to remain silent, does not attach

until the defendant affirmatively asserts it in court. Any failure

on the part of the defendant to affirmatively act to protect that

right constitutes a valid waiver. See, United States v. Bernloehr,

833 F.2d 749, 752 (8th Cir.1987). United States v. Teague, 953

F.2d at 1537-41 (Birch, J., concurring in judgment). This model

seems to ignore the requirement that waiver of a fundamental

right must be both knowing and voluntary. Clearly, a defendant

who is unaware that she has a right to assert her desire to testify

over her attorney's wishes cannot be deemed to have waived her

right knowingly and voluntarily.

Petitioner claims that it was her counsel's failure to inform her

of her rights that deprived her of her ability to knowingly and

~ nd Ret A SO alata iS CaN eg oe ORE he Soacie' A

111

voluntarily choose whether to testify. Following the logic of the

Teague majority, petitioner argues that the proper vehicle to

vindicate her right to testify is a claim of ineffective assistance

of counsel. In Teague, the court articulated the minimum duty

that counsel owes to his clients by stating, "[d]efense counsel

bears the primary responsibility for advising the defendant of his

right to testify or not to testify, the strategic implications of each

choice, and that it is ultimately for the defendant himself to

decide." United States v. Teague, 953 F.2d at 1533. Such

advice is "crucial," the court held, "because there can be no

effective waiver of a fundamental constitutional right unless

there is an ‘intentional relinquishment or abandonment of a

known right or privilege' " Id. (quoting Johnson v. Zerbst, 304

U.S. 458, 464 (1938) (emphasis added)).

Accordingly, the court held that

if defense counsel never informed the defendant of the

right to testify, and that the ultimate decision belongs to

the defendant, counsel would have neglected the vital

professional responsibility of ensuring that the defen-

dant's right to testify is protected and that any waiver of

that right is knowing and voluntary. Under such circum-

stances, defense counsel has not acted within the range

of competence demanded of attorneys in criminal cases,

and the defendant clearly has not received reasonably

effective assistance of counsel.

Id. at 1534 (quoting Strickland v. Washington, 466 U.S. at 687)

(emphasis added).

At the same time, however, the court held that "if counsel

believes that it would be unwise for the defendant to testify,

counsel may, and indeed should advise the client in the strongest

possible terms not to testify. The defendant can then make the

112

choice of whether to take the advice of competent counsel." Id.

at 1533 (footnote omitted).

Applying these principles to the case before it, the court in

Teague found that "the evidence fail[ed] to show that the

Defendant's will was 'overborne’ by his counsel. The Defendant

was advised of his right to testify, was advised that he should

not exercise that right, and did not protest." Id. at 1534-35.

However, unlike Patten, Teague's counsel testified at the

evidentiary hearing that she had probably explained "that

whether [Teague] would testify ultimately would be his deci-

sion." Id. at 1528.

Petitioner argues that, since Patten concedes that he never

informed her that she had the final right to decide whether or not

to testify, this Court should apply the holding of Teague and find

that her counsel did not act "within the range of competence

demanded of attorneys in criminal cases." Id. at 1534.”

2) Is there a procedural bar to applying the rule of Teague

to DeLuca?

Magistrate Judge Roberts noted in her Report that "if this

court were to hold that the failure td advise a defendant that the

ultimate decision regarding whether to testify belonged to her is

outside the range of competence demanded of attorneys in

criminal cases, it would be announcing a new constitutional rule

of criminal procedure in violation of Teague v. Lane, 489 U.S.

288 (1989)."

3 A few courts have already applied this logic. For instance, in Foster v.

Delo, 11 F.3d 1451 (8th Cir.1994), the court held that the law is clear that the

defendant has the ultimate authority to make the fundamental decision of

whether or not to testify. Failure to inform the defendant of this right

"impeded an informed decision whether to waive or invoke a fundamental

constitutional guarantee." Id. at 156-59; see also, United States v. Robles,

814 F.Supp 1233, 1245 (E.D.Pa.1993) (finding that counsel made it clear to

defendant that the final decision on whether or not to testify was his alone).

2 errs a ore serrate 2H

113

Petitioner objects to this finding, arguing that it has been

established for years that the accused, not counsel, has the

ultimate right to decide whether to testify. Thus, a holding that

counsel's failure to inform a client of this fundamental right falls

outside the bounds of competent representation would not be a

"new" rule, but rather an application of settled precedent.

It is clear that "habeas corpus cannot be used as a vehicle to

create new constitutional rules of criminal procedure unless

those rules would be applied retroactively to all defendants on

collateral review through one of the two exceptions we have

articulated." Teague v. Lane, 489 U.S. at 316 (hereinafter

Lane). However, exactly what constitutes a new rule is not

always easy to determine. According to Justice Harlan, whose

earlier dissents later served as the foundation of the Court's

opinion in Lane:

The theory that the habeas petitioner is entitled to the

law prevailing at the time of his conviction is, however,

one which is more complex than the Court has seem-

ingly recognized. First, it is necessary to determine

whether a particular decision has really announced a

"new" rule at all or whether it has simply applied a

well-established constitutional principle to govern a case

which is closely analogous to those which have been

previously considered in the prior case law.... [MJany

though not all, of this Court's constitutional decisions are

grounded upon fundamental principles whose content

does not change dramatically from year to year, but

whose meanings are altered slowly and subtly as genera-

tion succeeds generation. In such a context it appears

* In order to avoid confusion with United States v. Teague, another case

continuously cited in this opinion, the Court will refer to Teague v. Lane as

Lane.

114

very difficult to argue against the application of the

"new" rule in all habeas cases since one could never say

with any assurance that this Court would have ruled

differently at the time the petitioner's conviction became

final.

Desist v. United States, 394 U.S. 244, 263-64 (1969) (Harlan, J.,

dissenting).

Lane provides some guidance for determining when a habeas

petitioner should be denied the benefit of a new rule. "In

general," the Court stated, "a case announces a new rule when

it breaks new ground or imposes a new obligation on the States

or the Federal Government.... To put it differently, a case

announces a new rule if the result was not dictated by precedent

existing at the time the defendant's conviction became final."

Teague v. Lane, 489 U.S. at 301. Addressing the concerns

expressed by Justice Harlan in Desist, the Court distinguished

new rules from those rules that are "merely applications of

principles that were settled at the time of conviction." Yates v.

Aiken, 484 U.S. 211, 216 (1988).

Before determining whether the rule announced in United

States v. Teague amounts to a "new" rule, it is important that

this Court first clarify Teague's holding. In imposing a duty on

counsel to protect their clients’ right to testify by ensuring that

they are aware of that right and that it is ultimately their decision

to make, the Teague majority did not establish a prophylactic

rule, such as the one announced in Miranda v. Arizona, 384 U.S.

