Culkin v. Purkett

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: Before BOWMAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and LOKEN; BOWMAN
• Citation: Culkin v. Purkett, 45 F.3d 1229 (8th Cir. 1995)
• Decision Date: 07 March 1995
• Docket Number: No. 94-2195,94-2195
• Parties: William CULKIN, Appellant, v. James D. PURKETT; Jeremiah Nixon, Attorney General, Appellees.

Page 1229

45 F.3d 1229

William CULKIN, Appellant, v. James D. PURKETT; Jeremiah Nixon, Attorney General, Appellees.

No. 94-2195.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 12, 1994.

Decided Jan. 26, 1995.

Rehearing Denied March 7, 1995.

Adam J. Sipple, Clayton, MO, for appellant.

Frank A. Jung, Jefferson City, MO, for appellee.

Before BOWMAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and LOKEN, Circuit Judge.

BOWMAN, Circuit Judge.

William Culkin appeals from the judgment of the District Court ¹ dismissing his petition for 28 U.S.C. Sec. 2254 (1988) habeas corpus relief. We affirm.

I.

In 1987, Culkin was convicted by a jury in a Missouri court of two counts of sodomy and one count of rape against his ten-year-old niece, and he was sentenced to two concurrent twelve-year terms on the sodomy convictions and a consecutive twelve-year term on the rape conviction. On direct appeal, the Missouri Court of Appeals in May 1989 affirmed the judgment of the trial court. Ten days later, the victim, B.J.B., signed an affidavit stating that she had lied in her trial testimony, and that Culkin was not the person who had assaulted her. B.J.B. neither denied that she had been sexually assaulted (indeed, there was medical evidence presented at trial that she had been sexually assaulted, both in the past and recently) nor did she name the perpetrator. The Missouri Court of Appeals, before acting on motions for rehearing or transfer, granted Culkin's motion for remand to the trial court for any necessary hearing on the alleged "newly discovered evidence." Upon remand Culkin moved for a new trial.

Between the time of the remand and the date of the hearing on Culkin's motion for a new trial, an investigator, acting at the direction of the county prosecutor, travelled to Kentucky, where B.J.B. and her mother, Sandra Rundles, lived. The investigator spoke with B.J.B. and her mother in a conversation (part of which was recorded) wherein Rundles admitted that B.J.B.'s affidavit, together with one that Rundles had signed supporting the recantation, were untrue and were an attempt to restore family harmony (Culkin's wife being Rundles's sister). The investigator warned Rundles and B.J.B. that, if B.J.B. were to testify under oath to the effect of the information in her affidavit, she could be charged with and prosecuted for perjury, a serious offense. He also explained that travel to St. Louis in order to testify would be required. Rundles apparently had believed that the affidavits would be sufficient for B.J.B. to recant her trial testimony.

Rundles and B.J.B. did travel to St. Louis for the hearing on Culkin's motion for a new trial. B.J.B. was called to testify, but before she did so the court advised her of the consequences of perjury and told her that he had a public defender standing by with whom she could consult if she wished. The exchange went as follows:

The court: [B.J.B.], I know that this whole proceeding has been very painful to you and I don't want to add to the burden that you're carrying but I have to advise you, it is my duty to advise you that there are penalties for perjury, even for juveniles.

Your decision in whether to testify in this matter or how to testify is your decision but I want to advise you that what you say is going to be taken down and could be used against you and if you want to consult with a lawyer before you testify, I've been advised by the Public Defender's Office that they will provide a lawyer for you to consult with if you wish. So are you, what's your desire?

B.J.B.: Would I need one?

The court: Well, that's something that I can't, I don't know whether you will need one, all I can tell you is that you have testified under oath at the trial in this case and you have now filed a paper, an affidavit indicating that you did not tell the truth at the trial and if you repeat that statement here today, the Circuit Attorney has the authority to seek to take proceedings against you in the Juvenile Division of this Court. So if you want to talk to a lawyer before you testify--

Ms. Rundles, why don't you come forward for a minute. I don't know if you have talked to your mother about testifying here today but, Ms. Rundles, have you and [B.J.B.] talked about whether she should consult a lawyer before she testifies?

Rundles: We have never thought about it.

The court: Well, do you want to consult with a lawyer before [B.J.B.] testifies?

Rundles: Do you feel you want to?

B.J.B.: I don't know.

The court: I want you both to understand that there is a risk and it's my duty to advise you that you do not have to say anything if you feel that it might incriminate you in any way, and perjury is a serious offense, even as a juvenile, Ms. Rundles, so Mr. Moss [the county prosecutor] has already advised you of the possible consequences.

