Holden v. Hughes, No. 1:97cv185-P (W.D.N.C. 1/22/1998)
| Decision Date | 22 January 1998 |
| Docket Number | No. 1:97cv185-P.,1:97cv185-P. |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | WILLIAM LESTER HOLDEN, Petitioner, v. MARCUS HUGHES, Superintendent, Craggy Correctional Institution, Respondent. |
THIS MATTER is before the court upon respondent's Motion for Summary Judgment. After careful consideration of that motion, petitioner's response and exhibits, and respondent's reply, the undersigned enters the following findings, conclusions, and recommendation.
Petitioner was tried by jury at the August 20, 1990, criminal session of Transylvania County Superior Court before Honorable Hollis M. Owens, Jr., judge presiding. The jury found him guilty of the first-degree, statutory rape of his six-year-old granddaughter.
Viewed in a light most favorable to respondent, the evidence presented at trial revealed the following facts. The child victim ("the child") lived with her mother from the first day to the tenth day of each month. During the remainder of each month, she lived with her paternal grandmother, Minnie Holden, and paternal grandfather, petitioner herein. In April of 1989, the Transylvania County Department of Social Services ("DSS") received a report of possible physical abuse of the child and investigated that report by way of home visits, talking with school counselors, and observing the child's behavior. Based upon its investigation, DSS referred the child for a medical evaluation by a pediatrician, and the social worker testified that his reason for that referral was the child's exhibition a classic behavior of a sexually abused child.
On June 15, 1989, Minnie Holden took the child to the office of Dr. Wells, a pediatrician with Hendersonville Pediatrics, for the medical evaluation. Dr. Wells's examination revealed abnormal findings in the child's vaginal and rectal areas. Her vaginal opening was stretched beyond what was normal for a child her age, and the doctor noted that in the vaginal area she had a healed laceration, a white scar, and scarring of the large veins. Her rectal examination indicated some relaxed anal tone, which can be an indication of ongoing sodomy, consistent with abuse, but not diagnostic. Dr. Wells testified that the vaginal laceration indicated that she had been penetrated, and it was his opinion the child had undergone an ongoing period of sexual intercourse. The injuries he observed or the child were consistent with penetration by an adult male penis.
In the presence of Minnie Holden, Dr. Wells told the child that he saw evidence of injury to her and wanted her to tell him what happened. In response, the child cried, became anxious, and refused to answer. On a follow-up visit to Dr. Wells, the child whispered that "Cricket" had done it. Cricket is the name the child called her grandfather, the petitioner.
The case was investigated by Detective Rita Smith of the Transylvania County Sheriffs Department. Detective Smith testified at trial that when she talked to the child on July 10, 1989, the child said she had been threatened that if she told, she would be taken away from her mama and daddy and grandma and grandpa. The child told Detective Smith that she was hurt many times while at her grandma's, and that the one who hurt her butt was Cricket. On another occasion Detective Smith asked the child whether anyone else had hurt her like that, and the child stated no one else had done it.
Judy Nebrig, a counselor at Trend Community Health Center for 13 years, saw the child five times in therapy at the request of DSS. Ms. Nebrig, after questioning the child to determine whether she understood the difference between telling the truth and telling a lie, concluded the child did understand the difference. The child told Ms. Nebrig that Cricket was the one who had hurt her bottom, and it was Ms. Nebrig's opinion that the child exhibited behavioral symptoms of sexual abuse
Petitioner also presented evidence at trial. He called six family members and two Head Start workers to testify that they suspected and saw evidence that the child's mother or stepfather had physically abused her. Petitioner testified that he believed someone was forcing the child to name him as the perpetrator of the sexual abuse and that the child's mother had shown ill feelings against him in 1986.
In May of 1990, DSS received a complaint that the child was physically abused by her mother or stepfather, but did not find evidence to substantiate that report.
