Franklin v. Henry

• Citation: 122 F.3d 1270
• Decision Date: 29 August 1997
• Docket Number: No. 96-16320,96-16320
• Parties: 97 Cal. Daily Op. Serv. 7017, 97 Daily Journal D.A.R. 11,327 Leon Richard FRANKLIN, Petitioner-Appellant, v. Ivalee HENRY, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1270

122 F.3d 1270

97 Cal. Daily Op. Serv. 7017, 97 Daily Journal

D.A.R. 11,327

Leon Richard FRANKLIN, Petitioner-Appellant, v. Ivalee HENRY, Warden, Respondent-Appellee.

No. 96-16320.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 11, 1997.

Decided Aug. 29, 1997.

Michael A. Kresser, Santa Clara, California, for petitioner-appellant.

George Williamson, Ronald A. Bass, Ronald S. Matthias, Richard Rochman, Attorney General's Office, San Francisco, California, for respondent-appellee.

Appeal from the United States District Court for the Northern District of California; James Ware, District Judge, Presiding. D.C. No. CV-95-20333-JW.

Before: JOHN T. NOONAN, Jr. and O'SCANNLAIN, Circuit Judges, and RHOADES, ^* District Judge.

Opinion by Judge NOONAN; Concurrence by Judge O'SCANNLAIN.

NOONAN, Circuit Judge:

Leon "Jamal" Franklin appeals the denial by the district court of his petition for habeas corpus after his conviction in the Santa Clara Superior Court of violation of California Penal Code §§ 288.5(a) and 1203.066(a)(8). Holding that Franklin was denied due process of law by the exclusion of evidence vital to his case, we reverse the district court.

PROCEEDINGS

Franklin was tried for the sexual abuse of Shayna, a child. The issues on appeal must be evaluated in the context of the evidence at trial, which was as follows:

In 1991, at the time of the incidents in question, Franklin was 46; married but separated from his wife for nine years; in a relationship with Joanne T., with whom he shared a residence in San Jose; and the father of two girls, the younger of whom, Nile, was a year older than five year old Shayna. He had done a variety of jobs, been one of the first blacks hired by Southern Bell, sold advertising space for Ebony, and managed the musical career of Willie T.; he had also written songs, several of which had won awards. He had known Shayna's mother Diane since 1978 when she was involved with Willie T.

In the spring of 1991 Franklin wanted to keep Nile in school in the San Jose area but did not want her at the residence with Joanne. Diane, with whom he had resumed Five months later, according to Diane, she overheard Shayna telling her brothers that she hated Jamal. Her mother asked her why; and upon further questioning Shayna said that Jamal had licked her "private" and made her lick his "private". Her mother called the police. When detective Greg Braze arrived, Shayna told him that Jamal had done something "gross" but said nothing further. The detective urged Diane to interview Shayna alone, and she did so for forty minutes. Shayna now amplified her accusations, indicating that the licking acts "had happened lots of times" [RT 539] and that Jamal had been "humping" her; Diane understood her to mean that Jamal had penetrated her vagina with his penis [RT 545].

contact, invited him and Nile to stay with her and her husband Steve and their three children, Steve, Sean and Shayna. Nile was seen as a playmate for Shayna. Franklin talked with Steve about a business venture. His stay lasted somewhat over four months, from April to August. It appears to have been an arrangement into which Franklin drifted. He was away on weekends, usually seeing Joanne. He babysat Steve, Sean and Shayna when their parents were at work and when the boys were not at school. He continued babysitting even after school ended for Nile and he took her to her mother in Los Angeles. Near the end of July, Steve, Diane's husband, went on a business trip to Japan, and Diane's father and stepmother visited Diane. They indicated their disapproval of Franklin. When Steve returned, there was an undercurrent of sexual tension, marked by Franklin's disavowal of any romantic interest in Diane but also by his reminder to her of his knowledge of her relations with Willie T. In the end Diane asked him to leave, and he did.

Shayna later was interviewed by Mary Ritter, a "physician assistant" at the Center for Child Protection at Santa Clara Valley Medical Center. Under Dr. David Kerns she did the medical evaluation of children alleged to have been sexually abused. In particular, she examined Shayna's hymen, the mucous membrane at the opening of the vagina which at her age would be "delicate and thin" [RT 652] and "very sensitive" [RT 653]. Ritter noted that Shayna's hymenal rib was "narrower than I would expect in a child her age." She also observed in conjunction with the narrowing, a "slight asymmetry of the hymenal tissue" [RT 658]. The significance of these signs was that they had "the appearance of a hymen that has been injured and has healed.... Injured by penetration." [RT 661].

