Logan v. Lockhart

• Decision Date: 07 June 1993
• Docket Number: 92-2752,Nos. 92-2745,s. 92-2745
• Citation: 994 F.2d 1324
• Parties: Rick W. LOGAN, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Corrections, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1324

994 F.2d 1324

Rick W. LOGAN, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Corrections, Appellee.

Nos. 92-2745, 92-2752.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 23, 1993.

Decided June 7, 1993.

Jennifer M. Horan, Fayetteville, AR, argued, for appellant.

Olan W. Reeves, Little Rock, AR, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, HEANEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Petitioner Rick Logan brings companion habeas corpus actions under 28 U.S.C. § 2254. He attacks his convictions, obtained in two trials, on a number of counts of rape and carnal abuse.

Logan, an employee of the Sunshine School, a facility for developmentally handicapped students in Benton County, Arkansas, was convicted of raping Joey B., a 17-year-old student at the school. For that conviction, Logan was sentenced to life in prison, and the conviction was affirmed on appeal. Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989) (Logan III ). Logan was unable to pursue state post-conviction relief because the deadline for doing so passed before his direct appeal was decided. Logan attacks this conviction on five grounds: (1) that the jury was biased; (2) that the prosecuting witness was incompetent to testify; (3) that the prosecution withheld favorable evidence; (4) that the prosecutor was guilty of misconduct; and (5) that the trial court improperly excluded evidence of the victim's prior sexual behavior. The district court denied the petition on all grounds, and we affirm.

Logan was convicted in a separate trial of raping seven other Sunshine School students. For these crimes, Logan was sentenced to seven consecutive 40-year terms. The Arkansas Supreme Court affirmed six of those convictions and reduced one to carnal abuse. Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989) (Logan II ). Logan attacks these seven convictions in the second habeas petition before us. The district court dismissed that petition based on the concurrent sentence doctrine. We conclude that the district court incorrectly applied the concurrent sentence doctrine in finding the second petition moot, and we remand for consideration of that petition's merits.

I.

Logan asserts that his trial for the Joey B. rape was not fair because a biased juror sat on the jury that convicted him. Logan was unable to eliminate the objectionable juror, a Ms. Sutterfield, because the trial judge declined to dismiss her for cause, and he had already used all of his peremptory challenges.

In Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984), the Supreme Court held that whether a juror "could set aside an opinion held and decide the case on the evidence" is a question of "historical fact" for the state trial court. Id. at 1036, 104 S.Ct. at 2891. Under 28 U.S.C. § 2254(d), a habeas court must, of course, afford this determination the presumption of correctness due a state court's factual findings. Swindler v. Lockhart, 885 F.2d 1342, 1349 (8th Cir.1989) (citing Patton v. Yount, 467 U.S. at 1036-38, 104 S.Ct. at 2891-92), cert. denied, 495 U.S. 911, 110 S.Ct. 1938, 109 L.Ed.2d 301 (1990). The question for this court, then, is whether the state court's conclusion that the juror would be impartial is fairly supported by the record. Id. (citing Patton v. Yount, 467 U.S. at 1038, 104 S.Ct. at 2892).

Petitioner focuses upon Ms. Sutterfield's statement to his attorney during voir dire that, "[Y]ou will have to show me that, with the witnesses that you bring, that he's innocent." This statement, alarming on its face, must be placed in context. Ms. Sutterfield was one of the last of the venire questioned, and defense counsel, almost certainly relying on Ms. Sutterfield's presence during the entire voir dire, made a truncated reference to the presumption of innocence. She asked Ms. Sutterfield, "I guess you ... understand all the burden and all that kind of stuff?" Ms. Sutterfield agreed that the State had the burden of proof, but then volunteered her remark about the defendant having "to show [ ] that ... he's innocent." Thus it appears that she may have thought the burden could shift to the defendant at some point during the trial, an obvious misconception. Alternatively, this may have been only a remark about the order of proof, especially since Petitioner's counsel had emphasized during voir dire that her client's chance to put on a case was postponed until the State had finished its proof. Whatever the precise nature of Ms. Sutterfield's misconception, her statement seems to us not necessarily to reflect bias, but rather a misunderstanding of a legal principle with respect to which Ms. Sutterfield had not yet been instructed. Defendant's counsel did not at this point ask the trial judge to instruct Ms. Sutterfield on the rules regarding the burden of proof in a criminal case. We note, too, that Ms. Sutterfield went on to say that she had no bias in the matter, and the trial court could have properly relied on that statement in ruling on the challenge for what defense counsel characterized as "implied bias."

