United States District Court, Western District of New York
February 6, 2002
RICKY SPENCER, 98-B-0248 PETITIONER,
EDWARD E. DONNELLY SUPERINTENDENT, WENDE CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: H. Kenneth Schroeder, Jr., United States Magistrate Judge.
DECISION AND ORDER
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.
DISCUSSION AND ANALYSIS
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?
Q: And what did he want?
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.
(Pt-1, pp. 12-13) (emphasis added).*fn7 She testified that this occurred
in the living
room, on the sofa while under a blanket. (Pt-1, p. 11).
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 of 1995 wherein she testified as follows:
A: He calls me in the [bed]room.
Q: Did he call anyone else in the room?
Q: After he took your clothes off, what happened? Did
he touch you?
Q: What did he touch you with?
A: His hand.
Q: And what did he do with his hands?
A: Doing bad things.
Q: Like what?
A: Nasty stuff.
Q: Where did his hands touch you?
A: On my booty.
Q: And anywhere else?
Q: Did you see his private parts?
Q: What did he do with it?
A: He put it in my —
Q: In your what?
(Pt-2, pp. 21-23) (emphasis added). She testified that this specific
behavior occurred more than once during 1995 beginning with the above
summer incident and continuing into the following year. She testified to
only one other specific incident that she said occurred in the living
room (Pt-2, pp. 24, 27-31), which apparently was the incident on
the sofa previously described herein as part of her grand jury
testimony. (Pt-1, pp. 11-13). However, in further describing the incident
at trial, she described what amounted to intercourse rather than oral
sex. When asked on direct examination by the prosecutor if there were any
other incidents of improper sexual contact or behavior, Abeline testified
Q: Can you remember any other times when something
would happen between you and Rick?
Q: You told us that Rick put his private part in your
private part, did Rick ever put his private part anyplace
else on your body?
Q: Did he ever want you to touch him?
Q: Did he ever want you to put it in your mouth?
Q: Did he ever put his mouth on you?
Pt-2, p. 26 (emphasis added).
On cross examination, defense counsel did not ask Abeline any questions
about any of the aforesaid prior inconsistent statements. The only
inconsistencies about which she questioned the witness were peripheral in
nature and were limited to those that occurred during Abeline's trial
The Sparman Hearing*fn11
Petitioner's trial counsel, Anna L. Scott, Esq., was called as a
witness by counsel for the petitioner. She admitted that she did not
utilize any of Abeline's grand jury testimony at trial. Her explanation
for this is as follows. Just prior to the commencement of the trial, a
made to waive a jury and proceed with a bench trial (Sp.
9). After this waiver of a jury trial was accepted by the trial court,
the prosecution provided Ms. Scott with the prior statements of its
proposed witnesses pursuant to People v. Rosario, 9 N.Y.2d 286 (1961),
cert. denied, 368 U.S. 866 and New York Criminal Procedure Law §
240.45.*fn12 The parties waived opening statements, Abeline was the
first witness called by the prosecution, and moments before she took the
stand to testify at trial, her grand jury testimony was given to Ms.
Scott (Sp. 11).
Ms. Scott testified that she began to review Abeline's grand jury
testimony upon receiving it, but decided that it would be better to put
it down and focus on the witness's trial testimony once it began (Sp.
13, 26-27, 33). By the time Abeline had concluded her direct testimony,
Ms. Scott had read only a small portion of the grand jury transcript, the
total of which consisted of less than twenty (20) pages, and had not yet
come to the parts in the transcript where Abeline testified about any of
the substantive allegations relating to the petitioner's alleged conduct
(Sp. 34, 38). Nevertheless, counsel immediately proceeded to
cross-examine the witness without first reading the witness's prior sworn
testimony before the grand jury regarding the allegations that formed the
basis for the criminal indictment against her client.
Simply stated, Ms. Scott did not cross-examine Abeline about her prior
inconsistent grand jury testimony because she had not completely read
it. When asked by this Court as to why she did not ask the trial judge
for a short recess before commencing her cross-examination of Abeline so
as to enable her to complete her review of the witness's grand jury
testimony, Ms. Scott responded as follows:
The Court: You had testified here today, Ms. Scott,
that just at the start of the trial when the People called
the first witness, Abeline, who was the alleged victim,
you were given a copy of her Grand Jury testimony. Is
The Witness: Yes, sir.
