Lomholt v. Burt
| Decision Date | 02 May 2002 |
| Docket Number | No. C01-2018-MWB.,C01-2018-MWB. |
| Citation | 219 F.Supp.2d 977 |
| Parties | Mark Edward LOMHOLT, Sr., Petitioner, v. Jerry BURT, Acting Warden, Respondent. |
| Court | U.S. District Court — Northern District of Iowa |
Rockne Cole, Mears Law Office, Iowa City, IA, for plaintiff.
Robert P. Ewald, Des Moines, IA, for defendant.
This petition for a writ of habeas corpus comes before the court pursuant to the February 5, 2002, Report and Recommendation by Magistrate Judge Paul A. Zoss on the merits of the petition. Judge Zoss recommends that the petition be granted, that judgment enter in favor of petitioner Lomholt and against the respondent, and that Lomholt be released pending a new trial. The respondent filed objections to the Report and Recommendation on February 14, 2002, and Lomholt filed a resistance to those objections on February 19, 2002.
Lomholt seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 from his August 16, 1996, conviction by a jury on two counts of second degree sexual abuse, in violation of IOWA CODE §§ 709.1 and 709.3. Lomholt was convicted primarily on the testimony of the two victims, B.G., a four-year-old female, and N.P., a five-year-old female, and his own confession. Lomholt contends here, as he did before the Iowa state courts on direct appeal, that he was denied his Sixth Amendment right to confront witnesses at trial when the child victims were permitted to testify outside of his presence via closed-circuit television pursuant to IOWA CODE § 910.14(a) (since recodified as § 915.38(1)).
I. Pre-trial hearing
Before deciding to allow the child witnesses to testify at trial by closed-circuit television outside of Lomholt's presence, the trial court held a pre-trial hearing at which the only witness was Patricia A. Tomson, the children's sex abuse counselor. The children did not testify at that hearing. Ms. Tomson's testimony appears in its entirety in the Iowa Supreme Court Appendix, Sup.Ct. No. 96-1965 (ISC App.), pp. 9-30. Nevertheless, the court will identify the salient parts of her testimony, as her testimony was the basis for the trial court's conclusions, and hence, is the basis for Lomholt's contention that the trial court's ruling violated his Confrontation Clause rights.
2. The counselor's testimony
a. Background to the counselor's testimony
Ms. Tomson described herself as the executive director of the Parents United program, which treats sexually abused children and their families. ISC App. at 9. Ms. Tomson had a master's degree in mental health counseling, advanced training in sexual abuse treatment and play therapy, and approximately ten years of experience counseling sexually abused children, with a specialty in treating sexually abused children ages three to twelve. Id. at 10. Tomson treated B.G. in group and individual sessions for three to four weeks beginning approximately four months after the alleged incident of abuse by Lomholt, with sessions concluding when B.G.'s family moved away approximately one-and-a-half months before the hearing and approximately three months before Lomholt's trial. Id. at 25, 19-20. Tomson treated N.P., also in group and individual sessions, beginning about four months after the alleged abuse and continuing through the time of the hearing. Id. at 16, 26.
b. Testimony regarding B.G.
Tomson testified that various drawings that she had asked B.G. to make of herself her family, and Lomholt, who was her uncle, showed that B.G. felt "helpless." Id. at 11-12. Tomson testified that, in the explanation of how she was feeling in one picture, B.G. said "I'm feeling happy because I like my mom, but I feel sad and tired when I think about [Lomholt]." Id. at 12. Tomson also described a session of "sand tray play" in the course of which B.G. identified a "bad character" as Lomholt, placed him in "jail," dumped water on him, and cut off his head. Id. at 13-14. Tomson also described a drawing by B.G. of herself missing body parts, made during a group session in which the group discussed the fact that one of the other children needed to go to court. Id. at 14-15. Based upon her education and experience, Tomson described that drawing as showing "that [B.G.] doesn't have much ego strength and is pretty disintegrated emotionally, particularly when thinking about the subject we were talking about which was court." Id. at 15.
Tomson explained that her sessions with B.G. ended when B.G.'s mother moved away, apparently as the result of her separation from her husband, who was a relative of Lomholt, over what she understood B.G.'s mother considered a lack of support concerning the abuse incident from her husband's family. Id. at 19-20. The following exchange between the prosecutor and Tomson then occurred:
Q I want to discuss [B.G.] right now. Is [B.G.] scared of the defendant?
A When I asked her that question directly, she didn't answer me. She had a relationship with [Lomholt]. He was her care giver. So I'm not certain that she's frightened of him.
* * * * * *
Q How about now [B.G.]? Is she apprehensive or scared about testifying in court with [Lomholt] present?
A [B.G.]'s anxious about talking about the abuse at all. I was present when she talked with you about that. And she sat in my lap and did as many distracting things as she could rather than talk about what had happened to her. The fact that she resorts to baby talk and is very difficult to understand when she starts talking about the abuse. And the fact that she wets her pants or has — now she asks to go [to] the bathroom, but at first, she didn't. She just wet her pants.
On cross-examination by Lomholt's defense counsel, the following exchange regarding B.G. occurred:
Q It's your testimony that you don't believe [B.G.] is afraid of [Lomholt]?
A She has not indicated that to me.
Q And since she broke off any kind of relationship, you really don't know today what her mental thought pattern is or her ideas are on [Lomholt]?
A No, I don't.
Q And would it be fair to say that if I have seen no signs of her being afraid of [Lomholt], it would be less of a burden or less pressure on her to testify in front of [Lomholt]?
A It's very hard for people to testify in front of anyone they have a relationship with.
Q Is it possible that they would be — she would be less likely to feel this pressure?
A Children — I don't know if you're familiar with the accommodation syndrome, but children will make things right. Possibly she would retract anything that she has said because she wouldn't want to hurt the family or [Lomholt].
On redirect examination, the following exchange occurred between the prosecutor and Tomson concerning B.G.:
Q You testified that [B.G.] has never told you that she is afraid of [Lomholt]?
A That's right.
Q Based upon her drawings and based upon your other communications with her, has she indirectly indicated that she's afraid of [Lomholt]?
A Based on her drawings, there is more indication that [sic] of shame about talking about the abuse than of [Lomholt] himself.
Before noting some testimony by the counselor concerning both children, the court turns to consideration of Tomson's testimony related specifically to N.P.
c. Testimony regarding N.P.
Tomson also asked N.P. to draw pictures as part of her treatment process. Tomson testified that N.P. drew two pictures of Lomholt on the same day. In the first of these pictures, N.P. drew Lomholt's head and body and what N.P. said was Lomholt's "peter in the window," but she testified that N.P. then scribbled out the "peter" explaining, "because he's naughty." ISC App. at 16-17. The second drawing apparently took a very long time, because N.P. was restive and resistant to doing it. Id. at 17. When completed, it consisted of Lomholt's face with a "very big smile," and N.P. explained that Lomholt was "happy because he touched me all over." Id. On N.P.'s first visit, Tomson asked her to draw her family, and N.P. complied by drawing...
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