Opinion

Jackson v. Conway

765 F. Supp. 2d 192
2011 U.S. Dist. LEXIS 17126
2011 WL 657422

Court: District Court, W.D. New York
Filed: Feb 22, 2011
Status: Published
Author: Bianchini
On the bench: Victor E. Bianchini
Cited by: 6 cases
Authority: More cited than 66.6%

“a plaintiff’s subjective reports are insufficient to establish the existence of an impairment.”

How later courts described this case

“a plaintiff’s subjective reports are insufficient to establish the existence of an impairment.”

Written by the judges who cited it.

The opinion

DECISION AND ORDER

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. Introduction

Shawn L. Jackson (“Jackson” or “Petitioner”) filed a

pro se

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his detention state custody as the result of a judgment in Monroe County Court convicting him after a jury trial of 47 counts, including multiple counts of sodomy in the first degree (New York Penal Law former § 130.50(1)), assault in the third degree (New York Penal Law (“P.L.”) § 120.00(1)), sexual abuse in the first degree (P.L. § 130.65(1)), rape in the first

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degree (P.L. § 130.35(1)), rape in the third degree (P.L. § 130.25(2)), sodomy in the third degree (P.L. former § 130.40(2)), and incest (P.L. § 255.25). During the pendency of the proceeding, the Court appointed counsel from the CJA panel to represent Petitioner and held an evidentiary hearing.

The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636 (c)(1).

This is a corrected Decision and Order issued following the Court’s grant of Petitioner’s motion for relief pursuant to Fed. R.Civ.P. 52 and 59. As explained more fully in the Rule 59 Order, the Court’s finding and judgment as to the claim of prosecutorial misconduct was based on a manifest factual error which affected the legal correctness of the judgment. As discussed further below, the prosecutorial misconduct claim is fully exhausted and, in addition, warrants habeas relief.

The Court’s previous Decision and Order regarding the disposition of the Petition is hereby withdrawn. Habeas relief is granted in part and denied in part, as explained below.

II. Factual Background and Procedural History

The following summary of the facts and procedural history of Jackson’s case is drawn from the trial transcript, available documents from the state court record, and from the pleadings submitted by Jackson

pro se,

Jackson’s state-court appellate counsel, Jackson’s habeas attorneys, and respondent’s attorney.

A. Pre-Trial Proceedings

On November 30, 2000, police officers from the Town of Greece police department were summoned to Jackson’s house on Tobin Drive, where they were met by his wife, Rebecca Jackson (“Rebecca”); his ex-wife, Karen Jackson (“Karen”); and his teenaged daughter “CJ”. All three women accused Jackson of raping them each multiple times earlier that evening. Jackson was found sleeping on the living room sofa, and was taken to the Greece Police Department for questioning. Karen and CJ were taken to Rochester General Hospital for medical evaluation.

Once at the police station, Sergeant Christopher Bittner (“Sgt. Bittner”) of the Greece Police Department spoke with Jackson in an interview room. When Jackson asked if he was under arrest, Sgt. Bittner replied no. Jackson got up as if to leave the room, and Sgt. Bittner immediately placed him under arrest and read him his Miranda

warnings. Jackson invoked his Fifth Amendment right to remain silent and refused to speak with the police. Jackson then was placed in a holding cell.

Soon thereafter, Sgt. Bittner contacted Kathy Bonisteel, a Child Protective Services caseworker for the Monroe County Department of Social Services (“Caseworker Bonisteel”) who was investigating the allegations of abuse, and facilitated an interview between her and Jackson. Caseworker Bonisteel’s report contained statements from Jackson regarding his extremely unconventional sexual relationship with his wife and ex-wife and his belief that he was the “Alpha Male” of the family.

See

T.27, 38.499-506.

The report also indicated that Jackson had agreed with Caseworker Bonisteel that it was “possible he was so drunk that he wouldn’t have remembered if he raped [CJ]” and that “[h]e said it was a possibility ... he said

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he could have been the one to rape [CJ].” T.504.

Jackson initially was charged in a five separate felony complaints with two counts of first degree rape, two counts of first degree sodomy, and one count of incest. All of these charges involved CJ, Jackson’s daughter. Subsequently, on or about January 18, 2001, a 48-count indictment was issued against Jackson, which included charges of first degree sodomy, first degree rape, first degree sexual abuse, first degree coercion, attempted first degree sodomy, third degree rape, third degree sodomy, incest, third degree assault, and endangering the welfare of a child. The indictment lacked specificity as to the dates, times, and places of each alleged crime. Most of the crimes in that indictment stemmed from the incidents alleged to have occurred on the night of November 29, 2000, and the early morning of November 30, 2000, at Jackson’s house.

A suppression hearing was held pursuant to

People v. Huntley

on March 23, 2001, before Justice Stephen R. Sirkin in New York State Supreme Court, Monroe County, to determine the admissibility of Jackson’s statements contained in Caseworker Bonisteel’s report. The judge heard testimony that Sgt. Bittner was aware that Caseworker Bonisteel was conducting a parallel Child Protective Services investigation of the same incident underlying Jackson’s arrest. Sgt. Bittner told Caseworker Bonisteel that Jackson had refused to speak with the police, and arranged for Caseworker Bonisteel to have access to Jackson to interview him in connection with her investigation on behalf of Child Protective Services. Although the police did not officially take part in this interview, several officers, including Sgt. Bittner, overheard the 45-minute conversation between Jackson and Caseworker Bonisteel, in which Jackson made inculpatory statements.

See Huntley

Transcript dated March 23, 2001

(“Huntley Tr.”)

at 12-13, 7-21, 27, 33-34, 38.

Trial counsel, who at that time was Matthew Clark, Esq., of the Monroe County Public Defender’s Office, argued that the investigations being conducted by Child Protective Services and the Greece Police Department were concurrent, obviously involving the same incident. Attorney Clark argued that Caseworker Bonisteel essentially was acting as an agent of the police when she spoke with Jackson on the night of his arrest at the police station.

Huntley

Tr. at 42-46. The suppression court held that Caseworker Bonisteel’s investigation was part of a “completely separate civil proceeding” and was not “part of any criminal proceeding.”

Id.

at 49 . The suppression court specifically found that Caseworker Bonisteel “was not a public servant and, in this case, did not act as a law enforcement officer, but [as] a child protective worker.”

Id.

As such, there was “no requirement on the part of the protective worker to give any

Miranda

warnings.”

Id.

at 48-49 . Accordingly, the suppression court ruled that Jackson’s constitutional rights were not violated, and his statements to Caseworker Bonisteel could be used against him at trial by the prosecutor as evidence-in-chief.

Id.

at 45, 48-49 .

On May 31, 2001, Associate Justice Peter E. Corning — the third trial judge to be assigned to the case — addressed the prosecutor’s intended introduction of testimony concerning numerous prior bad acts and uncharged crimes on Jackson’s part. T.201-20. Initially, the trial court ruled that it would not admit every act the prosecution intended to introduce, but rather would rule on the admissibility of each incident as it was adduced by the witnesses, leaving it to trial counsel to object. T.206. Newly assigned trial counsel Joseph

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D’Amelio, Esq., opposed the prosecution’s motion to introduce the prior bad acts evidence and moved

in limine

to preclude the prosecutor from asking any questions of her witnesses in regard to those alleged acts. Trial counsel argued that the only purpose of the prior bad acts would be to demonstrate Jackson’s alleged criminal propensity, and that the prior bad acts would unduly prejudice the jury against him and make the jurors believe that he was more likely to have committed the crimes with which he was charged. Trial counsel argued that the inflammatory and prejudicial nature of the prior bad acts clearly outweighed any probative value they might have. Finally, trial counsel argued that the prior bad act testimony did not fall within any of the exceptions set forth in

People v. Molineux,

168 N.Y. 264 , 61 N.E. 286 (N.Y.1901), and should be excluded. T.207-09.

The trial court ruled that evidence of Jackson’s alleged prior bad acts was admissible to show “background information relevant to the issues of forcible compulsion and delayed disclosure” at trial, since the prosecution’s theory was that “forcible compulsion is based upon the implied threats of violence provided by [Jackson] if the victim did not comply.” T.211-12. Essentially, the trial court ruled that the prior bad act testimony could be introduced to establish certain elements of the crimes charged. T.212.

The trial court noted, however, that its decision was “not a blanket order that all and any such testimony is admissible,” and that such testimony would be “taken from a witness as it comes, subject to decision and ruling.” T.214. Finally, the trial court decided that

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while prior alleged acts and threats of violence were admissible, acts committed “any further back from five years” prior to the alleged crimes were too remote. Accordingly, the trial court stated that it was “going to confine such testimony to a period subsequent to 1994.” T.214. The prior bad acts testimony would be “subject to proper presentation, proper objection.” T.219.

B. The Trial

In the following section is a summary of the testimony from the witnesses called on behalf of the prosecution at Jackson’s trial. The defense called no witnesses.

1. The Victims

a. Karen Jackson — Petitioner’s Ex-Wife

1.) Direct Examination

Karen Jackson testified that she married petitioner in 1983 and divorced him in 1990. She was pregnant with Gregory at the time they got married. T.281. When they divorced in 1990, neither had a lawyer; they used a “Divorce Yourself’ kit. T.281. Over the seven years they were married, she had sexual intercourse with petitioner on a regular basis. Petitioner moved out for four months, but “he was over every single day.” Karen did not tell petitioner not to come over during that time, nor did she call the police. Karen admitted she continued to have sexual intercourse with him regularly even after they were divorced.

Karen and Petitioner had three biological children (17-year-old GJ 15-year-old CJ, and 10-year-old JJ). T.238-39. They also had a daughter named KJ, as to whom Karen relinquished her parental rights and who was subsequently adopted by Rebecca Jackson, the woman who petitioner married after divorcing Karen. T.240. Karen testified that Petitioner decided he was not going to allow Karen to raise KJ. Apparently, Petitioner and Rebecca were having trouble conceiving a child “so that was his way of conceiving, to have me give her to them.” T.240. Rebecca and Petitioner also had a 5-year-old daughter named BJ. All of them lived together in one house. New York. T.241.

Karen testified that petitioner and his second wife, Rebecca, lived with Karen and her children at 21 Tobin Drive off and on from the beginning of their marriage. Karen, Rebecca, and petitioner all owned the house jointly and were on the deed together. T.245. Karen testified that she believed she had to buy the house with them in order to be able to keep her children. He said that “[they] would buy it together to raise the children together,” and if she did not agree, then “he would try to get custody of the children from [her].” T.246. Trial counsel’s objection to this was overruled.

When asked what did he say would happen if she tried to leave, Karen replied, “That he would hunt me down and find me.” T.247. The trial judge sustained trial counsel’s objection based on lack of foundation/time-frame but did not strike the answer.

Id.

Karen testified that, over the past five years, petitioner said he was going to hunt her down “[f]ifteen to twenty [times] maybe.” T.247. When asked to come up with a date, the most recent she could think of was “[p]robably like the winter of early 2000,” when petitioner said, “He would kill me.” T.248. Karen “[m]ost definitely” believed him.

Karen testified that even though she was divorced from Petitioner, she had to “ask permission to go anywhere, to do anything.” Karen stated, “I was never allowed to date or remarry or anything like that with another person. I was always his property.” T.242. That is what

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petitioner told her after they were divorced. T.242. Karen testified that once she had a friend over to the house watch a movie, and when Petitioner found out, he “took [her] out to a field and was going to chop off [her] fingers.” T.242. Karen related that this occurred “[p]robably [in] 1992.” T.243.

Karen related that “[i]n '95, the spring, summer,” petitioner told her that “he would hunt me down, and if he couldn’t find me, he would go to my family,” if she went to somebody else for help. T.249. He said “[h]e would hurt them or kill them, just to get my attention, if he couldn’t find me.” T.249. Karen testified that she believed petitioner.

On June 25, 1999, Karen recalled, Petitioner beat her up, leaving “bruises all over [her] face so that [she] was not able to attend [her nephew’s] graduation ceremony.” T.250. Karen testified, “[Petitioner] hit me in the head, slapped my face, grabbed my arms. He strangled me and I lost consciousness and the blood vessels in my face broke.” T.250. Karen recalled that after abusing her, Petitioner slapped her to make her regain consciousness. Karen testified that Petitioner, after the beatings, “would apologize, but then he would always make [her] go up into his room to have sex.” T.251. Karen testified that is what happened on June 25, 1999. Petitioner engaged in oral sex and then anal sex with her. Karen admitted, “I didn’t verbally say no, but I wasn’t allowed to either.” T.252. When asked her reason for not refusing to comply with Petitioner’s demands, Karen replied, “Because then it would just always be worse at times when you did say no, he would — ” T.252. At that point trial counsel objected but it was overruled. Karen was allowed to testify, “If I said no, he would hit me and punch me more, so — ” Karen confirmed that those retaliatory beatings “in [her] mind on that date” because “[h]e had already just done it to [her], so — ” T.252.