The Court: And the Grand Jury testimony which is
Petitioner's Exhibit 1 consisted of her three different
appearances before the Grand Jury.
The Witness: I think there were two.
The Court: Or two different appearances before the
Grand Jury. And then you testified, as I understood it,
that you began reading the Grand Jury minutes that had
just been given to you when Abeline started her
The Witness: Yes.
The Court: And that because you were trying to do
two things at the same time, you were not fully
comprehending either what Abeline was saying on the
stand or what you were reading in the Grand Jury
minutes. Is that correct?
The Witness: No. I think what I did was to decide
that hearing her overrided (sic) continuing to read the
Grand Jury minutes at the time.
The Court: So you stopped reading the Grand Jury
The Witness: Yes.
The Court: So you could listen to her testimony?
The Witness: Yes.
The Court: After she finished her testimony on
direct, this is Abeline, did you ask Judge Burns for a
recess so that you could review the Grand Jury minutes?
The Witness: No, I didn't.
The Court: Why —
The Witness: I began to cross-examine her.
The Court: — did you not ask for a recess before
The Witness: I'm not sure, Your Honor. I think at that
time I listened to her enough that I felt that there
were inconsistencies clear, (sic) and those I wanted
to jot down while they were fresh in my mind.
The Court: Weren't you making notes as she was
testifying as to those?
The Witness: Yes.
The Court: So weren't they jotted down?
The Witness: They were jotted down for me to ask her
questions going in. The Court: I guess what I'm trying
to determine is whether this was some kind of trial
strategy that you had in mind for not asking for a
recess, and if so, what was the strategy?
The Witness: No, it wasn't a strategy not to ask for a
recess then. I think at the time it was getting to be
able to see her, to hear her, and at that time it
didn't — I didn't even think about let's ask for
The Court: When I say a recess, I'm not talking
about a day's or two days. I'm talking about fifteen,
The Witness: I understand.
The Court: Just to read the Grand Jury testimony.
The Witness: No, it didn't occur to me to ask for
that amount of time.
(Sp. 26-28) (emphasis added).
On cross-examination of Ms. Scott, counsel for the District Attorney's
office attempted to elicit some strategic reason for failing to utilize
the grand jury testimony of the complaining witness, Abeline:
Q: Okay. So what you're telling this Court is that you did
not get to Abeline's allegations of sodomy which are
contained on page thirteen [of the Grand Jury transcript];
is that correct?
A. No, I didn't.
Q: Are you telling this Court that — strike
that. You were aware of the charges that were
contained in the indictment, correct?
A: Yes, I was.
Q: And those were two counts of rape, two counts of
sodomy and one count of endangering the welfare of a
child. Am I correct?
Q: Okay. Now, so you were aware that the defendant
was charged with two counts of sodomy?
A: Yes, I was.
Q: Okay. And so at the time that you were listening to
Abeline's direct examination, did you — you were
aware, weren't you, that she did not testify to any
allegations of sodomy?*fn13
A: No, she did not.
Q: Okay. And you didn't cross examine her about the
fact that she had denied any sodomy, did you?
A: No, I didn't.
Q: And you didn't cross-examine her about that because
you figured —
A: I hadn't that, read that far.
(Sp. 38-39) (emphasis added). The trial strategy that counsel for
respondent was attempting to elicit from Ms. Scott would appear to be a
reasonable one, i.e., that since no evidence had been elicited from the
witness on direct examination about acts of alleged sodomy, it would be
foolish to open a Pandora's Box by bringing that subject up on
cross-examination. By not questioning on the subject of sodomy, there was
no evidence in the record to support those charges and as a result,
Justice Burns dismissed those charges set forth in the indictment. Alas,
however, Ms. Scott clearly did not understand this concept, for when this
Court asked for clarification on that issue, the lack of strategy or
trial tactics on her part became even more evident as reflected in the
The Court: . . . Ms. Scott, did you have a specific
reason in mind for not asking Abeline about her Grand
Jury testimony about the sodomy on cross-examination
or did you not ask her about the sodomy because you
hadn't read about it yet in the Grand jury minutes?
The Witness: Because I hadn't read about it yet.
The Court: Is that the only reason you didn't ask?
The Witness: Yes.
