Kittelson v. Dretke

Decision Date20 September 2005
Docket NumberNo. 04-20252.,04-20252.
PartiesBruce Lee KITTELSON, Petitioner-Appellant, v. Doug DRETKE, Director, Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Bruce Lee Kittelson, Fort Stockton, TX, pro se.

Ana Jordan, Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, Chief Judge, DAVIS, Circuit Judge, and ROSENTHAL, District Judge.*


Bruce Lee Kittelson appeals the district court's denial of his application for a writ of habeas corpus. This court granted a certificate of appealability (COA) as to three of the issues Kittelson raised. We now find that Kittelson has shown a basis for relief under 28 U.S.C. § 2254 because the state courts unreasonably applied clearly-established Supreme Court law governing the Sixth and Fourteenth Amendments. We reverse, render, and remand, for the reasons set out below.

I. Factual and Procedural Background

A state jury found Kittelson guilty of indecency with a child by contact. Two enhancement paragraphs alleging prior felony convictions, one for possession of a controlled substance and one for aggravated assault, were found to be true. Kittelson received a twenty-five year prison sentence.

The trial was short. There was no physical evidence. The case hinged on the child's accusation, which was not made until one month after the alleged event. Kittelson, a 37 year-old man, lived with his girlfriend, Janet Stokes, and her two children, Jana, then age 9, and Darian, a toddler. Kittelson had lived with Stokes for approximately 15 months and frequently took care of her children. Stokes and her neighbor, Teresa Driver, often worked late night shifts and coordinated babysitting arrangements. Driver had an 8 year-old daughter, the complainant, referred to in the state court trial transcript as "T.D." On the night in question, February 8, 1997, Kittelson watched Jana, Darian, and T.D. while Stokes and Driver were at work. Kittelson had taken care of T.D. as well as Jana and Darian on several previous occasions, without incident.

At the trial, T.D., Jana, and Kittelson testified about the events of February 8, 1997. Their testimony was consistent except as to the alleged molestation. After Stokes and Driver left, Kittelson fed the children. The two girls gave themselves baths and watched television in the living room while Kittelson watched television in the bedroom. The girls then put themselves to bed in Jana's bedroom, sleeping together inside a toy tent. Darian slept in a crib in the same room. Kittelson moved to the living room and continued watching television.1

T.D. testified that at some point during the night, she woke up and could not go back to sleep. She went into the living room and asked Kittelson to scratch her back, then to rub her stomach. T.D. testified that as Kittelson rubbed her stomach, he kept moving his hand lower until he rubbed her genital area outside and inside her underwear, then placed her hand "on his ding dong, whatever," through his clothing. T.D. did not remember if Kittelson said anything to her. T.D. told Kittelson that she would like to go back to bed, left the living room, and crawled back into the tent with Jana. T.D. testified that she cried herself back to sleep.2

Kittelson testified on his own behalf. He denied touching T.D. Kittelson told the jury that neither Jana nor T.D. woke after they went to sleep in the tent. Jana also testified as a defense witness. She stated that she would have heard if T.D. had left the tent during the night, come back in, and cried. Jana did not see T.D. leave the tent and did not hear any noises. Jana also testified that T.D. did not appear frightened when she was around Kittelson.3

The following morning, Kittelson prepared breakfast for the children and took T.D. back to her mother's apartment. During the next month, Kittelson again took care of T.D., as well as Jana and Darian, without incident. Approximately one month later, on March 7, 1997, Jana and T.D. were at the apartment of another babysitter, Diane Parker, who had a ten-year-old daughter named Christine. As the three girls played together, they became loud. Parker, who was in a separate room, scolded the girls, telling them to be quiet or she would make them go to Jana's apartment. Christine told Jana and T.D. that she had been raped by her father. Both Jana and T.D. then told Christine that when Kittelson had taken care of them in February, he had sexually touched them. Parker told Driver and Stokes what their daughters had said. Driver notified the Webster City Police Department, reporting that both girls had alleged that Kittelson molested them. That same day, Jana recanted her accusation.

