ORTRIE D. SMITH, Senior District Judge.
Pending is a Petition for Writ of Habeas Corpus filed by Clifton Gabaree pursuant to 28 U.S.C. § 2254. For the following reasons, the motion (Doc. # 1) is granted in part and denied in part. Furthermore, to the extent the motion is denied, the Court grants in part a Certificate of Appealability.
Petitioner was convicted in Missouri state court on three counts of statutory sodomy in the first degree, three counts of child molestation in the first degree, and six counts of child abuse. He was first convicted in 1998 and the convictions were affirmed on direct appeal. The state trial court granted Petitioner's motion for postconviction relief after concluding his trial counsel provided ineffective assistance in failing to lay the foundation for certain impeachment of the victims, thereby forfeiting the ability to conduct the impeachment in question. Petitioner's second trial took place in March 2003; he was again convicted on all twelve counts and his conviction was affirmed on direct appeal.
The factual background to this matter was summarized by the Missouri Court of Appeal in its 2009 decision:
290 S.W.3d at 177-78. As noted earlier, Petitioner was convicted on all twelve counts and the convictions were affirmed. However, the trial court granted Petitioner's postconviction motion after concluding trial counsel was ineffective for failing to lay the foundation necessary to permit eliciting Young's testimony. In assessing the effect of trial counsel's error, the trial court observed "[t]he State's evidence in the criminal case was not overwhelming. The girls' live testimony differed from their videotaped statements. The length of the deliberations and the questions the jury asked suggests they were not easily convinced of the Movant's guilt."
The issues the Court deems most crucial — and the issues that justify granting the writ — relate to the testimony of Dr. Kelly and Dr. Sisk. Therefore, further details about their testimony are set forth here.
Dr. Kelly examined B.S., A.S. and M.G. in May 1996. T.Tr. at 390.
As noted by the Missouri Court of Appeals (and as reflected in the trial transcript) Dr. Kelly then testified about the results of the SAFE exam conducted by Dr. Barbara Allphin nine months later — after the reports of sexual abuse were made. As noted, Dr. Kelly did not examine or otherwise interact with the girls on this occasion. Nonetheless, Dr. Kelly was permitted to testify about Dr. Allphin's findings that there were no significant injuries in the girls' genital or anal areas, but that such findings were not surprising given the passage of time and the capacity of the body to heal. T.Tr. at 420, 424-25, 426. Near the end of Dr. Kelly's direct testimony, however, the following exchange occurred:
T.Tr. at 425-26.
Dr. Sisk interviewed Petitioner on a referral from DFS in August 1996. T.Tr. at 545. This interview occurred before the reports of sexual abuse occurred, and there is no indication Dr. Sisk interviewed Petitioner thereafter. In his testimony, Dr. Sisk explained that he administered psychological tests he described as indicating "whether or not they have beliefs that would underlie abuse or neglect. So that it gives scores in four areas, in particular, that I think a parent has beliefs that would lead to abuse or neglect." T.Tr. at 552. He then summarized Petitioner's results as "saying he holds beliefs that have a potential there to lead to physical abuse or neglective care" because of results on a test that "measures how much a parent believes that the children are supposed to take care of them."
T.Tr. at 554 (emphasis supplied).
Instead of objecting to any of this testimony regarding Petitioner's propensity to abuse children, Petitioner's trial counsel attempted to repair the damage during cross examination. The effort failed, as it resulted in more evidence about Petitioner's propensity and Dr. Sisk's conclusion that Petitioner probably abused the children:
T.Tr. at 557-58 (emphasis supplied).
The prosecution relied on the aforementioned testimony in closing. In the first part of closing, the prosecutor reminded the jury that Dr. Sisk "told you about the defendant's propensity toward violence, he broke a wall, broke his knuckle into the wall. He blamed others constantly. He had blurred boundaries, would use children to satisfy his own needs, including sexual needs." T.Tr. at 731 (emphasis supplied). In the rebuttal portion of the closing, the prosecutor argued as follows:
T.Tr. at 746.
During her closing argument, Petitioner's trial counsel did not mention Dr. Kelly or Dr. Sisk by name, nor did she address (1) their opinions about the victims' veracity or the Petitioner's propensity to commit crimes (2) the prosecutor's arguments regarding that testimony. T.Tr. at 733-42.
As noted earlier, Petitioner was convicted on all twelve counts. He was sentenced to life imprisonment on each sodomy count, seven years imprisonment on each molestation count, seven years on four of the child abuse counts, and five years on two of the child abuse counts. The sentences were to be served concurrently.
