United States District Court, E.D. New York
JOHN L. McGHEE, Petitioner,
DAVID A. ROCK, Respondent.
MEMORANDUM & ORDER
EDWARD R. KORMAN, Sr., District Judge.
On August 15, 2001, victim Edgar Garzon was assaulted while walking down the street in Jackson Heights, Queens. (Trial Tr. at 347.) He died in the hospital three weeks later. ( See id. at 689.) In December 2001, petitioner John McGhee moved to England and upon returning to the United States in 2006 was tried for Garzon's murder. ( See id. at 816.) McGhee's first trial ended in a mistrial due to a juror's illness that prevented deliberations. (Proceedings July 24, 2007 at 2-3.)
At McGhee's second trial, the government called 10 witnesses. Emergency responders testified that gray brain matter was discharging from the victim's skull upon arrival. (Trial Tr. at 321.) A local resident testified that the assailant smashed the victim's head into the sidewalk with such force that sharp whacking sounds could be heard inside a nearby apartment building. ( Id. at 612.) The victim's friend testified that immediately after the beating, the victim was lying in a pool of blood and was convulsing such that his head repeatedly struck the ground. ( Id. at 383.) While neither the local resident nor the victim's friend saw the assailant's face, both stated that at least two men other than the victim were present at the scene: the assailant and a friend of the assailant who at one point instructed the assailant to stop the assault. ( Id. at 428, 615.) The local resident and the victim's friend also recalled that once the assault ended, the assailant took the driver's seat in a red car and the assailant's friend took the front passenger seat; the car then drove away after jerking several times. ( Id. at 382, 616.)
The government's key witness was Christopher Ricalde, who was 14 years old at the time of the crime. He testified that on August 15, 2001 he was in the back seat of a red car driven by petitioner John McGhee. ( Id. at 446.) He claimed that he saw McGhee step out of the car and beat a man to the ground. ( Id. at 452.) He also testified that his co-passenger eventually stepped out from the front passenger seat and instructed McGhee to stop the assault. ( Id. at 466.) Much of Ricalde's testimony was consistent with that of the local resident and the victim's friend-for example, all three claimed the car jerked before it drove away; all claimed that the events occurred at the same location and around the same general time. ( Id. at 377, 455, 448, 611.) But several subtle inconsistencies are apparent. Whereas Ricalde claimed that the victim stood up and walked away after the assault, ( id. at 454), the victim's friend claimed that the victim was totally unable to stand up, not even "half way, " ( id. at 431-32). Ricalde testified that his co-passenger was African American with braided hair, ( id. at 457), but the local resident testified that the co-passenger was a light skinned Hispanic with no braids, ( id. at 624-25). Similarly, the local resident claimed that the assailant was a light skinned Hispanic with dark hair, ( id. at 613), but Ricalde claimed that the assailant was McGhee, a bald man who "we can all agree is not a light skinned Hispanic, " ( id. at 453, 817). There was also much confusion about whether the assault involved a weapon-the victim's friend told a 911 operator that there was a baseball bat, ( id. at 433-34); the local resident recalled seeing a small object in the assailant's hand, ( id. at 630); but Ricalde's testimony did not mention an object of any sort, ( id. at 453).
During cross examination of Ricalde, he admitted to being a member of gang known as the Latin Kings. ( Id. at 495.) He also admitted to smoking marijuana on a daily basis between the ages of 12 and 14, including on the night of the assault. ( Id. at 447, 471, 496.) He admitted to other criminal acts as well, such as vandalizing a car and conducting a fraud related to his sister's bank account. ( Id. at 855.) McGhee's counsel repeatedly compared Ricalde's testimony in the second trial to his testimony from the first trial-it becomes clear that Ricalde's story is inconsistent regarding many of the details from August 15, 2001. ( See, e.g., 491.) It is also clear that Ricalde had lied to the police on multiple occasions-for example, Ricalde initially informed police that he was not at the scene of the crime, but in subsequent police interviews he claimed being present in the car. ( Id. at 482.) Raising further suspicion as to the truth of Ricalde's testimony, McGhee's counsel highlighted that police posters offered a reward for information regarding the assault, but Ricalde claimed that while he definitely saw the posters, he never noticed the large printed words "$12, 000 reward." ( Id. at 493.)
Among the last witnesses that the District Attorney called were Detective Corey and Dr. Lara Goldfeder, a doctor in New York City's Office of the Medical Examiner. Detective Corey testified that he came to believe that McGhee was associated with the victim's murder based on information that Ricalde provided between 2003 and 2006. ( Id. at 562-63.) He also testified that although McGhee had been living in England since late 2001, McGhee returned to the United States in 2006 because he lied on his application for British citizenship and the British authorities had asked him to leave. ( Id. at 566, 575.) Detective Corey stated that he met McGhee at the airport just after his flight from England landed. After Corey introducing himself as a detective, McGhee replied, "What do you think I am looking at, three, four, five years?" ( Id. at 567.)
Dr. Goldfeder testified that before beginning her autopsy to determine the victim's cause of death she reviewed his medical records, which indicated injuries to the victim's head, including severe lacerations and fractures. ( Id. at 685.) The medical records also indicated that physicians other than Dr. Goldfeder performed treatments on the victim between the time of the assault and the time of death, including placement of a catheter through his skull and removal of portions of his skull and brain. At some points, Dr. Goldfeder briefly explained the purpose behind some of the treatments performed by physicians other than herself. For example, physicians used the catheter to monitor brain swelling-when swelling "reach[es] a critical point... they can treat it surgically." ( Id. at 688-89.) She stated that reviewing the treatments performed by other physicians was critical to her cause of death determination. Without reviewing the victim's records, it would be difficult to determine whether certain abnormalities resulted from blows to the head as opposed to medical intervention or a pre-existing congenital defect from which the victim suffered. ( See id. at 690, 697.)