Officer Jeff Tate talked to Driver, Parker, and Stokes and arranged for both T.D. and Jana to be interviewed by a counselor through the Children's Assessment Center. T.D. was interviewed on March 20, 1997. Jana was interviewed on March 21, 1997. During her interview, T.D. stated that she had been similarly touched on two prior occasions, once by a nine year-old relative and once by an unidentified stranger who had tried to get her to come into his car. During the interview, T.D. referred to the two previous incidents as "nothing really"; told the case worker that her mother had taught her the word "molested"; referred to the incident with Kittelson as a "stupid story"; used the words "tits" and "dick" casually; described Kittelson's penis as "soft and squishy"; and did not remember details about the incident with Kittelson. Jana stated in her interview that Kittelson did not abuse her.

After viewing the videotaped interviews, Officer Tate signed a probable cause affidavit for indecency with a child by contact. The affidavit identified Diane Parker as the outcry witness. Kittelson was indicted for "touching the genitals of [T.D., a child under the age of 17 and not the defendant's spouse] with the intent to arouse or gratify the sexual desire of the defendant," a violation of § 22.011(a) of the Texas Penal Code. A conviction under section § 22.011 "is supportable on the uncorroborated testimony of the victim of the sexual offense ... if at the time of the alleged offense the victim was a person ... 17 years of age or younger."4

Kittelson was appointed counsel and entered a plea of not guilty. At the September 1997 trial, the State called three witnesses: T.D., Driver, and Officer Tate. The defense called Kittelson, Jana, Parker, and a clinical psychologist. The defense theory was that T.D. had been influenced to make up the story about Kittelson by the older girl's (Christine's) description of sexual abuse she had experienced and by the admonishment from the babysitter (Parker). After the jury was impaneled, the trial court granted two oral motions in limine made by the State. One limine order prohibited the defense from introducing evidence that Jana had joined T.D. in accusing Kittelson of improper touching, but recanted the accusation the same day. This motion was heard and decided off the record. The second limine order prohibited the defense from cross-examining T.D. or Driver about the two prior times T.D. had reported sexual abuse by different individuals. The trial court granted this motion on the record:

The Court: Let the record reflect that the State approached the bench this morning with oral motions in limine concerning two instances that have been disclosed to the defense in which the complainant in this case told her mother or her stepmother about her brother or stepbrother touching her [and] another incident which was reported to the Texas City police of a stranger allegedly touching her on her genitals. [] And the court has asked the prosecutor to check with the complainant, and at the present time the prosecution is attempting to get a copy of a Texas City policy report. The court's inclination is to limine out that information unless there is some evidence that shows or — affects ... the complainant's credibility — and my understanding is at this time there is not.5

The prosecutor described both of the prior incidents. When T.D. was five years old, she told her mother that her stepbrother — then nine — had touched her in the genital area through her clothing.6 The second incident "was apparently an attempt to lure her away from her father and stepmother's house [while] she was playing outside.... [The stranger] approached her and was attempting to get her to leave their home and he touched her inside of her clothing on her genitals, showed her a magazine and [a] Barbie doll. At that point the stepmother called to her and she went home and that was reported to the Texas City Police Department. But since it was a stranger, nothing has ever been done about it."7 It is unclear when this second incident occurred and the police report is not in the record. The trial court granted the motion in limine and told defense counsel that "if the situation changes or you feel the door is opened, approach the bench."8 Defense counsel objected to both limine orders.

At trial, the State called T.D. as its first witness. The defense was precluded from asking T.D. questions about her prior accusations of abuse. The State then called Officer Tate to testify about his investigation. Officer Tate stated that he had arranged for CPS to interview both T.D. and Jana:

When I received this case from my supervisor, I spoke to the outcry witness Diane Parker, and I obtained an affidavit of facts from her which was placed with the case file. I then spoke to [Driver and Stokes] and contacted the Harris County District Attorney's Office ... and set up interviews with Child Protective Services for [T.D.] and Jana.9

Tate explained that after CPS completed the interviews, he collected the information and forwarded it to the district...

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