Bowen v. Haney

Citation622 F.Supp.2d 516
Decision Date08 April 2008
Docket NumberCivil Action No. 3:07CV-375-H.
CourtUnited States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
PartiesWilliam Edgar BOWEN, Petitioner v. Steve HANEY, Warden, Respondent.

John K. Carter, LaGrange, KY, Samuel Manly, Louisville, KY, for Petitioner.

Gregory C. Fuchs, Kentucky Attorney General, Frankfort, KY, for Respondent.

MEMORANDUM OPINION AND ORDER.

JOHN G. HEYBURN, II, Chief District Judge.

Petitioner has objected to the Magistrate Judge's Findings of Fact, Conclusions of Law and Recommendations regarding his petition for writ of habeas corpus under 28 U.S.C. § 2254. The Magistrate Judge recommends that the petition be dismissed. The Court has review all of Petitioner's objections to the report.

The Magistrate Judge has written a thorough opinion summarizing all the evidence and considering every disputed factual and legal issue. The Court agrees completely with the overall scope and specific conclusions of that opinion.

The two most controversial issues appear to concern the admission of the taped statement by Petitioner and the trial court's refusal to grant a continuance due to the death of Petitioner's proposed expert. The taped statement certainly does contain relevant material. It is certainly relevant that Petitioner masturbated in the same room where the victim slept and possibly did so on the person of the victim. Finally, the Court finds no violation of the Constitution or a fundamental fairness by the manner in which the trial court handled the motion in limine to exclude Petitioner's expert. That proposed expert testimony would appear to have been an improper comment on Petitioner's guilt or innocence. This Court believes that the manner was properly analyzed by the Kentucky Supreme Court and the United States Magistrate Judge. Being otherwise sufficiently advised,

IT IS HEREBY ORDERED that the Magistrate Judge's Findings of Fact, Conclusions of Law and Recommendations are AFFIRMED and the petition is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Petitioner's request for certificate of appealability is DENIED.

This is a final and appealable order.

FINDINGS OF FACT CONCLUSIONS OF LAW AND RECOMMENDATION

DAVE WHALIN, United States Magistrate Judge.

INTRODUCTION

Petitioner William Edgar Bowen, Jr., is a Kentucky prisoner now serving a 20-year term of imprisonment at the Northpoint Training Center in Burgin, Kentucky. In 2003, a jury seated in circuit court of Bullitt County, Kentucky, convicted Bowen of sexual abuse in the first degree and sodomy in the first degree of a 12-year-old female, J.S., who claimed that Bowen sexually abused her in his home between 1992 and 1995.

Petitioner Bowen now challenges the constitutionality of his conviction on the grounds that: (1) the evidence offered at trial was constitutionally insufficient to establish his guilt; (2) his due process right to a fundamentally fair trial was denied by the improper admission of his pre-arrest taped statement; and (3) the trial court denied him his constitutional right to present a complete defense when it refused to grant him a continuance immediately prior to trial to obtain a replacement expert witness after his sole expert died unexpectedly.

Warden Steve Haney has filed a motion for summary judgment in which he argues that Petitioner Bowen's application for habeas corpus relief must be dismissed with prejudice because the decision of the Supreme Court of Kentucky that affirmed his conviction is neither contrary to nor an unreasonable application of any clearly established precedent of the U.S. Supreme Court. Petitioner Bowen has filed a response in opposition. The Court has fully reviewed the state court record and trial transcript. Based on its review, the Magistrate Judge recommends that the petition be dismissed with prejudice and that Petitioner Bowen be denied a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1).

FINDINGS OF FACT
I. Procedural History.

On April 30, 2002, a state grand jury seated in Bullitt County, Kentucky, returned a two-count indictment against Petitioner Bowen (Transcript of Record (Tr. Vol. 1, pp. 15-16)). Count 1 charged that Bowen committed the offense of sexual abuse in the first degree by engaging in sexual contact with J.S., a female less than 12 years of age, beginning on or about November 1992, and continuing through December of 1995. (Id.). Count 2 charged that Bowen committed the offense of sodomy in the first degree by engaging in deviant sexual intercourse with J.S. during the same three-year period. (Id.). Bowen entered a plea of not guilty at arraignment on May 20, 2002, and was released on bond pending trial. (Tr. Vol. 1, p. 44). Trial was set to commence on December 17, 2002. (Id. at 57).

a. Motions in Limine.

