563 F.3d 222 (6th Cir. 2009), 08-1475, Hall v. Vasbinder

Docket Nº:08-1475.
Citation:563 F.3d 222
Party Name:Christopher HALL, Petitioner-Appellee, v. Doug VASBINDER, Warden, Respondent-Appellant.
Case Date:April 22, 2009
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 222

563 F.3d 222 (6th Cir. 2009)

Christopher HALL, Petitioner-Appellee,

v.

Doug VASBINDER, Warden, Respondent-Appellant.

No. 08-1475.

United States Court of Appeals, Sixth Circuit

April 22, 2009

Argued: March 5, 2009.

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ARGUED:

Debra M. Gagliardi, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant.

F. Randall Karfonta, Leland, Michigan, for Appellee.

ON BRIEF:

Debra M. Gagliardi, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant.

F. Randall Karfonta, Leland, Michigan, for Appellee.

Before: SILER, COOK, and McKEAGUE, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

Christopher Hall filed a petition for a writ of habeas corpus in connection with his state convictions. A Michigan jury convicted Hall of criminal sexual conduct against his daughter as well as obstruction of justice and conspiracy to obstruct justice. During the trial, both the prosecutor and defense counsel elicited testimony about Hall's silence during an earlier probate court proceeding and commented on Hall's silence during their respective closings. On habeas review, the district court concluded that the testimony and remarks of the prosecutor violated Hall's federal constitutional rights to due process and against self-incrimination. Moreover, defense counsel's failure to object to the testimony and remarks constituted ineffective assistance of trial counsel. The district court conditionally granted habeas relief to Hall. The Warden, Doug Vasbinder, now appeals.

For the reasons set forth below, we reverse.

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I

A. Hall's Trial

The charges against Hall arose out of an incident that occurred in August 1998. Hall's daughter, who was then 12-years old, testified that at the time, she lived with her father and step-mother (Dondrea Hall) in Charlotte, Michigan. She said that around August 15th of that year, she took a weekend trip to her grandparents' house in Kalkaska, Michigan, with her father, step-mother, sister, and best friend. On Saturday of that weekend, she suffered a slight accident on an all-terrain vehicle, and that night, while Hall and the children were watching television, her father gave her a back rub. She testified that Hall, her sister, and her friend were in the room with her watching television, while her step-grandmother, Janet Hall (Hall's step-mother), and Dondrea were in the dining room, a short distance away.

Hall's daughter testified that at some point during the back rub, Hall started massaging her breast, and continued to squeeze and rub her breast for four or five minutes. She testified that her step-grandmother told Hall to leave her alone and go to bed. She said that her father appeared to be drunk at the time. She testified that the next morning, she told Dondrea what had happened, and that Dondrea in turn talked to Hall. They drove back to Charlotte that day, and Hall told his daughter that he was sorry, that he would make sure it never happened again, and that he would never again drink all day. She took this to mean that he was apologizing for drinking, not for fondling her. Janet, Dondrea, Art Hall (Chris's father), and his daughter's friend all testified at trial that they did not see Hall massage his daughter's breast. Hall also testified that he did not intentionally massage his daughter's breast.

In December 1998, the family again went to Kalkaska, and when they returned, Hall's daughter told her birth mother, who lived in Kansas, what had happened back in August. Her mother instructed her to tell a school counselor, which she did. Subsequently, the daughter spoke to Det. Kellogg of the Michigan State Police and Marie Iott of the Family Independence Agency. The following day at school, while the daughter was waiting in a school office to talk with Iott again, Dondrea came in, said that the daughter had to leave for a doctor's appointment, and drove her home. Dondrea yelled at her and telephoned her father, who came home from work.

Hall's daughter, Dondrea, and Hall then drove to the office of Victoria Easterday, an attorney. The two adults waited in a conference room while the girl talked to Easterday privately about what had happened. When they returned to the conference room, Easterday informed Hall of the legal consequences if he were found guilty of criminal sexual conduct. Hall's daughter testified that Easterday told her that it would be a good idea for her to write a letter to Det. Kellogg to the effect that she made the whole thing up. She testified that she did not want her father to get into trouble and felt intimidated. She also said that later that evening at home, she wrote the letter as Dondrea watched her. Dondrea then took the letter and read it over the phone to Easterday. Afterward, Dondrea showed the letter to Hall. However, the daughter hid the letter under her mattress because she did not want it to be sent. Three drafts of the letter were admitted as an exhibit.