436, 467-473 (1966) (holding that, absent other effective

measures to protect the Fifth Amendment privilege against

self-incrimination, a person in custody must be warned prior to

interrogation that he has certain rights, including the right to

remain silent). There is no blanket requirement that counsel

must explicitly warn all of their clients that they have the

ultimate right to decide whether or not to testify.

eee ee en

Lan oneltre de Aiba big 8 te

Oe ee eS Ee ee nD

alt te ei SAY de te he

115

Rather, reviewing courts must apply a preponderance of

evidence test. If "the preponderance of credible evidence

indicates that [the] defendant was fully aware, as a result of his

discussions with counsel, that it was ultimately his decision

whether to testify or not and that he agreed with counsel that it

was not in his best interest to do so," then defense counsel has

rendered effective assistance. United _ States ___ v.

Palma-Rodriquez, 819 F.Supp. 1064, 1066 (M.D.Fla.1993)

(applying the holding in Teague). Conversely, if the preponder-

ance of evidence leads to the conclusion that the defendant was

unaware that it was ultimately her decision to make, and counsel

does not correct this misperception, then counsel has failed to

render adequate assistance. This Court must now determine

whether applying this interpretation of Teague amounts to the

adoption of a new rule in violation of Lane.

As a threshold matter, this Court believes that the principle

that the accused has the ultimate right to decide whether or not

to testify is not a "new" rule within the meaning of Lane. While

Lane did identify part of Rock's holding--that a state cannot

prevent the testimony of a defendant by the arbitrary application

of its evidentiary rules--as a new rule, Teague v. Lane, 489 U.S.

at 301, the same cannot be said for Rock's recognition of the

fundamental right underlying its decision. In fact, the language

of Rock explicitly indicates that the Court was merely applying

a well-settled principle in noting that there is a constitutional

right to testify. "At this point in the development of our

adversary system, it cannot be doubted that a defendant in a

criminal case has the right to take the witness stand and to testify

in his or her own defense."** Rock v. Arkansas, 483 U.S. at 49.

25 See also, United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir.1987),

which characterized Rock as "explicitly confirm[ing] that criminal defendants

have a constitutional right to testify."

116

Furthermore, in addition to the prior Supreme Court case law

cited in Rock itself, many circuit courts had earlier applied the

same logic that the Supreme Court would later use in Rock to

find that the right to testify ultimately belongs to the defendant.

United States v. Curtis, 742 F.2d 1070, 1076 (7th Cir.1984);

United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 118-119

(3d Cir.1977) (noting an "enlightened trend" in federal and state

case law that teaches that "a criminal defendant's right to testify

in his own defense is of such fundamental importance that no

defendant" may be denied that right); Winters v. Cook, 489 F.2d

174, 178-179 (Sth Cir.1973) (holding that the right to testify is

"such an inherently personal fundamental right that it can be

waived only by the defendant and not by his attorney.")*° Thus,

this Court finds that at the time of her conviction, DeLuca had

the ultimate right to decide whether or not to testify.

However, this holding is not enough to find that petitioner's

counsel was ineffective. To do so, this Court must hold that

counsel's failure to inform his client that she had the ultimate

right to decide whether or not to testify falls outside the bounds

of competent representation. Petitioner contends that this

holding would not be a "new" rule. Rather, the Court would

merely be applying the well settled precedent that a defendant's

waiver of a fundamental constitutional right must be both

knowing and voluntary. After all, petitioner argues, a defendant

cannot knowingly and voluntarily waive her right to testify, if

she is unaware that it is her decision to make. Indeed, as early

as 1964, Judge J. Skelly Wright wrote:

?° In addition, the American Bar Association's Standards for Criminal

Justice and Model Rules for Professional Conduct have long counseled that

the defendant must be the one to ultimately decide whether or not to testify.

See, supra, footnote 22.

117°

the right to testify is a basic right, and there is an obliga-

tion on the part of both the Court and trial counsel to

inform the accused of his right to testify, if he so desires.

Further, it is the duty of both to assure that the exercise

of this basic right by the accused is a free and meaning-

ful decision. The right to testify is personal to the

accused. He must make the ultimate decision on

whether or not to take the stand. In this regard, it is

unlike other decisions, which are often called ‘trial

decisions,’ where it is counsel who decides whether to

cross-examine a particular document. Here it is the

accused who must decide and it is the duty of counsel to

present to him the relevant information on which he may

make an intelligent decision.

Poe v. United States, 233 F.Supp. 173 (D.D.C.1964) (emphasis

added).

Yet, as persuasive as petitioner's argument might be, it cannot

withstand the Supreme Court's retroactivity analysis. Lane's

new rule definition has since been interpreted to include all rules

whose validity under existing precedents is "susceptible to

debate among reasonable minds." Wright v. West, 112 S.Ct.

2482, 2489 (1992) (quoting Butler v. McKellar, 494 U.S. 407,

415 (1990)). But see, Wright v. West, 112 S.Ct. at 2496

("[T]he standard for determining when a case establishes a new

tule is ‘objective,’ and the mere existence of conflicting authority

does not necessarily mean a rule is new.") (O'Connor, J.,

concurring in judgment). Clearly, few rules, if any, will fall

outside this expansive definition. The disagreement among the

judges concurring and dissenting in Teague illustrates that the

rule petitioner wishes this Court to adopt is susceptible to debate

among reasonable minds. Therefore, this Court must agree with

the magistrate judge's finding that, to hold that counsel's failure

to inform his client that she is the ultimate decision maker

118

regarding whether or not to testify falls beyond the bounds of

competence demanded of attorneys in criminal cases, would be

to announce a new constitutional rule of criminal procedure.

However, the Supreme Court has established two exceptions

to the general rule of nonretroactivity for cases on collateral

review. Teague v. Lane, 489 U.S. at 311-313. The first applies

to rules that place certain types of individual conduct outside the

realm of criminal punishment. This exception obviously does

not apply to the facts of this petition. The second Lane excep-

tion "applies to new ‘watershed rules of criminal procedure’

implicating the fundamental fairness and accuracy of the

criminal proceeding." United States v. Salerno, 964 F.2d 172

(2d Cir.1992) (quoting Saffle v. Parks, 494 U.S. 484, 486

(1990)).

The new rule, urged by petitioner, holding defense counsel

responsible for informing his client that she has both the right to

testify, and the ultimate authority to decide whether or not to

take the stand, fits within the second Teague exception and thus

can be adopted on collateral review. As previously noted, the

Supreme Court held in Rock that the "accused's right to present

his own version of events in his own words" is "essential to due

process of law in a fair adversary system" and is "[e]ven more

fundamental to a personal defense than the right of

self-representation.". Rock v. Arkansas, 483 U.S. at 51-52

(internal quotation omitted). Furthermore, it cannot be doubted

that a new rule protecting a defendant's right to testify "is central

to an accurate determination of innocence or guilt." Teague v.