(Sp. 41-42) (emphasis added).
Other Allegations Of Ineffective Assistance
This Court has read the trial transcript (Pt-2) and finds that the
other occurrences that form the additional allegations of ineffective
assistance of counsel enumerated by petitioner occurred as follows. Trial
• offered no expert testimony to refute the
prosecution's expert witness;
• failed to object to hearsay testimony by the
State's expert witness with respect to statements
made to him by the complaining witness;
• failed to object to the hearsay testimony of a
rebuttal witness (Ms. Morgan's employer) regarding
statements made to him by Ms. Morgan in which he
testified that Ms. Morgan asked him to lie for
• presented two witnesses who clearly had
contradictory stories about whether or not
petitioner was ever alone in the home with the
• 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" in her
• had petitioner testify about his sexual
impotence without offering corroborating medical
Whether or not these examples amounted to ineffective assistance of
counsel will be addressed in more detail below. Further, in my review of
the trial and Sparman hearing transcripts, the Court finds the following
additional instances relevant to this analysis:
• When counsel questioned Abeline regarding her
prior statement to the doctor she essentially
accepted her answer when she said she told the
doctor "[t]he same thing I told today"(even though
that was not the case. (See, Pt-2, pp. 46, 47,
• When asked why she did not tell her regular
counselor, with whom she had a very good
relationship, about the alleged abuse, Abeline did
not answer. The witness told Scott to ask a
different question and Scott obliged, never
pressing her for an answer (Pt-2, pp. 43-45, 50);
• Scott failed to object to any of the testimony
of Abeline's paternal grandmother which contained
extensive hearsay testimony regarding what she
claimed Abeline said to her about the allegations
and whether or not she would lie about them
(Pt-2, pp. 63-65).
• When the inconsistencies in Abeline's
statements and testimony became known to her during
the course of the trial,*fn14 Scott did not ask
the trial judge
for permission to recall the
witness to the stand as evidenced by the following
colloquy at the Sparman hearing:
Q: . . . So at least at the time of your summation
you would — would it not be a fair statement that
you realized at that point that she had, in fact,
gone to the Grand Jury on two occasions?
A.: Yes. In fact, I was, I was aware of that at the
end of having read through all the material, and
again this was something which I tried to note in
Q: Did you ask the judge to perhaps recall this
witness so you could elicit that testimony about
this hiatus between testimony number one and
testimony number two in the Grand Jury?
A: No, I didn't.
Q: Why not?
A: Because I felt there was enough inconsistencies
in her testimony that we would have later on, and I
guess there again, this was a little child who was
there, was in and out, and unless it was a momentous
thing, I didn't see asking her to come back again.
A: Okay. In retrospect do you think it might have
made a difference if you had had the ability to
grasp and understand what she had said and when
she said it in the Grand Jury when you first started
to examine her in your cross-examination?
A: I think we already answered that. Oh, it would
have been wonderful. It's like most things that
you do. You go back and say, hey, that would
have been the better thing to do. (Sp. 24-25)
• Scott testified at the Sparman hearing that
she believed that the trial judge had access to the
grand jury transcripts and could use them as he
pleased in the proceedings. (Sp. 18, 42)
Standard of Review
The federal habeas corpus statute was amended in 1996
by the Antiterrorism and Effective Death Penalty Act
(AEDPA). Pub. Law No. 104-132, 110 Stat. 1214. The
instant petition was filed on March 22, 2000, and
therefore the provisions of the AEDPA and its standard
of review apply. The provisions of the AEDPA have been
incorporated into the current habeas corpus statute and
require a federal habeas court assessing a state
prisoner's federal claim to give some degree of deference
to the findings of the state court in the following
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment
of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
28 U.S.C. § 2254(d).
Since petitioner's ineffective assistance of counsel claim was
adjudicated on the merits in the state court and such claim implicated
clearly established federal law as determined by the United States
Supreme Court in Strickland v. Washington, 466 U.S. 668
(1984), there is
no question that the AEDPA standard applies to the instant case. See
Williams v. Taylor, 529 U.S. 362, 391 (2000); Sellan v. Kuhlman,
261 F.3d 303, (2d Cir. 2001).
Another section of AEDPA that affords a degree of deference to state
court factual findings requires that:
In a proceeding instituted by an application for a
writ of habeas corpus by a person in custody pursuant
to the judgment of a State court, a determination of a
factual issue made by a State court shall be presumed
to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and
28 U.S.C. § 2254 (e)(1).
In applying the AEDPA standards to the petition herein, the question
to be resolved is as follows:
Did the adjudication on the merits in the state court
proceedings result in a decision that is contrary to
clearly established federal law as determined by the
Supreme Court of the United States?
