Fowler v. Sacramento County Sheriff's Dept.

• Decision Date: 31 August 2005
• Docket Number: No. 04-15885.,04-15885.
• Parties: Jeff FOWLER, Petitioner-Appellant, v. SACRAMENTO COUNTY SHERIFF'S DEPARTMENT; California Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

421 F.3d 1027

Jeff FOWLER, Petitioner-Appellant, v. SACRAMENTO COUNTY SHERIFF'S DEPARTMENT; California Attorney General, Respondents-Appellees.

No. 04-15885.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 14, 2005.

Filed August 31, 2005.

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Quin Denvir and Allison Claire, Office of the Federal Defender, Sacramento, CA, for petitioner-appellant, Jeff Fowler.

Bill Lockyer, Robert R. Anderson, Mary Jo Graves, John G. Mclean and George M. Hendrickson, Office of the Attorney General of the State of California, Sacramento, CA, for respondent-appellee the State of California.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, District Judge, Presiding. D.C. No. CV-00-02195-MCE/PAN.

Before: TALLMAN, BYBEE, and BEA, Circuit Judges.

BEA, Circuit Judge:

Defendant-Appellant Jeff Fowler was convicted of annoying or molesting Charla Lara in violation of California Penal Code § 647.6 following a jury trial in which he was precluded from cross-examining Lara regarding two prior incidents in which she alleged that other men had molested her. We conclude that the proffered cross-examination sufficiently bore upon Lara's reliability or credibility such that the jury might reasonably have questioned it and, thus, that the cross-examination implicated Fowler's Sixth Amendment right to confrontation. We further conclude that the trial court's implicit determination — that precluding the proffered cross-examination, rather than limiting it, was not unreasonable, arbitrary or disproportionate given the trial court's concerns about waste of time, confusion of the issues, and prejudice — was itself objectively unreasonable. Finally, because Lara's testimony was crucial to the State's case, which, in any event, was not strong, we conclude that this error had substantial and injurious effect or influence in determining the jury's verdict. We therefore reverse the district court's order denying Fowler's petition for a writ of habeas corpus, and remand for issuance of a conditional writ.

I.

A.

On September 5, 1998, Fowler agreed to drive Lara from her mother's apartment to her friend's house. Lara, who was then fourteen years old, was daughter to Kelly Kenniston, with whom Fowler had been romantically involved. All parties agree that, before driving Lara to her friend's house, Fowler applied some type of lotion to her, and that, while driving Lara to her friend's house, Fowler engaged her in a sexually explicit conversation. However, the details in Lara's and Fowler's accounts differ considerably. There were no third-party witnesses to either event.

1.

At trial, Lara testified that before Fowler drove her to her friend's house, he suggested that she change clothes and then entered the walk-in closet while she was wearing only a bra and underpants to offer her a particular dress. Lara put on the dress and then excused herself to the bathroom, where Fowler followed and told her that she needed some lotion and that he would apply it. He first applied it to her lower legs and thighs and, while doing so, his hand brushed the outside of her underpants several times. He then applied the lotion to her arms, after which he told Lara to lift her dress so that he could apply it to her back. Lara complied, and, as Fowler was applying the lotion to her back, he pushed her underpants down with his hand. He also applied the lotion to Lara's stomach, and, while doing so, slipped his hand underneath her underpants, but did not touch her vagina. Finally, he applied the lotion to her breasts, moving his hands inside her bra and touching her nipples. Fowler and Lara then left the apartment. While driving Lara to her friend's house, Fowler asked her whether she watched pornographic movies. He also suggested that, if she "got `horny,'" she should masturbate rather than have sex, but that, should she have sex, she should use a condom.

2.

As noted above, Fowler concedes that he applied the lotion and that he later engaged Lara in a sexually explicit conversation. Otherwise, he tells a very different story. Fowler testified that Lara was already wearing the dress when he entered the apartment. He testified further that Lara asked him to apply the lotion, and that he did so quickly and asexually. Specifically, while he acknowledged applying the lotion to Lara's lower legs, arms and possibly her shoulders and back, he denied having touched her thighs, groin, stomach, breasts or nipples. As for the later conversation, Fowler explains that he initiated the conversation because Lara's father previously had told Fowler that Lara was "messing around" with her step-brothers, and Fowler was attempting to counsel Lara about the differences between appropriate and inappropriate sexual behavior.

