Appeals from the Superior Court of the District of Columbia (No. F-9642-97) (Hon. Mary Ellen Abrecht, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Argued En Banc April 25, 2005
Before WASHINGTON, Chief Judge, FARRELL, RUIZ, REID, and GLICKMAN, Associate Judges, and WAGNER, FERREN, TERRY, and SCHWELB,Senior Judges.*fn2
Concurring opinion by Associate Judge RUIZ at p. 49.
This appeal concerns a criminal defendant's Sixth Amendment right to the effective assistance of counsel. Appellant Richard Cosio asserts that he was convicted of multiple felony counts of child sexual abuse because his trial counsel failed to discover readily available evidence that would have impeached his accuser. A divided three-judge panel of this Court rejected appellant's claim. We went en banc not only to reconsider the panel's decision, but also to clarify the legal principles governing ineffectiveness claims based on counsel's alleged investigative shortcomings. In this case, those principles make it necessary for us to vacate appellant's convictions and grant him a new trial.
A. Summary of the Proceedings
An eight-count indictment filed on February 3, 1998, charged appellant with three counts of first degree child sexual abuse, three counts of second degree child sexual abuse, and one count each of carnal knowledge and taking indecent liberties with a minor child. The alleged victim of these offenses, which occurred between January 1994 and November 1997, was appellant's younger half-sister. The case was tried in July 1998, and the jury found appellant guilty on all counts. The trial court sentenced him to imprisonment for 33 years to life. Appellant noted an appeal.
In March 2002, while his direct appeal was still pending, appellant moved pursuant to D.C. Code § 23-110 (2001) to set aside his conviction on grounds of ineffective assistance of counsel. After holding an evidentiary hearing, the trial court denied the motion. Appellant's appeal from that denial was consolidated with his direct appeal.
On July 8, 2004, with one judge dissenting, a division of this Court rejected appellant's claims and affirmed his convictions in Cosio v. United States, 853 A.2d 166 (D.C. 2004) (Cosio I). Several months later, on February 3, 2005, the full Court granted appellant's petition for rehearing en banc and vacated the judgment of the division. Cosio v. United States, 867 A.2d 967 (D.C. 2005). The Court limited its grant of rehearing to the issue of ineffective assistance of trial counsel, requested full briefing, and invited the participation of amicus curiae counsel. Following the April 25, 2005, en banc argument, the Court requested supplemental briefing addressing the applicability of the June 20, 2005 decision of the United States Supreme Court in Rompilla v. Beard, 545 U.S. 374 (2005). The supplemental briefing was completed in August 2005.
The government's case against appellant rested chiefly on the testimony of the alleged victim, appellant's fifteen-year-old half-sister, A.A. (his mother also was her mother). According to A.A., appellant came to the United States from Peru to live with her family a few years after her father died. A.A., who was a little girl at the time, imagined that her new big brother would be "an angel," but she was disappointed. A.A. testified that appellant was mean and physically abusive to her and the other members of her family. "He would hit us and stuff" with his hand or a belt, A.A. stated, and he even would "push" his mother around. A.A.'s testimony about appellant's uncharged acts of violence was admitted to show why A.A. later failed to report appellant's sexual abuse of her. Long after appellant stopped beating A.A., the prosecutor told the jury in his opening statement, [A.A.] was still too scared of [appellant], too scared of what might happen. She had no idea what he might do. He had a short temper, he had beat her before, and she decided to just keep quiet about it.
A.A. testified that appellant began sexually molesting her in 1990, not long after he joined the household. She was only seven and he was eighteen years old. The first occasion, which took place at night in their small apartment while other family members were sleeping nearby, was very painful for A.A. As appellant held his hand over her mouth to prevent her from crying out, he fondled her and then put his penis in her vagina. It hurt "a lot," A.A. testified, and she was crying during the ordeal. A.A. did not report what happened because, she said, she was "afraid" of appellant. "If I went to my mom," A.A. explained, "I don't think she will believe me, and then after she will say something to [appellant] and then after he will like hit me or something like that."
Appellant continued to molest A.A. over the next several months, she testified, until she had the good fortune to leave home and go to a charitable boarding school in Virginia for disadvantaged children. The school was an eight hours' drive from the District of Columbia. For the next few years, A.A. remained at the boarding school, where she was happy and "tried not to think of" what appellant had done to her. She told no one at the school about it because she still was "too afraid."
Eventually, A.A., said, she "forgot all about it."