After the June 1999 incident, in addition to the broken blood vessels, Karen was left with ringing in her ears; and her vision was blurry for several days and she suffered from headaches. T.252. When asked why she did not go to the authorities, Karen testified, “Because I didn’t — I was seared that he would find out. He would beat you even more at that point. I’m sure he would kill you.” T.253. Trial counsel objected; the judge stated, “No, that’s her state of mind, isn’t it?” Trial counsel disagreed. The trial court stated, “Okay.” The answer was allowed to stand on the record. T.253.

In January of 2000, on an unspecified date, the prosecutor asked if Karen “recalled] a day in January of 2000 before school that [his older son, GJ] got in trouble with the defendant?” T.269. Karen said that GJ had written a report the way the teacher wanted instead of how petitioner wanted it done. (The trial court overruled defense counsel’s objection. T.269.) Petitioner asked to see the report and then started “hitting and kicking [GJ], and [GJ] ended up — the door was open in the kitchen ... and [Petitioner] pushed him out through the door and broke the door, the kitchen door, and he just ... so he fell up against the car, and then [Petitioner] ended up dragging him back inside and hitting him repeatedly. [Petitioner] was punching him.” T.271. Karen witnessed only “[s]ome of [the beatings]” because then “[Petitioner] [would] tell[ ] you to leave the room because you are not supposed to watch.” T.271. There was no objection to this testimony.

The prosecutor continued this line of questioning, asking Karen, “You indicated the defendant told you to leave the room; is that right?” T.271. Karen testified that she “did leave the room because of other

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times when he is beating you up you are supposed to leave so — ”

[Trial Counsel]. Objection, your Honor.

The Court. Sustained.

[Trial Counsel]. Move to strike her answer.

The Court. Okay, strike that answer ....

T.271.

When asked if she tried to intervene and protect her son, GJ, Karen responded no, explaining that she did not do so “[b]e-cause then if someone tries to intervene, then they get it worse.” T.272. Trial counsel objected, but the trial court overruled the objection, commenting, “It goes to her state of mind. I’ll allow it for that purpose.” T.272.

Q. When you say ‘they get it worse,’ what do you mean?

A. That person would get beaten also.

Q. The person [who] tried to help?

[Trial counsel]: Judge, I am going to object. We are talking about something someone would do and wouldn’t do. I mean, this is about the facts. When did this occur? Let’s get some dates.

The Court: Well, we did get that, I thought.

[Trial counsel]: That’s not what the question and answer — what I just heard.

The Court: Okay.

Q. When you say the person would get it worse, you mean the person who was trying to help?

A. Yes.

[Trial counsel]: Judge, what person are we talking about?

The Court: Well, that is subject to cross-examination.

T.273.

The prosecutor then turned her inquiry to the incident involving their younger son, JJ, which occurred sometime “during November of 2000.” T.273. Karen testified that when Petitioner saw their son JJ “was finishing eating one [cinnamon roll] and he still had one more in his dish, [Petitioner] started getting upset with him and yelling at him that why was he eating two cinnamon rolls, that he shouldn’t be eating two, he was too fat. And then so I took the rolls away from him.... And then [Petitioner] started hitting [JJ], and then [Petitioner] came out to the kitchen and he started hitting me, and he punched me, and I fell to the floor, and then he started kicking me saying that I was making his child fat and I was feeding him unhealthy [sic], and it was all my fault, and what right did I have giving him two cinnamon rolls when that’s the same amount that I had given Shawn. And he just started beating, kicking and hitting me, and he had already hit [JJ] across his face, both sides.” T.274. There was no objection to this testimony. Karen recalled that JJ had “hand marks on his face.”

Id.

The next incident about which Karen testified occurred on November 27, 2000, two days before the assault that culminated in Jackson’s arrest. Karen recalled that Rebecca had came upstairs and woken her up late at night. T.254. Rebecca was just wearing a blanket. They went downstairs to the living room where petitioner was waiting for them. Karen had to “take off [her] clothes so that he could have sex with us.” T.256. Karen explained, “[Petitioner] would have Rebecca perform oral sex on him, and then he was — he would fondle my breasts, and then he would — he made Rebecca and I go onto the floor and he would make me perform oral sex on

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Rebecca while he had anal sex with me.” T.256. The prosecutor asked Karen if she saw Petitioner “do anything to Rebecca that evening that possibly caused her injury[.]” T.256. Over defense counsel’s objection, Karen testified, “[He] would put his hand onto [Rebecca’s] throat so that she would almost pass out. She had foam coming out of her mouth and she could barely breathe. I could hear her struggling for air.” T.256.

Karen did not tell Petitioner “no” that night because she “didn’t want him to beat [her] up.” T.257. Nor did she report the incident because she was “[v]ery, very scared. I didn’t want him to attack me or the kids or anything else, anyone else.” T.257. There was no objection to any of this testimony.

Two days later, on November 29, 2000, Karen was asleep in the bedroom she shared with their 15-year-old daughter, CJ. T.257.

Karen testified that Rebecca woke her up and brought her downstairs to the living room where Petitioner made Karen disrobe. Karen explained that she laid a bed sheet down the middle of the floor which is where the sexual activity took place. T.314. Karen testified that first Rebecca performed oral sex on Petitioner, and then Karen performed oral sex on Petitioner. Then Petitioner directed Karen “to get down to the floor and ... perform oral sex on [Rebecca] while he had anal sex with [her].” T.258. When asked if Petitioner had an erect penis, Karen recalled, “[s]omewhat, but not fully.” T.259.

After a couple of minutes, Karen testified, Petitioner withdrew his penis from her anus. Petitioner then stood up and left the living room and went upstairs. T.259. Moments later, Karen could hear “[t]he floor creaking” in her bedroom, which was directly above the living room. Karen explained that their teenage daughter, CJ, was up there sleeping. T.259-60.

Karen testified that she could hear Petitioner’s voice over the baby monitor “sometimes”. “He would say things like, [r]ub, rub me. We couldn’t understand why at first.” T.260. Karen recalled, “[Petitioner] said that — he said at different times that whatever happens between you and me stays between you and me.” T.260. Karen testified, “He said, [d]o you understand, and I heard CJ’s voice say yes to him.” T.260. “He told [CJ] to sit on top of him and I don’t remember the other ones right now.” T.260. Karen recalled that she heard her daughter say “it hurt.” T.261. At that point, the trial recessed for fifteen minutes because Karen was crying. T.261.

When she resumed the stand, Karen testified that Petitioner eventually came back downstairs. Once again, he made Rebecca perform oral sex on him, and he had anal sex with Karen. Karen testified that Petitioner was not able to fully penetrate her because he “didn’t have a full erection.” T.262.

After several minutes, Karen testified, Petitioner left the living room and returned upstairs, where he went “back into his room with [CJ] and had sex with her” in the bed usually slept in by him and Rebecca. T.263. (A flower-patterned fitted bed sheet was taken from this bed by the police. T.315). Over the baby monitor, Karen “could hear [CJ] say, Ow, it hurt, that he was squishing her, she couldn’t breathe.” T.263. Karen testified, “You could hear him saying [to CJ] just to relax, and it’s okay, and then he just kept repeat

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ing, Whatever happens between you and me stays between you and me.” T.263. Karen then heard Petitioner tell CJ to go back to bed.

When Petitioner came downstairs again, he told Rebecca to perform oral sex on him. Karen recalled that because Petitioner could not get an erection, he “was just rubbing his penis against [her] butt.” T.263. Petitioner was able to get his penis inside her anus “[a] little bit after he was rubbing for a while.” T.263.

Then Petitioner went upstairs again. Karen testified that it sounded like Petitioner went into CJ’s room and brought her into his and Rebecca’s bedroom. Karen said, “You couldn’t make out too much. It was kind of mumbling, but you could hear — you could hear moans and groans” over the baby monitor next to the bed in which Petitioner and CJ were. T.264.

Meanwhile, in the living room, Karen testified that she and Rebecca “were trying to figure out what to do, the safest and fastest way to do it.” They decided that Rebecca should call emergency services. While Rebecca was on the line with 911, they thought they heard Jackson coming back into the living room, and so Rebecca hung up. T.263-64. Karen related that immediately the phone rang, and it was the 911 emergency operator, “recalling back to make sure everything was okay, and [Rebecca] just said yes, and that’s when [Petitioner] came back downstairs, when he heard the phone ring.” T.264. Petitioner wanted to know who it was, and “star 66’d [sic] the phone to try to get the phone number,” but “nothing came up because he just kind of came back to Rebecca and me, in the living room.” T.265. At one point during the evening, Petitioner hit Karen in the head “because he didn’t think [she] was performing well enough on Rebecca.” T.266.

Eventually, Jackson returned upstairs to CJ. Karen testified, ‘You could just hear [CJ], [saying] [‘]Ow[’], and then [‘]it hurt[’], but nothing else really because she — he told her to be quiet and just relax.” When asked if she could hear any other sounds, Karen testified, “You could hear the bed moving, squeaking, kind of, creaking, whatever. You could hear it getting a little faster and faster, but there was — a lot of moans and groans.” T.265. Karen testified that it sounded as though Petitioner “sent [CJ] to bed for the last time, and then he came back downstairs. Once again, Petitioner tried to have more anal sex with Karen. Karen explained that Petitioner “got frustrated because he couldn’t get an erection, and finally, he sent [her] to bed, he says — he said to just — just get out of here, go to bed.” T.266. Karen ran upstairs where she found CJ “pretending to be sleeping because she didn’t know if it was him again or what.” T.266. Karen testified that they both cried. Karen recalled that they were scared. She explained, “We didn’t know what to do right away because you could smell alcohol on his breath, so you knew that he had had several drinks. And he is just a very violent person. We didn’t know what he would do....” T.266.

Eventually, Rebecca came upstairs and told Karen and CJ that petitioner was sleeping, so they used Karen’s cell phone and called 911. T.266. Karen testified, “We called the police and asked them to come very quickly, very quietly, and we asked them to just come in and immediately put him in handcuffs. And they told us that they couldn’t, that we had to go downstairs, one of us had to be downstairs to open the door for them. We tried to explain that he was very violent and if he woke up, that there would be a lot of trouble, but he said that’s the way they had to do it.” At that point trial counsel objected:

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[Trial Counsel]: Judge, I am going to object to what someone else is telling her.

The Court: Well, it is hearsay. I question whether it is an exception. It really doesn’t go to the truth or falsity of the statements. But anyway, cease that line of questioning and we will go on.

T.266.

When the police came, Rebecca answered the door and “just said that he is in the living room, that way.” Some officers went to the living room where petitioner was, and some of them came upstairs. T.268.

Karen explained why she did everything Petitioner told her to do that night: “I didn’t want to be hit or beaten or — you could smell the alcohol on his breath right away so you kn[e]w that he had alcohol in him, and I didn’t want anything violent to happen.” T.269.

2.) Cross-Examination of Karen Jackson

Trial counsel attempted to question Karen about how long it took before the three of them started having sex together, after Rebecca and petitioner got married. T.284. The trial court excused the jury and the following colloquy occurred:

The Court: I am going back to my ruling made prior to the trial concerning a limitation in time here. I think by nature of your cross-examination, though, you may be opening the door to the nature of the relationship that existed prior to 1995, so as long as you know that—

[Trial Counsel]: Judge, the witness got it out after you made your ruling, she got that out, and I am trying to cure that at this point. We tell the jury to disregard these things, but they have heard it already.

The Court: As long as you — I didn’t tell them to disregard that, but now that you are into this, I guess it’s — I don’t know what [the prosecutor] intends to do, but I just want you to know that I feel this line of questioning negates my ruling of 1995. Okay.

T.284-85.

Karen admitted that she, Rebecca, and Petitioner had group sex regularly “a couple times a week” for the past five years. She admitted she did not call the police after any of the previous times they had sex. T.287. Nor did Rebecca call the police on any of these occasions. T.288. Karen testified that she only “pretended” to have oral sex with Rebecca. T.287. Karen claimed that she “put [her] head between [Rebecca’s] legs, but [she, i.e,, Karen] didn’t do anything[.]” T.288. Trial counsel attempted to discredit Karen’s claim that Petitioner “would not let her get on with her life” by pointing out that while all this allegedly was going on, she had a job at a flower shop and worked outside the home. Karen acknowledged this but testified that she did not work “right away” after the divorce. T.289. She agreed that she never called the police to complain about having to live with Petitioner after the divorce or that petitioner had threatened to hunt her down if she left.

Trial counsel’s questioning had the unintended effect of allowing Karen to provide further details about Petitioner’s prior threats and acts of violence against her:

Q. Did you ever leave him?

A. Yes.

Q. When was that?

A. When we were married.

Q. He didn’t kill your family, right?

A. No, he found me.

Q. You are alive right now, right?

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A. Yes, after a very hard beating.

Q. But you didn’t call the police after that, right?

A. No, I was scared to.

Q. So you took a beating, but you didn’t call the police?

A. Correct.

Q. As a matter of fact, you moved back into his house, right?

A. Yes.

T.290.