After discussing the victim's records, Dr. Goldfeder described her actual autopsy, including her need to store the victim's brain in a formaldehyde solution due to its softened state. ( Id. at 694.) She described in great detail all the fractures on the victim's skull, including a description of the victim's pre-existing congenital defect which consisted of a "thin" skull near the back of the victim's head. She ultimately stated that forceful "blunt trauma" caused the death and that the victim's pre-existing defect played no role. ( Id. at 714.) On cross examination, McGhee's attorney briefly inquired into the possibility of medical intervention or congenital defect as a cause of death, but Dr. Goldfeder rebuffed these suggestions. ( Id. at 719, 725.)
At the close of the prosecution's case, the trial judge denied McGhee's motion to dismiss for insufficiency of the evidence. ( Id. at 745.) Although he himself did not testify, McGhee then presented a defense consisting of 3 witnesses: a car expert, a reputation witness, and McGhee's wife. The car expert testified that the red car seen at the crime scene was a red Acura Integra, and specifically not a red Honda CRX. ( Id. at 758.) This was relevant in that the prosecution's witness, Christopher Ricalde, testified that the red car was a Honda CRX. ( Id. at 446.) McGhee's reputation witness was Barry Ricalde, Christopher Ricalde's father. The father testified that his son's reputation for truth and veracity was "exceedingly bad, " that his son enjoyed being the center of attention, and that the father had told his son to not testify or speak to the police regarding the son's "lies" and fabrications. ( Id. at 779, 797.) McGhee's wife testified that McGhee moved to England not as a fugitive but in an effort to rebuild a family with his wife and children, all of whom were British citizens living in England. ( Id. at 815-16.) On cross examination, presumably for purposes of impeachment, the prosecutor elicited that McGhee's wife co-signed McGhee's application for British citizenship despite knowing that it contained a lie. ( Id. at 829.)
After deliberating and hearing read backs from the testimony of Christopher Ricalde, Decective Corey, and the local resident, the jury found McGhee guilty of second-degree murder. ( Id. at 930.) The trial judge denied McGhee's motion to set aside the verdict and imposed a sentence of 22 years to life. (Proceedings Oct. 17, 2008 at 2, 15.) On appeal, McGhee argued for reversal based on two evidentiary grounds-permitting the prosecutor to elicit testimony that McGhee lied on his application for British citizenship and prohibiting McGhee's lawyer from laying a foundation regarding Barry Ricalde's basis of knowledge for his son's poor reputation. Ruling that these grounds were without merit, the Appellate Division affirmed McGhee's conviction. People v. McGhee, 82 A.D.3d 1264, 1265-66 (N.Y.App.Div. 2d Dep't 2011). The Court of Appeals denied leave to appeal. See People v. McGhee, 17 N.Y.3d 808, 808 (2011).
McGhee then filed § 440.10 and coram nobis motions. His § 440.10 motion claimed ineffective assistance of trial counsel based primarily on two grounds: failing to object to untrue testimony by Dr. Goldfeder and failing to retain an expert to respond to Dr. Goldfeder's findings regarding the victim's cause of death. The trial judge denied McGhee's § 440.10 motion because it lacked merit and because, in addition, it asserted on the record claims. (Decision & Order, Nov. 17, 2011, at 4-5). The Appellate Division denied leave to appeal. ( See Aff. Opp'n Habeas Pet. at 12; Reply Br. Supp. Habeas Pet. at 1, ¶ 1.) McGhee's coram nobis motion argued that appellate counsel was ineffective for failing to raise issues regarding the prosecutor's improper vouching for witnesses. (Mot. Supp. Coram Nobis at 4-6.) The Appellate Division denied this motion on the merits, and the Court of Appeals denied leave to appeal. People v. McGhee, 93 A.D.3d 736, 736 (N.Y.App.Div. 2d Dep't 2012); People v. McGhee, 20 N.Y.3d 1013, 1013 (2013). McGhee's petition for a writ of habeas corpus asserts two grounds: (i) trial counsel's ineffectiveness for failing to object to Dr. Goldfeder's testimony and failing to consult a medical expert to respond to Dr. Goldfeder's testimony; and (ii) appellate counsel's ineffectiveness for failing to argue on direct appeal that the prosecutor improperly vouched for witnesses during summation. (Habeas Pet. at 4-5.)
I. Ineffective Assistance of Trial Counsel
McGhee asserts two specific instances of ineffective trial counsel: failure to "call or retain any defense experts to rebut the people's [medical] expert" and failure to "object to the medical examiner's uncontroverted expert testimony." (Habeas Pet. at 4.) The trial judge ruled that these claims are meritless. To prove ineffective assistance of counsel under Supreme Court precedent, criminal defendants must show that (i) "counsel's representation fell below an objective standard of reasonableness" and that (ii) "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 687-88 (1984). The first prong requires that courts recognize counsel's "wide latitude" in making tactical decision and imposes a "strong presumption that counsel's conduct falls within the wide range of ...