Earls v. McCaughtry, 03-2364.

• Decision Date: 16 August 2004
• Docket Number: No. 03-2364.,03-2364.
• Parties: Fairly W. EARLS, Petitioner-Appellant, v. Gary R. McCAUGHTRY, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

379 F.3d 489

Fairly W. EARLS, Petitioner-Appellant, v. Gary R. McCAUGHTRY, Warden, Respondent-Appellee.

No. 03-2364.

United States Court of Appeals, Seventh Circuit.

Argued May 21, 2004.

Decided August 16, 2004.

Appeal from the United States District Court for the Eastern District of Wisconsin, J.P. Stadtmueller, J Melanie R. Radler (argued), Winston & Strawn, Chicago, IL, for Petitioner-Appellant.

Warren D. Weinstein (argued), Peggy A. Lautenschlager, Office of the Attorney General, Department of Justice, Madison, WI, for Respondent-Appellee.

Before BAUER, KANNE, and DIANE P. WOOD, Circuit Judges.

BAUER, Circuit Judge.

This habeas corpus appeal arises from Fairly W. Earls' 1999 convictions for first-degree sexual assault of a child pursuant to Wisconsin Statute § 948.02. Earls appeals, claiming he was denied effective assistance of counsel in violation of his Sixth Amendment rights. We agree and remand this case to the District Court to issue Earls' writ, unless the State elects to retry him within 120 days.

Background

The facts of this case arise out of a camping trip that took place over Labor Day weekend in 1997. Among those on the trip were Earls, his wife, and the family of J.M.O., the six-year-old child Earls was accused of having assaulted. There were also other friends present at various times — about 15-20 people all together. Over the course of the weekend, the State claimed there were four incidents in which Earls touched J.M.O. inappropriately. We will briefly summarize the incidents.

On August 30 the families had a party at the campsite to celebrate Earls' birthday. J.M.O. testified that Earls touched her vaginal area over her clothing while she sat on Earls' lap during the birthday party. There were several people sitting near Earls, but no one witnessed the touching; Earls carried on conversations with other people while J.M.O. was on his lap. J.M.O. stated that the second incident¹ also occurred during the party when she and Earls went to Earls' shed together; again, J.M.O. testified that Earls rubbed her vaginal area over her clothing. No one witnessed the incident, and no one saw the two go to the shed together. The last incident occurred the following evening after the group returned to the campground after spending the day in nearby Dundee, Wisconsin. About nine people were sitting in a gazebo at the campsite in a well-lit area, J.M.O. was sitting on Earls' lap. No one who was present witnessed any improper touching.

Nine days after the camping trip, J.M.O. told her mother that Earls had touched her inappropriately over Labor Day weekend. J.M.O.'s mother waited several days before contacting authorities. On September 23, 1997, J.M.O. was interviewed by a social worker at the Child Protection Center at Children's Hospital in Milwaukee, Wisconsin. That interview was videotaped. J.M.O. asserted that Earls touched her inappropriately three times. The subsequent medical exam found no evidence of sexual abuse.

At his trial, Earls' defense was that he never touched J.M.O. in an inappropriate manner and that she was mistaken or confused as to the events of Labor Day weekend. J.M.O. testified at trial to three incidents of touching. Elizabeth Ghilardi, the social worker who had initially interviewed J.M.O., also testified at trial; in part of her testimony she stated that she believed J.M.O. was telling the truth. Additionally, J.M.O's mother and father testified, as well as J.M.O's aunt and uncle. All testified to J.M.O.'s truthfulness regarding the accusation. Earls' counsel never objected. No witnesses testified to corroborate J.M.O.'s story regarding the events of Labor Day weekend; all witnesses stated that they did not see any inappropriate behavior. In addition to the witnesses, the jury also viewed the videotaped interview between Ghilardi and J.M.O.; at the conclusion of the interview Ghilardi tells J.M.O.: "I'm very sorry that Fairly did that to you. He should not have been touching you down there ... [t]hat was not okay...." and "we don't want him to do this to you anymore." Earls' counsel was instructed to redact that portion of the tape prior to showing it to the jury; he failed to do so. The jury took a transcript of the video with them into their deliberations. Earls did not testify at trial. The government's closing argument was largely based on J.M.O.'s truthfulness.

