Jones v. McCaughtry

• Decision Date: 15 June 1992
• Docket Number: No. 91-1536,91-1536
• Citation: 965 F.2d 473
• Parties: Andre JONES, Petitioner-Appellant, v. Gary McCAUGHTRY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 473

965 F.2d 473

Andre JONES, Petitioner-Appellant, v. Gary McCAUGHTRY, Respondent-Appellee.

No. 91-1536.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 5, 1991.

Decided June 15, 1992.

Mary Waitrovich, Office of State Public Defender, Madison, Wis. (argued), for petitioner-appellant.

Gregory M. Posner-Weber, Asst. Atty. Gen., Office of Atty. Gen., Wisconsin Dept. of Justice, Madison, Wis. (argued), for respondent-appellee.

Before WOOD, Jr. and MANION, Circuit Judges, and ROSZKOWSKI, Senior District Judge. ^*

ROSZKOWSKI, Senior District Judge.

On February 16, 1988, following a jury trial, Petitioner Andre Jones was convicted of sexual intercourse with a person under twelve years of age and cruel maltreatment of a child in violation of Wis.Stat. § 940.225(1)(d) and § 940.201. ¹ Petitioner brings this petition for a writ of habeas corpus contending that he is in custody in violation of the United States Constitution. Petitioner argues that he was denied his right to due process, a fair trial and his right to present a defense when evidence of the discovery of a single sperm in a urine specimen from the victim was received against him despite the fact that the specimen had been destroyed without his having had the opportunity to examine it. The facts in this case are largely undisputed.

At approximately 1:10 a.m. on the night in question, the Juneau County Sheriff's Department dispatcher received a call from a man asking that an ambulance be sent to Jones's apartment because "a young girl [was] bleeding between the legs." The ambulance arrived within minutes of the call, and the emergency medical technicians, Robert and Sandra Tyler, found T.L.S. "bleeding ... profusely" from the vaginal area. There was "a great deal of blood" in T.L.S.'s diaper, which was unfastened, and her lower abdomen appeared to be "very tender."

The Tylers took T.L.S. to the emergency room of the Mauston hospital, where she was examined by Dr. James Logan, the physician on duty. According to Logan, T.L.S. was crying and groaning, and, upon examination, Dr. Logan found that the area between her vagina and rectum had been torn almost all the way through. He testified that the "object" inflicting such severe injuries would have to be larger in diameter than a broomstick. Logan repaired T.L.S.'s injuries surgically, and he estimated that she had been assaulted one to two hours before he saw her. ²

Logan did not note any sperm in T.L.S.'s vaginal area, but stated that because of the profuse bleeding, any sperm could have either washed away or been killed by the blood. Dr. Logan did extract a small urine sample and sent it to the laboratory for analysis. The laboratory technician found one sperm in the sample, and because she felt the sample was rapidly deteriorating and believed that she had no means to preserve it, she discarded it.

Jones's wife, Debra Jones, was babysitting for T.L.S., then age two, and another infant in Jones's apartment on the night in question. Debra Jones's two children, Chris (age eleven) and Darryl (age seven), were also present. Chris testified that he and Darryl were awake and watching television in the apartment from about 6:00 p.m. on. He stated that Jones "took T.L.S. in his room and came back out" around 9:00 p.m. Chris also stated that Jones went into the room later that night "to change" T.L.S. and that was when Jones came out and said T.L.S. was bleeding. Chris testified that Debra Jones was asleep on the sofa during this time. He also stated that Jones was wearing "his shorts" that night, but that he changed his clothes and left the apartment after the ambulance came. Chris did not notice any blood on Jones's clothes, arms or hands when he left.

Debra Jones testified that she and Jones had been drinking all day and that she was sleeping on the sofa when Chris awakened her and told her "something [was] wrong with the baby." When Debra entered the bedroom and saw T.L.S. and all the blood, she said to Jones, "What did you do to her?" and he replied, "nothing, I didn't touch her." According to Debra Jones, it looked like T.L.S.'s disposable diapers had been "tore off, then tried to retape back on together again, you know, pressed back on." She testified that she had changed T.L.S.'s diaper around 8:00 p.m. that evening. Jones later testified that he changed T.L.S.'s diaper when he "discovered" that she was bleeding.

