Kidwell v. Ryan, CV-13-0770-TUC-BGM

• Decision Date: 10 August 2016
• Docket Number: No. CV-13-0770-TUC-BGM,CV-13-0770-TUC-BGM
• Parties: Thomas Alec Kidwell, Petitioner, v. Charles L. Ryan, et al., Respondents.
• Court: U.S. District Court — District of Arizona

Thomas Alec Kidwell, Petitioner, v. Charles L. Ryan, et al., Respondents.

No. CV-13-0770-TUC-BGM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

August 10, 2016

ORDER

Currently pending before the Court is Petitioner Thomas Alec Kidwell's pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus ("Answer") (Doc. 16) and Petitioner replied (Doc. 17). The Petition is ripe for adjudication.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Arizona Court of Appeal stated the facts¹ as follows:

In June 2004, six-year-old T. told her babysitter that her father, Kidwell, had sexually abused her. After calling police, the babysitter, as instructed, brought T. to the Children's Advocacy Center. A Child Protective Services employee and a Tucson Police Department detective then interviewed and examined T. A medical doctor also performed "a general physical exam and a more focused genital exam." The genital exam revealed an area of T.'s vagina was "friable, which means you just barely have to touch it [and] it would start bleeding." The doctor testified the abnormality was not necessarily a product of abuse, but could have been caused by a bacterial infection or rubbing of the area, and was not consistent with penetration. In an interview with police, Kidwell denied molesting T.

Kidwell was charged with one count of molestation of a child under the age of fifteen and one count of continuous sexual abuse of a child under the age of fourteen.[1] On the third day of trial, the state asked the doctor who had examined T. whether T. had made "any spontaneous statements . . . during [the] exam." Kidwell objected on hearsay grounds, arguing the statement would not fall within the hearsay exception of Rule 803(4), Ariz. R. Evid., for statements made for purposes of medical diagnosis and treatment. The trial court sustained the objection.

On the fourth day of trial, after the jury had begun deliberations, it sent a note to the trial court stating that eleven jurors had agreed on a verdict of guilty, but that "one member does not agree & we cannot persuade her to change & agree with us." After recalling the jury to the courtroom, the court told the jury it could "offer a couple of options" to help the jury resolve the case, including "allow[ing] the attorneys to provide additional evidence" or "additional closing arguments." The jury foreperson responded that neither he nor the other jurors who agreed with him needed additional evidence, but that the holdout juror "may or may not be swayed by that evidence." The court instructed the jury to return to the jury room and discuss whether it felt either option the court had offered would be helpful in resolving the impasse. After doing so, the jury sent a note to the court containing several fact questions, including asking what T. had said to the doctor who had examined her at the Child Advocacy Clinic.

In response to the jury's note, the state asked the trial court to reconsider its ruling excluding T.'s statement to the doctor. After some discussion, and over Kidwell's continuing objection, the court determinedthe statement was admissible under Rule 803(4). The parties then agreed there was no need to recall the doctor for further testimony because T.'s statement was contained in the doctor's report and the court would read the portion of the report containing T.'s statement to the jury because the doctor had no independent recollection of the examination. The court told the jury that although neither it nor the parties could respond to most of the jury's requests for information, it had "ruled that a portion of [the examining doctor's] report will be offered into evidence." The court then read from the report: "In addition to the history on patient, patient stated dad would rub her private so hard she got an owie." After additional closing arguments concerning the statement, the jury deliberated further and found Kidwell guilty of child molestation.

[1] The trial court granted Kidwell's motion for judgment of acquittal on the continuous sexual abuse charge.

Answer (Doc. 16), Ariz. Ct. of Appeals, Memorandum Decision 7/31/2008 (Exh. "H") at 1.

On October 20, 2006, a jury found Petitioner guilty of Molestation of Child, A Dangerous Crime Against Children as alleged in Count One of the Indictment. Answer (Doc. 16), Ariz. Superior Ct., Pima County, Minute Entry 10/20/2006 (Exh. "A") at 2. On November 27, 2006, Petitioner was sentenced to the presumptive term of seventeen (17) years imprisonment with consecutive community supervision in accordance with A.R.S. § 13-603(1). Answer (Doc. 16), Ariz. Superior Ct., Pima County, Sentence of Imprisonment/Defendant's Motion for a New Trial 11/27/2006 (Exh. "C") at 2.