A hearing was held the next day in Eaton County Probate Court. Hall, Dondrea, and Hall's daughter all attended. Easterday represented Hall and a court-appointed attorney represented the girl.

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Det. Kellogg was the only witness who testified at the hearing. Following the hearing, Hall's daughter was temporarily placed in foster care and then permanently placed with her birth mother who lived in Kansas.1 Hall was subsequently arrested on February 18, 1999.

B. Matters Concerning the Probate Hearing

During the trial, the subject of who had the opportunity to testify and who did, in fact, testify at the probate hearing came up on multiple occasions. Given the centrality of this topic to Hall's habeas claims, following is a detailed account of the arguments and testimony about who testified at the probate hearing.

The prosecutor noted during his opening statement that Hall's daughter was removed from Hall's home as a result of the probate hearing. The prosecutor did not refer to who did or did not testify at the hearing. Immediately after the prosecutor finished, defense counsel 2 gave an opening statement. Counsel made it clear that one of the main defense themes was going to be governmental overreach. Specifically, defense counsel stated near the end of his opening statement:

[Hall] will testify that he was abruptly summoned to a [probate] court hearing. He went to a court hearing, and he was told, " The Court takes jurisdiction of not only your two children ..." -[the daughter], and her younger sister,.... Children of the mother in Kansas.-" ... but also takes jurisdiction of the child that you and Dondria have ..." ..." ... and place them under the jurisdiction of the court, and they're going into foster care." , and that's exactly what happened. They went into foster care. Dondria Hall left Chris. Subsequently, she filed for divorce.

What happens after that? He ends up filing a bankruptcy proceeding because he loses his house. Loses just about everything. And he would lose everything if it wasn't for this jury. And what caused that? Was that the child? Was it something that Chris did? Or, was it government? We contend it was government.

Trial Transcript (" TT" ) I 285-86. Hall's daughter was the prosecution's first witness. On direct, the prosecutor asked her if there was a court hearing about putting the children into foster care, and she testified that there was such a hearing. The prosecutor did not ask her who testified during the hearing. On cross-examination, the following colloquy occurred between defense counsel and Hall's daughter:

Q When you were there, did Dondrea s-say anything to this person that put you in Foster care?

A What do you mean?

Q Did-did she say anything from the witness stand, like this? A chair, with-

A No.

Q -a tape reco-no?

A No.

Q Did your father?

A Not that I-not that I remember.

Q So, you, and your younger sister, and your even younger sister were taken into foster care with no testimony.

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No-nothing spoken by you, or Dondrea, or your father.

A I didn't say anything. I don't remember if my dad did, or not.

TT II 56-57. On redirect, the prosecutor asked her whether she had an attorney at the hearing (she did) and whether her father was present and represented by Easterday (" yes" to both).

Iott confirmed on direct that Easterday represented Hall at the probate hearing. She also testified that Hall's attorney had an opportunity to question any witness and to contest the proceedings.

Det. Kellogg testified for the prosecution after Iott. During his direct testimony, the following colloquy took place:

Q Did you, yourself, testify at this hearing?

A I did. I believe I was the only one who did testify after the petition was read into the record.

Q Didn't Christopher Hall testify in that hearing about the custody of his daughter?

A No. He didn't.

Q Did the parties have an opportunity for anybody else to testify that wanted to?

A Yes. It wasn't done.

TT III 142. Defense counsel did not cross-examine Det. Kellogg.

Hall testified on his own behalf. On direct, his counsel asked him about the hearing. Hall testified that " It happened-...-fast. It was just shooo." TT III 258. Then, on cross-examination, the following exchange occurred between the prosecutor and Hall:

Q ... and I think we've heard [defense counsel] tell the jury that, basically, with almost no ifs, ands, or buts, the kids were just taken away from you. Why didn't you testify at that hearing, Mr. Hall?

A It went quick. Everything was just-there was a room full of attorneys, and a room not much bigger than that ... jury box, and we were all crammed in...

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