Sparman v. Edwards, 95-CV-4689 (JG).

Decision Date02 October 1997
Docket NumberNo. 95-CV-4689 (JG).,95-CV-4689 (JG).
Citation26 F.Supp.2d 450
PartiesAnthony SPARMAN, Petitioner, v. Ernest EDWARDS, Superintendent Otisville Correctional Facility, Respondent.
CourtU.S. District Court — Eastern District of New York

Robert J. Anello, Eric Markovich, Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C., New York City, for the petitioner.

Charles J. Hynes, District Attorney of Kings County, Brooklyn, NY, by Anthea H. Bruffee, Assistant District Attorney.


GLEESON, District Judge.

On October 19, 1992, a jury convicted Anthony Sparman ("Sparman" or "petitioner") of repeatedly raping his twin nieces, Annatasha ("Anna") and Donnasha ("Donna"). On November 9, 1992, Sparman was sentenced to a term of incarceration of three to nine years. After unsuccessfully pursuing relief in state court, petitioner brought this habeas corpus petition, alleging that (1) his trial counsel was ineffective; (2) a state court evidentiary ruling was unconstitutional; and (3) the prosecutor's summation was improper and prejudicial.

I referred the petition to Magistrate Judge Joan Azrack for a Report and Recommendation. Judge Azrack filed her report on September 27, 1996, in which she recommended that I grant the petition based on trial counsel's performance, which she described as "grossly ineffective" and "severely prejudic[ial]" to petitioner. Specifically, Judge Azrack concluded that trial counsel rendered ineffective assistance in, inter alia, three primary ways: (1) he did not adequately investigate the case, and thus was unaware that Marie Onyema saw Alfred Sparman, petitioner's half-brother, sexually abusing Anna in 1991; (2) he did not elicit favorable medical evidence that tended to show that any sexual abuse that the twins suffered occurred subsequent to the nineteen-month period ending in April 1988, in which petitioner allegedly sexually abused the twins; and (3) he failed to cross-examine the twins on material inconsistencies between their testimony at trial and statements they made to the police. A copy of Judge Azrack's report and recommendation is attached to this memorandum.

After reviewing Magistrate Judge Azrack's report, the transcript of the oral argument before her on May 23, 1996, respondent's objections to the Report and Recommendation and the petitioner's submissions with respect thereto, I ordered that an evidentiary hearing be held on the following issues: (1) what trial counsel was told by petitioner with respect to Marie Onyema; (2) the nature and value to the defense of the medical evidence not presented at trial; and (3) the reasons for trial counsel's failure to cross-examine the twins on their inconsistent statements. An evidentiary hearing was held on March 4, 1997, at which Dr. Cynthia Yvonne Stevens, Dr. Karen Woodburn-Hourie and trial counsel, Jay Schwitzman, testified, and post-hearing submissions have been filed by both parties. Except as indicated below, I adopt the report of Magistrate Judge Azrack. I further adopt her recommendation that Sparman's petition for a writ of habeas corpus be granted.


Between September 1986 and April 1988, petitioner lived with his half-brother Alfred Sparman, Alfred's wife, his mother, a nurse and Alfred's twin girls (Anna and Donna). It is during this period of time that respondent claims petitioner repeatedly raped the twin girls. Indeed, both sides agree that after petitioner moved out of Alfred's home in April 1988, he had little contact with his nieces.

The allegation that petitioner sexually abused the twins first surfaced on July 20, 1991, when Alfred took the twins to the police station, purportedly on the first day that Alfred became aware that they had been abused. While there, according to the police reports, the twins told the police that petitioner had sexual intercourse with them "over the last 4 years."

Petitioner contends that any sexual abuse suffered by the twins occurred after April 1988 and was likely inflicted by Alfred, not him. In support of this argument, petitioner details a long history of animosity between the two and notes that Alfred was on the eve of trial on charges of sexually abusing an eighteen year-old female when he brought the twins to the police station in July 1991 to file charges against petitioner. Most importantly, petitioner also claims that trial counsel failed to investigate and present medical evidence that could have established that petitioner was not the perpetrator because the twins were not abused prior to April 1988, the date he moved out of Alfred's home.

A. Marie Onyema

Sparman argues that his trial counsel was ineffective for failing to investigate and pursue his pre-trial suggestion to contact Marie Onyema, who allegedly saw Alfred Sparman abusing the twins in 1991. This piece of evidence, according to Sparman, could have raised doubts as to the identity of the perpetrator and would have permitted the introduction into evidence of Alfred Sparman's 1991 conviction for sexual abuse. This argument is without merit.

