May v. Shinn

Decision Date27 March 2020
Docket Number17-15704,Nos. 17-15603,s. 17-15603
Citation954 F.3d 1194
Parties Stephen Edward MAY, Petitioner-Appellee/Cross-Appellant, v. David SHINN ; Mark Brnovich, Attorney General, Respondents-Appellants/Cross-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

FRIEDLAND, Circuit Judge:

Appellant Stephen May seeks habeas corpus relief, arguing that he was deprived of his Sixth Amendment right to counsel because the defense lawyer who represented him in his child molestation trial in Arizona state court was ineffective. After the close of evidence in that trial, the jury reported that it was deadlocked, and the judge declared a mistrial. Several minutes later, however, the jury requested permission to resume deliberations. May’s defense lawyer did not object to such a resumption, which the judge then permitted. The jury convicted May on most counts. May now argues that his lawyer’s failure to object amounted to constitutionally deficient performance. We hold that May’s counsel was not ineffective because, on the facts of this case, it was a reasonable prediction that May had a better chance of a more favorable verdict from the existing jury on the existing trial record than he would from a retrial.1

I.

A grand jury in Maricopa County, Arizona indicted Stephen May in 2006 on eight counts of child molestation. The indictment alleged that May had engaged in sexual contact with five children: Taylor (Counts 1 and 2), Danielle (Counts 3 and 4), Sheldon (Counts 5 and 6), Luis (Count 7), and Nicholas (Count 8). May’s lawyer, Joel Thompson, subsequently filed a motion to sever, arguing that the count or counts related to each individual child must be tried separately. The motion contended that severance was required under an Arizona rule entitling some defendants to severance of an offense "unless evidence of the other offense or offenses would be admissible" if there were separate trials. See Ariz. R. Crim. P. 13.4(b).2

The trial court granted the motion in part by severing the count related to Nicholas.

Ruling from the bench, the judge made reference to the fact that the count related to Nicholas alleged that he had been molested at a daycare center where May worked in 2001, while the counts related to the other children involved allegations of molestation occurring between 2003 and 2005. Because the timing and other "circumstances" of the count related to Nicholas were "different," and there had also "been a loss of evidence" with respect to that count, the judge determined that the evidence concerning the other children would be "more prejudicial than probative on that count."

The court declined to sever any of the other counts. It explained that the evidence concerning each of the remaining children would have been admissible to prove the counts related to the other children if they were tried separately. Under Arizona Rule of Evidence 404(b), such "evidence of other crimes, wrongs, or acts" is admissible for the purpose of proving "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." See Ariz. R. Evid. 404(b). And under Rule 404(c), such "evidence of other crimes, wrongs, or acts" could additionally be admissible "to show that [May] had a character trait giving rise to an aberrant sexual propensity to commit the offense[s] charged." See Ariz. R. Evid. 404(c).

The counts related to Luis, Taylor, Danielle, and Sheldon therefore proceeded to trial in January 2007. At trial, the State’s evidence consisted primarily of testimony from the four children and some of their parents.

Luis testified first. Luis attended an elementary school where May was employed for several months. May worked with first graders with special needs who would be integrated into Luis’s class for certain activities, including computer lab. Luis testified that one day in computer lab May came over to help him. While May’s right hand was holding the computer mouse, May’s left hand touched Luis’s "private part" over his pants. Luis testified that May did not move the hand that was touching his genital area.3 Luis testified that two adults other than May and about twenty children were present when this happened.

Luis testified that he told his mother about May touching him. His mother confirmed this in her testimony at trial, and she further testified that Luis said May touched him on purpose. Luis testified that he never talked to police about May, but a detective who had interviewed Luis soon after the incident testified at trial about that interview. The detective testified that he did not report Luis’s allegations to prosecutors after the interview because Luis was unable to provide details about the incident, such as the time frame in which it occurred or the people who were nearby.

Luis testified at one point during trial that May was clean-shaven at the time he worked at Luis’s school; at another point, Luis testified that May had a beard. When the prosecutor asked Luis if he saw May, who was in the courtroom at the time, Luis said no. Later, after a recess, the prosecutor showed Luis a photographic line-up. Regarding the photograph of May, Luis testified that it "kind of look[ed] like Mr. May." Luis testified that the other photographs did not depict anyone who looked familiar.

