The opinion of the court was delivered by: H. Kenneth Schroeder, Jr., United States Magistrate Judge.
In accordance with 28 U.S.C. § 636(c), the parties have consented to
have the undersigned conduct all further proceedings in this petition for
habeas corpus relief pursuant to 28 U.S.C. § 2254.
(Dkt. # 7).
Petitioner seeks federal habeas corpus review of a judgment of
conviction entered on December 22, 1997 after a non-jury trial before the
Hon. Christopher J. Burns, Erie County Supreme Court convicting him of two
counts of rape in the first degree and endangering the welfare of a child.
The child involved was the nine (9) year old daughter of petitioner's
Petitioner's claims in his state court appeal included ineffective
assistance of trial counsel, insufficiency of the evidence and improper
admission of hearsay testimony. The New York State Supreme Court,
Appellate Division, Fourth Department issued an Order and Memorandum on
June 18, 1999 affirming the conviction. People v. Spencer,
262 A.D.2d 1062. In relevant part, the court held that "[d]efendant
failed to demonstrate the absence of a strategic explanation for defense
counsel's failure to cross-examine the victim concerning inconsistencies
in her grand jury and trial testimony" (citing People v. Garcia,
75 N.Y.2d 973, 974) and that "[t]he evidence, the law and the
circumstances of this case, `viewed in totality and as of the time of
representation, reveal that the attorney provided meaningful
representation'" (quoting People v. Baldi, 54 N.Y.2d 137,
147). Spencer, 262 A.D., 2d at 1062. On November 1, 1999, the New York Court
of Appeals issued a Certificate denying leave to appeal. People v.
Spencer, 94 N.Y.2d 829 (1999) (Table).
This pro se petition was filed on March 22, 2000 in the Western
District of New York. (Dkt. #1). Petitioner sets forth two grounds for
which he claims he is entitled to habeas corpus relief: (1) he was denied
effective assistance of trial counsel; and (2) the evidence was not
legally sufficient to support a finding of guilt beyond a reasonable
doubt. (Dkt. #1). These issues have been exhausted in his state court
proceedings, and this Court has jurisdiction to address them.
Respondent filed an Answer to the petition and a Memorandum of Law on
May 17, 2000. (Dkt. #5 & #6). With respect to the ineffective assistance
of counsel claim, respondent maintains that trial counsel's
representation of petitioner met the standard of overall reasonableness
in accordance with the requirements set forth in Strickland v.
Washington, 466 U.S. 668 (1984). (Dkt. #5, 4; Dkt. #6, pp. 2-7).
Petitioner's response was filed on July 11, 2000 and generally challenges
the validity of respondent's position put forth in his Answer and
Memorandum of Law.
This Court issued an order on April 6, 2001 directing that the record
be expanded to include the grand jury testimony which was central to
petitioner's ineffective assistance of counsel claim. (Dkt. #9). The
transcript was submitted to the Court under seal on April 10, 2001.*fn1
On May 25, 2001 David Gerald Jay, Esq. was appointed to represent
petitioner (Dkt. #12) and, after several status conferences, a Sparman*fn2
hearing was ordered and thereafter conducted on August 28, 2001.
Petitioner's state court trial counsel, Anna L. Scott, Esq., testified at
this hearing and was the only witness called to testify.
During the time relevant to the state indictment, petitioner resided
with his girlfriend, Michele Morgan and their two children. Ms. Morgan
also had a daughter, Abeline, who, by order of Family Court, resided with
her paternal grandmother. It was alleged that from approximately June 1
to December 25, 1995, petitioner sexually abused Abeline several times
while she was visiting in her mother's home, and Ms. Morgan was not
The indictment against the petitioner charged two counts of rape in the
first degree, two counts of sodomy in the first degree and one count of
endangering the welfare of a child. The defendant waived his right to
trial by jury, and a bench trial proceeded before the Hon. Christopher
J. Burns, J.S.C., on October 28, 1997. Among those who testified at the
trial were Abeline, her mother, her paternal grandmother, petitioner,
Dr. Jack Coyne, the physician who examined Abeline relative to her claim
of abuse, petitioner's
teenage daughter and petitioner's and Ms. Morgan's young daughter,
Lydia*fn3. At the close of the prosecution's case, the
trial judge dismissed the sodomy counts since no evidence had been
presented to establish the commission of these crimes as alleged in the
On October 31, 1997, after all the proof was completed and the parties
presented final arguments, the trial judge rendered a judgment of guilty
on the remaining counts of the indictment, to wit, two counts of rape in
the first degree and one count of endangering the welfare of a child. On
December 22, 1997, petitioner was sentenced to a minimum of 10 years and
a maximum of 20 years imprisonment on each rape conviction and one year
on the child endangerment conviction, all to run concurrently.
Petitioner alleges the following facts in support of his claim of
ineffective assistance of trial counsel:
(1) trial counsel failed to impeach the complaining
witness with her inconsistent grand jury testimony;*fn4
(2) trial counsel offered no evidence or expert testimony
to refute the prosecution's expert witness and failed to
sufficiently cross-examine such witness;
(3) trial counsel failed to object to hearsay testimony by
the expert witness with respect to statements made to
him by the complaining witness;*fn5
(4) trial counsel presented testimony of Ms. Morgan on
the issue of whether petitioner was ever home alone with
the children without reviewing such issue with the
witness before calling her to testify. As a result, this
purported supporting testimony was easily and clearly
discredited during the prosecution's rebuttal proof;
(5) trial counsel failed to object to the hearsay
testimony of Ms. Morgan's employer (a rebuttal
witness) regarding statements made to him by Ms.