Karen admitted that during the time period when Petitioner was attempting to have her relinquish her parental rights with regard to their youngest daughter, she did not call the police and did not seek the assistance of a lawyer. T.296-97.

Karen explained that on the night that they called the police, she, CJ, and Rebecca sat up for “[p]robably an hour, hour and a half’ before they called 911 the second time. T.298. Karen said that they “were crying and shaking and very scared.” T.299. Rebecca stayed at the house while Karen and CJ went to the hospital.

Trial counsel questioned Karen about the tests they did at the hospital, eliciting that they took vaginal and anal swabs, samples of pubic hair, photographs of her breasts, and a saliva sample. However, because the medical records were not in evidence, the prosecutor’s objection thwarted trial counsel’s attempt to cross-examine Karen about what he apparently perceived to be the lack of positive findings during her medical examination:

Q. You didn’t have any bruises or cuts or lacerations, or anything like that when you reported, correct?

A. No, because he had hit me in my head, so there wasn’t a bruise.

Q. There was no bruise on your head?

A. No, because it was inside of my hair.

Q. And your anal area and vaginal area, no bruises, lacerations, cuts, anything like that?

[The prosecutor]: Objection, beyond the scope of knowledge.

The Court: Sustained, unless there is some foundation.

Q. Did you complain of any injuries in your vaginal or anal area?

A. Injuries, no.

Q. From your observations did you see whether or not you were scratched or bruised or cut in those areas?

A. I didn’t personally look.

Q. You didn’t feel any, right?

A. Around my anal area it always felt like there was cuts.

Q. I’m sorry?

A. Around my anal area there always felt like there were cuts, so—

Q. The medical personnel, they took a swab of this?

A. Yes.

Q. And they put it in a bag and sealed it, and what, gave it to the police?

A. I assume so, yes.

T.301-02. Karen did not know what happened to the clothes that she was wearing at the hospital. She did “[n]ot really” remember talking to the police at the hospital. T.303. She and CJ were taken to the Greece Police Department and were separated to give statements. Karen had not had any sleep was “very, very tired and having a hard time staying awake.... ” T.304. She did not recall what time of day it was. She repeated that she was “very scared.” T.305. The police interview lasted a “couple of hours.” The police officer prepared the typewritten statement. The police did not give her a

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piece of paper and say, “write down everything that happened.” T.306.

Trial counsel questioned her about her statement that petitioner could not penetrate her fully. He asked if she told petitioner to stop; she replied, “No, I didn’t want him to beat me up.” T.306. During trial counsel’s cross-examination, Karen reiterated her reasons for not ever saying no to Petitioner — because she was scared of being beaten:

Q. The five years, two times a week, that this happened, did you tell him to stop?

A. I did in the beginning, and I got beat up for it, so therefore, I learned not to.

Q. You just stopped saying, Don’t do it?

A. Right, because he said not to argue with what he was saying, what he wants goes.

Q. During the five years you didn’t call the police and say, Mr. Jackson is doing this to me and I don’t want him to do it?

A. No, because I was scared.

Q. And you were scared for your children, too?

A. Very much so.

Q. And you didn’t call the police based upon that also, correct?

A. Correct.

T.306-07.

Trial counsel attempted to question Karen about her being involved in a Family Court matter with respect to the allegations in this case that pertained to her children. T.316. The trial court sustained the prosecutor’s objection on relevancy grounds. Trial counsel argued that he should not be precluded from “getting into the specifics of her actions because it gives her a bias or a motive to lie in this proceeding, it goes directly to bias[,]” because “[s]he is the respondent in a neglect/sexual abuse case.” T.317. The trial court found that even if the Family Court matter was not based solely on the criminal charges at issue, “it is only an allegation of someone else.”

Id.

Trial counsel argued that there wei*e “certain statements” made by Karen to the child abuse caseworker that constituted “admissions ... that could very well be

Brady

[material],” presumably impeachment material regarding Karen. T.317, 319. The trial court reiterated that the fact of the Family Court proceeding and Karen’s involvement therein were “absolutely irrelevant to anything” at trial. T.319-320. The trial court asked trial counsel to “show [him] an admission,” and trial counsel indicated that he did not believe he was supposed to review the child protective services file because of privacy issues. The trial court stated, “Well, it is going to take hours to review this entire matter. Do you know — if you know of something, fine; otherwise, we will go ahead with this, and in my leisure I will go through it.” T.320. Trial counsel asked if Karen would be subject to recall. The trial court replied,

“Brady

[sic], and subject to recall, but I don’t see anything at this point in time, other than a rehash of this incident. I mean, just off the record, it appears that [Karen] may be the respondent in an action in Family Court by virtue of passive [sic], which they [sic] do all of the time.” T.320, 321.

After reviewing the file, the trial court did not find anything that deviated from the testimony provided by Karen, and there was no indication that a final determination had been made. T.334. The trial court stated that it “mirrors most of what the investigation apparently has indicated and Counsel has had access to.” T.325.

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Therefore, the court declined to allow trial counsel to cross-examine Karen about the Family Court proceeding. T.335.

3. ) Re-Direct Examination

of Karen Jackson

On re-direct examination, Karen was permitted to provide more details about how petitioner continued to have sex with her after their divorce despite her lack of an invitation to do so.

See

T.325-26. Karen testified what would happen any time she “tried to refuse to have group sex with [Petitioner].” T.326-27. She stated, “He would forcibly hold you down, hold me down to do as he wished, and if I did, when I did refuse, he would hit me, and then I learned not to [refuse], didn’t want that to happen again.” T.327.

Karen provided further details about what happened on the one occasion when she left him during their marriage; the promises he made to change; and the beating he inflicted when he found her. T.327-38. Over objection, Karen testified further about the time he attempted to have her surrender parental rights to KJ, stating that she felt like she had no choice because he told her that if she did not, he was going to have to sign off her rights for all of the other children, too. T.328. When asked what made her decide that calling the police was the right thing to do, she replied, “I didn’t want anything to ever happen again. It just crossed the line. I didn’t want her [i.e., CJ] to be hurt ever again like that.” T.330.

4. ) Re-Cross-Examination of Karen Jackson

Trial counsel attempted to use this last round of questioning to get Karen to admit that “the sex [she] was having with Shawn and with Rebecca was permissible[.]” T.330. Karen would not agree that she consented to it, but admitted, “I did not say no to him verbally, no.” T.331. Karen claimed that on every occasion that she had sex with petitioner, she did not really consent to it because she was scared. T.331. She claimed that she “never wanted him” to have sex with her. She stated she said no in the beginning, but she “got beaten up for it.” She did not call the police because she “was too scared” and “[h]e threatened [her].” T.332-33. She stated that given her fear for her children, she did not call the police. T.333.

b. Rebecca Jackson, Petitioner’s Current Wife

1.) Direct Examination of Rebecca Jackson

At the beginning of her testimony, Rebecca described an incident in which Petitioner had allegedly raped Karen six years earlier, leading to Karen becoming pregnant with their youngest daughter, KJ (not a victim identified in the indictment). T.349. Trial counsel moved for a mistrial because this testimony was in violation of the trial court’s prior bad acts ruling, but the trial court denied the motion, and again directed the jury to disregard that testimony. T.349.

Rebecca’s testimony regarding the events of the night of petitioner’s arrest was in all essential respects the same as that provided by Petitioner’s ex-wife, Karen.

See

T.358-365. Rebecca also testified about the incident in June of 1999, when GJ had gotten a bad grade on a test at school, and Petitioner had started punching and kicking him, and saying that Child Protective Services “was going to come and take everything away and that [GJ] put our house in jeopardy by” allegedly telling his teacher that he would get being beaten if he did not get good grades. T.365-66. Rebecca testified that she did not try to intervene “because I had seen in the past, and in the past when he was beating somebody — ” T.366. Trial counsel objected based upon the lack of a specific

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time frame. T.366-67. Rebecca was allowed to testify about an incident “a few years ago”, “[l]ess than five”, when Karen “tried to prevent [petitioner] from hitting [GJ]and it made him angrier, and he beat Karen up and he hit [GJ] worse because she was trying to help him.” T.367. Trial counsel did not object to this testimony.

Over trial counsel’s objection, Rebecca was permitted to testify about a “an incident that occurred during June of 1999 when [Petitioner] was angry at her for something^]’’ T.350. Petitioner locked her out of the house, and then he cut the crotch out of her shorts and took off her underwear, and cut her shirt really short, and “said that [she] was going to work for him, and told [her] to get in the van.” T.351. He then drove her downtown to the Driving Park Bridge, and made her get out and walk around on the bridge while he followed her in the van. Petitioner told Rebecca that she was “his bitch” and he was “going to prostitute [her] to make money for him because [she] was worthless.” T.352. She complied with his demands “[b]ecause any time I didn’t do what he said he would hit me.”

Id.

Rebecca testified, “[Petitioner] always threatened me and told me that if I broke the sanctity of our marriage by telling anybody about the abuse that he would cut me into little pieces and spread my body through the Tri-county [sic] area so nobody would find me or know that I was gone.” T.353.

Rebecca was allowed to testify about another incident that occurred around Father’s Day of 2000 when Petitioner got mad at her for smiling at one of his friends. The next day, he chased her into the kitchen and punched her in the face, and knocked out her right front tooth, breaking it in half. T.353. Rebecca did not seek dental care “[b]ecause I wasn’t allowed to. How would I explain how that happened?” T.354. Karen went to the store and bought SuperGlue and glued the tooth back in. Rebecca had just gotten it fixed a month before trial. She did not report the abuse because she was afraid Petitioner would kill her. Rebecca testified that Petitioner had also threatened to kill her family members and anybody from whom she sought help. T.354-55.

About a week after the Father’s Day incident, Rebecca recalled, she told Petitioner about a bad dream she had about her teeth falling out, and he told her it was all her fault and it would not have happened if she had not smiled at his friend. Rebecca recalled that Petitioner held her down by the throat so that she could not breathe. He became mad because she was resisting him, and he then punched her in the face. Rebecca testified that her face got all swollen. This incident occurred in their bedroom while their two youngest daughters were sleeping merely several feet away from them, and the incident began to wake the two youngster. Petitioner hit her body “a couple of times”. T.355. As a result of the punch to her face, her jaw was sore and it was hard to open her mouth and chew food. Later that day, he had sex with her “[a]t least five times.” They had both vaginal and anal sex. She never told him that she did not want to have sexual intercourse that day “because if I did anything to resist him, then he would get angry with me and he would hit me, so I just stopped resisting him.” T.357. She did not report the abuse that day because she was afraid he would kill her or her family. T.357.

Finally, Rebecca testified about an incident on Thanksgiving of 2000, when JJ was doing certain reading Petitioner required him to do in the morning, and GJ was shoveling the driveway. Petitioner got angry because JJ was not helping GJ and “told him he was going to kick his ass”

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and “chased him around the hallway and started kicking him with steel-toed boots.... ” Petitioner kicked him two or three times. T.368. Trial counsel did not object to this testimony.

2.) Cross-Examination of Rebecca Jackson

Trial counsel attempted to demonstrate, through questioning about their living arrangement and sexual activities with petitioner, that all of the sexual activities in which she engaged were consensual. T.376-77. Rebecca explained they began having group sex in 1996; they would always have sex downstairs in the living room and often would watch pornographic videotapes. T.377-78. Rebecca testified that “[ejvery time” they had sex, she “pretended to do things” with Karen so that “he wouldn’t hit us.” T.378. Trial counsel later argued that this representation could not have been true and showed that Rebecca was not credible.

Rebecca admitted that during the incident on Driving Park Bridge when Jackson made her pretend to be a prostitute, she did not flag down any cars or walk into a store or in any other way try to get help. T.380-81. She admitted that she never told him not to call her his bitch. She volunteered that “petitioner stressed to [her] many times as far as [she] was concerned [she] was his property and [she] had to do what he [told] her to.” T.381. She testified petitioner “insisted” that they have sex at least three times a day, but she never told him no. T.387.

Rebecca admitted that she did not go to the hospital that evening. She was never examined by medical personnel about the alleged sexual assault. T.385. She did not go to the police station; rather, the officers took a statement from her at the house. T.385.

On the night of the arrest, she told CJ that they had to call the police because “there is evidence.” T.386. She admitted that “[m]aybe an hour” elapsed between Petitioner falling asleep and their calling 911 for the second time. T.388, 390. She admitted she did not tell the police “that evening” she also had been sexually assaulted; rather, she first told the police when she “gave [her] statement that morning,” T.391, that is, the morning after the arrest.

During cross-examination, trial counsel asked if she wiped anything on the sheet during the sexual activity, and she replied that when Petitioner put his penis in her mouth, “there was [sic] pubic hairs that [she] could feel.” T.391. So she wiped her tongue with her fingers and wiped it on the sheet. T.391-92. (This sheet was collected by the police.)

