Davis v. U.S., 88-1780

• Decision Date: 30 December 1988
• Docket Number: No. 88-1780,88-1780
• Citation: 865 F.2d 164
• Parties: 27 Fed. R. Evid. Serv. 392 Kenneth Huie DAVIS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 164

865 F.2d 164

27 Fed. R. Evid. Serv. 392

Kenneth Huie DAVIS, Appellant, v. UNITED STATES of America, Appellee.

No. 88-1780.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 18, 1988.

Decided Dec. 30, 1988.

Q. Byrum Hurst, Jr., Hot Springs, Ark., for appellant.

Deborah J. Groom, Asst. U.S. Atty., Fort Smith, Ark., for appellee.

Before McMILLIAN and BOWMAN, Circuit Judges, and HENLEY, Senior Circuit Judge.

HENLEY, Senior Circuit Judge.

Kenneth Huie Davis was convicted of raping Mary Cammack Hanks in Hot Springs National Park. On direct appeal, his conviction was affirmed by this court in United States v. Davis, 785 F.2d 610 (8th Cir.1986). Davis has petitioned for habeas relief, 28 U.S.C. Sec. 2255, claiming that his counsel was ineffective for not discovering that the report of the doctor who examined Hanks indicated a positive gonorrhea culture. He also claims that the magistrate and district court erred in relying on the testimony of a public health official, and that the district court erred in considering evidence of juror bias in the second mistrial. The district court ¹ denied the petition for habeas corpus, and defendant appeals. We affirm.

The doctor's report, which was entered into evidence at trial by stipulation, indicated that the victim did not behave like a typical rape victim, and that there was no evidence of physical trauma. The medical report also indicated a "positive Nissera culture." "Nissera" is a misspelling of "neisseria." The physician who wrote the report, Dr. Gibson Dan Kimberlin, testified at the evidentiary hearing on the habeas petition that the term was used to denote neisseria gonorrhoeae, the organism that causes gonorrhea.

On his direct appeal, Davis contended that the government should have informed the defense that the victim had gonorrhea, but this court held that the meaning of the word "neisseria" was easily discoverable, and that counsel's failure to discover it was due to failure to prepare and investigate thoroughly. 785 F.2d at 618. Davis claims his counsel was ineffective in failing to discover that the medical report indicated that Hanks had gonorrhea.

In order to establish that he is entitled to relief on ineffective assistance grounds, Davis must establish, first, that counsel's performance was deficient, and second, that he was prejudiced by counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). In this case, we need not determine whether the first prong of Strickland is satisfied, as we find that Davis was not prejudiced by counsel's asserted error. Id. at 697, 104 S.Ct. at 2069 (object of ineffective assistance claim is not to grade counsel's performance; "If it is easier to dispose of an ineffective assistance claim on the ground of lack of sufficient prejudice ... that course should be followed"); United States v. Lee, 782 F.2d 133, 135 (8th Cir.1986).

In order for the appellant to prevail, he must affirmatively prove prejudice. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068. Thus, the relevant inquiry is whether a reasonable probability exists that the factfinder would have entertained a reasonable doubt as to the defendant's guilt in the absence of counsel's errors. Id. at 695, 104 S.Ct. at 2068. We are to consider the evidence in its totality, accepting the factual findings unaffected by error as a given and taking into account the effect of the errors on the remaining findings. Id. at 695-96, 104 S.Ct. at 2068-69. We must examine the error in light of the strength of the prosecution's case; if the government's case is strong and would not have been substantially weaker had the error not occurred, then prejudice did not result. Walker v. Lockhart, 807 F.2d 136, 140 (8th Cir.1986).

Here, the government's case against Davis may fairly be characterized as strong. Davis claimed he did not rape Hanks and in fact had never seen her before the charge. However, the victim's testimony was corroborated by several items of physical evidence. She testified that the appellant had picked her up while she was hitchhiking, and that he drove her into the park where he initially turned onto a dirt berm. At some point he backed up, throwing gravel. National Park Service Rangers later observed an area where gravel had been thrown from the berm. Hanks testified that Davis had grabbed a pocketknife from her hand and had thrown it into the woods; the pocketknife was later found at the scene. A tampon was also found, which was consistent with the victim's testimony. Hanks was able to give the police the license number of Davis's truck. A pubic hair was found in the cab of the truck, where the rape occurred; it was similar to the defendant's. Semen was present in the vaginal washings taken from the victim at the hospital, and was present on the underwear taken from the defendant some few hours after the rape allegedly occurred. While the doctor's report indicated that the victim seemed not to be suffering from emotional distress, and that her reactions were atypical of rape victims, he stated that he could not say she had not been raped. After Davis was arrested, Hanks picked his photograph from a display of six photographs and identified him as her attacker.

With the foregoing facts in mind, we must attempt to evaluate the effect that the failure to introduce evidence that the victim tested positive for gonorrhea might have had on the jury. Conflicting evidence was introduced at the evidentiary habeas hearing with respect to the likelihood of transmission of the disease during intercourse. Dr. Kimberlin testified that the likelihood of transmission from a female to a male was fifty to seventy-five per cent. However, Steve Boone, a public health investigator for the Arkansas Department of Health, testified for the government that the female-to-male rate of transmission was approximately twenty per cent. Boone testified that this figure was based on his practical experience and was corroborated by literature on the subject. Thus, had Dr. Kimberlin testified at the criminal trial, the jury would have heard testimony to the effect that the possibility of transmission of gonorrhea from a female to a male was anywhere from twenty to seventy-five per cent. ²

We do not find that petitioner has met his affirmative burden of proving prejudice. There is no guarantee that the jury would have accepted Dr. Kimberlin's figures, and it is quite possible that his testimony could have been successfully impeached. Although he admitted he had not made any systematic study, Boone's testimony was based on personal observation of hundreds of cases and was substantiated by his reading of a recognized medical treatise. Although Dr. Kimberlin stated that there were articles contradicting the twenty per cent figure, he did not cite any. While such articles may exist, the absence of any citation to them in the record to some extent weakens petitioner's proof. Moreover, a survey of the cases in which this issue has arisen tends to support a figure of less than fifty per cent. See Logan v. Marshall, 680 F.2d 1121, 1123 (6th Cir.1982) (defendant's proffered scientific evidence showed twenty-five per cent probability that a male will contract gonorrhea from an infected female after one act of intercourse); State v. Carmichael, 240 Kan. 149, 152, 727 P.2d 918, 923 (1986) (study showed that less than twenty-five per cent of noninfected males would contract gonorrhea as a result of nonconsensual contact with infected female); Miller v. State, 67 Md.App. 666, 669, 509 A.2d 135, 136 (nurse with twelve years of experience in venereal disease clinic testified that statistics showed less than fifty per cent of males would contract disease during intercourse), cert. denied, 307 Md. 260, 513 A.2d 314 (1986); State v. Ervin, 723 S.W.2d 412, 415 (Mo.App.1986) (less than one-third); Smith v. State, 737 S.W.2d 910, 915 (Tex.App.1987) (twenty per cent); see also R.C. Noble, Sexually Transmitted Diseases: Guide to Diagnosis and Therapy 24 (1985) (risk of contracting gonorrhea from single sexual exposure to infected person probably less than twenty-five per cent). It may be that Dr. Kimberlin's higher figures were derived from studies involving repeated...