Hoglund v. Neal

• Decision Date: 14 May 2020
• Docket Number: No. 18-2949,18-2949
• Citation: 959 F.3d 819
• Parties: Keith HOGLUND, Petitioner-Appellant, v. Ron NEAL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

959 F.3d 819

Keith HOGLUND, Petitioner-Appellant,

v.Ron NEAL, Warden, Respondent-Appellee.

No. 18-2949

United States Court of Appeals, Seventh Circuit.

Argued December 4, 2019

Decided May 14, 2020

Rehearing En Banc Denied June 18, 2020

Andrew James Bentz, Attorney, Jones Day, Washington, DC, for Petitioner-Appellant

Chandra Hein, Attorney, Andrew A. Kobe, Attorney, Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee

Before Manion, Kanne, and Barrett, Circuit Judges.

Manion, Circuit Judge.

A jury found Keith Hoglund guilty of molesting his daughter. The district judge denied his petition for a writ of habeas corpus. We affirm.

I. Overview

Hoglund married Teresa Malott in 1998. She already had a 4-year-old son. The marriage produced two children. A.H. was born in 1998; her sister in 2001. A.H. testified she twice tried to tell her mother her father was molesting her. After the second time, Mallot went to the police. This followed shortly after Hoglund told her he committed adultery. Detective Holliday interviewed A.H. in February 2006. She said her father had her perform oral sex on him. So Dr. Butler examined A.H. in March 2006. Holliday interviewed Hoglund, who denied the allegations but also made several strange and incriminating statements. Indiana charged him with child molesting. A.H. met with Counselor Shestak in 2007 and Dr. Mayle in 2009. At trial in 2010, A.H. testified Hoglund sexually abused her from the ages of 4 or 5 to about 7. Indiana called Butler, Shestak, and Mayle to testify. They relayed what A.H. told them and they essentially said they believed her. Hoglund also testified. He denied abusing A.H. But the jury found him guilty. The judge sentenced him to 50 years. After exhausting state proceedings, he petitioned the district court for a writ of habeas corpus. He raised two basic issues that survive for us.

First, he claimed ineffective assistance of counsel because his trial attorney failed to object properly to hearsay. Defense counsel made some hearsay objections when the prosecutor asked the experts to say what A.H. said. But when the prosecutor invoked the medical exception under Indiana Rule of Evidence 803(4), defense counsel failed to assert the lack of a foundation that A.H. thought she was speaking to the experts for diagnosis or treatment. The district judge decided defense counsel was deficient but the state court’s holding that this did not prejudice Hoglund was not objectively unreasonable.

Second, he claimed the admission of the experts’ vouching violated due process. Indiana precedent at the time of trial— Lawrence v. State , 464 N.E.2d 923 (Ind. 1984), overruled by Hoglund v. State , 962 N.E.2d 1230 (Ind. 2012) —allowed limited, indirect vouching. Some instances of vouching at trial satisfied this precedent and were admitted. Others did not, but still came in. On direct appeal, the Indiana Supreme Court overruled Lawrence and banned indirect vouching. But the court denied Hoglund relief because the error was harmless. The district judge questioned the state court’s harmless-error analysis, but concluded he could not find the determination that the error did not prejudice Hoglund was unreasonable.

So the judge denied the petition, but certified the appealability of these two issues and the issue of whether the due process claim was procedurally defaulted. Hoglund appealed.

II. Trial

A. A.H.

A.H. testified her father made her perform oral sex on him "maybe twice a week, three times a week" from the age of "[m]aybe 4 or 5" to about her seventh birthday. She gave graphic, grotesque, extensive, shocking details. She testified about all five senses, including the taste of her father’s semen: "Slimy, gooey, disgusting." She told the jury the acts made her mouth sore. She testified he showed her pornographic movies of oral sex. She testified about his manipulation, her attempts to refuse, and his persistence in making her perform oral sex. She asked if he was ever going to do this with her sister because A.H. "didn’t want her to go through it and he said I don’t know, maybe." She was very concerned about her sister. She testified that after the abusive acts her father would have her eat food to change her breath.

On cross, defense counsel explored sibling rivalries and parental favoritism, and attempted to show Hoglund was a good, normal family man. A.H. testified she learned from her mother that her father was cheating and they would divorce. A.H. was sad and disappointed. Defense counsel subjected her to extensive, aggressive, probing, even tedious cross, but her account remained materially consistent and strong.

