Bell v. Smith

• Decision Date: 02 May 2000
• Docket Number: No. 98-7002,98-7002
• Citation: 236 F.3d 149
• Parties: (4th Cir. 2000) ERNEST SUTTON BELL, Petitioner-Appellant, v. MACK JARVIS; ROBERT SMITH, Respondents-Appellees. . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 149

236 F.3d 149 (4th Cir. 2000)

ERNEST SUTTON BELL, Petitioner-Appellant, v. MACK JARVIS; ROBERT SMITH, Respondents-Appellees.

No. 98-7002.

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: May 2, 2000.

Decided: December 29, 2000.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh.

Malcolm J. Howard, District Judge. (CA-97-232-5-H) [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] COUNSEL ARGUED: James Phillip Griffin, Jr., NORTH CAROLINA PRISONER LEGAL SERVICES, INC., Raleigh, North Carolina, for Appellant. Ellen Bradshaw Scouten, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Kathryn L. VandenBerg, NORTH CAROLINA PRISONER LEGAL SERVICES, INC., Raleigh, North Carolina, for Appellant. Michael F. Easley, Attorney General of North Carolina, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

Before WILKINSON, Chief Judge, WIDENER, MURNAGHAN,^* WILKINS, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ, TRAXLER, and KING, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Affirmed by published opinion. Judge Traxler wrote the majority opinion, in which Chief Judge Wilkinson and Judges Widener, Wilkins, Niemeyer, Luttig, Williams, and King joined. Judge Motz wrote a dissenting opinion, in which Judge Michael joined. Senior Judge Butzner wrote a dissenting opinion.

OPINION

TRAXLER, Circuit Judge:

Ernest Sutton Bell appeals the district court's decision denying his petition for writ of habeas corpus, see 28 U.S.C.A. § 2254 (West 1994 & Supp. 2000), in which he challenges his convictions in North Carolina state court of multiple counts of sexual misconduct, including rape, committed against his minor step-granddaughter.¹ We affirm.

I.

In January 1994, Bell was convicted by a jury in North Carolina of fifty-eight counts of sexual misconduct -comprised of eight counts of first degree rape, four counts of first degree sexual offense, nineteen counts of second degree rape, and twenty-seven counts of taking indecent liberties with a minor -all of which involved his step-granddaughter Wendy.² The offenses spanned a two-year period, beginning in March 1990, when Wendy was awakened on a Saturday morning by Bell who proceeded to rape her by vaginal and anal intercourse while she begged him to stop. Afterwards, Bell told Wendy that he would stop loving her if she told anyone what he had done. Wendy was twelve years old and in the sixth grade. Bell was fifty five years old, a family member and trusted adult figure in Wendy's life, known to her since birth.

The threat was effective. For the next two years, Bell, who lived nearby, sexually molested Wendy by vaginal and anal intercourse, oral sex, and other indecent sexual touchings once or twice each month in his home, while his wife was sleeping or at work, and approximately twice a week at Wendy's home, and in her bed, during her after-school hours. Wendy, too frightened to tell her parents about the abuse, began to withdraw from others and to sleep on the floor instead of in her bed. In addition, Wendy's schoolwork, already made difficult by a learning disability, began to deteriorate.

Evidence at trial revealed that, in addition to Wendy, Bell had sexually molested two other adolescent girls, both of whom lived nearby and were friends of Wendy. The first, Toni, testified that Bell had repeatedly molested her by vaginal and anal intercourse, over the course of approximately one year, and that Bell utilized threats of hurting her sister to keep Toni from telling anyone. Toni also testified that she was present at Bell's home on one occasion when he sexually molested Wendy. Locked outside of the house, Toni testified that she could hear Wendy's screams. Toni was eleven years old when the abuse began.

The third minor, Vicki, testified that while visiting Bell with Wendy in the fall of 1990, Bell touched her breasts, anus, and vagina through her clothing. At the time, Bell's wife was cooking dinner and Vicki, unsure of what had occurred, got up from the floor where she had been playing with a puppy and sat on the couch. The next day, Vicki asked Wendy if Bell had done anything like that to her, prompting Wendy to confide in her friend. At the time, Vicki was twelve years old. Afterwards, Wendy continued to confide in Vicki about Bell's actions, but Vicki kept silent. She also refused Wendy's requests that Vicki go with her to Bell's home. In May 1992, however, Vicki finally agreed to again accompany Wendy to Bell's home, hoping Bell would leave Wendy alone if Vicki was present. Instead, Bell turned his attention to Vicki. While Bell's wife and Wendy slept, Bell again touched Vicki in the same places, although this time he did so beneath her clothing. Vicki was able to temporarily avoid further assault, first by telling Bell she needed to go to the restroom, and later by the stirrings of Bell's sleeping wife. Undaunted, Bell repeated these actions the following day while swimming with Vicki and Wendy. Like her friends, Vicki continued her silence.

