Barbe v. McBride

• Decision Date: 07 April 2008
• Docket Number: No. 06-7550.,06-7550.
• Parties: Donald R. BARBE, Petitioner-Appellant, v. Thomas McBRIDE, Warden; Mount Olive Correctional Complex, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

521 F.3d 443

Donald R. BARBE, Petitioner-Appellant, v. Thomas McBRIDE, Warden; Mount Olive Correctional Complex, Respondents-Appellees.

No. 06-7550.

United States Court of Appeals, Fourth Circuit.

Argued December 4, 2007.

Decided April 7, 2008.

ARGUED: William Jacob Watkins, Jr., Womble, Carlyle, Sandridge & Rice, Greenville, South Carolina, for Appellant.

Robert David Goldberg, Assistant Attorney General, Office of the Attorney General of West Virginia, Charleston, West Virginia, for Appellees. ON BRIEF: Darrell V. McGraw, Jr., Attorney General, Charleston, West Virginia, for Appellees.

Before KING and SHEDD, Circuit Judges, and HENRY F. FLOYD, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed in part, vacated in part, and remanded by published opinion. Judge KING wrote the opinion, in which Judge SHEDD and Judge FLOYD joined.

OPINION

KING, Circuit Judge:

Donald R. Barbe, after unsuccessfully seeking habeas corpus relief under 28 U.S.C. § 2254 in the Northern District of West Virginia, appeals from the district court's September 2005 dismissal of his petition. Barbe was convicted in 1999 in the Circuit Court of Ohio County, West Virginia, of eight counts of incest, sexual assault, and sexual abuse by a custodian, for offenses involving his granddaughter (J.M.) and one other victim.¹ Barbe was subsequently denied state habeas corpus relief. In his federal habeas corpus petition, Barbe contended, inter alia, that (1) he was deprived of his Sixth Amendment right to the effective assistance of counsel in his state trial, and (2) his Sixth Amendment confrontation right was contravened when the state circuit court limited his cross-examination of a prosecution expert. The confrontation issue arose from the circuit court's application of West Virginia's rape shield law, and the circuit court's ruling precluded Barbe from examining the expert concerning J.M.'s sexual abuse by other men.²

Although the district court rejected Barbe's claims on these two issues, it granted him a certificate of appealability on each of them. As explained below, Barbe was not denied the effective assistance of counsel. His Sixth Amendment confrontation right was indisputably contravened, however, by the state circuit court's application of a per se rule restricting, cross-examination of the prosecution's expert under the state rape shield law — a ruling in conflict with what we term the "Rock-Lucas Principle" established by the Supreme Court of the United States. See Michigan v. Lucas, 500 U.S. 145, 151, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991) (recognizing that, rather than adopting per se rule for precluding evidence under rape shield statute, state courts must determine, on case-by-case basis, whether exclusionary rule "is `arbitrary or disproportionate' to the State's legitimate interests") (quoting Rock v. Arkansas, 483 U.S. 44, 56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)). Because the circuit court's Sixth Amendment error had a substantial and injurious effect on the jury's verdict as to the offenses involving J.M., we are constrained to deem him entitled to some habeas corpus relief. We therefore affirm in part, vacate in part, and remand for the issuance of a writ that is consistent herewith.

I.

A.

1.

On September 19, 1999, a grand jury in Ohio County, West Virginia, returned a seventeen-count indictment against Barbe. The indictment included multiple charges relating to three victims: involving victim J.M., three counts of sexual assault, three counts of incest, and three counts of sexual abuse by a custodian (Counts One through Nine); involving victim B.H., two counts of sexual assault (Counts Ten and Eleven); and, involving victim S.S., six counts of sexual abuse (Counts Twelve through Seventeen). At trial in the state circuit court in December 1999, J.M., who was then eighteen years old, testified that Barbe, her maternal grandfather, had sexually abused her "about a hundred times or more" when she was between the ages of four and twelve and residing with Barbe and other family members. J.A. 961.³ On cross-examination, J.M. admitted making a tape-recorded pretrial statement to her mother concerning the matter, in which she repudiated her earlier sexual abuse accusations against Barbe. She also admitted initiating a meeting with Barbe's defense counsel, during which she executed an affidavit swearing that Barbe had never sexually abused or inappropriately touched her. J.M. then asserted at trial that she was testifying truthfully to the jury about her sexual abuse by Barbe, and that she had said otherwise on tape and by affidavit in hopes of making the state criminal case "go away," because she did not want to have her "grandfather go to jail," her "family to hurt anymore," or for "them to blame [her] for what [Barbe] did to" her. Id. at 973.⁴