Trial counsel then asked her to identify pictures of rooms in their house at Tobin Drive and elicited that after Petitioner was arrested, she moved out for one week from the Tobin Drive residence and went to stay with a person named David DeJohn, a friend of Petitioner’s. Trial counsel also elicited that the children were required to ask permission before playing with the video games.

3.) Re-Direct Examination of Rebecca Jackson

Rebecca also was permitted to testify, over objection by trial counsel, that Jackson had killed a puppy in front of her by smashing its head repeatedly. T.396-97. Trial counsel unsuccessfully objected that it was too prejudicial and remote and was being allowed merely to show Petitioner’s alleged propensity to be violent, contrary to the trial court’s prior ruling on bad-act testimony.

See

T.168. The prosecutor questioned Rebecca about why, during the incident on Driving Park Bridge, she did not try to escape:

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Q. What was it that was in your mind that kept you from trying to escape? [Trial counsel]: Judge, that’s been asked and answered on direct.

The Court: I don’t recall it, but I will allow it.

A. He told me that if I ever tried to escape or leave from him that he would hunt me down, that he would kill my family. He had once murdered a puppy in front of me with a hammer.

[Trial counsel]: Objection, Judge.

Q. When was it that that happened?

[Trial counsel]: Objection, Judge

The Court: What is the objection?

[Trial counsel]:

People v. Molineux.

The Court: I have already ruled on that. Overruled

Q. When was it that the incident happened with the puppy?

A. In 1998 when we lived on North Greece Road.

Q. What was it that happened that was in your mind in June of 1999.

A. Just fear and knowing what he is capable of.

Q. What was it that he did to the puppy that was in your mind that you remember?

A. He took a hammer and smashed it in the head and murdered it and then kept hitting and pounding it and looked very scary. He did it in front of me.

T.396-97.

4.) Re-Cross-Examination of Rebecca Jackson

Q. This puppy that you say Shawn killed with a hammer, before this puppy — before he killed it, you threw the thing down the stairs, right?

[The prosecutor]: Objection. It is irrelevant.

The Court: No, I will let him go into it.

Q. You threw him down the stairs?

A. No. '

Q. And his back was broken?

A. No, that’s not—

Q. And his leg was broken; isn’t that right?

A. No, it is not.

Q. Shawn bought the puppy, right?

A. Yes.

T.396-97.

Rebecca admitted that she knew how to use a phone, and that she never told any family members on the night of the arrest to tell them what she was doing. Trial counsel attempted to question Rebecca about incidents and occasions that she had attended outside the home with other family members, apparently to show that she never took opportunities to ask for help. However, the trial court sustained the prosecutor’s objection on the grounds that it was beyond the scope of re-direct. She admitted that she was afraid for her children’s safety on the night of the bridge incident, but she still did not call the police. T.400.

5.) The Trial Court’s Limiting Instruction Regarding the Prior Bad Act Testimony

At the conclusion of Rebecca Jackson’s testimony, the trial judge issued the following instruction to the jury:

Ladies and gentlemen, before — I want to say this to you. Obviously, the defendant is charged with certain acts alleged in the indictment which have been indicated to you. There has been evidence submitted through testimony of witnesses concerning other acts which we call “bad acts” or crimes which are not

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charged. Now, the admission of those acts into evidence is not and should not be construed by you as establishing defendant’s propensity to commit a crime. They are only allowed into this case to establish some other element.

For instance, in this case it is alleged that the victims were subject to sexual abuse or other activity and did not resist by virtue of the fact that they were in fear, as has been testified. So, the evidence of what placed them in fear is submitted only so that you can establish what the state of mind of the victim was and whether they were justified or not in acting as they did.

So again, let me say that the admission of this testimony should not be construed by you as a propensity of the defendant to commit a crime. It is only admitted for the purpose of establishing an element of the crime which will become more apparent as I instruct you on the principles of law that apply in this case.

The Court notes, as an aside, that the prior bad acts issue was raised during the first witness’s testimony when Karen testified regarding an alleged 1992 incident in which Petitioner threatened her. T.242. The previous day, the trial judge clearly had informed the attorneys that no “bad act” testimony prior to 1995 was going to be admissible. Trial counsel immediately objected to Karen’s testimony concerning the 1992 incident, and the trial court directed the jury to disregard the testimony. The trial court clarified to the witness and the prosecutor that testimony regarding any bad acts alleged to have occurred pri- or to 1995 would be inadmissible. T.243. Trial counsel’s motion for a mistrial based on the prosecutor having violated the trial court’s

in limine

ruling was denied. T.243.

Trial counsel later renewed his motion for a mistrial, arguing that any curative instruction to the jury regarding prior bad acts earlier than 1995 would do more harm than good by leaving the jury wondering what had happened before 1995. T.463. The trial court again denied the motion, pointing out that its preclusion of bad acts prior to 1995 was based on an “arbitrary” cutoff date, and relevant case law would permit prior bad act evidence from before 1995. T.464, 466. The trial court also ruled that the prosecutor had no control over the witness’ testimony concerning the 1992 incident; that the 1992 incident involving Jackson’s purported threat to Karen was relevant and admissible; and, if anything, its previous instruction to the jury to disregard that testimony was erroneous, since the incident demonstrated that Karen’s state of mind — that she feared petitioner. T.465. Trial counsel moved for a mistrial following this testimony. However, it was denied. The trial court gave this curative instruction:

Ladies and Gentlemen, I have made a ruling that any testimony of events prior to 1995 will not be admitted. Obviously, testimony, according to the witness, of that event was 1992. I’m going to direct that the answer be stricken, and that you should disregard it on the basis that I have ruled that anything prior to '95 is not going to be admissible.

c. GJ, Petitioner’s Son

GJ, 17-years-old, testified that the rules regarding his school work were “[tjhey [sic] had to be done, I had to have at least a C average and just be tied down to the school.” T.408. One day, after he failed an Earth Science quiz, GJ was “nervous and crying, and my teacher called and wanted to talk to him [i.e., petitioner], and he came in, and when we went home it got taken out on me.” T.409. GJ was scared to show him his failing grade because he afraid he

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“was going to get beaten.” T.409. When they got home after petitioner met with the teacher, petitioner said that he thought the teacher had called child protective services, and then petitioner “punched” him and “was just beating on [him].” T.410. GJ was sitting in a chair; petitioner grabbed his ankle and pulled him out of the chair. He hit him in the face, the side, and the back with his fists, and kicked him while he was on the ground. As a result of the beating, GJ “just had some bruises.” T.410.

Another time, in January 2000, GJ had to pick a song that made them think about the results of World Wars I and II. He did not pick one that petitioner liked, and when he would not change it, petitioner punched him in the face, rammed his head into the kitchen cupboard a couple of times, and punched him in the face after he went through the kitchen screen-door. Jackson was kicking him and threatened if GJ was not done in a certain amount of time, he would kill him. T.411. GJ did not really remember how many times he was hit. He lost consciousness “[a] little bit, not completely.” T.412. He had bruises on his face and arms and the back of his leg. He had headaches for a couple of days afterward but was not allowed to get medical attention for his injuries.

d. JJ, Petitioner’s Son

Ten-year-old JJ was the victim in the endangering the welfare of a child count. He testified about the “cinnamon bun” incident in December of 2000, when petitioner said “that [he] was eating too much, so [he] got yelled at.” T.403.

Q. Did he do anything besides yell at you?

A. Yeah.

Q. What did he do?

A. He hurt me.

Q. Can you tell everyone what he did to hurt you?

A. I don’t remember it.

Q. Well, did he hurt you physically?

A. I think so, yeah.

Q. Do you remember how it was that you got hurt physically?

A. How I got hurt? No, I don’t remember how I got hurt.

Despite the prosecutor asking leading questions, over trial counsel’s objections, JJ was not able to testify how many times petitioner hit him or where he was hit. T.404.

JJ’s testimony about what happened with regard to the snow-shoveling incident was markedly different than Rebecca’s. T.405. JJ testified that he was not wearing a coat when he was going out to shovel the driveway with his brother, and petitioner told him to get his coat, and JJ was running, and petitioner “was kicking me while I was running to my room” “[i]n my butt” about “four times.” When asked if it hurt, JJ said yes. T.405.

Trial counsel did not cross-examine JJ.

e. CJ, Petitioner’s Daughter

1.) Direct Examination of CJ

Fourteen-year-old CJ testified on the night of the arrest, Petitioner came into her room, woke her up, and brought her into his room. He had her lie down on his bed with

him

and he then started touching her on her breasts and made her touch his penis. CJ recalled, “Then he had sex with me” “[a] couple” of times but “I don’t remember the exact number.” By “sex”, CJ meant that Petitioner put his penis in her vagina. He also put his penis into her anus twice. While doing this, Petitioner “was telling [her] to be quiet and not to tell anybody.” T.428. He also “kept telling [her] to relax.” T.429.

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CJ explained why she did not tell Petitioner to stop: “I didn’t want him to hurt me anymore, I didn’t want him to hit me.” T.429. CJ testified that she was afraid that he would hit her if she said no because she had seen him hit had other family members in their house. When asked if there had “ever been a time that he ha[d] hit [her] before November 29th of 2000,” CJ replied affirmatively. CJ agreed that incident was in her mind the night he came into her bedroom. CJ felt that she could not escape because Petitioner was putting all his body weight on her. All CJ recalled saying was “[o]w” during the assault. T.430. CJ recalled that she had about two days left in her menstrual cycle at the time, and the flow of menstrual blood was light.

CJ testified that Petitioner brought her into his room twice that night. T.430, 432. He did “[j]ust more of the same stuff, did it again.” T.432. He had sexual intercourse with her “[a]round three” times that night. At one point Petitioner put his penis “on [her] abdomen.” T.432.

Petitioner later came upstairs to her room and “said he was sorry and that he was wrong for doing what he did and it was his fault, and not to tell anybody.” T.433. She said that she would not tell. T.433. Then Petitioner went downstairs, and Karen came upstairs and “[r]olled [her] over and told [her] she heard everything, so [they] started crying.” T.433. Rebecca came up later and they talked about the calling the police. CJ did not want to call the police: “I was scared and I didn’t want to go to the hospital and I didn’t want anything to happen that he would get out ... [of] [j]ail.” T.434. CJ was afraid that he “would kill [them]” “[b]ecause he threatened to all of the time and he is a very strong man.” T.434.

Q. What happened at the hospital?

A. They gave me a rape kit.

Q. What’s that?

A. Where they test to see that he had actually had sex with me to make sure I wasn’t lying.

Q. So they did an examination.

A. Yes.

[Trial counsel]: Judge, I’ll object to that characterization. It is beyond her knowledge.

The Court: Well, I agree. The jurors disregard that. It was probably a bad question.

T.434-35.

CJ testified that at the hospital an internal, or pelvic, examination was performed, and the medical personnel took some pubic hairs from her with a little comb. T.435.

With regard to the incidents involving GJ’s report card, CJ testified that she was outside at the time and only heard petitioner yelling and GJ crying. With regard to the snow-shoveling incident involving JJ, CJ saw him get “kicked in the butt” by petitioner once, “but you could hear like two or three times” that JJ was struck. T.436.

2.) Cross-Examination of CJ

On cross-examination, CJ testified that she reviewed the transcripts from the grand jury proceeding a couple of hours before trial. T.438.

CJ did not remember telling the doctor at the hospital that she was in the third day of her period. She had put a sanitary napkin on before she went to bed; she was not using tampons at the time. The pad she was wearing when she went to the hospital had blood on it. Petitioner did not use a condom that evening. She and her mother were instructed to bring a change of clothes and underwear with them to the hospital. She did not douche or clean her vagina before the examination; she did not have a bowel movement

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but she did urinate. T.447-48. They took anal and vaginal swabs. T.452. CJ testified that she knew what an “ejaculation” was, and that she did not know whether or not there had been any ejaculation by Petitioner that night. T.457.

Trial counsel asked if she was crying in the ambulance; she said yes.

Trial counsel asked if it hurt “when this was happening”; she said, “yes” and agreed that it “hurt a lot[.]” T.453. She testified that she did tell the doctor at the hospital that. T.453. She agreed that she did not have any bruises or scratches, and that is what she told the medical personnel.

CJ admitted that petitioner “hadn’t threatened [her]” but “threatened other people in the house.” T.455. When asked if he was “pretty strict around the house,” she replied, “[v]ery.” T.455. Petitioner did not allow her to date, even though that was something she wanted to do. T.456. She admitted that she had to quit dance lessons the year before the incident. She agreed that she “[was]n’t too happy” about these things. T.456.

CJ agreed that when Rebecca called 911 that night, she “heard everything that [Rebecca] had to say[.]” T.459.