Lane, 489 U.S. at 313, 109 S.Ct. at 1076. "Taking the stand is

the defendant's opportunity, if he wants it, to face his accusers

and the jury, tell his story, submit to examination, and exercise

such ability as he may have to persuade those who will make a

decision that may vitally affect his life." Wright v. Estelle, 572

F.2d 1071, 1081 (Sth Cir.1978) (Godbold, J., dissenting).

BOER BN me

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119

Thus, this Court finds that defense counsel has the crucial

responsibility of protecting his client's fundamental right to

testify and assuring that any waiver of that right is both knowing

and voluntary. Consequently, if counsel has failed to inform the

defendant that the ultimave right to decide whether or not to

testify belongs to the defendant, and the preponderance of

credible evidence indicates that the defendant was not independ-

ently aware of this right, then counsel has rendered ineffective

assistance to his client.

3) Did petitioner knowingly and voluntarily waive her right

to testify?

In her report, Magistrate Judge Roberts found that DeLuca

"was adequately advised of her right to testify, and ultimately

agreed, perhaps reluctantly, with her attorneys’ judgment that she

should not testify." While this Court agrees with the magistrate

judge that petitioner was aware of her right to testify, the Court

does not believe that the evidence shows that she was aware that

it was ultimately her decision to make.

The magistrate judge reached her conclusion by first noting

that it was Patten's "general practice to inform his clients of their

options and advise them of his opinion, but that he never made

the decision for a client or stood in the way of a client intent on

taking the stand." It was the magistrate judge's opinion that

Patten could have reasonably concluded that an explicit state-

ment of petitioner's right to decide was unnecessary given her

participation in the many discussions on defense strategy and her

fifteen years experience as a New York City police officer.

As was the case in discussing the EED defense, this Court

does not find the argument that petitioner was aware of all her

rights simply because she was a police officer persuasive.

While her police experience may have taught her that defendants

had a general right to testify, nothing in her training or experi-

ence as a police officer educated her as to the constitutional

120

apportionment of decision-making authority within the attor-

ney-client relationship.

In fact, a credible argument could be made in support of the

opposite conclusion. Police officers are constantly advising

people of their rights, rights that are often not asserted until the

individual's attorney arrives at the police station. Defense

lawyers are often seen as the nemesis of the police because they

invoke rights that the police believe impede an investigation.

Given the power attorneys appear to wield at the station house,

it would not be surprising to find officers who believe that

counsel possesses the ultimate authority to decide whether or not

his client will testify.

At the evidentiary hearing, DeLuca testified that she thought

her lawyer had the ultimate right to decide whether she would

testify. Standing alone, this allegation would not suffice. A

"barebones assertion” by a defendant that her counsel failed to

inform her of her rights is insufficient to establish an ineffective-

ness of counsel claim under Strickland. See Underwood v.

Clark, 939 F.2d 473, 475-76 (7th Cir.1991). Without more, this

Court would likely agree with the findings of the magistrate

judge.

However, DeLuca's claim is supported by independent

corroboration. Flora Colao testified at the evidentiary hearing

that, during her meetings with petitioner, DeLuca repeatedly

informed her that she wanted to testify, but was uncertain

whether her lawyer would let her. According to Colao, "[s]he

was very confident that the jury would understand if she had the

opportunity to tell her story and felt very strongly that she had

nothing to hide, because she kept saying I have nothing to hide,

I'm willing to testify ... And she just kept saying I want to

testify, but I don't know if they'll let me."

This corroborating testimony persuades the Court that DeLuca

was, in fact, unaware that she had the ultimate right to decide

whether or not to testify. Since the preponderance of evidence

we ak nh i ta cca ca aaa

case

121

suggests that the petitioner was unaware that it was ultimately

her decision whether or not to testify, and counsel admittedly

did not correct that misperception, this Court finds that peti-

tioner has been denied effective assistance of counsel.

Nor can there be any doubt that DeLuca suffered prejudice as

a result of her counsel's failure to inform her that she had the

ultimate right to decide whether or not to testify. Given her

repeatedly expressed desire to tell her side of the story, it is

highly likely that the petitioner would have exercised her right

had she known that her decision overrode her lawyer's. Numer-

ous witnesses, including GaNun, one of her attorneys, testified

that DeLuca both wanted and expected to testify at her trial.

Likewise, it is at least reasonably probable that had she

testified, "the result of the proceeding would have been differ-

ent." Strickland v. Washington, 466 U.S. at 694. "The testi-

mony of a criminal defendant at his own trial is unique and

inherently significant. The most persuasive counsel may not be

able to speak for a defendant as the defendant might, with

halting eloquence, speak for himself." Nichols v. Butler, 953

F.2d 1550, 1553 (11th Cir.1992) (quoting Green v. United

States, 365 U.S. 301, 304 (1961)).

In many criminal cases, "the most important witness for the

defense ... is the defendant himself" Rock v. Arkansas, 483 U.S.

at 52. Nowhere would that truism have been more applicable

than in the instant case. Had DeLuca taken the stand, her

testimony would have been the cornerstone of a defense that, if

successfully presented, could have: 1) explained much of the

persuasive circumstantial evidence against her; 2) cast doubt on

the veracity of the prosecution's two main witnesses; 3)

provided some explanation for the shooting; 4) called Bissett's

motivations on the night of the shooting into question; 5)

educated the jury about Rape Trauma syndrome; and 6) painted

a picture of herself that contradicted the prosecutor's portrayal

122

of her as a black widow spider, a sex-starved woman who mates

and then kills.

Moreover, had she testified, Patten, who testified that he was

unwilling to present a "partial defense" because he feared that

the jury would wonder what they had to hide, would have felt

free to support her version of events both with corroborating

testimony and medical and physical evidence. Under these

circumstances, this Court holds that DeLuca received constitu-

tionally ineffective assistance of counsel.

III. Preclusion of Expert Witness on Rape Trauma Syndrome

Finally, petitioner contends that the trial court's refusal to

allow Flora Colao, the rape trauma syndrome expert, to testify

violated her Sixth and Fourteenth Amendment right to present

a defense. While this Court believes that Colao’'s expert

testimony could have been admitted to refute the State's

contention that DeLuca's rape claim was a false exculpatory

statement evidencing knowledge of guilt, we find that the

decision to exclude the testimony was well within Justice

Tonetti's discretion.

