# Appendix — Lord v. DeLuca

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 824

## Text

S
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

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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.

6]

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

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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

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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.

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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.

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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.

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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.

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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

68

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

69

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.

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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.

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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.

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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.

ee

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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.”

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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.

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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."

76

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

77

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.

78

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.

79

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

3
4

80

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

81

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

82

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

83

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...)

,

84

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.

85

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

86
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.

87

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

88

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

89

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.

90

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

91

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.

92

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

93

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,

94

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 ~ 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

RO Ain ant Het tice Shiny iu

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.”

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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".

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SSE 5 SNE RDS 242

SS SoS PSOE Heer 8eR FP AME HN ee MERU

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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 C

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1532%3A2. Public record. Not legal advice.