For the reasons hereinafter set forth, I find that the State court
adjudication on the merits of petitioner's claim of ineffective
assistance of counsel is contrary to clearly established federal law as
set forth in Strickland v. Washington, 466 U.S. 668
Strickland Test"). New York's Court of Appeals has expressly acknowledged
that there is a difference between New York's test and the Strickland
Test in resolving claims of ineffective assitance of counsel as follows:
In evaluating ineffective assistance of counsel
claims, this Court has consistently applied a
"flexible" approach (People v. Benevento, 91 N.Y.2d 708,
712, 674 N.Y.S.2d 629, 697 N.E.2d 584). "So long as
the evidence, the law, and the circumstances of a
particular case, viewed in totality and as of the time
of the representation, reveal that the attorney
provided meaningful representation," a defendant's
constitutional right to the effective assistance of
counsel will have been met (People v. Baldi,
54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
Thus, the standard in New York has long been whether
the defendant was afforded "meaningful representation"
(see, People v. Benevento, supra, 91 N.Y.2d, at 712,
674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Flores,
84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19;
People v. Claudio, 83 N.Y.2d 76, 79-80, 607 N.Y.S.2d 912,
629 N.E.2d 384, rearg. dismissed 88 N.Y.2d 1007,
649 N.Y.S.2d 373, 672 N.E.2d 598).
In applying this standard, courts should not confuse
true ineffectiveness with losing trial tactics or
unsuccessful attempts to advance the best possible
defense. The Constitution guarantees a defendant a
fair trial, not a perfect one (Delaware v. Van
Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d
674). Isolated errors in counsel's representation
generally will not rise to the level of
ineffectiveness, unless the error is "so serious that
defendant did not receive a `fair trial'" (People v.
Flores, supra, 84 N.Y.2d, at 188-189, 615 N.Y.S.2d 662,
639 N.E.2d 19).
Despite our well-settled test for evaluating
ineffective assistance of counsel claims, the People
ask this Court to adopt the Federal standard,
maintaining that it is more precise than the State's
"meaningful representation" standard.[footnote
omitted] This Court has previously recognized the
differences between the Federal and State tests for
ineffectiveness, and has consistently adhered to the
application of our "meaningful representation" test
(see, People v. Benevento, supra, 91 N.Y.2d, at
713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584;
People v. Claudio, supra, 83 N.Y.2d, at 79-80, 607 N.Y.S.2d 912,
629 N.E.2d 384). In doing so, we have clarified
"meaningful representation" to include a prejudice
component which focuses on the "fairness of the
process as a whole rather than [any] particular impact
on the outcome of the case" (People v. Benevento,
supra, 91 N.Y.2d, at 714, 674 N.Y.S.2d 629,
697 N.E.2d 584). No further clarification of the
standard is required.
People v. Henry, 95 N.Y.2d 563
, 566 (2000). The New York Court of Appeals
has consistently refused to adopt the Strickland Test, stating that its
test is precise enough to protect against State Constitutional
violations. See id.; People v. Benevento, 91 N.Y.2d at 715 (1998).
On direct appeal, petitioner argued that trial counsel's representation
violated his Sixth Amendment*fn15 right to assistance of counsel. (Dkt.
#5, Ex. B — Appellant's Brief, pp. 7-19). Federal law was
extensively cited and focused on the argument that the representation
fell below the standards set forth by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984). While the New York State
standard of review for ineffective assistance of counsel was stated, it
was described as "less exact", and the focus remained on Strickland and
its progeny. Petitioner did, however, argue that his circumstances
satisfied both the state and federal burdens. (Id.)