After the prosecution rested, Patten requested permission to

present the testimony of a defense expert regarding rape trauma

syndrome. Arguing that "the law has for generations had a very

male view on the concept of rape," Patten sought to introduce

Colao's testimony to rebut the commonly held notion that a rape

victim will make an immediate outcry. Patten contended that

this notion results in a "prejudic[ial] belie[f]," reflected during

Pye ee ee Tee

123

the trial in the testimony of Detective Taylor,” that a woman

who does not immediately call for help has not been raped.

Although sympathetic to Patten's argument, Justice Tonetti

questioned "the relevancy of rape to this case."** In response,

Patten replied that rape was relevant because of the prosecution's

position "from the very beginning of this case that ... 'All you

individuals know when you are being told a story.'" Referring

to the testimony of Sgt. Eberhardt, he argued that part of the

7 Detective Taylor testified at trial that he believed the sexual activity that

took place in the van was consensual because

[b]ased on my investigation and my interview of witnesses at the

scene and what they observed, there was no one screaming rape

from the van. The van was seen in a rocking motion. There didn't

seem to be any type of a fight going on at the time that this allegedly

occurred.

It is interesting that Detective Taylor found the absence of a cry of rape to

be significant, but considered the absence of the sound of gunshots to be

easily explained by the relatively high level of noise in the area.

* Judge Tonetti explained to Patten:

The theory of the prosecution in this case is based on circumstantial

evidence... That this defendant had access to the deceased, was last

seen with the deceased, left the vicinity of the deceased prior to his

demise, and that her gun killed him. That's the theory of the

prosecution. It has nothing to do with whether she was raped or had

consensual sex.... My question to you is what if she was raped?

124

State's circumstantial evidence involved the testimony and

argument that DeLuca created a false rape story to cover her

guilt.””

Although Justice Tonetti reserved decision on the matter until

after a short adjournment for lunch, he did express skepticism

about Patten's grounds for admitting the testimony of Colao.

Conceding that the proposed testimony "could be offered on the

theory that it might have affected the mind or the state of mind

of Peter DeLuca," the judge was still unwilling to admit it

because there had been no evidence of Peter DeLuca's involve-

ment in the shooting.

If Peter DeLuca were to testify, that might be a factor.

If [DeLuca herself] had testified she had been raped that

might be a factor, but to allow an expert to testify about

reactions of a rape victim on the theory that maybe that

had some effect on someone seems to me to give rise to

sheer speculation.

After the lunch recess, proceedings resumed and counsel and

the court conferred at the bench in an off-the-record discussion.

Both sides then rested in the presence of the jury. The record

? Patten also contended that rape was relevant because, "if you have a

circumstantial evidence case, it's just as likely that there would be a husband

who finds out the wife has been raped, and in his own rage goes down and

shoots the guy. We are allowed to argue that theory." However, that theory,

part of Patten's "whodunit" defense, does not depend on proof that DeLuca

was actually raped. All that need be shown is that Mr. DeLuca believed she

was raped--something he could do even if it were not true. Thus, contrary to

Patten's argument, Colao's testimony was irrelevant to this theory.

ELA Yee hy Leas a.

OE Bie A Sg Manat Sk Ok

;

125

reflects no further discussion of the proposed expert testimony,

no request for a ruling by defense counsel, and no decision by

Justice Tonetti.

Respondents contend that petitioner abandoned her request to

present the proposed expert testimony because she did not

request a ruling from Justice Tonetti at trial. Therefore, they

argue, she is procedurally barred from raising this claim in her

habeas petition. The magistrate judge rejected this argument,

finding that Justice Tonetti had put an end to this issue in his

ruling at the s 440 hearing. Although admitting that his decision

may have been off the record, Justice Tonetti stated that "my

recollection is that ... the court made a ruling denying counsel's

application to call that witness and that it was preserved for the

record." This Court accepts Magistrate Judge Roberts recom-

mendation that the respondents’ assertion of a procedural default

be rejected.

Turning to the merits of petitioner's claim, the magistrate

found that Justice Tonetti did not abuse his discretion in

excluding the proposed testimony because it was both collateral

and of questionable probative value. Furthermore, she found that

even assuming, arguendo, that he erred in precluding Colao's

testimony, such error was not of constitutional dimension.

Alternatively, if it was a constitutional error, it was harmless.

The Court agrees with all of these findings and accepts them as

its own.

It is well-established that a trial judge has broad discretion in

determining the relevancy and admissibility of evidence. Levy

v. Abate, 93 Civ. 0258 (JSM), 1993 WL 267421 (S.D.N.Y. July

9, 1993); People v. Cronin, 470 N.Y.S.2d 110, 111 (1983)

("The admissibility and bounds of expert testimony are ad-

dressed primarily to the sound discretion of the trial court.").

Moreover, even if erroneous, evidentiary rulings by state

courts "do not automatically rise to the level of constitutional

error sufficient to warrant issuance of a writ of habeas corpus."

126

Taylor v. Curry, 708 F.2d 886, 891 (2d Cir.1983). A defendant

is entitled to habeas relief only when she can show that the error

was so prejudicial as to amount to a denial of due process or that

it was tantamount to the denial of a "fundamentally fair trial."

Id. at 891 (emphasis in original; citations omitted). "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

918, 925 (2d Cir.1988) (citing Taylor v. Curry). Erroneously

excluded evidence is material, and constitutional error has been

committed " ‘if the omitted evidence creates a reasonable doubt

that did not otherwise exist’." Rosario, 839 F.2d at 925 (quoting

United States v. Agurs, 427 U.S. 97, 112-13 (1976)).

While the testimony of Flora Colao was arguably relevant to

the State's characterization of DeLuca's rape report as a false

exculpatory statement that circumstantially demonstrated her

consciousness of guilt, Justice Tonetti did not abuse his discre-

tion in disallowing it. In the absence of a justification defense,

Justice Tonetti was correct in arguing that the truth or falsity of

DeLuca's rape claim was a collateral issue and of limited

probative value.

Where the proposed evidence is not critical factual

testimony but expert testimony offered for the very

limited purpose of supporting credibility, the trial court's

failure to admit such testimony did not deny defendant

her Sixth Amendment right to present witnesses in her

defense.

Fennell v. Goolsby, 630 F.Supp. 451 (E.D.Pa.1985).

Moreover, petitioner's proposed expert had no personal

knowledge of the facts surrounding the shooting. "The testi-

mony excluded was not that of a 'key fact witness’ who actually

observed the crime. Rather petitioner's expert would have

127

testified as to petitioner's state of mind.... The Constitution does

not require that such testimony be admitted." Tourlakis v.

Morris, 738 F.Supp. 1128 (S.D.Ohio 1990).