Prior to trial, Bowen moved to exclude all hearsay testimony concerning out-of-court statements made by the victim, J. S., to Kentucky State Police (KSP) Detective Jonathan Tapp, or to any other witness called by the Commonwealth. (Tr. Vol.1, p. 92). Bowen additionally sought to suppress from evidence an audiotape recorded interview he had given to KSP Detective Tapp at his home on April 2, 2002, because the tape was irrelevant, "nonconfessory," and unfairly prejudicial to the defense. Attached to the motion was a transcript of the tape recorded statement. (Tr. Vol.1, pp. 95-100). The transcript revealed that, after being advised of his Miranda rights, Petitioner Bowen acknowledged that it was possible that J.S. had witnessed him masturbating in the bedroom at his home. He also acknowledged that he kept some adult magazines in the bedroom. When asked during the recorded interview if it was possible that he went into the same bedroom to masturbate with the lights off while J.S. was napping in there, Bowen responded that such a situation was "very possible, very possible...." (Id. at 96). When asked if J.S. ever put her mouth on his penis, Bowen responded, "I wouldn't think so. No, just flat no. I can't see where that would be possible, even if I was sleeping." (Id. at 97).1

Faced with this motion, the trial court set a suppression hearing for November 22, 2002. (Tr. Vol. 1, p. 101). On the scheduled hearing date, Petitioner Bowen's counsel provided the court a memorandum in support of his motion in limine. (Tr. Vol. 1, pp. 138-149). The Commonwealth filed its own memorandum five days later. (Tr. Vol. 1, pp. 103-137). Counsel argued about whether the recorded statement was relevant under Kentucky Rule of Evidence (KRE) 401 and whether its probative value was substantially outweighed by the danger of undue prejudice so as to justify exclusion under KRE 403. The prosecutor's position was that the taped statement was highly relevant, and not unduly prejudicial, because the Defendant admitted that he masturbated in the bedroom, where the victim alleged that the offense occurred, admitted that the victim took naps in this bedroom, and that he may not have seen her there while he was masturbating. The prosecutor also pointed out that Petitioner Bowen's response to the detective's question concerning possible genital contact with the victim's mouth was initially equivocal.

Defense counsel maintained that the recorded statement, at most, showed merely a proclivity for masturbation. Whether the victim may have observed any such activity did not tend in any fashion to prove the charges against the Petitioner, which he denied in his taped statement. Even if the statement were relevant, defense counsel insisted that its minimal probative value was substantially outweighed by the danger of undue prejudice. The recorded statement, reasoned the defense, was inadmissible as other bad acts under KRE 404(b) to prove the character of the Petitioner, who was never advised prior to giving his recorded statement of the nature of the accusations or the time at which these alleged events supposedly occurred 7-9 years earlier.

On December 3, 2002, the trial court entered a brief order in which it rejected the Petitioner's argument that the probative value of his recorded statement was substantially outweighed by the danger of undue prejudice. (Tr. Vol. 2, p. 196). Immediately following this ruling, Petitioner's attorney moved the trial court to continue the scheduled trial date from December 17, 2002, due to the scheduled foot surgery of the Petitioner's sole expert witness, Dr. Richard Gardner, a licensed psychiatrist, who counsel characterized as being "an indispensable witness for Defendant." (Id. at 205). Attached to the motion to continue was the affidavit of Dr. Gardner, a Board certified child psychiatrist and medical college faculty member of Columbia University, who averred in his affidavit that based upon his interview with Petitioner Bowen, Bowen's spouse and his examination of the audiotape recorded statement, his opinion was that "It is highly unlikely that he [Petitioner Bowen] perpetrated the alleged pedophilic acts." (Id. at 209).

This defense motion resulted in a motion in limine by the prosecution to exclude the testimony of Dr. Gardner. (Tr. Vol. 2, pp. 219-264). Specifically, the prosecution moved the exclude any mental health professional, including Dr. Gardner, from testifying that the psychological profile of Petitioner Bowen was inconsistent with that of a sex offender or offering an opinion as to whether Bowen committed the charged acts in the indictment. The prosecution based its motion, in part, on the argument that the question of whether Petitioner Bowen committed the charged acts was a question of fact solely within the province of the jury and not a proper subject for expert testimony. The prosecutor further argued that the proffered expert opinion was neither relevant nor reliable. (Tr. Vol. 2, pp. 219-264).

Faced with this motion, the trial court ordered the parties to furnish it with additional authority on the question of...

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