On direct appeal Petitioner's first two arguments contended the trial court erred in failing to sua sponte exclude (1) the testimony of Dr. Sisk for testifying Petitioner had a propensity for physically and sexually abusing children and (2) the testimony of Dr. Kelly for testifying that he found the victims' reports to be credible. The memorandum accompanying the Missouri Court of Appeals' affirmance explains that the issues were not preserved for review because Petitioner's attorney did not object, and the court declined to engage in plain error review. Respondent's Supplemental Exhibit 5.
Petitioner raised four issues in his state postconvicton proceeding, all of which asserted trial counsel provided ineffective assistance. The grounds were: (1) counsel failed to object and request a mistrial in response to Dr. Kelly's testimony, (2) counsel failed to object and request a mistrial in response to Dr. Sisk's testimony about Petitioner's propensity to physically and sexually abuse children, (3) counsel failed to request a mistrial when Dr. Sisk testified about Petitioner breaking a knuckle when he punched a wall during an argument with the victims' mother, and (4) counsel failed to impeach B.S. with her prior trial testimony and deposition testimony. As noted earlier, these claims were initially rejected without a hearing, but that decision was reversed after the Missouri Court of Appeals held that a hearing was required. Petitioner's arguments were rejected after a hearing, and the denial of postconviction relief was affirmed on appeal. Grounds (1), (2), and (4) are the only issues raised in this proceeding.
Petitioner's trial attorney testified that she did not remember anything about this case. In addition to the passage of time — the trial occurred in March 2003, nearly seven years before the postconviction hearing — counsel explained that she had three or four cases similar to this one around the same time period, and two of them (this one and one other) were pending in front of the same judge. In the intervening years, counsel has maintained a regular open caseload of approximately 150 cases, and has had numerous cases with similar fact patterns and charges. Consequently, she found it difficult to remember the details of this particular trial. P.Tr. at 12-13, 16.
During the hearing counsel was asked about Dr. Kelly's testimony. She testified she had no independent recollection of anything untoward about his testimony. P.Tr. at 20.
On cross-examination, counsel talked generally about her approach to making objections. She agreed that sometimes objecting draws more attention to the objectionable testimony than the testimony itself and that sometimes "it's easier to let it go than to make a big deal and make the jury obvious [sic] that this is a problem. However, as a general rule, if it's something that is, if it is something that is really bad, I would try to object, assuming that I did actually hear it said and caught it. I am human sometimes, I don't." P.Tr. at 41-42. Counsel was then shown Dr. Kelly's testimony from page 426 of the trial transcript and — after again disclaiming any memory of the exchange — characterized his answer as non-responsive. She found this significant because this meant (1) she may have not heard the answer or (2) might have consciously opted not to object because moving to strike the answer would have called more attention to it. P.Tr. at 43-45. Finally, trial counsel was shown Dr. Sisk's testimony from pages 552 and 553 (but apparently not page 554, which contained his ultimate conclusion that Petitioner held "parenting beliefs that contributed to abuse and neglect"). P.Tr. at 45. Trial counsel then explained that she did not view it as suggesting Petitioner had a propensity to commit child abuse, did not see anything problematic about his testimony, and characterized it as simply opining that Petitioner needed parenting classes. P.Tr. at 47-48. And, as with Dr. Kelly's testimony, counsel expressed concern that objecting would have been ineffective because it would have required asking the judge to strike the testimony, thereby calling the jury's attention to it. In such a case, she might elect to deal with the testimony during closing argument. P.Tr. at 49.
The Missouri Court of Appeals affirmed the trial court's denial of postconviction relief in a per curiam order. Accompanying the Order is a Memorandum Supplementing Order Affirming Judgment issued pursuant to Missouri Rule 84.16(b). With respect to Dr. Kelly's testimony, the court concluded "Missouri strictly prohibits expert evidence on witness credibility as this would invade the province of the jury. Dr. Kelly's testimony clearly improperly bolstered the credibility of the children and, upon timely objection, would have warranted exclusion from evidence at trial." Memorandum at 7 (internal quotations and citations omitted). "Dr. Sisk's testimony about [Petitioner's] beliefs constituted propensity evidence, it was not admissible[,] and would have merited exclusion from evidence upon a timely objection."
Memorandum at 9-10.
In addition to the issues raised regarding Dr. Kelly and Dr. Sisk, Petitioner alleges trial counsel was ineffective in failing to impeach B.S. with testimony from the first trial. In this regard, the trial transcript reflects that trial counsel impeached B.S. with numerous contradictions in her statements. In some instances the point was made during cross-examination of B.S., while in others the point was made in questions posed to other witnesses the highlighted the differences in B.S.'s accounts. The differences in these accounts formed the theme for the closing argument.