2. Other Prosecution Witnesses

a. Gi’eece Police Department Sergeant Christopher Bittner

When Petitioner was brought into the police station, Sergeant Christopher Bittner (“Sgt. Bittner”) was with him. Petitioner asked if he was free to go; Sgt. Bittner replied affirmatively. Then petitioner got up to leave, and Sgt. Bittner told him he was under arrest. T.488-89. At that point, Bittner read him his

Miranda

warnings. T.482, 491. Petitioner said that he understood them. When Bittner asked Petitioner if he agreed to give them up and talk to the police, Petitioner said, “No, I do not.” T.483. Bittner had no further conversations with Petitioner. Shortly thereafter, Petitioner was brought down to booking.

Later that day, at about 3:30 p.m., a Child Protective Services caseworker asked to have Sgt. Bittner facilitate an interview between her and Petitioner. Petitioner was brought from the jail to the general processing area in the police department to talk to the Child Protective Services worker. There is no dispute that Petitioner was

not

re-advised of his

Miranda

rights before his interview with the caseworker.

b. Child Protective Services Caseworker Kathy Bonisteel

According to a Child Protective Services worker Kathy Bonisteel (“Caseworker Bonisteel”), Petitioner explained to her that they all lived together because it was better for the children to be in one household. T.499. Petitioner said that he had sex with Rebecca about two or three times a day; that he also was sexually active with Karen; and that the three of them often had sex together. Petitioner stated that they had a “ritual[,]” and that “the women knew exactly what they were supposed to do” and “never had any questions about how they would have to go about having sex with each other.” T.500. Caseworker Bonisteel asked him to elaborate on what he meant, and Petitioner “just — • he repeated that they just knew what to do.”

Id.

The night of the arrest, Petitioner had gone to a couple of bars for some drinks, and then to a friend’s apartment for a few more drinks. Petitioner admitted to Caseworker Bonisteel that he had “snort[ed] a couple lines of cocaine.” T.501. Petitioner told her that he used cocaine about two to three times a week, and used marijuana on

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a regular basis but not that night. T.501. When Petitioner got home, he said he remembered pulling in the driveway and “feeling happy that he had made it home safe.” T.501. Caseworker Bonisteel testified that Petitioner told her that Rebecca was sleeping on the couch so he tried to “wake Becky up for a little lovin’ [sic]”. T.502. Petitioner told Caseworker Bonisteel that he was not able to get an erection, however. T.502. Petitioner told her that “[t]he next thing he knows the police were at his door.” T.502.

At that point during the interview, Petitioner began shivering and said he was hungry. When asked if he had anything to eat, Petitioner said he “wasn’t able to eat what the deputies brought him,” at which point he “proceeded to take out his teeth and set them on the table.” T.502. Caseworker Bonisteel asked what happened to all his teeth, and he replied, “that’s just the life of the ‘Alpha Male.’ ” T.502. Petitioner explained that the “Alpha Male” “defends the pack.” She asked if he was the “Alpha Male” in his family, and he said that he was, “and that’s why he was so surprised that the police were called.” T.502. Caseworker Bonisteel asked him why he was surprised, and “he said that Becky and Karen just know what to do.” T.502. Petitioner “didn’t get into any more detail than that.”

Id.

Caseworker Bonisteel asked what happens if Karen and Rebecca “go against what he says to do, what happens,” and he “denied that he hits either of them.” T.503. “He stated that they just know the routine, they know what to do.”

Id.

Caseworker Bonisteel asked Petitioner “why he thought that he was there.” Petitioner said he “overheard one of the deputies saying that not only was he fucking his two wives but he was also molesting his daughter.” T.503. When asked if he remembered doing anything like that, “he said he would never hurt [CJ].” T.503. Caseworker Bonisteel asked him again if anything happened the night before when he got home, and Petitioner repeated he would never hurt CJ. T.503.

When Caseworker Bonisteel told him that CJ was saying he had raped her, Petitioner stated again he would never hurt CJ. When Caseworker Bonisteel asked who else would hurt CJ, Petitioner mentioned the name of his older son, GJ. T.503. When asked “if it could have been [GJ] that raped [CJ],” Petitioner “adamantly replied no.” T.503. When asked if there was anyone else, Petitioner said no. Caseworker Bonisteel related that she then commented, “That leaves you. Could it have been you?” Petitioner repeated, “he wouldn’t hurt CJ[.]” T.504. Caseworker Bonisteel testified that she asked “was it possible that he was so drunk that he couldn’t remember raping [CJ]? And he said it was a possibility.” T.504.

On cross-examination, the caseworker admitted that the phrase, “it is a possibility,” did not represent Petitioner’s exact words. Rather, Caseworker Bonisteel testified, Petitioner said “that it was a possibility that he could have done this if he was really drunk,” but he did not do so in those “exact words.” T.517-18.

c. Jailhouse Informant Tony Arnold

The prosecution called Tony Arnold (“Arnold”), who was incarcerated with petitioner at the Monroe County Jail on a parole violation regarding a forgery conviction, in early December of 2000. Arnold recalled that Petitioner approached him and asked some questions about his (Petitioner’s) case. Arnold testified that Petitioner said that he had been drinking Jack Daniels whiskey, and had had sex with both of his wives. When he fell asleep, Petitioner related, the two women went upstairs and called the police. T.549. Petitioner said that “they were trying to

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charge him with raping his daughter.” Arnold recalled that Petitioner “also said that he was locked by the daughter in the cage and he said he was looking for somebody to kill them.” T.549. Arnold testified that Petitioner offered to pay him $100,000 to “do the killing”. Petitioner said he wanted “[t]he two wives, his wife and his ex-wife” killed. T.550. Arnold testified that they had no further conversation beyond that. Arnold did not agree to kill Petitioner’s family. T.551.

Arnold ultimately decided to tell someone about what Petitioner had said to him and got in touch with his parole officer, who recommended that he contact the district attorney’s office. T.551. After Arnold spoke with the prosecutor about the matter, the prosecutor let Arnold know that she would inform his parole officer that he had given helpful information to her. T.552.

On cross-examination, trial counsel elicited that, in the past, Arnold had violated the terms of his parole. T.554. Trial counsel accused Arnold of being a “snitch” for being an informant regarding three separate robberies in Monroe County; Arnold explained that he had to do so because his car had been used in the crimes. T.555-56. Trial counsel elicited that Arnold had given information to the district attorney’s office in Syracuse involving an assault case in which he had been indicted as a co-defendant. T.556-57. Arnold admitted that he had prior felonies, involving grand theft auto, resisting arrest, burglary, and forgery. T.557-59, 561. In addition, Arnold had a number of convictions for non-felonies, including assault, possession of burglars’ tools, criminal trespass, criminal mischief, possession of stolen property, and unauthorized use of a motor vehicle. T.560-64. Arnold admitted that he had used aliases in the past, and had been caught possessing marijuana while in jail. T.565-68.

Arnold stated that he had come forward with the information about Petitioner’s solicitation of him to murder his wives because he (Arnold) had children of his own, and brothers and sisters. T.569. Arnold admitted that he did not pay child support for his four children, who were between the ages of 16- and 22-years-old.

d. Dr. Ann Lenane, Medical Expert Witness

The prosecutor called as her last witness Dr. Ann M. Lenane (“Dr. Lenane”).

Without objection or a request for an offer of proof by trial counsel, the prosecutor elicited from Dr. Lenane that she was a pediatrician in the emergency room at the Strong Memorial Hospital at the University of Rochester, and worked in the Child Abuse Program there, doing consultations with children and adolescents in cases of suspected abuse. T.520-21. After Dr. Lenane gave her educational background, and affirmed that she kept abreast of the current literature with respect to child sexual abuse, trial counsel objected. A colloquy was held outside the presence of the jury. T.521.

Trial counsel asserted that the prosecutor was trying to elicit expert testimony, that the prosecutor had not given notice of an expert witness, and had in fact represented that no experts were going to be called. T.522, 523-24. The prosecutor argued that this was “simply a physician who is interpreting the medical recordsf.]”

Id.

Trial counsel responded that if the witness was “going to be getting into an opinion as to the lack of evidence in this case ...,

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that’s expert.”

Id.

Trial counsel explained that he believed the prosecution was “intending to offer through this witness ... an explanation as to the lack of medical evidence regarding these alleged victims; specifically, the lack of semen, vaginally or anally, with respect to these alleged victims,” T.523, and that this was not testimony of a treating physician, but expert opinion testimony,

id.

Trial counsel stated that there had been a pre-trial conference before the first assigned judge, and Petitioner’s first attorney, at which time the prosecutor had stated that she was not producing an expert witness. T.524. The prosecutor asserted that with respect to that conference, the type of expert witness that was being discussed was “somebody of a psychological nature” and “whether there would be an expert testifying regarding rape trauma or delayed disclosure. ...” T.524.

The prosecutor further noted that the previous trial attorney had the medical records before she (the prosecutor) did, and therefore the defense “has been aware of the possibility and the likelihood that a doctor or sexual assault nurse examiner would come in and testify in this case.” T.524. Trial counsel stated that he had a copy of a letter confirming that the prosecution would not be calling an expert witness, and was asked by the court to produce it. T.525. The prosecutor then conceded that such a letter existed.

Meanwhile, the prosecutor inquired whether Dr. Lenane “would ... be able to testify to the meaning of the physical findings[.]” T.525. The trial judge answered affirmatively, but stated that Dr. Lenane could not “go off into studies or “theories[.]” T.525.

The trial judge stated, “As a treating physician, I am going to allow her to testify.” T.526. Trial counsel did not object to this ruling, but rather asked for an adjournment of an hour to prepare for her cross-examination because he believed she was an expert medical witness. T.526. He also moved for a mistrial, which was denied. T.526.

Recalled to the stand, Dr. Lenane testified that she kept current with regard to literature on child sexual abuse, and that she had treated between 800 and 1,000 child victims of sexual assault. T.527. Dr. Lenane then read from the medical records of CJ what she perceived to be the “relevant physical findings” that CJ displayed at the time of the examination:

[There was] an abrasion, on the written notes they said was at the introitus, and when they circled on the diagram where that was, it is in the area of the genitalia that is just below the hymen and above the rectal area, so — and that’s the main physical finding that they noted. The other finding that they noted was old blood in the vulva [sic],

which means he [sic] was inside the vagina and they also noted they didn’t see any clinical lacerations of the vagina, so they must have been assuming that the blood was old and not from active bleeding at the time of the examination.

T.529.

The prosecutor then posed a hypothetical to Dr. Lenane involving a fourteen-year-old, menstruating female, asking if Dr. Lenane had an opinion as to what effect menstruation would have on the likelihood of injury from sexual penetration. T.529. At that point, trial counsel objected on the basis that any answer would go

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“beyond treatment.” T.529. The trial court sustained the objection.

The prosecutor’s next question was as follows: “[Wjith respect to the abrasions

that were noted, are those abrasions consistent with penetration?” T.529-30. Trial counsel did not object as this point. Dr. Lenane testified that the “abrasions” were “consistent with some type of trauma” which “could include penetration, but it wouldn’t necessarily have to.” T.530. The prosecutor reiterated her question as to whether the “abrasions” were “consistent with penetration,” and Dr. Lenane answered affirmatively. Still there was no objection from trial counsel, as he apparently believed that Dr. Lenane was the treating physician.

Dr. Lenane next was questioned about the “relevant physical findings with respect to Karen Jackson’s medical reeords[.]” T.530. Trial counsel then requested an opportunity to

voir dire

the witness “[o]n her treatment.” T.530. The trial court declined, noting that counsel was “only entitled to

voir dire

on whether she is a competent witness.” T.530. Trial counsel noted that he “would also object to foundation” because “[i]t hasn’t been established that she has treated — that Karen Jackson ever saw her.” T.530-531. The trial court sustained the lack-of-foundation exception and told the prosecutor to proceed; the prosecutor resumed her questioning of Dr. Lenane as to the “relevant physical findings” from the examination of Karen at the emergency room. T.531.

At this point, the trial judge apparently realized that Dr. Lenane was not a treating physician, and inquired as to her “function in regard to this case[.]” Dr. Lenane’s reply made clear that she had been consulted as an expert witness: “I was asked to review the records and express an opinion about the consistency of the history and the physical findings.” T.531. The trial court sustained the defense’s objection based upon the lack of foundation, at which point trial counsel stated he “would move to strike the Doctor’s response to the Court or at least the last portion.” T.531.

During a colloquy outside of the jury’s presence, the prosecutor argued that if she had called the doctor who treated the victims, that doctor could state what he or she had found and whether or not it was consistent with penetration. T.532. The prosecutor asserted that she was “not taking [Dr. Lenane’s] [testimony] beyond the realm of what the treating physician would be able to say[.]” T.532. Trial counsel asserted that Dr. Lenane was improperly “giving her opinion as to what the findings were[,]” while she “wasn’t even present” for the examinations or treatment. T.532. To this the prosecutor responded, “So? You knew a doctor would be coming in. What’s the different whether it is a doctor that treated the person or not?” T.532-33. The trial court acknowledged that although it was “a very fine, if no line there[,]” Dr. Lenane nevertheless was “technically ... being called as an expert” because she had not actually examined or treated CJ or Karen, and there was no evidentiary foundation for her testimony. T.532.