Shayna had made no mention of Franklin's conduct while he was living as a guest in her home and acting on occasion as the baby sitter for her and her two older brothers, Sean and Steve. She made her accusations six months after he had left the area. To account for the absence of any contemporary objection by her, the prosecution introduced Sergeant Jeffrey Miller of the police force of the town of Los Gatos. Sergeant Miller was accepted as an expert on child abuse by virtue of his having investigated many cases of alleged abuse, having testified at eighteen to twenty trials, and having studied the work of Roland C. Summit, the inventor of "the Child Sexual Abuse Accommodation Syndrome," or CSAA. According to Sergeant Miller's testimony at trial, "what Summit does is Summit dispels a lot of myths of how we would think children would react and how we would expect them to react when they're confronted with a problem of molestation." [RT 804] The prosecution also submitted some expert medical testimony that Shayna's genitalia showed signs of physical abuse.

Diane, Steve and Shayna's two brothers testified that prior to her accusations she had never shown any hostility toward Jamal or manifested any anxiety in his presence. Her parents bathed her regularly and never noticed any swelling or redness in her vaginal area. A pediatrician who examined her for a bladder infection during the time in question saw no signs of sexual abuse. A psychiatrist, Dr. Lee Coleman, who had made study of the physical evidence of sexual abuse, found her hymen to be normal, i.e., not affected by penetration. A gynecologist, Dr. Jack Silveria, also found her hymen to be normal. The director of the Center for Child Protection at Santa Clara Valley Medical Center, Dr. David Kerns, who testified for the prosecution, conceded on cross that Shayna's hymen was in the upper range of normal. [RT 1424].

Franklin attempted to introduce as evidence his own testimony that Shayna in his presence told her two brothers that the previous night her mother had come into her room and "licked her private." The prosecutor vigorously objected that this evidence was inadmissible under California Evidence Code § 782, which excludes evidence reflecting the complaining witness's willingness to engage in sexual activity. The trial court agreed and instructed the defense that it could not introduce this evidence. For the same reason the trial court also excluded Franklin's statement to the police when first informed of the charges: "If I believed everything the kids said, [Diane] would be in jail herself."

The jury returned a verdict of guilty. Franklin was sentenced to sixteen years' imprisonment. The trial court denied a motion for a new trial. Franklin appealed. The California Court of Appeal for the Sixth District ruled that the trial court had erred in excluding the evidence as to Shayna's accusation of her mother. People v. Franklin, 25 Cal.App.4th 328, 30 Cal.Rptr.2d 376 (1994). The court ruled:

In the instant case, if the trier of fact found it true that Shayna falsely stated that her mother sexually molested her, this statement would be relevant to the trier of fact's determination of her credibility on defendant's culpability. The evidence should have been admitted.

The court of appeal had then to determine whether the error "resulted in a miscarriage of justice." Cal. Evid.Code § 354. The court observed:

The record shows that the battle for introduction of this evidence was hard-fought. The trial was basically a credibility contest between Shayna and defendant. The physical evidence was ambiguous. Shayna's emotional state during and after the period of alleged molestation was apparently normal. Changes in Shayna's behavior did not begin until after she disclosed the misconduct to her mother. Shayna as well as her brothers missed defendant and appeared happy to see him after he moved out. The evidence was undisputed that Shayna falsely but sincerely believed that she saw her mother and defendant kissing.

In addition, there was evidence to show that the content of Shayna's testimony was influenced by Shayna's observation of her mother's reaction to her testimony. Diane, who had been molested herself and who was extremely upset by Shayna's disclosures, testified that she believed Shayna altered some of her testimony at preliminary hearing when she saw her mother's reactions. Diane explained that she was present in the courtroom as a "support person" for Shayna. (Pen.Code § 868.8). She "almost fell apart" watching Shayna using dolls from her bedroom at the preliminary hearing to illustrate what had happened to her. In answer to a question, Shayna stated that it did not hurt when defendant "humped" her.

Diane testified, "whenever Shayna is responding to what happened to her, if she sees me upset or crying or sees that I'm hurting, she stops and she says, no, it didn't. It didn't hurt. So that's what I think has happened."

Nevertheless, the exclusion of the evidence of Shayna's false belief did not result in a miscarriage of justice. The function of the excluded testimony was to impeach the complaining witness's credibility. Ample evidence for this purpose was placed before the jury; it heard evidence of the complaining witness's dream about her mother and de...