Jordan v. Hurley

• Decision Date: 02 February 2005
• Docket Number: No. 03-3631.,03-3631.
• Citation: 397 F.3d 360
• Parties: Vincent JORDAN, Petitioner-Appellant, v. Patrick HURLEY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

397 F.3d 360

Vincent JORDAN, Petitioner-Appellant, v. Patrick HURLEY, Respondent-Appellee.

No. 03-3631.

United States Court of Appeals, Sixth Circuit.

Submitted: October 27, 2004.

Decided and Filed: February 2, 2005.

ON BRIEF: M. Scott Criss, Office of the Attorney General, Corrections Litigation Section, Columbus, Ohio, for Appellee. Vincent Jordan, Marion, Ohio, pro se.

Before: KEITH, CLAY, and BRIGHT, Circuit Judges.^*

BRIGHT, J., delivered the opinion of the court, in which CLAY, J., joined. KEITH, J., (pp. 365-69), delivered a separate dissenting opinion.

OPINION

BRIGHT, Circuit Judge.

Vincent Jordan, appellant, was convicted of rape after a second jury trial in the state courts of Ohio. He seeks relief from his conviction and eight-year sentence under a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed in the United States District Court for the Southern District of Ohio.¹ The district court denied relief and Jordan brings this appeal under a Certificate of Appealability relating to his claims that the state trial court deprived him of his Sixth Amendment right of confrontation and Fourteenth Amendment right to due process in the conduct of the trial and that his conviction was not supported by the evidence. Specifically, Jordan contends that the state trial judge erred in permitting the prosecutor to ask leading questions during direct examination of the alleged victim and additionally erred in restricting cross-examination of the victim. Jordan also contends no rational trier of fact could have found that he raped the victim. We reject these contentions and affirm.

I. BACKGROUND

The State of Ohio initially charged Jordan with two counts of rape. The first trial ended in a mistrial when the jury could not reach a verdict. The State brought a second indictment in two counts against Jordan charging forcible rape involving vaginal intercourse and separately fellatio. At trial, the prosecutor called the victim, who has Down syndrome, to testify. The trial court conducted voir dire and found the victim competent to testify.

The prosecutor, over objection, used leading questions in examining the victim. Further, the trial court limited cross-examination by barring Jordan's counsel from attempting to impeach the victim with her testimony in the first trial. The jury found Jordan guilty of the vaginal intercourse rape charge.² The trial court sentenced Jordan to eight years imprisonment and found Jordan to be a sexual predator.

Jordan, represented by counsel, appealed to the Ohio Court of Appeals, which affirmed the conviction, but reversed and remanded the trial court's sexual predator determination. Jordan, represented by counsel, sought review in the Ohio Supreme Court. That court denied leave to appeal. Thereafter, Jordan filed this pro se petition for a writ of habeas corpus. The district court denied relief and dismissed Jordan's petition. Jordan obtained a Certificate of Appealability relating to alleged due process and confrontation clause violations regarding evidentiary matters and whether the evidence was sufficient to support his conviction.

II. DISCUSSION

In an appeal of a habeas proceeding, this court reviews the district court's legal conclusions de novo and its factual findings for clear error. Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir.2002).

The Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254, placed "a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under section 2254(d)(1), a writ may issue only if "the state-court adjudication resulted in a decision that (1) `was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,' or (2) `involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.'" Id. (quoting § 2254(d)(1)).

Jordan argues that the state trial court violated his right of confrontation by allowing the prosecutor to ask leading questions in examining the victim. This claim relates to a state rule of evidence, and federal habeas review of state court evidentiary rulings is extremely limited. Waters v. Kassulke, 916 F.2d 329, 335 (6th Cir.1990).

The victim has Down syndrome and therefore had difficulty responding to the prosecutor's questions. Under Ohio law, "[l]eading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony." Ohio R. Evid. 611(c) (2004). In interpreting this rule, Ohio courts have permitted prosecutors to use leading questions "on direct examination where the victim is of tender years," State v. Timperio, 38 Ohio App.3d 156, 528 N.E.2d 594, 596 (1987), or when the witness "appeared to be nervous and `a little slow' and `straining' with his answers," State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 689 (1997). While the victim is not a child, she functions at a very basic level. As such, leading questions are permitted under such circumstances. See, e.g., United States v. Shoupe, 548 F.2d 636, 641 (6th Cir.1977) ("the use of leading questions during the direct examination of a witness falls within the sound discretion of the trial court").