Although acknowledging that petitioner had a right to effective
assistance of counsel pursuant to both the New York State
Constitution*fn16 and the United States Constitution, the
People's brief argued only New York law in asserting that petitioner
received effective assistance of counsel. (Dkt. #5, Ex. B — Respondent's
Brief, pp. 13-14). Likewise, the entirety of the New York State
Supreme Court, Appellate Division, Fourth Department comment on this
issue rested solely on state law,*fn17 and is as follows:
We reject the contention of defendant that he was denied
effective assistance of counsel. Defendant 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 (see, People v Garcia, 75 N.Y.2d 973, 974).
The evidence, the law and the circumstances of this
case, "viewed in totality and as of the time of the
representation, reveal that the attorney provided
meaningful representation" (People v Baldi, 54 N.Y.2d 137,
People v. Spencer, 262 A.D.2d 1062 (4th Dep't 1999). The New York State
Court of Appeals denied leave
to appeal without comment. Spencer, 94 N.Y.2d 829.
The Appellate Division decision fails to set forth factual findings on
the issue of effective assistance of counsel and therefore, a presumption
of correctness is inapplicable. A mere conclusion that the defendant was
provided effective assistance of counsel does not constitute a finding of
fact for purposes of 28 U.S.C. § 2254(e)(1). See Strickland, 466
U.S. at 692. As a result, this Court is at liberty to make its own
finding of facts and apply the appropriate federal standard in
determining whether petitioner was denied effective assistance of counsel
at his trial. Admittedly, this Court now has the advantage of having
additional facts available to it in making its determination as a result
of the Sparman hearing conducted on August 28, 2001.
The Strickland Test:
"[I]n adjudicating a claim of actual ineffectiveness of
counsel, a court should keep in mind that the
[established] principles . . . do not establish mechanical
rules. Although these 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 presumption
of reliability, the result of the particular proceeding is
unreliable because of the breakdown in the adversarial
process that our system counts on to produce just
Strickland v. Washington, 466 U.S. at 687.
Indeed, this is a heavy burden for the petitioner as evidenced by the
Second Circuit Court of Appeals' holding in Pavel v. Hollins, 261 F.3d 210
(2d Cir. 2001) wherein the Court stated:
To establish that he was convicted in violation of his
right to effective assistance of counsel, a claimant
must satisfy both prongs of the two part test
articulated in Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This test is
"rigorous," Luidstadt v. Keane, 239 F.3d 191, 199 (2d
Cir. 2001), and "highly demanding," Kimmelman v.
Morrison, 477 U.S. 365, 382, 106 S.Ct. 2574, 91
L.Ed.2d 305 (1986). To satisfy it, a claimant must
show both that "counsel's performance was deficient"
and "that the deficient performance prejudiced the
defense." Strickland, 466 U.S. at 687, 104 S.Ct.
As to the first prong, to determine whether an attorney's
conduct was deficient, `[t]he court must . . . determine
whether, in light of all the circustances, the identified
acts or omissions were outside the wide range of
professionally competent assistance." Id. at 690, 104
S.Ct. 2052 (emphasis added). As to the second prong,
to establish that he was "prejudiced" by his attorney's
constitutionally deficient performance, a claimant must
"show 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, 104
S.Ct. 2052. A "reasonable probability" in this context is
one that "undermine[s] confidence in the outcome." Id.
Pavel v. Hollins, 261 F.3d at 216.
The Pavel case is practically on all fours with the case at bar and
provides a legal roadmap for the proper analysis and determination to be
made regarding the issues herein. Pavel involved a claim of sexual abuse
perpetrated by the defendant on his two sons who were ages seven (7) and
(5) at the time. The only witnesses to the alleged abuse were the
two boys and the defendant, and there was no substantial circumstantial
evidence of abuse. As a result, the case was essentially a "credibility
In the case at bar, the trial before Justice Burns was essentially one
of determining the credibility of the complaining witness, Abeline, who
was ten (10) years old at the time of the indictment against the
defendant and that of the defendant who denied all of the charges against
The two cases are further similar in that in both, defense counsel
failed to conduct a pretrial investigation and analysis of the People's
physical evidence or make use of an expert on behalf of the defendant for
purposes of reviewing the People's medical evidence and assisting counsel
in her trial preparation in order to discredit that evidence. In both
cases, the defense failed to call an expert to refute the medical
testimony presented by the prosecution at trial.