The uncontradicted evidence at the hearing was that Sparman never told his counsel to interview Onyema. Tr. at 59.1 Indeed, prior to trial, Sparman wrote a five-page letter to his counsel in which he detailed his defense, and nowhere in that letter did he mention Marie Onyema or any possible testimony that she could provide. Petitioner's Hearing Exhibit 3.

In any event, petitioner was not prejudiced by counsel's failure to interview Onyema. Although Onyema signed an affidavit on November 30, 1994, in which she stated that she saw Alfred Sparman sexually interacting with Anna in 1991, she has since recanted that statement. By affidavit signed March 3, 1997, Onyema stated that she did not carefully read the prior affidavit, and that its contents were not true.

This ground of the petition reeks of a crude post-conviction effort to fabricate exculpatory evidence and blame trial counsel for failing to present it. Onyema is described by petitioner as a former girlfriend of Alfred Sparman, which is apparently true. However, she is also a former wife of petitioner himself, a fact petitioner chose not to reveal to Judge Azrack.

Accordingly, trial counsel did not fall short of his constitutional obligations by failing to interview Marie Onyema.

B. The Medical Evidence Not Offered At Trial

Petitioner contends that trial counsel rendered ineffective assistance by failing to introduce essential medical evidence and testimony that could have exonerated him. I agree.

At petitioner's trial, the prosecution presented the testimony of Dr. Mohammed Baker, which supported the twins' account of Sparman's sexual abuse. Specifically, in 1991, shortly after the twins' interviews with the police, Dr. Baker performed gynecological exams on both girls and found tears in their hymens and redness and abrasions in their vaginas. Dr. Baker further testified that these physical signs were consistent with penile penetration as much as four years earlier, but could also reflect recent sexual activity. In addition, Dr. Baker noticed a whitish discharge from Anna's, but not Donna's, vagina, which was later determined to be gardnerella vaginalis, a bacterial infection that can be transmitted sexually.

To combat this medical evidence, petitioner's trial counsel presented the testimony of Dr. Paula Nadig, a pediatrician who examined the twins on September 13, 1988, several months after Sparman had moved out of the twins' residence. Dr. Nadig concluded that Anna and Donna were both "normal female[s], virgin[s]." Trial Tr. at 392-93, 404.2 Accordingly, her findings were "inconsistent with sexual intercourse." Trial Tr. at 405. The purpose of this testimony was to establish that, even if the girls were abused as of 1991, they were not molested by anyone prior to September 13, 1988, and thus, petitioner did not abuse the twins. However, on cross-examination, the prosecutor successfully discredited Dr. Nadig's findings by noting that the examinations were very fast, and that Dr. Nadig did not use stirrups or bright lights, look at the girls' hymens, take any specimens from them or instruct them to completely take off their underwear. Trial Tr. at 410-412. Accordingly, in summation, the prosecutor derided Dr. Nadig's findings as "offensive," telling the jury that they had heard about her examination and about "how quick, how brief, and how incomplete it was." Trial Tr. at 725, 702.

Although trial counsel was aware, in advance of the trial, of the importance of the medical testimony in this case, he consistently failed to adequately investigate whether he could have offered additional evidence in support of the argument that the twins were not abused prior to April of 1988. On May 5, 1992, counsel received Dr. Baker's medical reports. It took four months, until September 2, 1992, for trial counsel to send these documents to an expert, Dr. Leonard F. Rosenzweig, to review them. Within two weeks, Dr. Rosenzweig communicated to counsel his analysis of Dr. Baker's reports. On September 21, 1992, two weeks before trial, the prosecutor turned over to petitioner's trial counsel roughly ten pages of additional medical reports, which described physical examinations that occurred between April 1988 and Dr. Baker's examination in July of 1991. One report noted that a Dr. Hourie performed a "physical exam" on both of the twins on June 24, 1991, just one month before Dr. Baker's exam, and that the girls were "doing well" and had "no complaints." Another report indicated that a Dr. Stevens, after noticing "yeast like cells," collected a fungus culture from Anna's vagina on January 29, 1990, and she received a microbiology report analyzing that culture.

Petitioner's trial counsel did nothing to investigate the contents of these reports. Indeed, he did not contact the doctors who wrote them (Dr. Stevens and Dr. Hourie) or request that another doctor review them. In so doing, he failed to present...

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