After J.M. testified, the prosecution called its expert, Ruth Ann Anderson, a licensed clinical counselor, for opinion evidence "in the area of counseling, specifically with regard to adults who have been sexually abused as children." J.A. 990. On direct examination, Anderson testified for the prosecution that she had met with J.M. eleven times over a five-month period and, in those meetings, J.M. had related "three separate incidents of [sexual] abuse" involving Barbe. Id. at 997-98. Based on symptoms J.M. exhibited at these meetings, Anderson opined that J.M. had in fact been sexually abused as a child because she fit the diagnostic criteria for post-traumatic stress disorder. In Anderson's view, J.M. "very strongly fit [] that criteria." Id. at 1002. The defense then sought to cross-examine Anderson about J.M's sexual abuse by men other than Barbe — abuse that might have caused her psychological profile. Before Anderson responded to the defense inquiry, the prosecution objected.

In the ensuing bench conference, the defense advised the state circuit court that it had been informed by Barbe that J.M. had previously accused two other men of sexually abusing her. The defense further advised the circuit court that there were witnesses available — in the hallway outside the courtroom — to testify, based on personal knowledge, about J.M.'s sexual abuse accusations against those men.⁵ The prosecution argued that the defense was precluded by West Virginia's rape shield law from questioning the prosecution's expert about J.M.'s alleged sexual abuse by other men. See W. Va.Code § 61-8B-11; W. Va. R. Evid. 404(a)(3).⁶ The prosecution relied in this regard on the legal principle established by State v. Quinn, 490 S.E.2d at 40 (concluding that, absent showing of falsity, alleged victim's statements about sexual abuse by others constitutes inadmissable evidence under rape shield law). The prosecution asserted that the sole exception to the Quinn principle could be satisfied only if Barbe first demonstrated a strong probability that J.M.'s sexual abuse accusations against other men were false.

In response, the defense acknowledged that it could not rely on the falsity exception to the Quinn principle, as it wanted to demonstrate that J.M. had in fact been sexually abused by other men. The defense sought to show that such abuse — and not abuse by Barbe — was the predicate for J.M.'s psychological profile. Accordingly, instead of relying on the falsity exception to the Quinn principle, the defense essentially argued for an additional exception to that principle, asserting that Quinn "never anticipated us being gagged while [an expert] says that a victim exhibits all the classic signs of being sexually abused." J.A. 1014. The defense also contended that Barbe would not be accorded a fair trial if he was precluded from presenting evidence of J.M.'s sexual abuse accusations against other men, as an alternative explanation for her psychological profile.⁷

Unpersuaded by the defense's contentions, the state circuit court ruled that the defense's proposed line of inquiry into J.M.'s sexual abuse accusations was barred by the West Virginia rape shield law (the "Rape Shield Ruling"). The circuit court made the Rape Shield Ruling on the premise that the defense had neither sought to prove, nor proven, that such accusations were false — as was necessary to rely on the falsity exception to the Quinn principle. In such circumstances, as the circuit court saw it, "the rape shield statute applies, period." J.A. 1014.⁸ As a result of the Rape Shield Ruling, the defense had to proceed with its cross-examination of the prosecution's expert without inquiring into the possibility that J.M.'s psychological profile was predicated on sexual abuse perpetrated by men other than Barbe.⁹

2.

The jury ultimately convicted Barbe of six offenses involving J.M. (Counts Two, Three, Five, Six, Eight, and Nine), plus both offenses involving B.H. (Counts Ten and Eleven). Barbe was acquitted on the three remaining charges involving J.M, and all she charges involving S.S. On January 31, 2000, the state circuit court sentenced Barbe, who was then sixty-six years old, to imprisonment for not less than 80 nor more than 190 years.¹⁰ On July 10, 2000, Barbe, through his trial counsel, filed a petition for a direct appeal to the Supreme Court of Appeals of West Virginia. In his petition, Barbe presented several contentions of error, including the contention that, by its Rape Shield Ruling, the circuit court misapplied the state rape shield law to prohibit the defense from raising J.M.'s sexual abuse accusations against other men during cross-examination of the prosecution's expert. On February 6, 2001, the supreme court summarily denied Barbe's petition for appeal, with two of the five justices of the court voting to grant the petition. See State v. Barbe, No. 001865 (W.Va. Feb. 6, 2001).¹¹

B.

Thereafter, Barbe filed a series of habeas corpus petitions and appeals in the state and federal courts. Throughout these proceedings, he has consistently and steadfastly asserted that the...