In fact, each of the girls kept quiet until June 1992, when Wendy and Vicki attended a slumber party together and saw a television show about rape and the sexual molestation of children. Vicki told Wendy that she "couldn't take it anymore, [and] was telling [her] parents the next day when [she] got home." J.A. 451. Wendy agreed to do the same. The following afternoon, Wendy told her mother and aunt about Bell's sexual abuse, and law enforcement officers were contacted. Shortly thereafter, Wendy was examined by a pediatrician who found physical evidence consistent with repeated sexual penetration.

The day before Bell's trial began, the state trial judge held a pretrial hearing to address several evidentiary issues, Bell's motion to sequester the minor witnesses, which was granted, and the state's motion to consolidate the charges involving Wendy with those involving Toni and Vicki, which was denied. The state had also moved to close the courtroom during the testimony of each girl, but at least as to Wendy. Bell objected to closure, on Sixth Amendment public trial grounds, but offered no alternative to the temporary closure request proposed by the state. The trial judge, noting that the testimony would be "of an apparent delicate nature," agreed that a temporary closure would be appropriate, but ruled that it would be carried out as discreetly as possible so as not to call it to the jury's attention. J.A. 281.

The next day, the courtroom was closed to the public during Wendy's testimony.³ At a minimum, however, the court reporter, court personnel, the jury, the prosecutor, Bell's attorney, and the family members and friends of the minor witnesses were allowed to remain.⁴ Also, the testimony was recorded as was standard, and was available for transcription to the public. Of the 700-plus-page trial transcript, spanning four days, approximately forty-four pages comprised the testimony of Wendy.

At the conclusion of Wendy's testimony, the courtroom was immediately reopened.⁵ At that time, the trial judge specifically asked whether Bell wanted his wife to return to the courtroom. Bell's counsel refused, indicating that they did not want her to return, after which the trial judge stressed that Bell was entitled to have anyone he wanted in the courtroom with him.⁶

Bell was ultimately convicted by the jury and sentenced to two life terms plus seventy years. On direct appeal, counsel selected four assignments of error to pursue in briefing. The convictions and sentence were affirmed on direct appeal. See State v. Bell, 453 S.E.2d 877 (N.C. App. 1995) (table).

Bell then filed a motion for appropriate relief ("MAR"), see N.C. Gen. Stat. § 15A-1415 (1999), in the Pitt County Superior Court, asserting that he received ineffective assistance of counsel on direct appeal, in violation of his Sixth Amendment right to counsel, because his appellate counsel did not pursue a claim that his Sixth Amendment right to a public trial was violated by the trial judge's closure of the courtroom during Wendy's testimony. The Superior Court denied Bell's MAR, and the North Carolina Court of Appeals denied his subsequent petition for certiorari.

Bell thereafter filed a petition for writ of habeas corpus, pursuant to 28 U.S.C.A. § 2254, in the federal district court, asserting as the sole claim that his counsel was ineffective for failing to raise the public trial claim on direct appeal. The district court, rejecting the magistrate judge's recommendation that Bell be granted either a new state appeal or trial, dismissed Bell's petition and, pursuant to 28 U.S.C.A. § 2253(c)(2) (West Supp. 2000), denied him a certificate of appeal ability. See Bell v. Jarvis, 7 F.Supp.2d 699 (E.D.N.C. 1998).

After this court granted Bell a certificate of appeal ability on the issue of whether he received ineffective assistance of counsel on direct appeal, a panel of the court reversed the district court's denial of habeas relief and remanded for the conditional issuance of the writ, holding that the state trial judge's closure of the courtroom violated Bell's Sixth Amendment right to a public trial and that Bell's counsel was constitutionally ineffective for failing to pursue the public trial claim on direct appeal to the North Carolina appellate court. See Bell v. Jarvis, 198 F.3d 432 (4th Cir. 1999) (vacated). A majority of the active circuit judges thereafter voted to hear the appeal en banc. Because we conclude that the state court's rejection of Bell's MAR was not an unreasonable adjudication of Bell's Sixth Amendment claims, see 28 U.S.C.A. § 2254(d), we now affirm the district court's decision to deny Bell's habeas petition.

II.

A.

We begin our analysis with the recognition, recently highlighted by the United States...