Earls was found guilty of three counts of first-degree sexual assault of a child and sentenced to 45 years' imprisonment and 20 years' probation. Earls now files this habeas appeal claiming he received ineffective assistance of counsel; specifically, that counsel failed to object to the live testimony regarding J.M.O.'s truthfulness, and that counsel failed to redact the portions of the videotape that contained Ghilardi's judgment concerning the events of Labor Day weekend. Earls also argues that the admission of such improper testimony prevented him from receiving due process. We address these claims below.

Discussion

We review the majority of this habeas corpus appeal under the standards set out in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA applies where the state court has made an application of Federal law. In those cases, a writ may not be granted unless the state court proceedings resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law. 28 U.S.C. § 2254(d)(1). Earls argues that the State court made an unreasonable application of Federal law. An "unreasonable application" occurs if the state court correctly identifies the governing legal rule but unreasonably applies it to the facts in the petitioner's case. Anderson v. Cowan, 227 F.3d 893, 896 (7th Cir.2000). While there is no exact definition of "unreasonable," we have noted that in reaching such a conclusion, we must find something more than that the state court made an incorrect application of the law. Washington v. Smith, 219 F.3d 620, 628 (7th Cir.2000).

For one portion of the analysis below, we apply the pre-AEDPA standard of review because the State court did not adjudicate an aspect of a Federal claim on its merits. Walton v. Briley, 361 F.3d 431, 432 (7th Cir.2004). That portion of the opinion deals with the prong of the Strickland test that considers whether an attorney's performance was deficient. Under the pre-AEDPA standards we review questions of law and mixed questions of law and fact de novo. Dye v. Frank, 355 F.3d 1102, 1107 (7th Cir.2004).

I. Ineffective Assistance of Counsel Claims

Earls contends that his Sixth Amendment right to effective assistance of counsel was violated. We review these claims under the framework established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In so doing, we use a two-pronged analysis, asking whether counsel's performance was deficient and whether that error resulted in prejudice to the defendant's case such that there is a reasonable probability that, absent the error, the outcome of the case would have been different. Id. at 687, 694, 104 S.Ct. 2052.

A. Deficient Performance

Earls alleges two errors on the part of his trial counsel involving failure to object to the testimony of an expert witness. Earls also alleges error by his attorney for failure to object to lay testimony. We will briefly discuss each omission on the part of Earls' attorney and the applicable Wisconsin law.

1. Expert Testimony

The admission of expert testimony is governed by Wisconsin Statute § 907.02, which states: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Wisconsin case law directs that an expert witness may not give testimony regarding the truthfulness of another witness. State v. Haseltine, 120 Wis.2d 92, 352 N.W.2d 673, 676 (1984). The facts in Haseltine illustrate the problem with such testimony. In that case, the defendant was accused of having sexual contact with his sixteen-year-old daughter. A psychiatrist testified that in his opinion, there "was no doubt whatsoever" that the accuser was a victim of incest. Id. at 675-76. In reversing the lower court, the Wisconsin Court of Appeals stated that it was a violation of Wisconsin Statute § 907.02 to have an expert witness opine as to the truthfulness of the victim's testimony. Id. at 676; see also State v. Romero, 147 Wis.2d 264, 432 N.W.2d 899, 904-05 (1988) (police officer and social worker may not offer opinions as to whether seven-year-old was telling the truth when she said her step-father sexually assaulted her). But see State v. Jackson, 187 Wis.2d 431, 523 N.W.2d 126, 129 (1994) (finding permissible questions to defendant regarding the veracity of witnesses testifying against him when the purpose of the inquiries is to impeach defendant).

Wisconsin has noted that it is a duty left solely to the jury to assess the credibility of witnesses. Such testimony is harmful at trial because it impermissibly interferes with the jury's role. Romero, 432 N.W.2d at 904-05 ("The testimony in this case was not helpful to the jury. Rather, it tended to usurp the jury's role. The credibility of a witness is left to the jury's judgment.").

Earls believes his attorney committed two errors regarding this provision of the law. The first was in failing to object to portions of Ghilardi's expert testimony when she commented on J.M.O.'s truthfulness. Ghilardi is a social worker who specializes in working with children who are victims of physical or sexual abuse. The text of the relevant testimony is as follows:

Q: In this interview with [J.M.O.] throughout the course were you looking for those things which you already described to see if it appears if the person is being truthful with...