Petitioner also attempted to present evidence at trial that in November 1986, the child, then three years old, was brought to the Holdens by her mother and that Mrs. Holden, in getting ready to bathe the child that evening, saw dried blood on the child's panties, called Hendersonville Pediatrics, and was told to bring the child in for an examination the next day. At that examination, Dr. Volk found swelling at the vaginal orifice, and an old tear and scarring in the vaginal area, but no bleeding. He also found new inflammation. It was his opinion that some injury had occurred to her vagina within the previous three or four days and that it could have occurred within the previous 16 hours. Further, he stated that all of those findings were consistent with sexual abuse. DSS investigated this incident, but the child never told them who had done that to her. Detective Smith also investigated, and the child told her in November 1986 that Josh had hurt her. Josh was nine years old at the time. The investigators interviewed Josh, but could not establish that he had access to the child or the opportunity to have done that to her. Dr. Volk found the child's vagina to be enlarged by 10 to 15 millimeters, and that the normal dilation for her age group is four millimeters. The child later told Detective Smith that she had implicated Josh because Mae Heatherly (petitioner's daughter and the child's aunt) had told her to. Josh testified on voir dire during the trial that he lived with his father about 30 miles from the child's mother and saw the child on two or three occasions in June and July of 1989 when she and her mother went camping with his family. He denied sexually abusing the child.
At trial, the child was found unavailable as a witness and did not testify. Dr. Wells's testimony describing the medical evidence was utilized to establish the commission of the crime and evidence of penetration. Hearsay statements the child made to Detective Smith, Ms. Nebrig, and Dr. Wells were admitted to establish the identity of the perpetrator.
During a postconviction hearing in February 1995, petitioner called the child, then 12 years old, to testify. She stated that her grandpa (petitioner) did not hurt her and she previously had said he had because she was afraid her mother would get mad at her. On cross-examination, the child testified that the only time she had been sexually abused was on a camping trip.
On redirect, the child testified that she was sexually abused two to five times only, and it was just one person who did it to her. She refused to tell what they did or where on her body she was hurt. On recross, she stated it was not her stepfather, Tommy, who had hurt her, but Josh, and that he was the only one who had.
Christina Owen testified that she and the child were exchanging information after the trial about how each had been sexually abused. She said she told the child that her uncle had gotten on top of her and the child told her that Tommy (her stepfather) and Josh had hurt her. The two promised each other to keep their conversation secret, but Christina testified she told her mother about this two weeks later. Christina knew the Holdens and Minnie and had visited in their home. Christina's mother, Margaret Clayton, testified that petitioner's daughter, Theresa, was a good friend of hers. Mrs. Clayton also testified that Christina told her on August 29, 1990 — the day after petitioner's conviction — that the child had told her petitioner did not do those things to her. Mrs. Clayton stated that she went to Mr. White, attorney for the child's father, and told him what Christina told her the child had said.
Mr. White testified that petitioner's son was his client in a dispute as to custody of the child and that he also represented petitioner at the preliminary hearing in the criminal case. He also stated that Christina's mother came to his office on August 29, 1990, and told him what Christina had told her — that the child told Christina the petitioner did not abuse her. Mr. White typed up what Mrs. Clayton relayed to him that Christina said the child told her and put it in an affidavit. He was able to get full custody of the child for his client (petitioner's son) with no visitation from the child's mother or stepfather.
Respondent presented evidence from Detective Smith that in July 1992, shortly after petitioner's conviction was affirmed on direct review, petitioner's attorney gave her the affidavit of Mrs. Clayton. She also stated that she interviewed Christina and was told that the child had confided in Christina on June 26, 1992. The detective testified Josh's date of birth was October 6, 1977, and that she investigated the 1986 case when Dr. Volk documented physical findings of sexual abuse of the child. Josh was age nine at the time and age 11 at the time of the investigation leading to petitioner's arrest for abuse of the child. Dr. Wells told Detective Smith the medical findings as to the child were consistent with having been caused by an adult male penis. The detective talked to the child a week before the postconviction evidentiary hearing and was told by the child that petitioner did not hurt her privates; someone else had done it; she would not tell who it was; she denied it was her stepfather; she said it had happened on a camping trip; and she stated that it had happened only one time.
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