On redirect, A.H. testified about the first time she told her mother about the sexual abuse. She was 5 or 6. Her mother had her sit in her room until her father came home. When he did, he talked with A.H. privately. He told her she could not tell anyone. She also testified about the second time she told her mother. This time, her mother contacted the police.

B. Dr. Carol J. Butler

The State called Dr. Butler, a pediatrician. She testified she saw A.H. in March 2006 at the request of D.C.S. for a sexual abuse exam, the purpose of which was to interview A.H., do a physical exam, and provide treatment if needed. The prosecutor: "[Y]ou asked her what she was there to see you for, what did she say?" Defense counsel objected to hearsay. The prosecutor invoked Indiana Rule of Evidence 803(4) ’s exception for statements made for purpose of medical diagnosis or treatment. The court overruled the objection. Butler testified A.H. said she was in for a checkup. Butler continued:

[S]he told me that her mom [asked] her if her dad was hurting her or doing something he shouldn’t be doing and she said yes.... She said ... her mom asked her ... because "her dad was cheating on her mom and he was tired of her"....

Butler then relayed A.H.’s account of the abuse. This graphic hearsay echoed A.H.’s testimony. Butler took a culture for chlamydia

and gonorrhea from A.H.’s throat: negative.

The prosecutor asked Butler to indirectly vouch: "[D]o you believe that she is prone to exaggerate or fabricate sexual matters?" Defense objected. The prosecutor rephrased the question: "[D]id you believe that she is prone to exaggerate or fantasize in sexual matters?" Defense objected again, and lodged a continuing objection. The court overruled it. Butler strayed outside Lawrence and directly vouched:

I don’t believe an eight year old would come into a physician’s office to speak about sexual fantasies or made up stories.... [F]or an eight year old to come in and speak about that in my opinion is not usually a fantasy or a story. To be seven or eight and to have this knowledge is also not usual. So I believe that what [A.H.] told me was the truth because of her age and because people don’t—

Defense objected again. The prosecutor agreed, and tried to confine the expert to Lawrence . "Do you believe that [A.H.] was ... prone to exaggerate or fantasize?" Butler: "In regards to what she told me, no." The court sua sponte struck the comment about whether A.H. was truthful and instructed the jury to disregard it, but allowed the opinion she was not prone to exaggerate or fantasize to stand.

C. Teresa Malott

The State called A.H.’s mother. She testified A.H. and Hoglund "were extremely close" when A.H. was young. She testified they were sometimes alone together, sometimes in the bedroom. "[H]e didn’t like the other two kids would bother him, he wanted to keep the air conditioning running in the bedroom, so he would lock the rest of us out."

Malott testified 5-year-old A.H. told her something alarming: "[S]he came to me about bathing her father in the shower and other things that I can’t recall at this time or can’t recall at all which was very alarming." Malott called Hoglund at work about what A.H. said. He was upset and came home. He said it was not true, and would ruin him. Malott believed him, but stopped leaving A.H. alone with him. He did not bathe her anymore. But after a while Malott did not notice anything, so they resumed the routine. Prosecutor: "Did you ever ask [A.H.] again?" Malott: "Off and on, like twice after that did I ask her and she would say no." Defense counsel objected to hearsay. The court sustained the objection. Malott testified she did not suspect anything inappropriate was happening.

Years passed after the first red flag. In November 2005, Hoglund began working as a truck driver. In January 2006, he told Malott by phone he had an affair. She was "horrified," "[e]xtremely upset and angry." She decided to divorce. Soon after this call, Malott asked A.H. if "what she had told me before was true or not." A.H. cried. Without saying what A.H. said, Malott testified her own reaction to what A.H. said was to load her children and some supplies into a car and leave because he was returning. She told the police what A.H. said.

D. Christine Ottaviano Shestak

The State called Shestak, a mental health counselor who saw A.H. twice in January 2007. Shestak testified A.H. was referred for anxiety management as trial loomed, but did not here testify about A.H.’s purposes. The prosecutor asked if she perceived any indication A.H. "may have fabricated the story about her abuse out of some need?" Defense counsel objected but was overruled. Shestak, like Butler, strayed beyond Lawrence : "Her statements were congruent with her experience and I did not see anything that indicated that she had any need to tell this story." But the court did not strike this direct vouching, despite striking Butler’s direct vouching.

The prosecutor: "[W]hat did [A.H.] tell you during your interview with her?" Defense objected but said "I understand the exception." He did not argue no foundation supported it. The court overruled the objection. Shestak answered:

I asked [A.H.] what exactly was the reason that she was here. She knew the trial was coming up, I asked her what the trial was about and at that point words just began to

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