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Usher v. Ercole

May 4, 2010

ROY USHER, PETITIONER,
v.
ROBERT ERCOLE, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.

MEMORANDUM & ORDER

Petitioner Roy Usher ("Usher") brings a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2001 conviction in New York State Supreme Court, Kings County, for Course Of Sexual Conduct Against A Child in the first degree. Usher challenges the conviction on the ground that his trial counsel provided constitutionally ineffective assistance. Specifically, Usher asserts that his trial counsel (1) failed to challenge the only physical evidence of sexual contact between the defendant and the complainant by, inter alia, failing to consult or call an expert witness to rebut claims made by the prosecution's expert witness; (2) introduced medical records into evidence that were otherwise inadmissible and bolstered the testimony and credibility of the alleged victim; (3) cured a defect in the prosecution's case by introducing evidence that established an element of the crime; and (4) needlessly elicited damaging "outcry" testimony from a prosecution witness, which opened the door for the prosecution to elicit additional damaging testimony.

It is clear from the state-court record and defense counsel's testimony that counsel's actions fell outside the range of professionally competent assistance, and that that the outcome of Usher's trial may well have been different but for counsel's errors. These errors deprived Usher of his Sixth Amendment right to effective assistance of counsel, and the New York State court's contrary conclusion was an unreasonable application of controlling Supreme Court law. The court therefore grants Usher's petition for a writ of habeas corpus.

I. FACTS AND PROCEDURAL HISTORY

In January 2001, Usher was indicted in Kings County and charged with one count each of Course of Sexual Conduct Against a Child in the First Degree, N.Y. Penal Law § 130.75(1)(a), Course of Sexual Conduct Against a Child in the Second Degree, N.Y. Penal Law § 130.80(1)(a), and Endangering the Welfare of a Child, N.Y. Penal Law § 260.10(1). (Indictment (Docket Entry # 25, Ex. 1) 1-3.) The indictment charged Usher with sexually abusing four-year-old Fatima Reed ("Fatima"), the daughter of his live-in girlfriend, during the period from July 25 through November 17, 2000. (Id. at 1.)

A. Pretrial Proceedings

Before voir dire, the prosecution moved in limine to permit testimony from Fatima's mother, Lugenia Reed, about a "prompt outcry" that Fatima allegedly made to her mother on November 17, 2000.*fn1 According to the prosecution's offer of proof, Lugenia Reed would testify that Fatima spent the weekend with her godmother and that, upon returning to the apartment where Lugenia Reed and Usher lived, Fatima became hysterical and stated that Usher had touched her vagina. (Id. at 69-70.) The prosecution also stated that Lugenia Reed would testify that Fatima repeated this accusation in front of Usher. (Id. at 70-71.) Defense counsel objected only that the proposed testimony was "prejudicial and not relevant." (Id. at 71.) The court ruled:

I would permit the words of the child limited to the four or five or six words . . . the child said. With respect to the second confrontation with the defendant, I believe that this is within the parameters of an appropriate outcry . . . . [B]ut again it's not to be repeated in terms of details . . . with respect to both instances of what the child said. The jury will be instructed that this is hearsay. It's being offered for the fact that the statements were made, but not the truth of the statements. (Id. at 71-72.)

B. The Trial

At trial, the prosecution called four witnesses: (1) Fatima's godmother, Marilyn Laguerre ("Laguerre"); (2) Fatima; (3) Dr. Donald J. Lewittes ("Dr. Lewittes"), a clinical psychologist who testified as an expert on children's psychological reactions to sexual abuse; and (4) Dr. Flora Ramirez ("Dr. Ramirez"), a pediatric medical expert who examined Fatima after the revelation of the alleged abuse. The defense did not make an opening statement, called no witnesses, and did not put on a case.

1. Marilyn Laguerre's Testimony

On direct examination, Fatima's godmother Marilyn Laguerre testified as follows. Fatima was born on July 25, 1996. (Trial Transcript (Docket Entry # 7) ("TT") 433.) In 2000, when Fatima was four years old, she lived in a Brooklyn apartment with her mother, Lugenia Reed; Lugenia Reed's boyfriend, Roy Usher; and Fatima's younger brother Malik Reed, who is the son of Lugenia Reed and Usher. (Id. at 433-34, 455, 473.) Laguerre was the director of a local preschool program that Fatima attended. (Id. at 435-36.) Laguerre testified that when Fatima's aunt or uncle came to pick Fatima up from school, she would appear excited and happy, but that when Usher came to pick Fatima up she "did not want to go" home with him and would become withdrawn and angry and occasionally yell or cry. (Id. at 436-38.)