. At that the trial court excused the jury. The judge noted that based on Dr. Lenane’s responses, her testimony was “clearly expertise, pure and simple[;]” that there had been “no foundation as to who did what[;]” and that Dr. Lenane was “not properly before the Court as an expert.” T.533. The trial judge stated that the only way the prosecutor could have Dr. Lenane

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testify as an expert was by “giving defendant notice now that you intend to call an expert witness, and he is entitled to, you know — even then it is questionable because you had just then given the notice [at the time Dr. Lenane took the stand]. It might be salvageable by giving him enough time to theoretically go out and get his own expert if he wants to challenge it, but I mean he [defense counsel] is entitled to rely on your assertion to him that there would be no experts, Ms. Briggs.” T.533-34.

The prosecutor insisted that Dr. Lenane should “at the very least ... be able to testify about the relevant physical findings” in the victims’ medical records, and maintained that “[s]imply interpreting the records” was not expertise. T.534. The trial court explained repeatedly that for Dr. Lenane to testify from another doctor’s report was hearsay, and that interpretation was, in fact, expertise. T.534;

See also Zafiro

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v. United States,

506 U.S. 534, 540 , 113 S.Ct. 933 , 122 L.Ed.2d 317 (1993) (“Moreover, even if there were some risk of prejudice [in joint trials], here it is of the type that can be cured with proper instructions, and ‘juries are presumed to follow their instructions.’ ’.’);

Greer v. Miller,

483 U.S. 756 , 767 n. 8, 107 S.Ct. 3102 , 3109 n. 8, 97 L.Ed.2d 618 (1987) (“We normally presume that a jury will follow an instruction to disregard inadmissible evidence ..., unless there is an ‘overwhelming probability’ that the jury will be unable to follow the court’s instructions.”) (quoting

Richardson v. Marsh,

481 U.S. at 209 , 107 S.Ct. 1702 );

Shotwell Mfg. Co. v. United States,

371 U.S. 341, 367 , 83 S.Ct. 448, 463 , 9 L.Ed.2d 357 (1963) (When a limiting instruction is clear, “[i]t must be presumed that the jury conscientiously observed it.”);

Chalmers v. Mitchell,

73 F.3d 1262, 1267 (2d Cir.1996) (‘We assume that a jury applies the instructions it is given.”).

e. Brian Barnard, GJ’s Former Teacher

Brian Barnard (“Barnard”), an earth science teacher at Greece Olympia High School, had GJ as a student in summer school in 1999. T.572. Barnard had an arrangement with GJ’s father with regard to sending grade reports home; Jackson had asked Barnard to sign a sheet on a daily basis for GJ’s grades to be sent home. Barnard was permitted to testify regarding his observation of GJ’s demean- or on one day that GJ had received a bad grade that was going to be sent home. T. 573. Barnard said that GJ “seemed emotionally concerned” and was “crying.” T.574.

Trial counsel’s cross-examination of Barnard elicited that GJ had been his student for the last quarter of the previous school year. The class met every weekday during the school year and during summer school. T.574-75.

In Limine

Motions

The prosecution rested after Barnard’s testimony, at which time defense counsel moved again for a mistrial on the basis that Barnard’s testimony “went to nothing” on the charges of endangering the welfare of a child and third degree assault charges involving GJ, and merely “was an appeal for sympathy.” T.576. Trial counsel renewed his request for a mistrial based on “all of [his] prior motions[,]” stating that the “prejudicial effect and the cumulative effect of what has been going on here has finally taken its toll.” T.577. The trial court found that the teacher’s testimony corroborated the testimony of the victim, GJ, who stated that he had gotten a bad grade and was crying. The teacher asked GJ what was the matter. GJ went home, told petitioner, petitioner went into school, and when he came home, he beat GJ

See

T.578-79. The prosecutor also argued that since trial counsel had argued that all the allegations were false, the teacher’s testimony was relevant to disprove recent fabrication. T.579. In any event, the trial court denied the mistrial motion.

Defense counsel then moved for a trial order of dismissal pursuant to C.P.L. § 290.10 with regard to all counts of the indictment. T.579. First, with regard to Count 28 (the endangering the welfare of a child count involving the youngest son, JJ), trial counsel argued that the witness did not testify to anything that petitioner did to him, instead stating that he did not remember. The trial court agreed that the testimony concerning that count was “certainly conflicting” and granted the motion to dismiss. T.580-81.

Trial counsel next addressed in his motion to dismiss the first degree forcible sodomy counts (Counts 1, 3, 5, and 7 involving Karen; and Counts 13, 14, 15, 16, 17, 18, 19, 21, 22, and 23 involving Rebec

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ca); and the first degree (non-consensual) sodomy count (Count 39) involving CJ), asserting generally that the prosecution had not set forth a

prima facie

case. Alternatively, trial counsel requested that they be reduced to third degree sodomy. T.581-82. Next, with regard to the first degree rape charges (Counts 10,11, and 12 involving Rebecca; and Counts 33, 35, and 37 involving CJ), trial counsel argued generally that the prosecution had not established a

prima facie

case as to all the elements. T.582. Counsel noted that with regard to Count 10, the testimony lacked specificity as to the dates. Trial counsel also argued that several of the rape and sodomy counts were alleged to have occurred during the same time frame with regard to the same victim (e.g., Counts 11 and 12, rape counts involving Rebecca alleged to have taken place between June 22 and June 29, 2000). T.583-84. Counsel argued that the same problem occurred with regard to the first degree sodomy charges involving Karen, Rebecca, and CJ. T.584.

The prosecutor noted that Petitioner’s first trial counsel had moved to dismiss the indictment on lack of specificity, and the first trial judge (Judge Marks) had found that the indictment, as amplified by the bill of particulars, was adequate. T.585. The trial court accordingly denied the motion to dismiss. T.586.

Trial counsel next argued that the incest charges (Counts 44 through 47 involving CJ) should be dismissed because they did not “alleged any particular acts other than they were acts of Incest,” that it was a continuing act and should have been charged four separate times, and that having four counts over the course of two days would give the jury an “undue impression about what the evidence is.” T.586. Trial counsel requested that three of the counts be dismissed and that only one be submitted to the jury. T.586. Finally, trial counsel argued that the prosecution had not set forth a prima facie case on Count 48, endangering the welfare of a child, with regard to CJ. T.586.

The prosecutor responded that incest was not a crime that could be charged as a continuing offense; to charge one count of incest for five different acts of incest would result in duplicity issues. T.587. The trial court agreed that the evidence taken in the light most favorable to the prosecution indicated that CJ testified to at least four acts, on the night of November 29th and the morning of November 30th, of vaginal sexual intercourse and/or deviate sexual intercourse. Thus, there was a question of fact for the jury, and the motion to dismiss was denied. T.587. In sum, other than Count 28, all the remaining counts, 47 in total, went to the jury. T.587-88.

Trial counsel then objected to the curative instruction that the trial court had given following its direction to strike Dr. Lenane’s testimony. T.594. Trial counsel had not objected at the time the instruction was given. Now, trial counsel argued that the instruction was legally incorrect because the court indicated that the reason for striking the testimony was that the prosecution had not given proper notice. T.594. The trial court stated that the impression, wrongly given, was “but for” the improper notice, the jury could have considered Dr. Lenane’s testimony. T.594-95. The trial court stated simply that one had to assume that the jury agreed to follow the law, and he had properly directed them to entirely disregard Dr. Lenane’s testimony.

Finally, trial counsel requested that any reference to “rape”, “possible rape”, “possible sexual assault” in the medical records be redacted from the copies of the medical records submitted to the jury. T.595-96. As the prosecutor noted, any mentions of

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“rape” and “sexual assault” were part of the treatment and explained why the patients were being examined. T.596-97. Furthermore, trial counsel had questioned CJ about the hospital’s preparation of the “rape kit”, in order to explain to the jury that it was a method of collecting evidence. T.597. Finally, the prosecutor noted that all of the subjective narrative portions in the medical records had been redacted. T.598.

4. Closing Arguments

a. Defense Counsel’s Summation

During his closing statement, trial counsel emphasized that the prosecution had the burden of proof, beyond a reasonable doubt, and that the defense had no obligation to prove anything. T.600-01, 602. Counsel asked the jury to “[t]ake sympathy away from” its consideration of the case and look at the facts only. T.601. Counsel argued that the only point of much of the witnesses’ testimony was to arouse the jurors’ sympathy. T.604-05. Trial counsel reiterated that he “can’t prove that someone is lying” and he did not “have to because that’s the law.” T.603. Trial counsel conceded that petitioner’s life was unconventional, even dysfunctional; however, counsel argued, petitioner was not on trial for his lifestyle. T.606. Counsel emphasized that both Karen and Rebecca had lived this same lifestyle for years; although they were out of the house working every day, they never called the police — because, counsel argued, they “consented to this thing.” T.606-07. As trial counsel pointed out, Rebecca married him twice — the second time “supposedly ... when all of these rapes and sodomies are going on....” T.607. Counsel argued that Karen’s testimony that after she was divorced from petitioner she nevertheless was “forced to live with [petitioner and his new wife], ... forced to have sex them” “doesn’t make sense”. T.608 (Trial counsel: “Is he raping her and sodomizing her all of these times? No way. Was it against her will? Come on. No. Not in today’s day and age.”) T.608. Counsel urged that Karen’s testimony about Jackson’s alleged threats was nothing more than an appeal to the jury’s sympathy. T.608.

Trial counsel asked the jury to consider, given the frequency with which the three of them had sex over numerous years, why “all of a sudden it is a rape and all of a sudden it is a sodomy[?]” T.607, 609. Counsel asked the jury to consider how were the sexual acts charged in the indictment any “different than the thousands of times before” that the three of them had sexual relations. T.610.

Reminding the jury that Rebecca said that they decided to call the police “because there’s evidence,” trial counsel asked, “Did you see any evidence? Did you hear any evidence? So what evidence do we have to corroborate what these people said?” T.611. Trial counsel argued that with so many alleged sexual acts occurring on the night of petitioner’s arrest, there should have been some evidence. T.611. Counsel pointed out that Rebecca said she had wiped her mouth on the sheet after performing oral sex on petitioner because she had a pubic hair in her mouth, but the prosecution, although the police confiscated the sheet, “didn’t even produce a pubic hair for you.... ” T.612. There was, trial counsel reminded the jury, no semen or DNA found on the sheet. Counsel argued that “if this really happened, someone from the lab would have got up and testified and told you what they found. They found nothing.” T.612.

Trial counsel also pointed to the sheet confiscated from the bed in which Petitioner allegedly had sex with his daughter, who was menstruating at that time. T.612. However, counsel noted, there was

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no blood on that sheet from the victim; if there had been, the jury would have heard about it. Nor was there pubic hair, semen, or DNA, or any other physical traces of sexual intercourse. T.612-13. Furthermore, trial counsel emphasized, there was no physical evidence collected from the victims’ clothing or from the sanitary napkin that the daughter was wearing, or from any of the swab samples or pubic combings taken by the medical personnel from the victims. T.613-14. Nor was there any physical evidence on petitioner’s clothing or underwear. T.614. In sum, there was “no evidence right now to show that a crime was committed.” T.614.

Moving on to the medical evidence, trial counsel noted that the jury “didn’t hear a doctor tell you anything about injuries.” T.614. Counsel observed that the jury had started to hear from a doctor, but then “the [Jjudge told you to disregard entirely what she had to say because it was improper.” T.614-15. Trial counsel noted that the first emergency room doctor, Dr. Everett, who saw CJ, indicated there was a “local irritation at the basis or the bottom of her vagina, I think they call it the introitus[,]” while “[ajnother doctor calls it ‘an abrasion.’ ” T.615. Counsel argued that “[t]wo doctors can’t agree on the same thing[,]” and urged that there was a difference between an irritation and an abrasion: “An irritation can be a pimple” or “anything that can be manifested by the body” while “[a]n abrasion, better term for the Prosecution, suggests some scraping or something.” T.615. Counsel pointed out that no one came on the stand to tell the jury “what it was, if it was caused by clothes, if it was caused by a sanitary napkin or pad. No one can tell you that it was caused by Shawn Jackson, that it was caused by someone else. Could be caused by toilet paper, for that matter. We don’t know. Because you didn’t hear it. So, that’s consistent with absolutely nothing.” T.615-16.

With no physical evidence or medical evidence, trial counsel argued, the prosecution was forced to “go for the sympathy” and “[tjhat’s why a 15-year-old girl came walking into this courtroom with a little stuffed animal in her hands, and the way she sat on the stand, she plopped it right up in front of you[,]” as a way to “appeal to you[,]” as “part of the show.” T.616-17.

b. The Prosecutor’s Summation

The salient points of the prosecutor’s closing argument are discussed below in this Opinion in the section concerning the claim of ineffective assistance of counsel based upon the failure to call an expert medical witness and in the section regarding the harmless error analysis of the

Miranda

claim.