We find that the trial judge's conclusion that Ms. Sutterfield would be impartial is fairly supported by the record. Finding no constitutional infirmity with the jury, we affirm the district court on this issue.

II.

Petitioner's next argument is that Joey B., the 17-year-old, mildly retarded victim, was incompetent to testify. In a habeas proceeding, we ask whether the testimony in question "was so grossly unreliable" that it "infected and fatally undermined" the fairness of the trial, Peters v. Whitley, 942 F.2d 937, 940 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1220, 117 L.Ed.2d 457 (1992), "so as to make the resulting conviction a denial of due process." Amos v. Minnesota, 849 F.2d 1070, 1072-73 (8th Cir.), cert. denied, 488 U.S. 861, 109 S.Ct. 159, 102 L.Ed.2d 130 (1988).

Petitioner's trial counsel questioned Joey's competency because of his handicap, but the trial court denied Logan's belated motion for a competency hearing. A review of the transcript shows that Joey was able to provide accurate testimony about himself, his family, his employment history, and his former school. Joey was also able to describe the sexual attacks by Logan in considerable detail. We hold that it was not error for the trial judge to find that Joey was competent to testify, and we agree with the district court that Logan has not shown that Joey's testimony was so unreliable as to amount to a denial of due process.

III.

Joey was the first student to report a sexual assault by Logan. He did so in October, 1985, while he, Logan, and other Sunshine School staff and students were on a retreat in Fayetteville (Washington County), Arkansas. At that time, Joey reported only that Logan had performed oral sex on him several times during the previous night. The first Sunshine School employee to speak to Joey about the matter asked him only a few questions. ¹ That employee reported the matter to her supervisor who took Joey to the police. When Joey subsequently reported that Logan had been sexually assaulting him on a regular basis for more than two years, he also provided the names of other students who had been sexually assaulted by Logan (Logan allegedly made Joey "stand guard" during these incidents). Sunshine School staff then interviewed a number of students in an effort to identify all those who had been abused. Most of these interviews were videotaped. Joey was never taped by the Sunshine School staff.

During preparation for these companion cases, Petitioner's trial counsel requested access to all existing videotapes of either the alleged child victims or other Sunshine School students. Most such videotapes were unavailable for defense review because they had been destroyed. The only tape ² that had not been destroyed was in the possession of a juvenile judge who was considering a collateral matter. Responding to defense counsel's request to see the tape, the prosecuting attorney told the trial court that the tape was not "relevant" because it did not show or involve questioning of students who were designated "victims" in the criminal cases against Logan. The prosecuting attorney told the court that the tape contained no information exculpatory of Petitioner and that, in fact, it incriminated Logan. Petitioner now claims that the videotape contained exculpatory evidence because it showed one student stating that Logan had never sexually assaulted her and two stating that they had been sexually assaulted by people other than Logan. The statement of the first student can hardly be considered exculpatory; it is, at best, neutral. As for the other two children, one stated that her father had sexually assaulted her and indicated that Logan had assaulted her by identifying an anatomically correct doll as "Rick". The other said that she had been sexually assaulted by her brother. Neither family member was associated with the Sunshine School, and there was no implication that either had assaulted anyone other than his family member. With the exception of the statement that directly incriminated Logan (he was never tried for assault of the female student), the substance of the taped statements was not relevant to the charges against Logan, and none of it could be characterized as exculpatory.

Additionally, Petitioner suggests that the tape reveals the coercive, overbearing, and improper nature of the interviewing techniques used by Sunshine School staff. The district court held simply that the "matter of the tapes is not relevant to this case" because "Joey B. was the first student to report abuse which was before the videotaping and [Joey] was not videotaped. Further", the district court observed, "there is no suggestion [Joey's] trial testimony was contaminated because of the taping." Petitioner asserts on appeal that the tape is...