On the evening of November 17, 2000, Laguerre picked Fatima up from Fatima's great-grandmother's house and drove her back to the apartment that Usher and Lugenia Reed shared. (Id. at 439-40.) When they arrived at the apartment, Fatima began to cry and refused to go upstairs to the apartment. (Id. at 440.) Laguerre left Fatima on the street with Lugenia Reed and Lugenia's cousin, Kenneth Washington. (Id. at 441.) Later that night, Laguerre received a phone call from Lugenia Reed that prompted Laguerre to go to a protective services agency, where she and Fatima met with a detective from the Brooklyn Child Abuse Squad. (Id. at 442-44.) When Laguerre began to describe the contents of the phone call, the court instructed her not to tell the jury what Lugenia Reed had said; instead, Laguerre testified only that the conversation had been about Fatima and Usher. (Id. at 444.)

Because Lugenia Reed had a drug habit, Laguerre obtained legal custody of Fatima in December 2000. (Id. at 434, 476.) While living with Laguerre, Fatima suffered from night terrors, was afraid to go to bed, cried and screamed before going to sleep, and woke up "screaming and hollering" every night. (Id. at 446-47.) According to Laguerre, Fatima was "afraid of Roy." (Id. at 447.) In January 2001, Fatima began attending weekly counseling sessions. (Id. at 450.)

On cross-examination, defense counsel asked Laguerre a series of confusing questions about the timing of various actions that she and Lugenia Reed had taken. (Id. at 451-56.) At one point, defense counsel asked Laguerre when Fatima first told her that Usher had "touched her in an inappropriate manner," to which Laguerre responded, "[T]he night of November 17." (Id. at 452.)

Defense counsel also questioned Laguerre about Dr. Ramirez's examination of Fatima on January 4, 2001. Defense counsel asked a series of detailed questions about Fatima's medical history, particularly whether Fatima had a history of vaginal infection or trauma. (Id. at 456-57.) It is clear from the transcript that these questions were drawn from Dr. Ramirez's written record of the examination. (Compare id. with Child Sexual Abuse Examination Report dated January 4, 2001 and signed by Flora Ramirez, M.D. (Docket Entry # 1, Att. # 1 Ex. B (§ 440 Motion Ex. C)) ("Ramirez Report") at 10.) This questioning resulted in two sustained objections and a side-bar.

Following the side-bar, defense counsel moved all of Fatima's medical records, including the Ramirez Report, into evidence.*fn2 (See TT 457-58; Medical Records (Docket Entry # 25, Ex. 3).) This record included, inter alia, five pages of notes from Dr. Ramirez's interview of Fatima and Lugenia Reed, including Fatima's detailed narrative of the alleged abuse and Lugenia's description of how and when Fatima told her about the abuse; drawings of a pre-school-aged female child that Fatima had used to identify body parts and describe how Usher had allegedly touched her, with accompanying notations describing the allegations in Fatima's words; completed personal and medical history questionnaires; details of Dr. Ramirez's physical examination of Fatima's vaginal and rectal areas; and a summary of Dr. Ramirez's findings, including her conclusion that Fatima's vagina exhibited abnormalities consistent with chronic penetration. (See Medical Records.)

Defense counsel made little use of the medical records after entering them into evidence. He initially attempted to discern whether Laguerre, as opposed to Fatima, had told Dr. Ramirez that Fatima did not have any vaginal bleeding. This effort was hampered by numerous sustained objections. (TT 459-62.) After establishing that Laguerre had not told Dr. Ramirez about the absence of vaginal bleeding, defense counsel abandoned further reference to the medical records on cross-examination. Counsel returned to the Ramirez Report only once, to clarify that Fatima's statement in the interview notes that Usher "burnt" her did not refer to the literal act of burning her with a heated object. (TT 467.)

Defense counsel also questioned Laguerre again about the details of Fatima's initial "outcry." (Id. at 469-71.) Laguerre testified that Fatima first told Laguerre that Usher had abused her on the evening of November 17, 2000, and that both Fatima and Lugenia Reed spoke to Laguerre on the phone that night. (Id.)

On re-direct examination, the prosecution immediately asked Laguerre "what exactly" Fatima had told her on the phone.*fn3 (Id. at 474.) The prosecution elicited several details about the conversation, including that Fatima stated that Usher "touched her on her cooty" and put his "peanuts" in her "cooty," her "butt," and her mouth. (Id. at 475.) Laguerre testified that Fatima generally referred to the male sexual organs as "peanuts" and to her vagina as her "cooty." (Id. at 474, 475.)