To the extent Patten wished to introduce this testimony as a

foundation for a justification defense, as he appeared to be

claiming at the evidentiary hearing before the magistrate judge,

then the fault lies with Patten. Justice Tonetti clearly indicated

that he would have been receptive to Colao's testimony, if it

were presented in conjunction with DeLuca's testimony. At no

time did Patten suggest to Justice Tonetti that the expert's

testimony would be part of a justification defense, or that

petitioner would be testifying that she had committed what she

believed to be justifiable homicide.

In order to violate the Sixth Amendment, the omitted evi-

dence must "create [ ] a reasonable doubt that did not otherwise

exist." Rosario, 839 F.2d at 925. Even if, based upon Colao's

testimony, the jury might be more inclined to believe that

DeLuca had been raped, the fact that it was her gun that killed

Bissett and that she had access to him prior to his death re-

mained unchallenged. Accordingly, in the absence of a justifica-

tion defense, the fact that petitioner may have been raped created

no reasonable doubt that did not otherwise exist. For the same

reasons, any constitutional error in excluding the expert's

testimony did not have a “substantial and injurious effect or

influence” on the jury's verdict. Brecht v. Abrahamson, 113

S.Ct. 1710, 1714, 1722 (1993).

Conclusion

This Court finds that Patten's actions in failing to 1) inform

and advise DeLuca about the option of an EED defense and 2)

inform his client that she had the ultimate right to choose

whether or not to testify, were sufficient to undermine confi-

dence in the outcome of DeLuca’s trial.

128

For the reasons set forth above, DeLuca's petition for a writ

of habeas corpus is granted and the conviction set aside.

DeLuca is to be released from prison unless she is afforded a

new trial within 180 days of this date.

It is so ordered.

Dated: New York, New York

August 4, 1994

/s/ Robert J. Ward

U.S.D.J.

| APPENDIX C

129

Appendix C

Report and Recommendation of the

United States Magistrate Judge (Roberts, J.)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

SHEILA RYAN DELUCA,

Petitioner,

-against- REPORT AND

RECOMMENDATION

ELAINE S. LORD, Superintendent 90 Civ. 4026 (RJ W)

Bedford Hills Correctional Facility,

Respondent.

TO THE HONORABLE ROBERT J. WARD:

This petition for a writ of habeas corpus was filed on June 13,

1990, and referred to me for Report and Recommendation on

January 24, 1991. An evidentiary hearing was held on July 21,

22, 23 and 29, 1992. For the reasons set forth below, I recom-

mend that the writ be denied.

PROCEDURAL HISTORY

On April 18, 1984, following trial by jury in the Supreme

Court of the State of New York, Bronx County, petitioner,

Sheila Ryan DeLuca, was found guilty of Murder in the Second

130

Degree (New York Penal Law § 125.25(1)). Petition 99 1-6;

Affidavit of Assistant District Attorney Jonathan Svetkey, dated

November 1992 ("Svetkey Aff.") 4 3. Petitioner is currently

serving an indeterminate prison term of from twenty years to

life, which was imposed on May 18, 1984, following the denial

of her motion to set aside the verdict.' Petition {J 2-3; Svetkey

Aff. 99 4-5.

On April 11, 1985, the Appellate Division, First Department,

unanimously affirmed petitioner's conviction, without opinion,

People v. DeLuca, 488 N.Y.S.2d 529 (ist Dept. 1985), and on

April 15, 1985, petitioner's application for leave to appeal to the

Court of Appeals was denied. People v. DeLuca, 65 N. Y.2d 978

(1985); Petition ¥§ 8-9 Svetkey Aff. 99 6-8, Exs. 1-3. Peti-

tioner's November 1985 petition for a Writ of Certiorari was

denied on February 24, 1986. DeLuca v. New York, 475 U.S.

1012 (1986); Petition § 9 (f); Svetkey Aff. ¥ 10.

On May 3, 1989, petitioner filed a motion to vacate her

judgment of conviction pursuant to N.Y. Crim. Proc. L. §

440.10, which was denied on August 24, 1989, without a

hearing. Petition § 11(a);Svetkey Aff. 9] 11-12, Exs. 4-7. On

December 12, 1989, the Appellate Division, First Department,

denied petitioner's application for leave to appeal the denial of

her § 440 motion. Petition J 11(d); Svetkey Aff. J 13.

THE PRESENT PETITION

In the present petition, filed on June 13, 1990, petitioner seeks

a writ of habeas corpus, raising the same claims contained in her

§ 440 post-conviction motion, i.e.., that she was denied effective

assistance of counsel and deprived of her Sixth and Fourteenth

Amendment rights to present a defense by the exclusion of

expert testimony.

' See Svetkey Aff. Ex. 1 at 9-10; Petitioner's Appendix ("A.") 16-20, 379-

403, 469.

131

With respect to petitioner's ineffective assistance of counsel

claim, the petition reads as follows:

Petitioner's version of the events relevant to her case,

which was related to her trial counsel early in the case,

raised a possible defense of extreme emotional distur-

bance. However, counsel never informed her to the

existence of this possible defense or permitted her to

decide whether to pursue it at trial. Counsel also never

informed petitioner that she had the final right to decide

whether to testify, and deprived her of other critical

decision relating to her case, thus prejudicing her

defense.

Petition § 12A.

With respect to petitioner's claim regarding the preclusion of

expert testimony on rape trauma syndrome, the petition reads as

follows:

The prosecution introduced statements from petitioner

indicating she had been raped. The prosecution further

elicited testimony concerning petitioner's behavior

following [the] incident in question, and argued that this

behavior was inconsistent with rape, that petitioner's

statements had been false, and that she was therefore

guilty. Petitioner sought to call on her defense case an

expert on rape trauma syndrome to testify concerning the

normal behavior exhibited by rape victims, in order to

undercut the prosecutor's argument. The trial judge

refused to permit this witness to be called.

Petition § 12B.

132

THE EVIDENCE AT TRIAL

Summary

The prosecution sought to prove at trial that petitioner, a

recently retired New York City police officer, murdered Robert

Bissett on September 22, 1982. The prosecution contended that

petitioner met Bissett and his friends, Eugene Murphy and

Robert Barrett, at around 4:00 a.m. on September 22 at an after

hours club on East 231st Street in the Bronx. At around 7:30

a.m., petitioner, her friend Karyn Travelina,’ Bissett, Murphy

and Barrett left the club together. After dropping Travelina off,

petitioner drove Bissett, Murphy and Barrett around the Bronx

in her car, drinking beer and wine, and stopping at Bissett's

house so that petitioner could use the bathroom. The four drove

to the Bronx Park Motel, where a room was rented and Barrett

and Murphy left Bissett and petitioner. Petitioner and Bissett

eventually parked petitioner's car near the social club and drove

in Bissett's van to a location along side the service road to the

Major Deegan Expressway where, after engaging in sexual

intercourse, petitioner shot and killed Bissett in the early

afternoon of September 22.