3.

After Lara arrived at her friend's house, her friend's mother noticed that Lara did not appear to be feeling well. When she inquired, Lara eventually said something about Fowler having put lotion on her, prompting her friend's mother to telephone Kenniston, who, in turn, contacted the police. About two weeks later, Lara was questioned about the incidents by an interview specialist with the Multi-Disciplinary Interview Center ("MDIC"), while a detective with the Sacramento County Sheriff's Department observed from behind a two-way mirror.

B.

1.

Shortly afterwards, Fowler was charged with sexual battery in violation of California Penal Code § 243.4¹ and annoying or molesting a minor in violation of California Penal Code § 647.6.² He pleaded not guilty.

Before trial, the State moved to prevent Fowler from cross-examining Lara and offering evidence regarding two incidents of molestation that, in her MDIC interview, Lara had claimed to have suffered about six years before the incident involving Fowler. Fowler opposed the State's motion, arguing that it would violate his Sixth Amendment rights to confront and cross-examine adverse witnesses and his Fourteenth Amendment right to due process. In opposing the motion, Fowler made a proffer to the trial court detailing the proposed cross-examination. The proffer was based on the MDIC interview and on a police report in connection with the second of the two earlier alleged incidents of molestation.

According to Fowler's proffer, the first of these two prior incidents involved an "acquaintance" of Kenniston named Tommy Filson. Lara claimed to have been sleeping at Filson's residence when Filson "grabbed her in the crotch, pulled down her pants, touched her butt," and then repeated the process at least twice. According to Lara, Filson "went to either jail or prison as a result of that."³

The second incident occurred "a little bit after that" and involved Kenniston's then-boyfriend Steven Hendrix. According to Fowler's reading of Lara's MDIC interview:

My mom had a boyfriend and, umm, like this is like — like a little bit after that Tommy [Filson] incident. So I was thinking I was just like a little cautious about things. And he was putting me to bed, and I don't really know if he meant to do that, so he — like he was like flying me into bed and he, like he was holding my crotch, and I was just — I said something to my mom, and my mom went and told the cops. But I don't think ... it was that big of a deal.

(Emphases added). The Bakersfield Police Department investigated this second incident, and although, in retrospect, Lara admitted to having been "a little cautious about things" and described the incident as not "that big of a deal," she reported to the Bakersfield Police Department at the time of the incident "that [Hendrix] put his hand between her legs on her private part and squeezed about four times." Nonetheless, the Bakersfield Police Department concluded that the case was "unfounded," apparently because Lara's statements were uncorroborated and because Kenniston contradicted Lara. Specifically, although intoxicated at the time of the alleged incident, Kenniston claimed to have observed Hendrix putting Lara to bed on the night in question and to have seen no inappropriate touching: "[Kenniston] said she only observed [Hendrix] ... lay [Lara] on the bed, in a sense. She said before that she did not observe anything unusual.... She never noticed him to touch [Lara] in any way, and she believed [Lara] was asleep during the entire time."

Fowler argued that the incident involving Hendrix was evidence that, owing to the earlier incident involving Filson, Lara had a tendency to, as she put it, be "a little cautious about things" and, perhaps, as Fowler put it, to be "supersensitive" to physical contact "somewhere near a sensitive area such as a breast or vaginal area or crotch" by adult men and, thus, to "[mis]perceive[ ]," "exaggerate[ ]" or "overreact[ ]." Fowler argued that this was particularly relevant given that he "acknowledge[d] that he rubbed cream on [Lara's] legs and arms," but denied "touch[ing] her in a sexual manner or in a sexual place." Fowler also argued that the incident involving Hendrix was evidence not merely of Lara being prone to over-reaction, but also of her untruthfulness.

The trial court granted the State's motion to preclude the proffered cross-examination. It first explained that there was no "indication" that Lara actually overreacted or lied in the prior incidents and that the facts of the prior accusations were "very dissimilar" from those here. It then "weigh[ed] the evidence" pursuant to California Evidence Code § 352 against the facts that its introduction "would consume an inordinate amount of court time," "would be extremely confusing to this jury," and "would be significantly more prejudicial than it would be probative."⁴

2.

At the conclusion of the ensuing two-day trial, the jury deliberated for four days. Ultimately, it was unable to reach a unanimous verdict as to the sexual battery charge, but convicted Fowler of annoying and molesting Lara....