5. The Jury Verdict and Sentencing

As noted above, the trial court dismissed Count 28 in the indictment charging Petitioner with endangering the welfare of a child (his younger son, JJ). T.580. On June 4, 2001, the jury returned a verdict convicting him on the remaining 47 counts of the indictment. T.746-54. Petitioner was sentenced to consecutive sentences, which totaled, in the aggregate, a term of 64 years. By operation of law, the maximum term was reduced to 50 years.

C. State Court Post-Conviction Proceedings

1. Direct Appeal

Represented by new counsel on appeal, Jackson pursued direct review of the judgment of conviction to the Appellate Division, Fourth Department, of New York State Supreme Court. Appellate counsel raised the following points on appeal: (1) prosecutorial misconduct throughout trial deprived Petitioner of a fundamentally fair trial; (2) Caseworker Bonisteel was acting

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a law enforcement officer, and Petitioner’s statements to her were inadmissible because they were not preceded by

Miranda

warnings; (3) the trial court erred in permitting Dr. Lenane to testify; (4) the trial court erred in allowing testimony concerning Petitioner’s prior bad acts and uncharged crimes; (5) the indictment was inflammatory and prejudicial; multiplicitous and duplicitous, and contained identical counts; (6) the verdict was against the weight of the credible evidence; (7) trial counsel was ineffective in failing to introduce the forensic laboratory reports and failing to call a medical expert witness;

(8) the sentence was illegal and unduly harsh and severe; and (9) Jackson was prejudiced by having his case heard by three different judges at critical stages of the trial.

See

Petitioner’s Appellate Brief (Respondent’s Appendix “E”); Petitioner’s Reply Appellate Brief (Respondent’s Appendix “0”).

The prosecution argued that the verdict was amply supported by the credible evidence, and noted that even appellate counsel conceded the testimony from each of the five victims supported and corroborated the testimony of the other victims. As to the

Miranda

claim, the prosecution asserted that the indicia which may transform private conduct into state action — i.e., a clear connection between police and private investigation; completion of the private act at the instigation of the police; close supervision of the private conduct by the police; and a private act undertaken on behalf of the police to further a police objective — were not present in Jackson’s case. With regard to Dr. Lenane’s testimony, the prosecution argued that, assuming the trial court correctly excluded her testimony, the prejudice to the defense was “non-existent or “negligible.” Petitioner’s prior bad acts and uncharged crimes were properly admitted, argued the prosecutor, because the testimony established that Jackson engaged in violent acts and/or threats of violence against the victims or against other persons (and, in this case, a family pet) in the victim’s presence. The prosecutor argued these acts were directly relevant (1) to show that Jackson’s sexual assaults were perpetrated against the victims by forcible compulsion; (2) to negate the defense of consent; and (3) to explain the victims’ failure to make a prompt complaint. People’s Appellate Brief at 12 (Respondent’s Appendix “O” at 205) (citing

People v. Chase,

277 A.D.2d 1045 , 716 N.Y.S.2d 486 (App.Div. 4th Dept. 2000);

People v. Hudy,

73 N.Y.2d 40, 45 , 538 N.Y.S.2d 197 , 535 N.E.2d 250 (N.Y.1988)). Furthermore, the prosecution argued, the trial court’s limiting instruction,

see

T.400, 662-63, regarding the prior bad acts testimony was proper.

With regard to the claim of misconduct by the assistant district attorney, the prosecution argued that there was no misconduct committed during jury selection or during opening and closing statements. Furthermore, the prosecution argued, the assistant district attorney did not commit misconduct in calling Dr. Lenane as a witness despite the failure to give proper notice to the defense and the written representation that the prosecution would not be calling any expert witnesses.

Jackson’s complaints regarding the indictment were factually baseless, argued

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the prosecution, and not supported by any case law.

As to Jackson’s claim of ineffective assistance of trial counsel, the prosecution argued that it was based upon factual assertions

dehors

the appellate record, and therefore the proper vehicle for asserting these claims was a C.P.L. § 440.10 motion. The prosecution noted that no certificate granting leave to appeal the denial of the C.P.L. § 440.10 motion had been granted, and thus the record from the C.P.L. § 440.10 motion was not properly before the Appellate Division. The prosecution did not address the merits of Jackson’s ineffectiveness claim.

With regard to Jackson’s assertion that he was prejudiced because different judges presided at various stages of the proceeding, the prosecution argued it was not only unpreserved but also was meritless since Jackson failed to demonstrate how the outcome of his trial was affected.

Finally, the prosecution conceded that the maximum aggregate sentence in Jackson’s case could not exceed 50 years. However, the prosecution argued, the sentence did not need to be modified on appeal, but rather it could be left to the Department of Correctional Services to determine the maximum aggregate term of incarceration consistent with the applicable statutory limitations.

The Appellate Division, Fourth Department, of New York State Supreme Court, unanimously affirmed the conviction on February 11, 2004.

People v. Jackson,

4 A.D.3d 848 , 772 N.Y.S.2d 149 (N.Y.App.Div.2004). As to the length of sentence, the Fourth Department disagreed that it was unduly harsh or severe. However, the court directed that as a matter of law, the sentence had to be recalculated since the aggregate maximum term exceeded the 50-year limitation provided in N.Y. Penal Law § 70.30 (1)(e)(vi).

Jackson, 4

A.D.3d at 849, 772 N.Y.S.2d 149 .

Jackson’s application for leave to appeal to the New York Court of Appeals was denied on May 20, 2004.

People v. Jackson,

2 N.Y.3d 801 , 781 N.Y.S.2d 300 , 814 N.E.2d 472 (N.Y.2004). No petition for a writ of

certiorari

to the United State Supreme Court was sought.

2. C.P.L. § 440.10 Motion to Vacate the Judgment

Prior his appeal being perfected, Jackson, acting

pro se,

moved in the trial court to vacate the judgment of conviction pursuant to N.Y.Crim. Proc. Law § 440.10(l)(h), claiming that trial counsel was ineffective on numerous grounds, namely, (1) failing to properly investigate the forensic and medical evidence; (2) failing to adequately cross-examine the victims and other prosecution witnesses; (3) failing to introduce an “extraordinary amount” of exculpatory evidence; (4) failing to interview and call the medical personnel who treated the victims; (5) failing to secure expert medical and forensic witnesses to demonstrate inconsistencies in the physical and medical evidence; and (6) failing to subpoena Sergeant Griffin of the Greece Police Department who allegedly would have substantiated his claim that he requested an attorney during the booking process, but that the request was denied.

See

Petitioner’s C.P.L. § 440.10 Motion dated May 22, 2003, with Exhibits A-P (Respondent’s Appendix “F”).

The prosecution opposed the motion, arguing that the issues raised by Jackson were such that sufficient facts appeared on the record so as to permit adequate review of them on direct appeal, and therefore denial was required pursuant to C.P.L. § 440.10(2)(b).

See

People’s Affirmation in Opposition to C.P.L. § 440.10 Motion at p. 2, ¶ 4 (Respondent’s Appendix “G”) (citing

People v. Cooks,

67 N.Y.2d 100, 103 , 500

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N.Y.S.2d 503, 491 N.E.2d 676 (N.Y.1986) (holding that the purpose of C.P.L. § 440.10(2)(b) is to prevent a motion to vacate from being employed as a substitute for a direct appeal when defendant is in a position to raise such issues on appeal)). The prosecution further argued that, in light of Jackson’s failure to present an affidavit from trial counsel explaining his defense of the case, the motion should be denied without a hearing.

Id.

at 2-3, ¶ 5 (citing,

inter alia, People v. Morales,

58 N.Y.2d 1008, 1009 , 461 N.Y.S.2d 1011 , 448 N.E.2d 796 (N.Y.1983)). Finally, the prosecution argued that, in any event, trial counsel’s conduct, viewed either with respect to specific alleged errors or as a whole, did not rise to the level of egregious or prejudicial conduct necessary to prevail on an ineffective assistance of counsel claim.

Id.

at 3, ¶ 6 (citing

People v. Flores,

84 N.Y.2d 184, 187-88 , 615 N.Y.S.2d 662 , 639 N.E.2d 19 (N.Y.1994)).

Petitioner subsequently filed a “Notice of Motion to Compel a Decision on the Pending 440.10 Motion,”

see

Respondent’s Appendix “J”.

A different Supreme Court justice, Justice David D. Egan, issued a decision denying the C.P.L. § 440.10 motion on November 17, 2003. At that time, Jackson’s direct appeal was still pending. The motion court first held that there were sufficient facts on the record so as to permit adequate review of his claims on direct appeal, and thus denial pursuant to C.P.L. § 440.10(2)(b) was required. C.P.L. § 440.10 Order at p. 2 (Respondent’s Appendix “M” at p. 180) (citing,

inter alia, People v. Minter,

306 A.D.2d 801 , 760 N.Y.S.2d 806 (2003)). The motion court further held that Jackson’s claims of ineffective assistance of counsel were without merit. Noting that the “primary focus” of Jackson’s motion was “his displeasure with his trial counsel’s strategy in defending his case[,]” the motion court held that Jackson had “failed to demonstrate anything other than a simple disagreement with the strategy and tactics of his counsel, and his conclusory assertions ... are not enough to demonstrate that he received ‘less than meaningful representation.’ ” C.P.L. § 440.10 Order at pp. 2-3 (Respondent’s Appendix “M” at pp. 180-81) (citations omitted). Petitioner’s applications for certificates to appeal to the Appellate Division and then to the Court of Appeals were summarily denied.

D. Petitioner’s Federal Habeas Petition

In support of his request for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 , Jackson raised four “points” concerning trial counsel’s ineffectiveness in his Petition (Docket No. 1) and Addendum to the Petition, which refers to the Petition for a listing of the allegations. In the Petition, Jackson asserts under “Point One” that trial counsel’s ineffective representation was “painfully exposed with his decision to NOT put on a Defense and go right for a Dismissal Due to the Fact that he was under the Incorrect Assumption that the prosecution was required to prove the element of penetration in order to sustain a conviction of Sodomy in the 1st.” Petition at 6 (emphases in original omitted) (Docket No. 1). Under “Point Two,” Jackson asserts that trial counsel failed to correctly investigate the “plethora of exculpatory evidence, (Physical, Medical, Forensic, Visual, Tactile, ALS [sic] Examinations, NYS Sexual Assault Kits and DNA Results all of which were collected following an alleged 90 Minute Attack).”

Id.

at 7 (emphases in original omitted) (Docket No. 1). Under “Point Three,” Jackson faults trial counsel for not “consulting] a Doctor or Medical Expert....”

Id.

(Docket No. 1). Finally, under “Point Four,” Jackson asserts that all of the errors de

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scribed in Points One through Three cumulatively prejudiced his “Right to Confront [His] Accusers through Effective Cross-Examination.”

Id.

at 8 (Docket No. D.

Jackson made several

pro se

motions for discovery pursuant to Rule 6 of the Federal Rules of Civil Procedure. The Court denied these, finding that he had not shown the requisite “good cause.”

After reviewing the trial transcript and the related state court decisions denying post-conviction relief, the Court determined that an evidentiary hearing should be held.

See Sparman v. Edwards.

The Court accordingly appointed counsel and scheduled the

Sparman

hearing. Jackson’s habeas counsel made a renewed motion for discovery (Docket No. 34), pointing out some apparent discrepancies in the numbering and dating of the laboratory reports from the Monroe County Public Safety Laboratory. In particular, Report No. 1 (“the Serology Report”) is dated February 6, 2001, and Report No. 3 (“the DNA Report”) is dated March 27, 2001. Petitioner indicated that Report No. 2 (“the Trace Analysis Report”) is dated May 3, 2002, subsequent to Petitioner’s trial and more than a year after Report No. 3. In light of Petitioner’s assertion that there was reason to believe that between the generation of Reports 1 and 3, a different Report number 2 was generated by the Monroe County Public Safety Laboratory (“the Laboratory”), the Court granted limited discovery (Docket No. 35) to determine whether there was a second report (other than the Report No. 2 dated May 3, 2002) prepared in the interim between Reports Nos. 1 and 3; if so, what were the contents of the report. The Court also requested that respondent explain the findings and results in Report No. 2, specifically, the notations of “no analyst assigned” and “no trace analysis, evidence was returned;” and why Report No. 2 post-dated petitioner’s trial.

