Appeal from an order of the United States District Court for the Southern District of New York (Brieant, J.), which granted petitioner a writ of habeas corpus, finding the evidence was insufficient to convict him of the state law offense charged. Reversed and remanded.
Before: Pierce, Miner and Davis,*fn* Circuit Judges.
In September, 1983, Robert Rapetti, Jr. and a co-defendant were convicted of two counts of Rape in the Third Degree following a non-jury trial before Judge Howard Miller in the County Court, Westchester County. The convictions were affirmed with opinion on appeal, People v. DiNoia, 105 A.D.2d 799, 481 N.Y.S.2d 738 (2d Dep't 1984), and leave to appeal to the New York Court of Appeals was denied, People v. Rapetti, 64 N.Y.2d 763, 485 N.Y.S.2d 1049, 475 N.E.2d 466 (1984). Petitioner was sentenced to a term of imprisonment of one and one-third to four years. He thereafter sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982) in the United States District Court for the Southern District of New York (Brieant, Judge). The district court, in an opinion and order dated June 27, 1985, granted the writ holding that the evidence presented at trial could not support a finding that petitioner was guilty beyond a reasonable doubt of Rape in the Third Degree. The district court found that the evidence was insufficient to establish two essential elements: 1) that the victim was incapable of giving consent because of drugs or an intoxicating substance administered to her without her consent and 2) that petitioner was aware of this incapacity. For the reasons set forth below, the order of the district court is reversed.
On Friday, March 19, 1982, at approximately 10:00 p.m., Arlene C., a fifteen year old high school student, went to a discotheque in Mount Vernon, New York, with three fellow students, the petitioner Rapetti, Michael DiNoia and Billy Crosson. At the subsequent state court trial, Arlene testified about the events that transpired. Plans to go to the disco had been made on March 18th when Rapetti, DiNoia and Crosson came to Arlene's house; she confirmed these arrangements with Rapetti who telephone her on Friday afternoon. That night the group drove to the disco in DiNoia's orange car. While they were seated at a table, Arlene ordered a 7-Up. She then got up to talk with a friend, ordered another 7-Up at the bar and returned to the table. Arlene testified that she left the table and went to the bathroom and upon returning she ordered another 7-Up which, like all the others she had drunk that night, tasted and looked like 7-Up. At approximately 11:30 p.m., a friend asked Arlene about the time; Arlene stated that while she told her friend that it was 11:30, her watch looked "foggy." Arlene testified that that was the last event she remembered clearly about that night. See Tr. at 253-74.
Arlene testified that thereafter she was aware of being in a car, hearing petitioner Rapetti's voice and seeing a pond of ducks which she could identify at the time of trial as the front of the Yonkers Motor Inn which is located in the vicinity of her home. She remembered being pulled up some metal steps and laying down "on something." She heard voices and recognized those of Rapetti and co-defendant DiNoia. Rapetti then told her to "roll over" and she felt a pain in her lower back, stomach, vagina, rectum, and on the left side of her face. She testified that, although not unconscious, she had a sensation of "fading in and out" and "'did not remember certain parts.'" The next thing of which she was aware was waking up the next morning in her home. Tr. at 275-84.
Billy Crosson testified that on March 16, 1982, in DiNoia's presence, Rapetti said that he was mad at a girl for telling his girlfriend that the girl and he had had sexual relations. Rapetti described the "girl" as "like a whore" and said "she gets drunk all the time [and] she'll do anything." Tr. at 84. Crosson testified that Rapetti said the following:
[Crosson] He said that he wanted--he said he was mad at her, you know, for what she said, and that he wanted to take her out and gang bang her.$[by Prosecutor] Did he indicate anything else that he wanted to do about Arlene?
[Crosson] He said he had an idea about drugging her.
Michael Bernardi, a friend of Rapetti and co-defendant DiNoia, testified that on Friday afternoon, March 19, 1982, he was lifting weights at a fitness center when he saw Rapetti and DiNoia. Bernardi testified that, in Rapetti's presence, DiNoia said that he had a date that night with a girl named Arlene and that he intended to "get wasted that Friday night and have a good time." Tr. at 20-22.
The testimony of the witnesses regarding the night of March 19, 1982, varied with respect to the events at the disco, but the witnesses were largely consistent when relating their versions of what transpired at the Yonkers Motor Inn. Crosson testified that at the disco he "was watching [Arlene] order drinks, and to the best of my memory, I thought she ordered a seven and seven." Tr. at 106. He also testified that she was staggering and appeared drunk and was kissing him as well as DiNoia. He did not smell any alcohol on her breath. Another witness testified that between 11:00 and 11:45 p.m., she saw Arlene kissing two boys at the disco. See tr. at 591 (testimony of Terry Belluzzi). Bernardi related that he saw Arlene at the disco with Rapetti and that he did not see her with a drink in her hand. Tr. at 31. Frank Treglia told the court that sometime between 10:15 and 10:45 p.m. he had a conversation with Arlene at the disco and that she appeared normal. Tr. at 212.
Bernardi testified that at approximately midnight on March 19, 1982, Arlene left the disco in the company of DiNoia, Rapetti and Crosson, who told Bernardi that they were going to the Yonkers Motor Inn. Bernardi drove there with Chris Mansa, Dave Scicolone, and Robert Chin and saw DiNoia walking up the steps of the inn arm in arm with Arlene who was "supported against him." Tr. at 31-39. Bernardi then entered Room 109. Present in the room were Arlene, Rapetti, DiNoia, Crosson, Mansa, Scicolone, and Chin. Bernardi testified that while Arlene lay naked on the bed, except for a bra, with her arms at a ninety degree angle and her legs spread, Scicolone, Chin, and DiNoia, got on top of her and had intercourse with her. Arlene lay motionless throughout the entire incident and Bernardi only heard her say "Rob" and "take me home" as he was leaving. Tr. at 42-56. Bernardi then left with Crosson and Mansa; although he was told that Rapetti also left with him, he had no independent recollection of that fact. Tr. at 60; see also tr. at 188 (testimony of Chris Mansa that he left only with Bernardi and Crosson). Crosson testified similarly except he added that Rapetti had engaged in sexual intercourse with Arlene. Tr. at 129-30. Crosson admitted that during the entire incident he never saw Arlene move from her position on the bed. Tr. at 131. Mansa's testimony was corroborative of much of the prior evidence and he noted that Arlene "sounded like she might have been distressed. She sounded kind of weak. She just said not to leave her there. She wanted a ride home." Tr. at 182-83.
Two maids who worked at the inn testified that in the early morning hours of March 20, 1982, they saw several males carry a girl out of Room 109. The girl was carried over the shoulders of one of the boys and placed in an orange car with a loud muffler. Tr. at 395-97, 464-67. One of these two witnesses identified Rapetti as being among the group leaving the inn with the ...