A. Direct Appeal

On November 28, 2006, Petitioner filed his Notice of Appeal. Answer (Doc. 16), Not. of Appeal 11/28/2006 (Exh. "D"). On February 4, 2008, Petitioner filed his Opening Brief. Answer (Doc. 16), Appellant's Opening Br. 2/4/2008 (Exh. "E").Petitioner presented two (2) issues on appeal: 1) whether the jury verdict was coerced, and if so, whether the trial court abused its discretion when it failed to declare a mistrial after the jury sent a note indicating they were at an impasse; and 2) whether [the Victim's] spontaneous statement to Dr. Binkiewicz was admissible under the medical exception to the hearsay rule, and if so, whether the trial court abused its discretion in ruling that the statement was admissible. Answer (Doc. 16), Exh. "E" at 1. Relying solely on state law, Petitioner argued that "[t]here was absolutely no testimony from the doctor that the identity of the person who abused T[.] was relevant or 'reasonably necessary' 'to proper diagnosis and treatment' as required by Rule 803(4)[, Arizona Rules of Evidence,] and applicable case law." Id., Exh. "E" at 14. As such, Petitioner asserted that the statement "was inadmissible because it did not fall under the medical exception to the hearsay rules." Id., Exh. "E" at 15. Again relying solely on state law, Petitioner further argued that "the totality of the circumstances clearly indicate that the Jury's verdict was coerced." Id., Exh. "E" at 18. Accordingly, Petitioner sought "to have his conviction overturned." Id.

On July 31, 2008, the Arizona Court of Appeals affirmed Petitioner's conviction. Answer (Doc. 16), Ariz. Ct. App. Memorandum Decision 7/31/2008 (Exh. "H"). Upon review of state law, the court of appeals recognized that "the identity of the victim's assailant and other statements attributing fault ordinarily are inadmissible under Rule 803(4) because identity and fault usually are not relevant to diagnosis or treatment[;] . . . however, . . . the general rule is inapplicable in many child sexual abuse cases because the abuser's identity is critical to effective diagnosis and treatment." Answer (Doc. 16),Exh. "H" at 5 (citing State v. Robinson, 153 Ariz. 191, 200, 735 P.2d 801, 810 (1987)) (internal quotations marks omitted). As such, the court of appeals held that "the trial court did not abuse its discretion in admitting T.'s statement identifying Kidwell." Answer (Doc. 16), Exh. "H" at 8. Regarding jury coercion, and again relying on state law, the court of appeals recognized that "[w]hen a jury has advised the trial court that it has reached an impasse . . . [the court is permitted to,] in the presence of counsel, inquire of the jurors to determine whether and how court and counsel can assist them in their deliberative process, . . . [and] the judge may direct that further proceedings occur as appropriate." Answer (Doc. 16), Exh. "H" at 10 (citing Ariz. R. Crim. P. 22.4) (internal quotation marks omitted). The Arizona Court of Appeals then held that "to the extent Kidwell suggests the court was obligated to declare a mistrial merely because the jury had informed the court it was unable to reach a verdict, he is incorrect." Id., Exh. "H" at 10 (citing State v. Cruz, 218 Ariz. 149, ¶ 115, 181 P.3d 196, 214 (2008)). The court further held that it found "nothing in the record suggesting the court's actions displaced the jury's independent judgment . . . [and] [t]here was no error." Answer (Doc. 16), Exh. "H" at 12 (citing State v. Huerstel, 206 Ariz. 93, 101 n. 5, 75 P.3d 698, 706 n. 5 (2003)). On September 2, 2008, Petitioner filed his Petition for Review. Answer (Doc. 16), Pet. for Review (Exh. "I"). On January 7, 2009, the Arizona Supreme Court denied review. See Answer (Doc. 16), Ariz. Supreme Ct. Minute Entry 1/7/2009 (Exh. "K").

B. Post-Conviction Relief Proceeding

On February 4, 2009, Petitioner filed his Notice of Intent to File for Post-Conviction Relief ("PCR"). Answer (Doc. 16), Not. of Intent to File PCR 2/4/2009 (Exh."L"). On February 17, 2009, the trial court appointed counsel to Petitioner for the Rule 32 proceeding. Answer (Doc. 16), Ariz. Superior Ct., Pima County, Notice 2/17/2009 (Exh. "M"). After several extensions of time, as well as a change of counsel, on April 13, 2010, counsel for Petitioner filed a Petition for Post Conviction Relief. See Answer (Doc. 16), Orders re: Extensions of Time & Withdrawal of Counsel (Exh. "M") & Pet. for PCR 4/13/2010 (Exh. "O"). Petitioner asserted that his conviction was based upon insufficient evidence. See Answer (Doc. 16), Exh. "O" at 9-13. Petitioner further asserted several grounds of ineffective assistance of trial counsel, including: 1) an alleged failure to move that the verdict was contrary to the weight of the evidence pursuant to Rule 24.1(a), (c)(1), Arizona Rules of Criminal procedure; 2) an alleged failure to properly argue in opposition to the State's motion to modify the date range of the indictment; 3) an alleged failure to object to the a duplicitous charge on the jury form; 4) an alleged failure to object to the admissibility of T.'s statement to the examining doctor "on the grounds that it...