(6) trial counsel presented two witnesses who gave
clearly contradictory testimony about whether petitioner
was ever alone in the home with the children;
(7) trial counsel failed to provide a meaningful
summation and even intimated her own client's guilt by
stating (about Ms. Morgan) "she actually believes her
mate was not responsible for this act and that's going to
remain with her for some time;" and
(8) trial counsel had petitioner testify about his sexual
impotence without offering corroborating proof, rendering
it patently unreliable.
For purposes of deciding whether the petition should
be granted, I have primarily focused on two issues: (1)
on trial counsel's failure to make use of the
complaining witness's prior inconsistent statements and
grand jury testimony in order to impeach her on the
substantive issues of whether the petitioner engaged in
acts of intercourse and/or oral sex with her as charged
in the indictment; and (2) her failure to utilize the
services of an expert medical witness. Since I consider
these issues to be not only crucial but also
determinative with respect to the petition herein, I
find it unnecessary to address in detail the other
claims relating to the charge of ineffective assistance
of trial counsel.
The Inconsistent Prior Statements and Grand Jury
Testimony of the Complaining Witness, Abeline
Because these statements are deemed to be crucial
elements in the determination of whether trial counsel
was ineffective in her representation of petitioner, I
have sacrificed brevity and hereby set out in detail
those particular statements or testimony as part of my
decision making analysis. It is emphasized that the
complaining witness, Abeline, had been in psychological
counseling since approximately the age of five (5) and
that she had been diagnosed as suffering Oppositional
Defiant Disorder with a history of lying, stealing,
talking back and sexual inappropriateness. (Pt-2, pp.
135, 229, 233-236.*fn6
A. The Statements of April 18, 1996 and April 30, 1996:
On or about April 18, 1996, as a result of an
interview with representatives of Mid-Erie Counseling
and Treatment Services, a report was made wherein it is
Child reports that while at a weekend visit to mom's
house, she was witness to mom's boyfriend removing his
clothing and asking her to join him in a separate room.
Client reported to PT [primary therapist] during TX
[treatment] session that mother's boyfriend has HX
[history] of disrobing completely in front of her while
mom is at work while on weekend visits, client states
that she refuses to join in a separate room where (sic) he
(Pt-2, pp. 226-227, 237).
On or about April 30, 1996, she told Dr. Coyne, the examining
I'm here because my sister's daddy put his finger and his
private inside my private and my butt many times, he told
me not to tell anyone or he'd kill me, the time was last
year sometime, I can't remember exactly but it was when
my mom would leave.
Pt-2, p. 237 (emphasis added).
B. The Grand Jury Testimony:
On November 19, 1996, Abeline first appeared before an Erie County
Grand Jury, and at that time, testified as follows concerning the alleged
sexual assaults performed upon her by the petitioner sometime around
Christmas of 1995 while her mother was at work:
A: When — well, when my sister and brother were
sitting down on the floor watching TV, then he told
them to go in the bedroom and go play and then he
called me and then they come back out the room. Then
he yelled at them. And then I don't know what to do, I
was scared and I had to go and see what he wanted.
Q: Okay. Did you go over to him?
A: He wanted to do something nasty.
Q: Okay. How do you know he wanted to do something nasty?
A: Because he told me to come here.
Q: Okay. Did he tell you to do something?
Q: Okay. And what was that nasty thing he told you to do?
A: Put his private in my mouth.
During this first grand jury appearance, she also gave the following
Q: Okay. Now did — at any time did he touch
any part of you?
Q: Now, did he ever put his private any place else
besides in your mouth?
Q: Now is that the first time that he put his
private in your mouth?
(Pt-1, pp. 14-15) (emphasis added). She testified that this happened many
times, both at her mother's current residence on 14th Street and when
they all lived together on Davidson Street. Regarding other alleged
sexual activity, she testified as follows:
Q: Now, on Davis (sic) Street, did he ever put his private
anywhere else besides in your mouth?
(Pt-1, p. 15) (emphasis added). This testimony was inconsistent with her
allegations and statements made to Dr. Coyne on April 30, 1996 wherein
she had stated that petitioner had "put his finger and his private inside
[her] private and [her] butt many times." Abeline was called back to the
grand jury eight days later at which time she testified on November 27,
1996 as follows:
Q: She's still under oath. Okay. She was qualified last
time to testify. Okay. Now Abby's come in today and I
asked if maybe there's you forgot to tell us something
last time? (sic)
A: Yes. Q: Okay. Did you remember that Ricky put his
private someplace besides your mouth?
Q: Okay. Want to tell us where? Go ahead and tell us
nice and loud?
A: His private in my private.
Q: Okay. And is that the only other place he put it
besides your mouth?
Q: Okay. And how come you didn't tell us that the last
A: Because I was scared.*fn8
(Pt-1, pp. 2-4, 2nd appear (emphasis added).*fn9 She stated that this
occurred a "couple" times, both during the previous summer and current
school year. (Pt-1, p. 3, 2nd appear.) Although it would appear that
Abeline corrected her prior grand jury testimony by this memory recall,
it nevertheless appears to the Court to be in contradiction to the
statement given by her to Dr. Coyne, to wit, "daddy put his finger and
his private inside my private and my butt many times." (emphasis added).
Abeline's Trial Testimony
At petitioner's trial, Abeline's testimony resulted in further
substantive inconsistencies as to the alleged sexual events occurring
during the summer ...