Federal courts have similarly found that leading questions on direct examination are permissible in questioning certain witnesses, including a child sexual abuse victim, a foreign witness testifying through a translator, an unusually soft-spoken and frightened witness, and a mentally retarded adult who was the victim of sexual abuse. See, e.g., United States v. Ajmal, 67 F.3d 12, 15-16 (2d Cir.1995) (holding that the Sixth Amendment permits leading questions on direct examination of a foreign witness testifying through a translator); United States v. Castro-Romero, 964 F.2d 942, 943-44 (9th Cir.1992) (holding that the Sixth Amendment permits leading questions on direct examination of a child sexual abuse victim); United States v. Grey Bear, 883 F.2d 1382, 1393 (8th Cir.1989) (recognizing that the Sixth Amendment permits leading questions on direct examination in the case of an unusually soft-spoken and frightened witness); see also United States v. Goodlow, 105 F.3d 1203, 1207-08 (8th Cir.1997) (recognizing that Federal Rule 611(c) does not preclude frequent use of leading questions during the direct examination of a mentally retarded adult who was the victim of sexual abuse).

The state trial court did not violate Jordan's right of confrontation by allowing the prosecutor to ask leading questions in examining the victim, because leading questions were permissible under these circumstances. See, e.g., Shoupe, 548 F.2d at 641 ("the use of leading questions during the direct examination of a witness falls within the sound discretion of the trial court").

Jordan next argues that the state trial court violated his confrontation right by limiting the cross-examination of the victim. The victim testified in the second trial that she tried to push Jordan away. The victim, however, did not make this claim in her testimony at the first trial. Jordan's attorney wanted to raise this inconsistency by impeaching the victim on cross-examination, but the trial court restricted the cross-examination and prohibited this line of questioning. The state appellate court concluded that the state trial court erred in limiting the cross-examination, but determined that the error was harmless. The federal district court decided that the error did not have a substantial and injurious effect on the fundamental fairness of Jordan's trial.

Confrontation Clause violations are subject to harmless error review. Bulls v. Jones, 274 F.3d 329, 334 (6th Cir.2001). When reviewing state court decisions for harmless error in a collateral appeal this court applies the harmless error standard set out in Brecht v. Abrahamson, which holds that a habeas petitioner must establish the trial error had a "substantial and injurious effect or influence in determining the jury's verdict." 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). We conclude that Jordan's inability to impeach the victim did not have a substantial and injurious effect or influence in determining the verdict.

The dissent notes that the victim's testimony that she pushed Jordan away is the only evidence of force or the threat of force. See Dissent at 366. The evidence at trial, however, is overwhelming that Jordan used force in raping the victim, therefore the ruling to limit the cross examination cannot be deemed prejudicial.

Ohio law is clear that the circumstances of the alleged rape are proper considerations for the jury in determining whether there was force. See State v. Carter, 29 Ohio App.3d 148, 504 N.E.2d 469, 470-72 (1985). Specifically, with respect to the admission of evidence, Ohio law endorses consideration of peculiar vulnerabilities of the victim, the size and demeanor of the defendant, the likelihood of physical injury to the victim, and the victim's fear. Id.; State v. Fowler, 27 Ohio App.3d 149, 500 N.E.2d 390, 395 (1985).

Here, the victim has the mental disability of Down syndrome, and functions at a very basic level. The evidence also showed that Jordan is strong and was a semi-professional football player. Moreover, Jordan admitted on cross examination that the exclusive business of his cab company is driving mentally or physically handicapped people and that he noticed that the victim did not walk or talk well, thus there was clear evidence from which to conclude that Jordan knew the victim had a mental disability. In addition, the alleged rape occurred in a truck parking lot during the evening hours, and according to...