dissenting, with whom CARDINE, Justice, Retired, joins.
I respectfully dissent.
Several months before sexual assault charges were filed against Patrick R. McCoy (McCoy), he and his wife were involved in a bitter divorce and custody battle which involved the victim. During the pendency of the divorce and custody proceeding, McCoy’s wife took their daughter to a “touch therapist” associated with the Jehovah Witness church who offered the opinion that the daughter had been sexually abused. Shortly before a scheduled police interview regarding the alleged sexual assault, the victim watched a movie depicting sexual child abuse. The following day, the victim stated to police investigators that McCoy had sexually abused her. Charges were filed against McCoy and a jury trial was held.
Defense counsel was advised during pretrial proceedings that the State would call a number of witnesses, two of which were experts in the field of psychology. Defense counsel listed McCoy as his only witness. Defense counsel’s preparation of this case consisted of a few telephone conferences with his client and two or three office consultations. Relying upon his own knowledge of psychology obtained during undergraduate work in college and one brief conversation with a gynecologist, defense counsel sought no expert assistance in preparing McCoy’s defense. Defense counsel relied upon maternal coaching, recognized in psychology as “parental alienation syndrome,” as the cornerstone of his defense.
Defense counsel failed to call as a witness the counselor who was the first professional to interview the alleged victim concerning the allegations of sexual abuse. Had the counselor been called as a witness, her testimony would have revealed that the alleged victim’s testimony at trial was inconsistent with and far more incriminating than what was originally related to the counselor. Defense counsel was remiss in not calling this witness whose testimony would have directly contradicted that of the alleged victim.
Defense counsel utterly failed to investigate and evaluate McCoy’s case. Defense counsel declined to consult with any expert witness or seek professional assistance in evaluating the State’s expert witnesses. Defense counsel also failed to call any witness other than McCoy, whose fate was a foregone conclusion in the face of the case presented unopposed by the State. Defense counsel accepted a substantial retainer, and then rested without calling any witnesses in support of his theory.
I would reverse and remand based on ineffective assistance of counsel.