The prosecution also asked numerous questions about allegations that Fatima made to Laguerre at other times -- i.e., subsequent to and apart from the November 17 phone call. (Id. at 474-76.) The prosecution elicited that, at some unspecified time, Fatima told Laguerre about a game that she and Usher had played called "mommy and daddy," in which Usher would give Fatima a "mommy daddy kiss" by putting his tongue in her mouth, after which he would "put his penis in her." (Id.) Defense counsel did not object to any of this testimony. Once Laguerre began to testify about Usher's use of Vaseline, which she said Fatima called "grease," the court interrupted her testimony and called both counsel forward for a bench conference. (Id. at 475.)

Following the bench conference, the prosecution ceased asking Laguerre about Fatima's allegations. (Id.)

On re-cross examination, defense counsel again returned to the topic of the November 17 phone call. He asked whether Fatima had told Laguerre "that Usher put his penis in her." (Id. at 480.) Laguerre responded affirmatively. (Id.) Defense counsel, either citing or reading from the Ramirez Report, also elicited that Fatima had met a number of the developmental landmarks that would be expected from a child her age. (Id. at 484-87.)

After Laguerre finished testifying, the court stated outside the presence of the jury that it had "frankly expected" the outcry testimony to come from Lugenia Reed, rather than Laguerre. (Id. at 513.) The court declared that although "there were no objections that would call for the explanation to the jury at that time that this was hearsay," the court would nonetheless issue a limiting instruction to the jury. (Id.) The next day, the court instructed the jury as follows:

[Y]ou did hear yesterday testimony through the witness Marilyn Laguerre regarding a telephone conversation that she had with the child Fatima Reed. Now that testimony was hearsay. That is the statements of Fatima Reed, through Miss Laguerre, is what is called hearsay. I permitted that testimony to be elicited only for the purpose of establishing, if you accept such testimony, that such statements were true. Excuse me. I retract that. That such statements were made but not for the truth of the statement. In other words, you may not consider the statements that were testified to by Miss Laguerre as true. You may consider them only in light of the testimony that the statements were made. (Id. at 517-18.)

Contrary to its earlier representations, the prosecution did not call Lugenia Reed as a witness.

2. Fatima Reed's Testimony

On direct examination, Fatima testified that her birthday was on July 25, that she turned four years old in the summer of 2000, and that she was attending preschool at the time. (Id. at 526, 527.) She did not remember her fourth birthday party. (Id. at 527.)

Fatima testified that when Usher picked her up from school, he would take her home and touch her. (Id. at 528-29.) When asked to name the part of her body that Usher touched, Fatima said, "Vagina." (Id. at 529.) After a clarifying question from the prosecution, Fatima stated that she used to call her vagina her "cooty," and that Usher had touched her "cooty" with his "peanuts." (Id.) Fatima identified what "peanuts" were by pointing to her vaginal area. (Id.) Fatima further testified that Usher placed his "peanuts" insider her "cooty;" that he touched her "cooty" and the "inside" of her "butt" with his hands; that he made Fatima get hair gel from her mother's bag in the bathroom and put it on his "peanuts"; and that Usher would kiss Fatima on the mouth and move his tongue inside her mouth. (Id. at 530-35.) Fatima did not testify when this conduct began or ended.

Fatima also testified about two specific incidents of alleged abuse. At an unspecified point in time, Usher forced Fatima to perform fellatio inside an elevator. (Id. at 533.) Fatima also testified that on a different occasion Usher picked her up from school before a Halloween party, at which point he took her home and had sexual intercourse with her. (Id. at 535-37.)

Defense counsel opened cross-examination by asking Fatima if Usher "broke the elevator by putting his penis in your mouth," to which Fatima answered yes. (Id. at 540.) Following a sustained objection to a similar question, defense counsel asked Fatima when she had been in the elevator with Usher. (Id.) Fatima responded, "Last week." (Id.) She repeated this answer several times. (Id. at 541-42.) Defense counsel then asked Fatima when Usher first began touching her, despite the fact that Fatima had not testified to that issue on direct examination. (Id. at 542.) Fatima again answered, "Last week." (Id.) Defense counsel asked Fatima if Usher had touched her "a year ago," and when Fatima said yes, defense counsel attempted to ascertain the exact date that Usher first touched her. (Id. at 543.) This inquiry prompted the following colloquy:

DEFENSE: . . . . What was the date he touched you a year ago?

COURT: Fatima.

DEFENSE: If she remembers.

COURT: Do you understand the question you're being asked? Mr. Harrison asked you how long ago it was that Roy started touching you and I think you said a year. Was that right?

FATIMA: Yes.

COURT: Now he wants to know do you know what date is [sic]. You said your birthday.

FATIMA: July.

COURT: July what.

FATIMA: July.

COURT: What is your birth date.

FATIMA: July 25.

COURT: Right. That's a date. Were you able to say the first time when he touched you by a date like that.

FATIMA: Yes.

COURT: You are. All right. If you are able to answer it, you tell him the ...


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