During the hearing on the postconviction motion, Petitioner's trial counsel explained determining which material used to impeach a witness depends on the circumstances. In particular, if the prior statement is worse than the testimony offered at trial, she views downside risk as greater than any potential benefit. P.Tr. at 29-30. Counsel also testified there is an additional risk when dealing with child victims because she does not want to appear to be "beating up on a little kid." P. Tr. at 33. When shown specific passages from the first trial, counsel characterized B.S.'s testimony as largely consistent with the testimony from the second trial and in some ways worse, and further explained that any differences were too easily explained based on the passage of time and B.S.'s improved command of language because she was five years older. P. Tr. at 36-37; 51-54.
In affirming the denial of postconviction relief on this ground, the Missouri Court of Appeals noted that decisions regarding whether and how to cross-examine (and impeach) a witness are matters of trial strategy. Relying on counsel's testimony summarized above, the court found counsel's actions did not constitute deficient performance. Memorandum at 10-11.
Pursuant to the Antiterrorism and Effective Death Penalty Act (AAEDPA"), a writ of habeas corpus shall not be issued on a claim litigated on the merits in state court unless the state court's decision
28 U.S.C. § 2254(d). The "contrary to" and "unreasonable application" provisions in the first subsection have independent meaning. The "contrary to" provision applies "if the state court arrive at a conclusion opposite to that reached by the Supreme Court on a question of law, or reached a decision contrary to Supreme Court precedent when confronting facts that were materially indistinguishable."
A claim of ineffective assistance of counsel is governed by the standard set forth in
The Missouri Court of Appeals correctly identified the governing legal standard. However, after reviewing the Record, the undersigned concludes the Missouri Court of Appeals' decision suffers from both an unreasonable application of
At the outset, the Court notes an understandable difficulty with the Record: trial counsel did not remember the trial, and therefore could not state what strategy she had in mind (if any) when she failed to object to the testimony. This difficulty certainly does not mandate granting the writ. Certain trial strategies are understandable, common and readily apparent in a given circumstance. However, even if one accepts the strategies ascribed to counsel by the Missouri Court of Appeals, those strategies are plainly invalid under the circumstances of this case. In this regard, the Court notes that it is not enough for an attorney to "have a strategy." While case law establishes that a strategy choice by counsel is virtually unchallengeable, that strategy choice has to be valid.
Thus, the law is clear: an attorney can have a sincerely-held, well-planned strategy that is so far beyond the objective standard of reasonableness — or, in other words, is so invalid — that the performance prong is violated. In this case, the state court reached an unreasonable conclusion when it found counsel's strategy was valid.
With respect to Dr. Kelly, the possibility that counsel did not hear the inadmissible testimony cannot pass the performance prong. It is doubtful that counsel had a strategy of not listening to answers, but even if she did such a strategy is patently unreasonable. The only possible strategy offered for not objecting was a desire to not call attention to the inadmissible testimony. Certainly, there are instances in which an attorney might reasonably opt not to object in order to refrain from calling attention to a piece of evidence — but this rationale makes no sense in this context. A desire to not highlight improper evidence cannot be a magic talisman that insulates all decisions to refrain from objecting, and a contrary decision would permit any attorney to sit idly and allow a parade of inadmissible evidence to be presented, all in the name of preferring not to highlight it. Some impermissible evidence is of such a nature that, given the case, it cannot be reasonable strategy to do nothing.
1. There was no medical evidence supporting the children's account of sexual molestation or sodomy.
2. There were no eyewitnesses except the children themselves.
3. A second trial had been ordered based on prior counsel's errors precisely
4. The victims had provided conflicting and inconsistent accounts.
It is in this context that counsel purportedly chose not to object. The choice was made to allow in testimony from an expert telling the jury that, based on his expertise, the children were believable — instead of objecting and having the jury be told to disregard this highly improper evidence. If this was counsel's strategy, the Court cannot fathom how it can be deemed "reasonable" or "valid," because it allowed inadmissible testimony to tilt the balance on the central issue in the case and allowed the State (as it did) to invite the jury to believe the victims because experts found them to be credible.
The preceding discussion applies with even greater force with respect to Dr. Sisk's testimony. The Missouri Court of Appeals credited counsel's testimony that she would not have wanted the jury to know there had been a prior trial. Accepting for the sake of argument that this is a valid trial strategy, it serves no purpose here because counsel could have objected to Dr. Sisk's testimony that Petitioner had a propensity for abusing children without mentioning the prior trial. The court then credited Counsel's testimony that she did not view the testimony as inadmissible and was only indicating Petitioner needed parenting classes and would have been something she chose to address in closing. There are two problems with this reasoning. First, the Court does not understand how someone could have heard the entirety of Dr. Sisk's testimony and thought it only meant to suggest Petitioner was a bad parent. Certainly, counsel's cross-examination demonstrates a different understanding. More telling is the fact that even when presented with the transcript during the postconviction hearing counsel still did not believe Dr. Sisk's testimony was inadmissible. This is in stark contrast with the Missouri Court of Appeals' quick and ready assessment that the testimony was inadmissible. Finally, even if counsel's belief that Dr. Sisk's testimony was benign and admissible were reasonable, she did not employ the strategy she indicated she would have utilized because she did not address Dr. Sisk's testimony in closing. Finally, the desire to refrain from highlighting the testimony was unreasonable for all the reasons mentioned with respect to Dr. Kelly. In fact, it is arguably more unreasonable given that the bulk of Dr. Sisk's testimony (on both direct and cross) expressed his opinions that