Rundles: Yes.

The court: So do you want to talk to [B.J.B.] for a few minutes privately?

Rundles: How do you feel?

I believe she can do it. She'll be all right.

The court: [B.J.B.], do you want to go ahead without a lawyer?

B.J.B.: I guess.

The court: Well, if you're in any doubt then I think it would be desirable for you two to talk to a lawyer before you testify, [B.J.B.]. I'm not trying to scare you but it's, I have to protect your rights, so that's why I'm saying this, because I have a duty to protect you and to be sure that you're fairly treated but I can't be your lawyer so I think if you're in any doubt then I think perhaps you should consult with counsel.

Supplemental Transcript at 47-49.

The court recessed in order for B.J.B. and Rundles to consult with counsel. When they returned to open court, the public defender the court had appointed to represent B.J.B. advised the court on the record that, if B.J.B. were asked to testify about whether Culkin had committed the assaults for which he had been convicted, she would invoke her Fifth Amendment rights against self-incrimination and would not answer any questions concerning the matter. The court refused Culkin's efforts to compel B.J.B.'s testimony and denied the motion for a new trial. The judgment of the trial court was affirmed on appeal. State v. Culkin, 791 S.W.2d 803 (Mo.Ct.App.1990).

After exhausting his state court remedies, Culkin filed his Sec. 2254 petition in the District Court, it was dismissed, and he now appeals. On appeal Culkin raises four issues. In our review, we defer to the factual findings of the state court and presume them to be correct in the absence of any showing otherwise, see Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 849-50, 74 L.Ed.2d 646 (1983), and we "review the legal conclusions of the lower court de novo," McDowell v. Leapley, 984 F.2d 232, 233 (8th Cir.1993).

II.

Culkin first claims that the trial judge and the prosecuting attorney violated his rights under the Sixth Amendment (compulsory process) and the Fourteenth Amendment (due process), because their "threats and warnings concerning a perjury prosecution" served to "improperly interfere with or intimidate" B.J.B. at the hearing on the motion for a new trial. Brief of Appellant at 8. We consider with this issue Culkin's closely-related second contention on appeal: that the prosecutor's actions in "threatening, intimidating, and coercing [B.J.B.] to invoke her rights under the Fifth Amendment" amounted to prosecutorial misconduct resulting in violations of Culkin's Sixth and Fourteenth Amendment rights. Id. at 12. ² The upshot of Culkin's claims is that the allegedly improper actions of the court and the prosecutor caused B.J.B. to invoke her Fifth Amendment rights, which in turn violated his constitutional rights, and the court then compounded this error by refusing to compel B.J.B. to testify.

Culkin's theory would have us conclude that, because B.J.B. invoked her Fifth Amendment rights and refused to recant her earlier testimony, she must have been "intimidated" into doing so by the actions of the prosecutor and the court. But as Culkin himself states, B.J.B. "willingly travelled to St. Louis from Wickless, Kentucky prepared to testify," Brief of Appellant at 12, so it is apparent that nothing the prosecutor or his investigator said up to that point deterred B.J.B. from testifying. Only later, after her colloquy with the trial court and consultation with her appointed counsel, did B.J.B. decline to testify. In these circumstances, we cannot find any merit in Culkin's claim for habeas relief on the basis of asserted prosecutorial misconduct.

As for the court's role in "intimidating" B.J.B., we are equally unpersuaded by Culkin's argument. B.J.B., still a preadolescent girl, arrived at the hearing without an attorney to represent her. ³ After she took the stand, the court warned her of the consequences if she perjured herself, and properly so, especially considering that she arrived at the hearing, a minor, unrepresented by counsel, and prepared to testify contrary to testimony she already had given under oath (that is, prepared to open herself to perjury charges). As the transcript reveals, the judge took a decidedly non-threatening approach in warning her of the perils she faced. Cf. Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) (per curiam) (reversing petitioner's conviction where trial judge told defense witness that, if he lied under oath, the judge would "personally" see that the perjury case against the witness went to the grand jury, the witness would serve prison time for the perjury, and his parole status would be adversely affected). After informing B.J.B. that there are penalties for perjury, even for juveniles, the judge made it clear that the decision whether to testify at the hearing was B.J.B.'s to make, and that consulting with counsel would be desirable as a measure to assure that her rights would be protected. B.J.B.'s equivocal "I guess" response to the court's question about her wish to testify without consulting counsel (after her ...