Knauff v. Hooks

• Decision Date: 04 May 2016
• Docket Number: Case No. 1:15-cv-338
• Parties: TRAVIS KNAUFF, Petitioner, v. MARK HOOKS, Warden, Ross Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

TRAVIS KNAUFF, Petitioner, v. MARK HOOKS, Warden, Ross Correctional Institution, Respondent.

Case No. 1:15-cv-338

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

May 4, 2016

District Judge Michael R. Barrett

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

Petitioner Travis Knauff brought this habeas corpus action pro se pursuant to 28 U.S.C. § 2254 to obtain relief from his conviction for rape of his daughter and consequent sentence of life imprisonment without the possibility of parole. Knauff pleads the following grounds for relief:

GROUND ONE: Trial court violated right of confrontation under Sixth Amendment by allowing the video recorded statement of his daughter to be played for the jury.

Supporting Facts: The court admitted a video-recorded interview to be played in its entirety to the jury. Making the testimony "hearsay" and inadmissible under Evid. R. 803(4). Many aspects of the interview went beyond that required for providing information for Dr. Shapiro's physical exam. The confrontation clause of the 6th Amendment was violated because Petitioner was not permitted to cross-examine the witness in any type of "meaningful" manner.

GROUND TWO: Trial court violated right of confrontation under Sixth Amendment by allowing testimony of an accuser to be given "in camera" rather than in open court.

Supporting Facts: This regards a challenge to the constitutionality of a statute (O.R.C.§2945.481) which permits a witness to testify in the judge's chambers by closed-circuit television, violating the minimum requirements for confrontation rights...which must be ''face to face."

GROUND THREE: Petitioner was denied his right to effective assistance of trial counsel under the Sixth and Fourteenth Amendments; and consequently was denied equal protection of law and due process by denial of "evidentiary hearing."

Supporting Facts: Petitioner suffered ineffective assistance of trial counsel, where counsel failed to address key factual matters when examining Jerrylyn Younts in testimony. Then the court failed to afford an "evidentiary hearing" to facilitate evidence coming forward which calls into question that very testimony.

(Petition, ECF No. 5.)

Procedural History

Petitioner Travis Knauff was indicted by the Adams County grand jury on January 13, 2010, on one count of rape with the specification that the victim was under ten years old. The trial judge initially denied the State's request to permit the victim to testify from some place outside the courtroom. When she started her testimony, however, she became afraid and was permitted to continue to testify from the judge's chambers. The jury found Knauff guilty and the trial judge sentenced him to life without parole.

Knauff took a direct appeal to the Ohio Fourth District Court of Appeals which affirmed the conviction. State v. Knauff, No. 10CA900, 2011-Ohio-2725, 2011 Ohio App. LEXIS 2327 (4^th Dist. May 24, 2011), appellate jurisdiction declined, 129 Ohio St. 3d 1507 (2011). The facts as shown by trial testimony were recited by the court of appeals:

[*P3] Travis Knauff and Alisha Knauff were previously married, but divorced before the incident. According to Alisha, theirdaughter D.K. accused Knauff of molesting her at his trailer during his parental visitation.

[*P4] After Alisha contacted the Adams County Sheriff's Department, Detective Jim Heitkemper referred her to the Mayerson Clinic at Cincinnati Children's Hospital for an evaluation. There, social worker Cecelia Friehofer recorded a one-hour interview with D.K. During the interview, D.K. revealed that her father engaged in sexual conduct with her in his bedroom, living room, and in a "forest." She also revealed that she spit Knauff's "pee" into a hole in his bedroom floor. The interview covered a broad range of details related to the abuse.

[*P5] Friehofer summarized what D.K. told her to Dr. Bob Shapiro, who conducted a physical examination. Dr. Shapiro examined D.K. visually and observed nothing out of the ordinary. He testified that he would not have expected to observe any physical signs of sexual contact given that the incident occurred three months prior.

[*P6] Friehofer faxed a report of the interview to Detective Heitkemper, who then obtained and executed two search warrants for Knauff's residence. Executing the first search warrant, Heitkemper removed the portion of the floor containing the hole and a section of pink insulation found underneath the hole. Through the second search warrant, Heitkemper obtained Knauff's DNA by swabbing his mouth. The Sheriff's Office sent the physical evidence from the trailer and DNA swabs of both Knauff and D.K. to the Ohio Bureau of Criminal Identification (BCI) for analysis.