A. Trial Counsel's Performance
As indicated earlier, the People's chief witness at trial was Abeline,
a 10-year old with a recorded history of Oppositional Defiant Disorder
("ODD")*fn18 which included "lying" and "sexual inappropriateness." This
history certainly provided a substantial foundation for attacking her
credibility, especially since it was clearly established that she had
given at least three (3) different versions of the alleged sexual abuse
prior to her trial testimony. Admittedly, cross-examining a child of
tender years can be fraught with danger and backlash, if not done with
sensitivity. Nevertheless, the inconsistencies of Abeline on the types of
alleged sexual abuse were so substantive that they could not be ignored,
and a thorough cross-examination on these inconsistencies may very well
have changed the outcome of the trial.
An attack on Abeline's credibility could have been further strengthened
had trial counsel established just what Oppositional Defiant Disorder was
through an expert and further tied such disorder into Abeline's claims of
sexual abuse. At a minimum, the use of a child psychologist or similar
expert would have been most useful and helpful to trial counsel in
preparing for the cross-examination of Dr. Coyne. Ms. Scott failed to ask
any questions of Dr. Coyne about Abeline's history of ODD and failed to
tie in her history of "lying" and "sexual inappropriateness" with her
claims of sexual abuse in questioning Dr. Coyne.
In addition to failing
to properly investigate and analyze the psychological issues relating to
Abeline as aforesaid, trial counsel also failed to make use of a medical
expert with respect to Abeline's physical condition as found and
testified to by Dr. Coyne.*fn19 Dr. Coyne testified in substance that
his finding of the cleft or scar on
Abeline's hymen was consistent with what she had told him. (Pt-2, p. 95).
However, in responding to questions put to him by the trial judge about
his findings based on his examination of Abeline, Dr. Coyne admitted that
the type of scarring or cleft that he saw on Abeline's hymen could have
been brought about by a number of "outside agents" causing penetration,
e.g., "pencils, by almost anything you can imagine would do the same
thing . . . bicycles." Dr. Coyne could not narrow down or rule out other
causes for the scarring appearing on Abeline's hymen. (Pt-2, pp. 92,
93). Trial counsel failed to pursue these other causes or possibilities
in her cross-examination of Dr. Coyne and appears to have accepted his
finding that his assessment was consistent with what Abeline had told
him. In essence, the cross-examination of Dr. Coyne by Ms. Scott was
perfunctory at best. A defense medical expert could have brought light to
causes other than penile penetration for Abeline's scarring or cleft on
her hymen. The language of the Second Circuit Court of Appeals in
Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001) is most applicable on
this particular issue:
Moreover, there is no evidence that defense counsel
contacted an expert, either to testify or (at least)
to educate counsel on the vagaries of abuse
indiction. See generally Beth A. Townsend, Defending
the "Indefensible": A Primer to Defending Allegations
of Child Abuse, 45 A.F.L. Rev. 261, 270 (1998) ("It is
difficult to imagine a child abuse case . . . where
the defense would not be aided by the assistance of an
expert.") Such an expert could have brought to light a
contemporaneous study, accepted for publication at the
time of Lindstadt's trial, that formed similar
irregularities on the hymens of girls who were not
abused. See John McCann, et al., Genital Findings in
Prepubertal Girls Selected for Nonabuse: A Descriptive
Study, 86 Pediatrics, No. 3, at 428-439 (Sept. 1990);
see also Townsend, 45 A.F.L. Rev. at 269-270
(discussing studies that indicate the presence of
clefts on the hymen of non-abused girls); J. Gardner,
Descriptive Study of Genital Variation in Healthy,
Nonabused Girls, 120 J. Pediatrics 258-260 (Feb.
In sum, defense counsel's failure to consult an expert
[and] failure to conduct any relevant research . . .
contributed significantly to his ineffectiveness.
Lindstadt, 239 F.3d at 201-202.
It is abundantly and unequivocally clear to this Court, as a result of
the Sparman hearing, that trial counsel for the petitioner had no
strategic reason whatsoever for not utilizing Abeline's grand jury
testimony and prior statements to Dr. Coyne and the social worker in
cross-examining Abeline on her claims of sexual abuse. As a result, it
can only be concluded that such failure fell "outside the wide range of
professionally competent assistance." Strickland, 466 U.S. at 690. The
credibility of Abeline, or lack thereof, was the focal point in the
determination of guilt or innocence of the petitioner. Dr. Coyne's
medical conclusion was primarily based on what Abeline told him, and he
merely found that the physical evidence was consistent with what she told
him. However, he also admitted that this same physical evidence could be
the result of penetration by "other forms . . . by pencils, by almost
anything you can imagine . . . bicycles" (Pt-2, p. 92) (emphasis added).