After T.L.S. was taken to the hospital, Jones changed his clothes and went out with some friends to get a drink. He eventually "passed out" and the others brought him back to the apartment. When he returned, at about 2:45 a.m., Mauston Police Chief O.J. Foster was in the apartment. Foster had arrived at 1:40 a.m., shortly after Jones had left. While collecting evidence, Foster noted that one of the drawers in a dresser in the room in which T.L.S. was found was open and two pairs of men's undershorts were "partially pulled out." Debra Jones had testified earlier that Jones owned three pairs of shorts, while Jones, who was not wearing any shorts when he was examined by Dr. Logan at 5:00 a.m., testified that he had only two pairs, having lost the third pair in Chicago some months earlier.

Foster found two bloodstained diapers in the apartment. The stains on one, which he found in the bottom of a trash can, were different from those on the other. The diaper T.L.S. had been wearing when she was "discovered" by Jones, like the one she was wearing when she arrived at the hospital, was soaked with blood in a single location. The diaper taken from the bottom of the trash was not "soaked," but, according to Foster, "[the blood] was all over the diaper as if it has been used to wipe something ... or someone [off]." When asked by Jones's counsel whether, in his opinion, the diaper could have been used to "wipe off the little girl," Foster said that it could not, because of how severely T.L.S. was bleeding at the time. Foster's observation was later confirmed by a State crime laboratory technician, who stated that the surface stains on the diaper from the trash can were "more like a wiping of blood," as opposed to the diaper T.L.S. was wearing when brought to the emergency room, which contained "a pooling, concentrated stain."

Eventually, Chief Foster took Jones to the police station for questioning. Jones denied assaulting T.L.S. and when Foster told him he was placing him under arrest for sexual assault, "his eyes wel[l]ed up with tears, he jumped up, slammed his fist down on the desk [and said,] don't send me to prison for this."

Examination of the diapers, bedclothes, vaginal swabs, and other physical evidence at the State crime laboratory revealed several head hairs, two of which were "consistent" with Jones's. The others, however, were not. There were also two pubic hairs on the bedspread which were neither Jones's nor his wife's. The laboratory technician conducting the tests also found no semen on any of the items, although he stated this was not unusual--that none are found in approximately half of all sexual assault cases.

Jones testified that he was at home on the day in question, and that he just "basically walked around the house" from 4:00 to 9:30 p.m., then went to a bar for several hours, returning around 11:30 p.m., whereupon he fell asleep for about an hour. He stated that he then "check[ed] in on" T.L.S. and noticed that she was pale and shaking--but not crying. Jones said that when he saw the blood he began hollering, and that he changed her diaper, called the ambulance, and soon thereafter left with his friends. He testified that he never touched T.L.S. and did not know who did, and Jones also stated that he never cleaned himself off or disposed of his underwear that night. Jones testified that he was wearing "gym shorts" when he found T.L.S. and that he changed clothes before the ambulance arrived.

Other evidence indicated that Jones was examined by Dr. Logan at 5:00 a.m., and that no blood was found in his pubic area. Chris was also examined and it was determined that, because of his age, he was incapable of producing sperm.

Christine Mazur, the laboratory technician who performed the urinalysis testified that she saw one non-moving sperm during the examination of the evidence taken from T.L.S. When asked what she did with the sample after she examined it, Ms. Mazur testified:

I didn't think the specimen could be saved because it was on a slide, and we put a little cover slip over it that kind of smashes it a little bit, and I didn't know how long the specimen could be good for. Everything starts to disintegrate, when out of environment you don't know how long it will last. I had no doubt that that is what it was, so I did not need anyone to confirm it, I am on call at night, it is my responsibility. As far as my urine specimen, I looked in the text book, I could not find any way of saving that type of specimen, then I just tossed the specimen afterwards.

Ms. Mazur further testified that she had no knowledge of anything else that might be seen in such a sample that would resemble a non-moving sperm. She also stated that she did not know how to, and made no effort to, "fix" the slide on which she saw the sperm.

Ms. Mazur also examined a "wet prepare of the vagina". She stated that it is a "smear that they do from the vagina" and that she looked at it under a microscope. She looked for sperm in the smear but did not find any.

Arthur Varriale, head of the Serology section for the Wisconsin State Crime Laboratory, also testified during the trial in this matter. Mr. Varriale stated that he did not find any semen or sperm on any of the articles submitted to him from either T.L.S. or Jones. According to Mr. Varriale, it would have been very possible to save the sample in question in this case simply by saving the slide. Apparently, the standard identification technique for sperm is to stain the sample which makes the identification more reliable and "fix...