Petitioner arrived home at about 2:30 p.m. At approximately

7:00 p.m., petitioner's husband, Peter DeLuca, made a series of

telephone calls to the police telling them that they would find a

body in a van near the Major Deegan Expressway and Fordham

Road, and that the man in the van had raped his wife. The police

who responded to the scene found Bissett's fully-clothed body

in the rear of the van, with four bullet holes in his head.

Petitioner later told the police that she had been forced into a

van by three men and later driven by one of the men to a

location near the Major Deegan Expressway and Fordham Road,

This person's name appears incorrectly in the trial transcript as "Karen

Travelena.”

133

where she was raped in the back of the van. At approximately

8:45 p.m., at petitioner's house, the police obtained petitioner's

off-duty service revolver, which was the gun used to kill Bissett.

Petitioner presented no evidence, but contended that she had

been raped, that the prosecution had offered no evidence that she

had a gun with her when she was with Bissett, that the prosecu-

tion had failed to establish that it was petitioner who shot

Bissett, and that the prosecution had failed to eliminate her

husband as the shooter.

The Prosecution's Case

In September 1982, 28-year-old Robert Bissett, a probationary

fireman with nine months service on the New York City Fire

Department, lived at home with his widowed mother, Helen

Bissett, in the North Bronx (H. Bissett: T. 296).’ In addition to

serving as a firefighter, Bissett did some house painting as a

sideline and would at times employ his 22-year-old friend,

Robert Barrett, to help him on a part-time basis (Barrett: T. 38,

40, 119).

At about 6:30 p.m. on the evening of Tuesday, September 21,

1982, Bissett was in his black Ford van with his girlfriend

"Sophie," when they saw and picked up Bissett's lifelong friend,

Eugene Murphy, at East 231st Street in the Bronx (Murphy: T.

160). Murphy, a New York City Emergency Medical Service

Paramedic who was scheduled to be married four days later, was

off from work for a couple of weeks (Murphy: T. 158, 161).

Bissett dropped Sophie at her home and, after Murphy stopped

at his house to get some money, the young men picked up a

friend named "Gerard" and went on to meet Barrett between

Numerical references preceded by "T." are to the pages of the transcript of

the trial; those preceded by "S." are to the pages of the post-verdict proceed-

ings and sentence; and those preceded by "H.” are to the pages of the 1992

habeas hearing transcript.

134

8:30 and 9:30 p.m. on East 231st Street and Broadway (Barrett:

T. 41-42, 101; Murphy: T. 160-62). Barrett's 16-year-old

girlfriend, Patricia Engstrom, was with him at the time (Barrett:

T. 44; Engstrom: T. 228).

Bissett drove the group in his van to Gerard's home near

242nd Street. They went inside, watched the Yankee baseball

game on television and drank some beer (Barrett: T. 44, 45, 101;

Murphy: T. 162; Engstrom: T. 228-29). After a while, Engstrom

decided to go home because she had to attend school the next

day. Barrett also left and walked her part of the way to her home

on Bailey Avenue (Engstrom: T. 230-31, 241). He then returned

to watch the rest of the game with his friends (Barrett: T. 136).

When the ballgame ended between 11:30 and midnight,

Bissett, Murphy and Barrett left Gerard's home and drove in

Bissett's van to "Scotty's" a bar on East 255th Street and Bailey

Avenue (Barrett: T. 45-47, 102, 136; Murphy: T. 162-63). They

drank a few beers, played pool, and talked ( Barrett: T. 46;

Murphy: T. 163). At about 4:00 a.m., when "Scotty's was

closing, the three young men drove to an "after-hours club"

located on East 23 1st Street, near Albany Crescent, next door to

a bar called the "Piper's Kilt" (Barrett: T. 47; Murphy: T. 164).

They arrived there between 4:30 a.m. and 5:00 a.m. (now the

morning of September 22, 1982), and Bissett parked his van on

the corner of Albany Crescent and East 231st Street (Barrett: T.

54-57, 105; Murphy: T. 165-66; see Exhibit 3 [photo showing

location of club and where van had been parked}).

When the young men entered the after-hours club it was

relatively quiet, with only a handful of people present, including

the club's manager Robert Safian, the club's blackjack dealer

Michael Belloise, another employee named Cathy Willett, as

well as patrons Arthur Fuhst* and a woman named Diane

(Barrett: T. 48-49; Murphy: T. 166; Safian: T. 538-39; Belloise:

“In the trial transcript, Fuhst's name appears incorrectly as "Faust".

Rey ee ’

a eet a

SSE 5 SNE RDS 242

SS SoS PSOE Heer 8eR FP AME HN ee MERU

Se tS

135

T. 558). The club itself consisted of a bar on one side, a small

gambling area with two blackjack tables on the other side, and

bathrooms at opposite corners of the back wall (Barrett: T. 48;

Safian: T. 527-28, 545-46; see Exhibit 39 [floor plan of club]).

Bissett and his friends went to the bar and began to drink

beers. Bissett and Murphy became engaged in a friendly arm-

wrestling match, making nose and acting a bit boisterously

(Barrett: T. 49, 105; Murphy: T. 166; Safian: T. 532). After

some time, Belloise, who had been dealing blackjack to Fuhst

and Diane, went over to the arm-wrestlers, who he thought were

drunk, and asked them to stop. They immediately complied

(Safian: T. 536-37; Belloise: T. 544, 579).

Shortly thereafter, petitioner, Sheila Ryan DeLuca’ and a

friend, Karyn Travelina, entered the after-hours club (Barrett: Be

50, 133-34; Murphy: T. 167). Petitioner, a heavy-set woman

with dark blond hair, was wearing jeans, a green sweater and

sneakers (Barrett: T. 110; Eberhardt: T. 338-40; Exhibits 14, 15,

16 [jeans, sneakers, sweater]). Petitioner and Travelina had

stopped in earlier that night for about "two minutes," at approxi-

mately 1:00 a.m., but had left after seeing that "nothing was

going on" (Safian: T. 529-30). Although neither Barrett nor

Murphy knew petitioner or Travelina, Bissett struck up a

conversation with them (Barrett: T. 50-52; Murphy: T. 167-68;

Belloise: T. 542-43, 548). Bissett spoke with petitioner at

Belloise's blackjack table, while Barrett and Murphy continued

to talk at the bar (Barrett: T. 50, 52).

At approximately 6:30 a.m., Bissett, Barrett, Murphy,

petitioner and Travelina left the after-hours club together

(Barrett: T. 53-54; Murphy: T. 169; Belloise: T. 550). As

petitioner was walking out, Belloise, from a distance of about

‘The 42-year-old petitioner had formally retired from the New York City

Police Department six weeks before, on August 6, 1982, after fifteen years

of service (Dugan: T. 717).