[*P7] Two BCI employees testified about their findings. The first, a "forensic biologist," testified that her analysis revealed that the insulation contained a combination of both semen and "amylase," which is a substance found in saliva. The second BCI employee conducted DNA testing on the insulation and compared his findings to the DNA samples obtained from Knauff and D.K. He concluded that the sample contained a "major DNA profile," which matched Knauff's DNA. The employee also found a "minor DNA profile" which he could not associate with any individual. He could not reach a conclusion about whether the minor profile belonged to D.K. The employee explained that the minor profile had insufficient DNA information to provide him with the ability to make a comparison. On cross-examination, the employee testified that the information contained in the minor profile couldarguably support the conclusion that the unknown or "foreign" DNA came from as many as four different contributors.

[*P8] D.K., who was five-years-old, testified at trial. When the prosecutor asked her about the abuse, she became non-responsive and indicated that she was scared. The prosecutor attempted to calm her down but she repeatedly conveyed that she was too scared to testify about the alleged abuse. The court eventually questioned D.K. about her level of fear and asked her what was causing it. She stated that she was scared because of "everyone" in the courtroom and because of her father's presence. When asked to describe her level of fear in terms of a one to ten scale, D.K. responded that she was "real, real, real scared."

[*P9] The prosecutor asked D.K. if she thought she could testify in the judge's chambers, with only the judge, the state's attorney and the defense counsel present. She said she could. The court then made a finding on the record that D.K. had expressed "extreme fear" that was preventing her from testifying in open court. The court invoked the procedures set forth in R.C. 2945.481(E) for conducting an examination of a child sex abuse witness outside of the courtroom via closed-circuit television.

[*P10] The state continued D.K.'s direct examination in the judge's chambers with the judge and defense counsel present. Court staff used a closed-circuit video system to broadcast D.K.'s testimony to the courtroom, where the jurors and Knauff remained. The record reflects that Knauff could speak to defense counsel during D.K.'s direct examination by the use of a cell phone. On direct, D.K. testified that Knauff stuck his finger in her "pee pee" and her "butt," and that she spit his "pee" in a hole in the floor and the toilet. Defense counsel briefly cross-examined D.K., mainly to clarify whether she told her mother about the abuse allegations first, or whether her mother asked her about the allegations. D.K.'s response was, essentially, she told her mother because otherwise she would not know.

[*P11] Friehofer testified and discussed the general methodology behind the "forensic interview" that she conducted with D.K. She explained that one purpose of the lengthy interview was to gain as much information as possible so that D.K. would not have to discuss the abuse with others. Friehofer explained that another purpose of the interview was to gain information so that medical staff could make appropriate decisions concerning necessary physical or mental health treatment.

[*P12] At the conclusion of Friehofer's testimony, the state played the interview for the jury. Court staff fast-forwarded or muted at least two portions of the interview, apparently in response to an agreement by the prosecutor and defense counsel. The record contains both the complete video-recorded interview and the redacted version.

[*P13] The interview played for the jurors lasted approximately 50 minutes as D.K. describes repetitively, and in detail, the sexual abuse. She alleged that the majority of the abuse occurred in Knauff's bedroom and in the living room. In her own words, she described acts of digital penetration, cunnilingus, and fellatio. She said that Knauff told her to swallow his "pee" but that she refused. She said she spit his "pee" in a hole in his bedroom floor. D.K. additionally described an act of fellatio that occurred in a "forest" while on a trip to Wal-Mart.

[*P14] D.K. described the frequency of the abuse, which she said happened "a lot" and "whenever she stayed the night." D.K. also described specifically where the abuse occurred, and what bodily position she and Knauff would be in when it occurred. D.K. told Friehofer that Knauff would place a "baby box" in front of the door so that no one would enter the room. D.K. stated that during the encounters, she would have her pants and underwear off and Knauff would remain clothed. When the abuse was over, Knauff would put her clothes back on.

[*P15] D.K. also told Friehofer that sometimes other individuals were in the trailer during the abuse. She claimed that Knauff's girlfriend, Jerrylyn Mounts, (sic) was "always" outside on the porch, smoking a cigarette. Her Uncle Sonny Knauff and her Grandma were in their respective bedrooms.

[*P16] The defense introduced the testimony of Jerrylyn Younts. She claimed that she never went outside to

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