1. Petitioner had views/beliefs indicating a propensity for abusing children
2. The only people with such views/beliefs that do not abuse children are those who are not parents of children
3. People presumptively act on these views/beliefs
4. Petitioner probably acted on these beliefs.
As explained by the Missouri Court of Appeals, such evidence is inadmissible precisely because it invites the jury to make a decision based on irrelevant factors. It is an invitation to convict the defendant because of his propensity to commit crimes and not because he actually committed the crime. Memorandum at 9. Allowing this evidence into this trial out of a fear of "highlighting by objecting" was a patently unreasonable trial strategy.
Neither the state trial court or appellate court addressed
As noted earlier, a defendant suffers prejudice from an attorney's deficient performance if there is a reasonable probability the outcome would have been different. After evaluating the deficiencies outlined above in the context of the entire Record, the Court concludes there is a reasonable probability the outcome of the trial would have been different with respect to the sodomy and child molestation counts. This conclusion is supported by facts mentioned in other contexts, including (1) the absence of medical evidence, (2) the absence of independent eyewitnesses, (3) the conflicts in the victims' testimony, (4) the state trial court's 2002 indication that the evidence of guilt was "not overwhelming," (5) the connection between the legal reasons why the evidence was inadmissible and the weaknesses in the state's case, and how the inadmissible evidence shored up those weaknesses, and (6) the fact that the prosecution specifically argued to the jury that it should rely on the inadmissible evidence to find that the victims were credible and that Petitioner acted on his propensities.
The Court does not believe counsel's deficient conduct prejudiced Petitioner with respect to the six child abuse counts. In contrast to the sodomy and molestation counts, there were observable signs of abuse. DFS workers saw marks left by belts and belt buckles and the aftereffects of burns. Expert testimony confirmed that these marks were consistent with belts and belt buckles and were not the product of accidental injury. Expert testimony also confirmed that other injuries were burns: some bore the tell-tale sign of being from a cigarette, and others were of the sort caused by exposure to an open flame (such as a cigarette lighter). An independent eyewitness — Petitioner's mother — reported observing Petitioner whipping the children and expressed concern. The victims' mother described observing Petitioner bending the children over his lap or a chair and whipping them with a belt. The victims' accounts of this non-sexual abuse were rather consistent. Petitioner testified that he used a belt to discipline the children (although he denied doing so as frequently or with as much force as other witnesses described). For these reasons, the Court holds counsel's failure to object to Dr. Kelly's and Dr. Sisk's impermissible expert conclusions did not have a reasonable probability of affecting the outcome on the six counts of child abuse.
The Missouri Court of Appeals' concluded that trial counsel's decision regarding how to impeach B.S. constituted the exercise of reasonable trial strategy. The Court concludes the state court's application of
Respondent does not require a Certificate of Appealability to appeal the Court's decision. Petitioner does, however, and 28 U.S.C. § 2253(c)(2) provides that a Certificate of Appealability should be granted "only if the applicant has made a substantial showing of the denial of a constitutional right." This requires Petitioner to demonstrate "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further."
The Court denies a Certificate of Appealability insofar as the decision in Part II.A is adverse to Petitioner; namely, the conclusion that counsel's errors regarding Dr. Kelly's and Dr. Sisk's testimony did not prejudice Petitioner with respect to the child abuse counts. While counsel's performance violated
The Court also declines to issue a Certificate of Appealability with respect to Part II.B. The Court does not believe reasonable jurists would conclude that the Missouri Court of Appeals' decision regarding counsel's impeachment of B.S. was a reasonable application of
The Court grants in part and denies in part the Petition for Writ of Habeas Corpus. Specifically,
1. Counsel provided ineffective assistance in failing to object to Dr. Kelly's and Dr. Sisk's testimony, which prejudiced Petitioner with respect to the sodomy and child molestation counts.
2. Counsel's deficiencies regarding Dr. Kelly and Dr. Sisk did not prejudice Petitioner with respect to the child abuse counts, but Petitioner is granted a Certificate of Appealability on this issue.
3. Counsel did not provide ineffective assistance of counsel with respect to the impeachment of B.S., and Petitioner is not granted a Certificate of Appealability on this issue.
4. The State of Missouri shall have seventy days from the date this Order becomes final to retry Petitioner on the sodomy and child molestation counts.
IT IS SO ORDERED.