In 1993, however, a few months before her eleventh birthday, A.A. left the boarding school and returned home. The family then moved to a larger apartment, in which appellant had his own bedroom. At this time, A.A. testified, appellant resumed his sexual abuse of her, though he no longer beat her. Over the course of the next four years, according to A.A., appellant repeatedly compelled her to endure painful vaginal penetration and other acts of sexual molestation. He would call her into his room, and she would submit. During these incidents, A.A. testified, she cried and asked herself "why . . . the bad things [are] happening to me," but she told no one what she was going through because she was "too afraid" of appellant:
Q: Did you tell anybody that the sexual abuse had started again?
A: Afraid of him [appellant].
Q: What were you afraid he might do?
A: I don't know, go insane.
The turning point came in November 1997, when A.A. was in the ninth grade. As she explained, she had begun meeting with two volunteer tutors, young attorneys named Michael Ledesma and Roseanne Medina, who were husband and wife. Appellant was opposed to the arrangement. Objecting that A.A. was staying out too late, he would not let her leave the house in the evenings to attend the tutoring sessions. One afternoon, A.A. testified, she went to visit Ledesma at his home to discuss how she could continue to be tutored despite appellant's interference. When they could not find a suitable time to reschedule their meetings, A.A. broke down and tearfully confided that "Richard [appellant] was bothering with me, and just bothering me, touching me and stuff." This was the first time in over seven years that A.A. asserted to anyone that she was being sexually abused. When asked at trial why she "finally" told Ledesma, A.A. answered,
Because I didn't like what was going on in my life. I just -- I didn't like anything that was going on in my life. I always wished my life would be like one of my friends or anything. I didn't want it like that, I didn't want it to come true and stuff.
She decided to tell Ledesma, A.A. added, because he and his wife were lawyers, and she thought "they could try to find [her] help or something."
The police were called, and A.A. was taken to Children's Hospital. There she was examined by Dr. Beverly Lindsay, a pediatrician in the Division of Child Protection. Dr. Lindsay, who was qualified at trial as an expert in child sexual abuse, testified that A.A.'s hymen was "interrupted," i.e., a portion of the hymen was missing. In Dr. Lindsay's opinion, "something was introduced into her vagina that caused this complete transection of the hymen." Dr. Lindsay considered the hymenal injury to be strongly indicative of sexual abuse; however, when asked whether she could "rule out" other causes, she responded that "[t]he only thing I can say is [that] something entered into her vagina that was large enough that would cause hymenal cleaves and tears."
Dr. Lindsay further testified that child victims commonly do not report sexual abuse promptly because they have been threatened. As a "very typical" example, Dr. Lindsay described the case of an HIV positive child who steadfastly refused to admit that anyone had molested her until her relatives caught the girl's own father in the act. The girl had kept her father's abuse secret because he had threatened to kill her if she told on him. "Many times children are threatened, their parents are threatened if they make a disclosure, and this is quite typical," Dr. Lindsay concluded. She did not identify any other reasons why child sex abuse victims may keep silent about the abuse they endure.
The government's third and only other witness at trial was James Swiney, the president of the boarding school that A.A. had attended. Mr. Swiney, who had been appointed A.A.'s legal guardian, confirmed her attendance at the school and recalled appellant's visit there in June 1993 with his mother to pick A.A. up and take her home. Mr. Swiney also recollected that Michael Ledesma visited A.A. on three occasions, once with his wife, after she returned to the school in 1998.
In closing argument, the prosecutor emphasized A.A.'s fear of appellant and Dr. Lindsay's "threats" testimony to explain why it took so long before A.A. "finally found the courage to tell somebody." Addressing the period from 1990 to 1993 when A.A. was at boarding school, the prosecutor asked the jury,
Do you think she was wondering if she told it would get back to Mr. Cosio? Could she have any idea whether if he found out he could get his hands on her again?
As to the period from 1994 to 1997, when A.A. was living at home again, the prosecutor argued that Mr. Cosio still ran the show. . . . She was still scared of him. Her mother still agreed with everything he said. She felt she wasn't safe. . . . You can imagine the thoughts that were running through her mind, what will he do if he finds out? . . . How could she have known what he would do to her if she had told?
Furthermore, the prosecutor reminded the jury,
Dr. Lindsay told you that it is common in her practice and in the practice of child sexual abuse specialists to encounter kids who do not reveal child sexual abuse until long after it has begun. . . . And she told you some of the reasons. Children often don't feel safe. They are scared, particularly when the abuser is ...