The other children—Taylor, Danielle, and Sheldon—all knew May because they lived at the same apartment complex as him.4 That apartment complex had a pool where May spent much of his time. May gave swim lessons at the pool, kept an eye on the children playing at the pool for their parents, and attended barbecues hosted at the pool by residents of the complex.

Taylor and Danielle were close friends. Prior to trial, Taylor had told police that May touched her genital area on two occasions in 2005 when she was eight years old, once before a birthday party for Danielle held at the apartment complex’s pool and once afterward. Taylor testified at trial that the first time, she was in the pool and swam over to May, who was in the shallow end. Taylor testified that she sat in May’s lap, and May touched her "private" over her bathing suit with his hand. She did not recall whether May moved his hand when he touched her. At the time, Taylor thought May "was just being clumsy" and "didn’t think he meant it." Taylor also testified that another adult was present when this happened.

When the prosecutor asked Taylor at trial if she recalled telling police about a time she was in the pool "after Danielle’s birthday," Taylor responded, "Barely. I kinda remember. I kinda don’t." In response to further questioning by the prosecutor, Taylor testified that she remembered telling police that May had touched her genital area over her clothing. But during cross-examination, Taylor testified that she did not recall what had actually happened. Taylor testified that she eventually came to think May’s touching was not an accident and therefore stopped going to the pool.

Like Taylor, Danielle had told police about multiple incidents.5 At trial, Danielle testified that May touched her genital area over her bathing suit at her eighth birthday party. About forty people, including twenty adults, were present at the pool during the party. Danielle testified that she and May were in the jacuzzi. May "put [her] on his lap," and he touched her "private parts" on top of her bathing suit. The prosecutor asked Danielle if she also remembered "another time earlier in the summer that you had a barbecue and [May] touched you[.]" Danielle replied, "No." The prosecutor further asked Danielle if she remembered telling police about a "barbecue at the beginning of the summer" where May "touched you again with his hand." Danielle responded that she did remember telling police, but indicated that she did not remember the touching.

Finally, Sheldon (who knew Danielle and Taylor) testified that there were two occasions on which May touched his genital area. About a week after July 4, 2005, Sheldon, who was then nine years old, was at the pool with May and at least one other person.6 Sheldon testified that May "picked me up and he tossed me inside the pool." Sheldon testified that as May did so, one of May’s hands was on his back and the other was "in [his] private spot" over his trunks. Sheldon testified that May did not make any movements with the hand on his trunks. Sheldon testified that he moved May’s hand to his stomach, but that May moved that hand back down to his genital area. On one prior occasion, Sheldon testified, May had similarly touched his genital area while throwing him in the pool. Sheldon could not recall exactly when this had happened. But he did remember that others were present at the time.

Sheldon testified that he initially thought May touched him by accident, but that he changed his mind after talking to his mother and Taylor’s mother. Taylor’s mother later testified that, soon after Taylor gave a statement to police, Sheldon "came up to [her] and told [her] what had happened to him." Sheldon’s stepfather also testified that he and Sheldon’s mother approached Sheldon about May and that Sheldon was initially reluctant to talk but eventually said that May had touched his genital area.

Additional testimony at trial established that the children who lived in May’s apartment complex had talked to each other about being touched by May. Taylor and Danielle both testified that they had talked to each other about May touching them. Sheldon testified that he had not talked to Taylor and Danielle about May, but other testimony at trial revealed that when Sheldon was interviewed by police prior to trial, he told them he had talked to Taylor. All three children also spoke to a parent or another adult before telling police that May touched them.

Near the end of trial, May took the stand. May described his teaching background; among other things, he had worked at a Montessori school, as a swim and American Red Cross...

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    • United States
    • Arizona Court of Appeals
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    ...Judge Friedland's conclusion that "this case, and in particular May's sentence, reflects poorly on our legal system," May v. Shinn , 954 F.3d 1194, 1209 (9th Cir. 2020), cert. denied ––– U.S. ––––, 141 S.Ct. 1740, 209 L.Ed.2d 506 (2021), and to urge that justice compels that May's sentence ......
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    • U.S. Court of Appeals — Ninth Circuit
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    ...case was so weak, "it was reasonable [for trial counsel] to think that the jury might acquit May if it continued deliberating." May, 954 F.3d at 1204. Accordingly, trial counsel could not be faulted consenting to further deliberations. She explained that the alleged sexual molestation charg......
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1 books & journal articles
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    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • August 1, 2022
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