136

seven feet, heard petitioner say to one of the three men, "that he

shouldn't have called her girlfriend a dyke" (Belloise: T. 550,

566). At the same time, Travelina seemed upset. The young men

laughed it off and then exited (Belloise: T. 551, 566). Outside,

they could see that the sun had already come up on the morning

of Wednesday, September 22, 1982 (Barrett: T. 54).

When they emerged from the after-hours club, Barrett and

Murphy walked directly across the street to Bissett's van while

Bissett remained to speak with the women (Barrett: T. 54;

Murphy: T. 169). Then, Bissett, too, crossed the street and

unlocked his van so that Barrett and Murphy could enter

(Barrett: T. 57; Murphy: T. 222). Bissett told them to wait there

for his return and he would be right back (Barrett: T. 61;

Murphy: T. 169).

Apparently, at about the same time, within five or ten minutes

of having left the after-hours club, petitioner went back inside

to use the ladies room (Safian: T. 535; Belloise: T. 552, 567).

When she came out of the ladies room she stopped at Belloise's

blackjack table, where Arthur Fuhst and Diane were still playing

(Belloise: T. 552). Safian was not present, since he was in the

back room doing some work (Belloise: T. 554). After either

Fuhst or Diane said something to petitioner, Belloise heard

petitioner say, "I'm an ex cop and these guys better not fuck with

me because I'll kill them" (Belloise: T. 552, 569).° Belloise took

‘Testifying before the grand jury only three weeks after the incident, Belloise

reported the statement somewhat differently. Belloise did not testify that

DeLuca had said anything about killing anyone; instead, he told the grand

jury: "After she used the bathroom she came out and she said to nobody in

particular -- I don't know if anyone knew her -- in general she just said that

she was an ex cop and the guys outside better not fuck with her because she

wouldn't take any shit from them and she might get them back or something.”

(Belloise: T. 561). Belloise explained at trial that he later approached the

(continued...)

137

the comment to be "a bravado type of thing, sort of like a macho

statement" (Belloise: T. 582). Petitioner then went outside

(Belloise: T. 553).

After speaking to his friends, Bissett left them in his van,

crossed the street and got into the back seat of petitioner's blue

Cadillac. Petitioner and Travelina were sitting in front (Barrett:

T. 59-61; Murphy: T. 169; Belloise: T. 553-54). Petitioner then

drove the car away (Barrett: T. 59-61; Murphy: T. 171).

Approximately twenty minutes to a half-hour later, petitioner

and Bissett returned to the corner where the van was parked

without Travelina (Barrett: T. 61: Murphy: T. 171-72). Peti-

tioner pulled her car alongside the van and Bissett, who was not

in the front passenger seat of the Cadillac, told Barrett and

Murphy to get out of the van and get into the back seat of the

Cadillac, which they did (Barrett: T. 61-63; Murphy: T. 172).

They remained there, sitting in petitioner's car, for about fifteen

minutes, passing around some "sparkling wine" which petitioner

and Bissett had been drinking. They were all "having a good

time * * * just talking back and forth, just laughing” (Barrett: T.

63-64; see also Murphy: T. 172-73, 187).

Leaving the van parked on the corner of East 231st Street and

Albany Crescent, petitioner and the three men began driving

around (Barrett: T. 65; Murphy: T. 173). Petitioner and Bissett

"seemed to sort of hit it off," and the two men in the back seat

were then "sort of left out of the conversation" (Murphy: T.

173). As they were being driven around, both Barrett and

Murphy slipped off to sleep (Barrett: T. 65; Murphy: T. 173-74).

At one point, Barrett awoke and Bissett gave him money, which

he used to buy beer in a "superette" on Fordham Road (Barrett:

T. 66-67; Murphy: T. 174). Everyone was still in a "cheery

°(...continued)

prosecutor, sometime after his grand jury testimony, to inform him that

petitioner had actually used the word "kill." (Belloise: T. 579).

138

good mood," and, with petitioner remaining behind the wheel,

they continued their drive through the streets of the North

Bronx, which were now becoming crowded with people on their

way to work (Barrett: T. 66-67).

At 8:30 a.m., Helen Bissett was awakened in her bedroom

when she heard her son and a woman in the house (H. Bissett:

T. 296-97, 305). From her bedroom, Mrs. Bissett could not see

them, but she did hear them speaking in a low tone as they came

in the entrance foyer. Mrs. Bissett heard the woman say, "'nice

apartment,’ maybe other words to that effect" (H. Bissett: T.

299, 305). Bissett entered his mother's bedroom and she asked

him who the unseen visitor was. He responded, "She had to go

to the bathroom and then I'm going to take her home" (H.

Bissett: T. 296). Mrs. Bissett heard the sound of a toilet

flushing (H. Bissett: T. 297, 301). Before leaving, Bissett asked

his mother for some money to buy paint, and Mrs. Bissett gave

her son a blank check (H. Bissett: T. 296, 300). Bissett gave his

mother a kiss, and then he and the woman left the house (H.

Bissett: T. 301).

With petitioner at the wheel, the group continued to drive

around while drinking more beer (Barrett: T. 124-25; Murphy:

T. 175). The three men also smoked marijuana (Barrett: T. 124-

25; Murphy: T. 175). After they bought beer they head toward

the Bronx Park Motel, located on Fordham Road and Crotona

Avenue. (Barrett: T. 68; Murphy T. 175). They arrived at 10:00

a.m., and Bissett entered the office where clerk Albert DeStasio

and manager Morris Green had him register for a room

(DeStasio: T. 257; 262-63; Green: T. 273-74). Bissett, indicat-

ing that he would be there for a "short stay," requested a room

with a waterbed and asked for an x-rated movie (DeStasio: T.

262-63). ;

Bissett returned to the car and petitioner drove to the parking

area near the rented room (Barrett: T. 69, 98). When they

arrived, Bissett gave Barrett and Murphy the room key and told

139

them to go inside, which they did (Barrett: T. 70; Murphy: T.

176). Bissett remained in the car with petitioner, while the two

other men began to watch x-rated movies and drink beer

(Barrett: T. 70, 99; Murphy: T. 176).

After approximately fifteen or twenty minutes, Bissett came

to the door with petitioner and asked the other two men to leave

the room. Barrett and Murphy immediately picked up their beers

and left the room as Bissett and petitioner entered (Barrett: T.