Respondent submitted a response (Docket No. 36), which was based upon respondent’s attorney’s discussions with individuals at the Laboratory concerning the generation of reports such as those referenced above. Respondent explained that when Jackson’s case was assigned to the Trace Analysis section of the Laboratory, Trace Analysis portion of the report was assigned a number by the computer system; this was Report No. 2. Report No. 2, which was obtained by Petitioner

pro se

after trial, pursuant to a Freedom of Information Law request, indicates that no trace analysis was performed. Because no trace analysis was performed, there were no results to report, and a Report No. 2 was not generated at the time of trial. Before the Laboratory could return the evidence to the police department’s property office, a report had to be generated for record-keeping purposes indicating that no trace analysis had been performed. This return of the physical evidence occurred in May 2002, which is why Report No. 2 bears a date subsequent to Jackson’s trial. The next section of the Laboratory to perform testing on evidence in the Jackson case was the DNA section, and it was assigned Report No. 3 by the computer system. Because DNA testing was performed, a report was generated at the time of trial, dated March 27, 2001. Respondent explained that the numbers appear out of sequence only because that is the order in which the written reports were generated, not the order in which the computer system assigned “report numbers”, which was contemporaneous with the actual testing by the Laboratory. Respondent explained the notation of “no trace analysis performed” was made because the Laboratory was not requested to do any trace analysis; the only testing requested was DNA and serology testing, and the Labo

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ratory was not authorized to perform any testing not specifically requested.

See

Respondent’s Response to Petitioner’s Third Motion for Discovery, ¶¶ 3-8 (Docket No. 36).

Petitioner filed no further discovery requests after receiving the foregoing response from respondent. After reviewing the pertinent documentation, the Court is satisfied with respondent’s explanation concerning the out-of-sequence numbering of the reports and the notation of “no trace analysis performed” on Report No. 2. Furthermore, the Court is also satisfied finds that there was no withholding of evidence from Petitioner’s trial counsel or any other type of impropriety in connection with the generation of the above-discussed laboratory reports.

III. The

Sparman

Hearing

Dr. Julia DeBellis (“Dr. DeBellis”) testified for Petitioner on the first day of

Spar-man

hearing. Respondent stipulated to Dr. DeBellis’ qualifications.

See Sparman

Hearing Transcript dated September 14, 2009 (“SHI”) at 5. Dr. DeBellis is a practicing pediatrician, who is also doing a fellowship in the area of child abuse and neglect at Cornell University in New York City.

Id.

She has testified about 35 to 40 times as an expert regarding the medical aspects of child sexual abuse.

Id.

at 7 . She estimated that she testified for the prosecution in 80% of those cases.

Id.

at 7-8 . She has also been retained as a consultant, as opposed to testifying; about 90% of the time, she consulted for the defense.

Id.

at 8 .

Dr. DeBellis, in preparation for her testimony, reviewed hospital emergency room records for KJ, Petitioner’s ex-wife; and CJ, Petitioner’s daughter; the trial testimony given by Dr. Lenane; and the three victims’ trial testimony and police statements. SHI at 10, 29. In addition, Dr. DeBellis reviewed the police records and the laboratory reports.

Id.

at 11, 29 . She did not review any other trial testimony, or the opening or closing statements of the attorneys.

Id.

at 29 . After conducting her review, Dr. DeBellis concluded that the examination of CJ was lacking in certain details, and there was no indication that the individual who examined CJ had expertise in the area of alleged sexual assaults.

Id.; see also id.

at 15.

With regard to the medical findings, Dr. DeBellis noted that one portion of the record referred to an “irritation” at the vaginal introitus, while another part of the record referred to an “abrasion” at the vaginal introitus. Dr. DeBellis explained that the vaginal introitus is a large area, and so it would have been helpful if the examiner had specifically identified the exact location of the abrasion or irritation, e.g., the posterior shaft, the hymen, the vaginal wall, the vulva space.

Id.

at 12,17 . Dr. DeBellis testified that she did not use the terms “abrasion” and “irritation” interchangeably.

Id.

at 17 . She testified on cross-examination that it was “possible” that the two words have different meanings and within the medical records themselves, there were inconsistent; to use “irritation” and “abrasion” to denote the same finding is not accurate.

Id.

at 30-31 . Dr. DeBellis testified that her understanding of an “abrasion” is that it is a disruption the tissue is disrupted on the surface; an “irritation” is something that she would described as even more superficial than an “abrasion.”

Id.

at 17 . Dr. DeBellis testified that it was, in any event, wholly unclear from the hospital record what exactly the “irritation” or “abrasion” was or looked like.

Id.

The record lacked any indication of the size, depth, precise location, or healing characteristics of the “irritation” or “abrasion,” she explained.

Id.

Dr. DeBellis testified that although an “abrasion re-

*238

fleets trauma[,]”

id.,

that term alone does not help in determining how and by what mechanism the trauma was caused,

id.

at 18 .

The record also referred to a finding of “old blood in the [vaginal] vault.” SHI at 12. Dr. DeBellis stated that the presence of “old blood” was to be expected given CJ’s stage of menstruation, which was noted in the hospital record.

Id.

at 16 . A finding of “old blood in the vault” did not, in and of itself, indicate trauma or penetration.

Id.

Such a finding would not be significant in determining whether penetration had occurred, in other words.

Id.

(The prosecutor at Jackson’s trial did not argue the finding of “old blood” was the result of the alleged penetration.)

Dr. DeBellis noted there was a description of “no active bleeding” and “no active laceration” in CJ’s genital area. SHI at 16. There was no documentation of the size or quality of the abrasion; nor were there any photographs, which are typically part of an expert’s evaluation for possible sexual abuse, according to Dr. DeBellis.

Id.

at 12 . She opined that the diagram of the human body, pre-printed on the medical record form, did not depict exactly where the alleged abrasion was.

Id.

Dr. DeBellis stated that the information in CJ’s medical record was “very limited” and “would require more information from the examiner about what he or she actually saw, he or she actually did.”

Id.

at 13 .

In addition, there was no documentation in CJ’s record describing the positions in which CJ was placed during the pelvic examination.

Id.

at 14 . Dr. DeBellis testified that the placement of the patient can be important because, first, one expects changes on the genital or hymenal tissue when the patient is in different positions; and second, the examiner can confirm the presence of certain findings of trauma by seeing if they persist in different examination positions.

Id.

Finally, Dr. DeBellis observed that there was no reference to the use of a colposcope, a viewing instrument typically used in evaluating patients presenting with sexual assault.

Id.

The purpose of the colposcope is not only to magnify the area, but to digitally photograph the area.

Id.

Essentially, a colposcope is a microscope that sits on a stand; it does not touch the patient, but allows the examiner to obtain a magnified view of the vaginal area in order to better see if the tissue is disrupted, how deep a laceration might be, whether there is the presence of a deeper scar, for example. It is an instrument that aids in identifying injury and trauma to a patient’s anatomy.

Id.

Dr. DeBellis testified that a colposcope was a recognized device used in medical examinations in 2001. She did not know whether colposcopes were readily available in hospitals, but opined that if a hospital has a specialized program for treating cases of suspected sexual assault, they “should have one[.]” SHI at 14. In particular, the use of a colposcope is part of SANE and SAFE training.

Id.

at 32 . She opined that it would be clinically appropriate to use on a girl of CJ’s age and even on younger children.

Id.

She did not know whether the hospital at which the victims were examined had a colposcope in 2000.

Id.

at 31 .

Dr. DeBellis testified that if she had been hired as a consultant by trial counsel in this case, she would had advised obtaining an explanation from the medical professionals who examined CJ to not only clarify the vague portions of the record, but also to ascertain their expertise and ability to accurately record what injuries they claimed to have observed. SHI at 19.

With regard to portion of CJ’s hospital record summarizing the results of the ex-

*239

animation of her anal area, the only observation was “no lacerations.”

Id.

Dr. De-Bellis testified that there are additional types of injuries that should be looked for and commented on in cases of alleged sexual assault to the anal area, such as tears, fissures, hematomas, and compromise or asymmetry to the anal sphincter. SHI at 19- 20.

Dr. DeBellis testified that in her opinion, it was “highly inappropriate” for medical records to be submitted without accompanying testimony from the individual who performed the examination.

Id.

at 20 . She testified that “[jjurors are left to their own preconceived notions about sexual assault,” and in her experience, “lay individuals tend to come to this issue with a very, kind of Hollywood version of what is supposed to be uncovered during a sexual assault from a physical standpoint.”

Id.

at 20- 21. Dr. DeBellis explained that “injuries need to be explained to the jury” and the jury needs to be educated that other mechanisms besides sexual penetration can cause injuries sometimes seen.

Id.

at 21 . In this particular case, the findings that could be subject to misinterpretation by the jury included the presence of old blood in the vault and the abrasion or irritation to the vaginal introitus.

Id.

Dr. DeBellis, however, did not offer any alternative mechanism (i.e., something other than a penis) that could have caused the abrasion or irritation, such as a sanitary napkin or toilet tissue, which was suggested by defense counsel in his closing argument.

With regard to Dr. Lenane’s limited testimony, Dr. DeBellis opined that it “was damaging and was not a fair presentation of exactly what the medicine [sic] is.” SHI at 22.

Dr. DeBellis would have advised trial counsel to have Dr. Lenane finish testifying and then “cross-examine her in a way which would show that the injuries that were recorded — were reported don’t necessarily result from penetration alone.”

Id.

She would not have advised him to proceed to the conclusion of trial with the medical records being admitted without being accompanied by interpretive testimony from a doctor or other medical expert.

Id.

at 23, 33 .

On cross-examination, Dr. DeBellis agreed that a thorough review of the medical records left many questions unanswered, which an attorney could argue to the a jury.

Id.

at 32 . She also agreed that a lack of DNA evidence would not necessarily indicate that a rape or sodomy did not occur.

Id.

at 33 . Finally, Dr. DeBellis concurred that a DNA expert “would be able to testify that the lack of DNA is explainable.”

Id.

On the second day of the

Sparman

hearing, Jackson’s trial counsel, Joseph Damelio, Esq., testified. Trial counsel testified that he was assigned by the trial court to represent Jackson on April 16, 2001, after it was discovered that the Jackson’s then-counsel, the Monroe County Public Defender’s Office, had a potential conflict of interest. Upon learning from the assistant public defender who had been handling Jackson’s case that the prosecution would

not

be calling an expert witness, trial coun

*240

sel determined that he only needed one month to prepare for trial.

See Sparman

Hearing Transcript dated September 15, 2009 (“SH2”) at 7-8. Trial counsel testified at the hearing that if the prosecution had proffered expert testimony as to the various medical or physiological indicia of sexual abuse, he may or may not have called an expert for the defense. SH2 at 8. Later in the hearing, however, trial counsel stated, during questioning by respondent’s attorney, that if the prosecution had indicated that they were going to call such a medical expert witness, he would have called an expert with similar qualifications. SH2 at 48. Furthermore, trial counsel admitted under questioning by respondent’s attorney that he did not know if his cross-examination of an expert witness would have been sufficient, stating — non-responsively — that it was “difficult to say because we didn’t get far enough into [Dr. Lenane’s] testimony.” SH2 at 49.

Trial counsel then explained what he did do in connection with the medical records in Jackson’s case.

See generally

SH2 at 8-14. Trial counsel had received in discovery the emergency room records for KJ, Jackson’s ex-wife, and CJ, Jackson’s fourteen-year-old daughter. (There were no medical records for Jackson’s wife, RJ, as she did not go to the hospital on the night of the arrest.) Trial counsel then consulted with a registered nurse, whom he had retained in previous cases of sexual abuse, to assist him in interpreting the phrases and procedures described and abbreviated in the medical reports, which were later admitted into evidence by stipulation. SH2 at 9-10, 14. Counsel explained that he was granted a voucher of $500 for the purposes of consulting with a medical professional. SH2 at 51. According to trial counsel, he told the registered nurse what the allegations were and defined the statutory requirements regarding the elements of the offenses charged.

Id.

(However, trial counsel, throughout trial, labored under the misapprehension that sodomy, unlike rape, does not require

any

penetration at all.

See

SH2 at 41.)

Trial counsel explained that the nurse provided him with an oral, rather than a written, report, interpreting various notations and abbreviations on the records. SH2 at 12. Trial counsel explained that the nurse told him, “Pretty much, there were no findings. One — one of the complainants [i.e., CJ] had what was termed— once an irritation and once an abrasion, twice in the medical reports — maybe twice in the report. Which [complainant] that was, I don’t recall.”

Id.

The nurse consultant advised him that the records were deficient in their lack of any description or depiction or documentation of the location, depth, size, and healing characteristics of the “abrasion” or “irritation.” SH2 at 14.

Trial counsel did not recall any other advice or information given to him by the nurse. SH2 at 13. According to trial counsel, he believed that “surely [his] consultation with the RN prepared [him] adequately if the treating physician had been called by the prosecution. SH2 at 53. Trial counsel did not retain or consult with an expert in terms of the physiological or medical indicia of sexual abuse in children. SH2 at 10.

As to the deficiencies in the medical records pointed out by the consulting

*241

nurse, trial counsel explained that his strategy was to address them by argument rather than testimony:

I felt I did not want the prosecution to produce a medical expert. My experience has been that when given the opportunity, that the prosecutor’s witness would say that no evidence is consistent with sexual assault or no finding or zero finding would be consistent with a sexual assault. So I found it best or I thought it best to address that on my argument based upon no evidence whatsoever produced by the People.

SH2 at 14-15;