Not only did Abeline make inconsistent statements of a substantive nature
on five separate occasions, to wit, the April 18, 1996 statement to the
social worker, the April 30, 1996 statement to Dr. Coyne, her grand jury
testimony of November 19, 1996, her grand jury testimony of November 28,
1996 and her testimony on direct
examination at trial, she had a recorded
history of "lying," "sexual inappropriateness" and ODD. None of this
impeachment ammunition was used by trial counsel to at least attempt to
establish that Abeline's testimony on such a crucial issue was unreliable
not only for Dr. Coyne's diagnostic conclusion, but for the trial court's
determination of guilt or innocence.
Even if the failure of trial counsel to utilize the prior inconsistent
statements of Abeline in cross-examination were deemed insufficient for
purposes of meeting the first prong of the Strickland test, the failure to
conduct a pretrial investigation into the People's physical or medical
evidence and utilize the services of a medical expert in trial
preparation as well as at trial further buttresses this Court's conclusion
that petitioner was not provided effective assistance of counsel at his
trial. I have assessed the impact of these failures in the aggregate, and
the cumulative weight of these deficiencies compels a conclusion that
Ms. Scott's representation of petitioner at his criminal trial did not
fall within the "wide range" of adequate assistance. See Strickland, 466
U.S. at 695-96; Lindstadt, 239 F.3d at 201-202; Pavel, 261 F.3d at 216. I
therefore conclude that petitioner has met the first prong of the
As stated by the United States Supreme Court in Strickland and
reiterated by the Court of Appeals for the Second Circuit:
[A]n ineffective assistance of counsel claimant "must
show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.
Strickland, 466 U.S. at 694; Pavel, 261 F.3d at 226.
The criminal trial of the petitioner was a case of underwhelming
evidence, consisting basically of the testimony of the complaining
witness, Abeline, and the very limited testimony of Dr. Coyne. There were
only two people with any direct knowledge as to whether petitioner
sexually abused Abeline, the petitioner, who denied such abuse, and
Abeline, who gave contradictory accounts of alleged abuse on three
different occasions. Her credibility, for the reasons previously outlined
herein, was certainly highly suspect. Trial counsel's failure to
adequately attack that credibility with the damaging tools that were
available to her at the trial constituted a dereliction of substantial
magnitude considering the weakness of the People's case. This was
compounded by counsel's failure to challenge the limited physical
evidence of abuse presented by the testimony of Dr. Coyne as previously
There is no evidence that trial counsel contacted an expert either to
testify or at least to educate her on the vagaries of abuse indicia. Even
Dr. Coyne admitted that the scarring or the cleft that he found on
Abeline's hymen could have been caused by other outside forces, including
a bicycle, but this was not pursued or exploited by trial counsel on
cross-examination. Had trial counsel conducted an adequate pretrial
investigation of the physical evidence against petitioner and utilized
the services of a physician with extensive experience in evaluating
and/or treating victims of child abuse, there is a "reasonable
probability" that petitioner would not have been convicted of the crimes
with which he was charged.
In conclusion, the cumulative effect of trial counsel's deficiencies,
as outlined herein, prejudiced the petitioner to the extent that they
"undermine confidence in
the outcome" of his trial. As a result, this
Court finds that the state judgment of conviction against petitioner
Ricky Spencer was entered in violation of his rights under the Sixth
Amendment to the United States Constitution. See Paval, 261 F.3d at 216;
Lindstadt, 239 F.3d at 201-202. Accordingly, the state court judgment of
conviction is hereby vacated and petitioner's writ of habeas corpus is
conditionally granted and petitioner, Ricky Spencer, is to be released
from custody 30 days after the filing of this Decision and Order "unless
New York State has, by that point, taken concrete and substantial steps
expeditiously to retry" petitioner. Pavel, 261 F.3d at 229.
I will continue to exercise jurisdiction over this matter in the event
the parties feel the need to seek further judicial intervention, and the
Clerk of the Court is directed to refrain from closing this file until
further order of the Court.