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February 6, 2002


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 girlfriend.

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 there.

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 indictment.

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. Morgan;
(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 stated:

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 requests.

(Pt-2, pp. 226-227, 237).

On or about April 30, 1996, she told Dr. Coyne, the examining physician:

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: Yes.

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?

A: Yes.

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 testimony:

Q: Okay. Now did — at any time did he touch any part of you?

A: No.

Q: Now, did he ever put his private any place else besides in your mouth?

A: No.

Q: Now is that the first time that he put his private in your mouth?

A: No.

(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?

A: No.

(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?

A: Yes.

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?

A: Yes.

Q: Okay. And how come you didn't tell us that the last time?

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 ...

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