72, 139, 143; Murphy: T. 176-77). Within a few minutes

Murphy and Barrett became angry because they wanted to go

home and were left standing in the parking lot outside of the

motel room. They began to bang on the door, calling, "let's go,"

and Murphy kicked a window, breaking it (Barrett: T. 72-74:

Murphy: T. 177-78, 196). Bissett came to the window, looking

a "little angry," and so the other two men took their beer with

them and left on foot (Barrett: T. 74-75; Murphy: T. 178).

Neither Barrett nor Murphy had seen any gun during the time

that they were present (Barrett: T. 78, 110; Murphy: T. 181).

Meanwhile, as all of this was going on, the motel manager,

observed what was taking place and directed the clerk to call the

room and ask the occupants to leave (DeStasio: T. 264-66;

Green: T. 276-78). In response to this call, as Murphy and

Barrett were walking from the motel's parking lot, petitioner and

Bissett left the motel room and got into petitioner's car (Barrett:

T. 75, 150-51). Before they drove off together, Bissett briefly

returned to the motel room, as if he had forgotten something,

while petitioner waited for him in the car, behind the wheel

(Green: T. 278-79).

Barrett and Murphy walked five blocks to some benches

outside the Bronx Botanical Gardens, where they drank more

beer (Barrett: T. 76, 80-83; Murphy: T. 178). Then, both men

boarded a bus and ultimately separated when Barrett continued

on to a garage in Riverdale where he and Bissett had planned to

140

meet before a painting job scheduled later that day (Barrett: T.

76, 86; Murphy: T. 178, 215).

Sometime during the morning of September 22, Bissett

stopped in at the "Blue Store," a paint store located on Broad-

way, between East 231 st and East 232nd Streets, where he paid

the owner, William Lipton, for an outstanding bill (Lipton: T.

633-35, 637, 641). Bissett used the blank check given to him

earlier that morning by his mother (H. Bissett: T. 300; Lipton:

T. 635; Exhibit 9 [check used by Bissett to pay for paint)).

Bissett had a brief, "friendly" conversation with Lipton, and did

not appear to be drunk or "high" (Lipton: T. 637).

After leaving the paint store, Bissett apparently returned to his

van, which had been left at the corner of East 231st Street and

Albany Crescent. Patricia Engstrom, who lived a block away

from that corner, had noticed the parked van at about 8:30 a.m.

as he passed it on her way to school (Engstrom: T. 231-32, 244).

Donald Lavan, Bissett's brother-in-law, had seen the van parked

there continuously between 7:30 a.m. and 10:50 a.m., while he

was having his usual daily breakfast at the "Piper's Kilt," across

the street (Lavan: T. 409-14). Latter, as Engstrom and her friend

Joanne McCabe passed the corner on their way home from

school, the van was still there (Engstrom: T. 237-38; McCabe:

T. 497-98). However, when Engstrom and McCabe passed by

again at 1:15 p.m., the van was gone (Engstrom: T. 239-40;

McCabe: T. 498).

Sometime between 1:00 p.m. and 1:30 p.m., a team of

workers from the New York City Department of Water Supply,

consisting of foreman John Simeone, machinist helper Stanley

Berman, and laborer Carl Oliveras, arrived at an area alongside

the service road of the Major Deegan Expressway, just north of

Fordham Road. The crew was there because a nearby water-

main break on Fordham Road required them to check local

hydrant pressure and other water gates (Simeone: T. 362;

Oliveras: T. 673).

ee es RS walt Cae the 4

PR IE ey Eee Tk Aes i eMeserps:

POT SS Seaee oe

141

One of the workers’ trucks descended a "ramp" into a gulley-

like, relatively desolate area, at the bottom (Simeone: T. 361,

363; Berman: T. 382, 385, 397-98; see Exhibit 13 [aerial photo

of area]). Near the bottom of the ramp, about twenty-five feet

away from where they parked their truck, they observed Bissett's

black Ford van parked in the middle of a large pool of water, a

number of inches deep (Simeone: T. 363-64; Berman: T. 387-

88).’ Also nearby was a large Department of Sanitation "front

end loader," a heavy duty construction machine, being operated

by Basil Meola (Berman: T. 388; Meola: T. 652-53). The

Department of Water Supply truck was closer to the van than the

Department of Sanitation vehicle (Meola: T. 662-63). Because

the front end loader had a diesel engine, and because of the

nearby highway truck traffic, the noise level in the immediate

area was fairly high. However, the Department of Water Supply

crew could here each other's conversation as they spoke in their

truck (Berman: T. 388; Meola: T. 652; Oliveras: T. 682).

Watching the nearby van, the Department of Water Supply

crew noticed that it was moving around and bouncing up and

down. They joked that, "somebody was getting laid in the van"

(Simeone: T. 366, 378; Oliveras: T. 671, 673).°

” According to the police officers who arrived at the scene a few hours later,

the van was parked in a pool of water having approximately a twenty-five to

fifty foot diameter and having a depth of between two inches and five inches

(Baldassarri: T. 316, 319; Cota: T. 328; Taylor: T. 794).

*While this was going on, a man parked a bright red car at the top of the ramp

and walked down toward the van, but then turned away and walked in a

different direction (Berman: T. 389-91). In addition, Meola saw a man with

a “full head of hair” in the area (Meola: T. 659-60). After the incident, the

Department of Water Supply crew and Meola were shown a photo array

(continued...)

142

At about 2:00 p.m., Carl Oliveras was still in the water supply

truck near the van, while Stanley Berman and John Simeone

were further up the ramp, checking pressure on a hydrant

(Simeone: T. 369-70; Berman: T. 394; Oliveras: T. 673, 678).

Oliveras looked up and noticed a heavyset woman with dark

blond hair, who looked tired, walking up he ramp, away from

the van, toward the other crew members and Fordham Road

(Oliveras: T. 674, 676, 678). Berman and Simeone also noticed

the woman, as she approached and then walked right by them,

turning left onto Fordham Road (Simeone: T. 369-70; Berman:

T. 394). None of the workers had heard any shots (Berman: T.

404; Meola: T. 666; Oliveras: T. 683-84). Nor could any of

them identify the woman as petitioner (Oliveras: T. 674-75;

Simeone: T. 369-70; Berman: T. 394-95).

At approximately 10:50 a.m. on the morning of September

22, Ann O'Byrne, an exchange student from Ireland who had

spent the summer working in the United States, went to "Pau-

line's" bar in the Bronx, owned by her aunt Pauline O'Sullivan,

where she met Karen Travelina (O'Byrne: T. 863, 866).’

O'Byrne worked as a house cleaner for petitioner once a week

and this was her cleaning day (O'Byrne: T. 864-65, 867-69).

Travelina, who appeared to be drunk, offered to drive O'Byrne

to the DeLuca home, located at 312 West 260th Street (O'Byrne:

*(...continued)

containing Mr. Peter DeLuca's picture, but none of the workers

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