Morris v. Burnett, 01-1248.
| Decision Date | 19 February 2003 |
| Docket Number | No. 01-1248.,01-1248. |
| Citation | 319 F.3d 1254 |
| Parties | John Otis MORRIS, Petitioner-Appellee, v. Brian BURNETT, Acting Executive Director, Colorado Department of Corrections, and Attorney General of the State of Colorado, Respondents-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Clemmie Parker Engle, Senior Assistant Attorney General, Appellate Division, Criminal Justice Section (Ken Salazar, Attorney General, with her on the briefs), Denver, CO, for Respondents-Appellants.
Howard A. Pincus, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with him on the brief), Denver, CO, for Petitioner-Appellee.
Before MURPHY, McWILLIAMS, and HARTZ, Circuit Judges.
The United States District Court for the District of Colorado granted Petitioner John Morris's application for a writ of habeas corpus under 28 U.S.C. § 2254, ruling that the state court violated Petitioner's constitutional right to present a "cogent defense" during his trial for sexual assault on a child. Respondents appeal. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and Fed. R.App. P. 4. We reverse.
The sexual assault charge against Petitioner arose out of the accusation of a 12-year-old boy (the Victim) that Petitioner had fondled him. Petitioner's first trial ended in a hung jury. He was convicted on retrial in December 1993. The trial court's alleged errors relate to its refusal to allow the testimony of proposed defense expert Dr. Barbara Bebensee and its restrictions on defense counsel's cross-examination of Detective John Betz.
The state trial court based its exclusion of Dr. Bebensee's testimony on its finding that Dr. Bebensee would essentially be expressing an opinion on the credibility of the Victim; the state appeals court agreed. We hold that Petitioner did not rebut by clear and convincing evidence the presumed correctness of that finding. See 28 U.S.C. § 2254(e)(1). We further hold that Petitioner's due process right to present a defense was not violated by exclusion of the testimony, particularly in light of Petitioner's failure in state court to present scientific support for the expert's methods. As for the restrictions during the Betz cross-examination, we hold that the state courts did not unreasonably apply federal law in holding that Petitioner's right to confrontation was not violated. See 28 U.S.C. § 2254(d)(1).
Before resolving the legal issues, we must discuss at length the factual background.
In his opening statement, defense counsel described Dr. Bebensee as "an expert in the proper techniques to be used when interviewing children who are alleged victim[s] of sexual assault or actual victims of sexual assault." ROA, Vol. 9 at 182. He said that interviewing children "is not a simple matter" and proceeded:
It is a much more complex matter than it might appear, and [Dr. Bebensee] will testify as to that it is a very delicate process. There are right and wrong ways of investigating these cases and there are right and wrong ways of interviewing children victims or witnesses in these kinds of cases, and she will be shedding some light on that through her experience and her professional knowledge. She will shed light on those issues for you to help you understand this case. It might seem very simple on its face, but these are complex cases and she will be able to illuminate for you how complex they are and the proper way of investigation.
Id. at 182-83. Defense counsel then began discussing the credibility of child witnesses:
And she will also be telling you that children do make false accusations of sexual assault. They do make false accusations. It's not something that doesn't happen, it does happen. And the experts in the field, they have certain investigative techniques that can assist them and aid them in discovering whether or not an allegation is false or whether or not it is valid. And she will be discussing those things with you in her testimony.
Ultimately, she will be asked to give an opinion on how this case was investigated and whether or not this case points towards a valid accusation or a false allegation or accusation. And what I expect her to say is that —
Id. at 183 (emphasis added).
At this point the prosecutor requested a bench conference, which was granted. The prosecutor objected on the ground that credibility is not a proper subject for expert testimony.
[PROSECUTOR]: I think the case law is pretty clear that testimony regarding truthfulness of the child and validity of the child's accusation is improper and I object to him telling the jury that that's what she's going to say when I don't think that she can say something that strongly. I'd be happy to get the case law.
Id. at 184. The colloquy continued as follows:
Id. (emphasis added).
In completing his remarks to the jury about Dr. Bebensee, defense counsel summarized the expected testimony:
[DEFENSE COUNSEL]: Folks, Dr. Bebensee will give an opinion on whether or not she believes that this is a valid accusation, and it's my — I anticipate she will be telling you that this is not a valid claim, that the story, the statements don't track. There are too many problems with the case to be considered an accurate, valid claim of sexual assault.
Id. at 185 (emphasis added).
The Victim testified that early on the morning of January 31, 1992, he awoke from his sleep on the couch in his mother's apartment when he felt Petitioner, who was living with the Victim and his mother at the time, "rubbing [the Victim's] butt." Id. at 198. After rubbing his buttocks for a time, Petitioner began to rub the Victim's penis. The Victim stated that he then pretended to wake up, at which point Petitioner ceased fondling him and proceeded to choke one of the Victim's cats to death by thrusting his fingers down the cat's throat. The Victim then told his mother, who did nothing.
Later that day he told several other people about the incident, the police were called, and the Victim spoke with a police officer. Eighteen days later the Victim spoke with Detective Betz about the incident.
Evidence at trial revealed that the Victim had described the incident differently to different people. For example, the Victim was inconsistent with regard to (1) whether he awoke before or after Petitioner pulled his pants down; (2) whether Petitioner rubbed his penis, his buttocks, or both; (3) whether Petitioner rubbed his buttocks with his face or hands or kissed it; (4) what prompted the incident to end; (5) who pulled up the Victim's pants when the assault was over; (6) whether Petitioner had a knife; (7) what happened to the kitten; and (8) his accounts of what he had told various adults.
In addition to establishing inconsistencies in the Victim's statements, the defense attempted to discredit him in other ways. First, the defense suggested that the Victim had a motive to fabricate — that his mother had had a string of live-in boyfriends, of whom Petitioner was only the latest, and the Victim resented having to share her affections. Second, the defense presented evidence that the Victim could be retaliating against Petitioner because the Victim was inordinately fond of his cats and believed that Petitioner had killed one of them. (Petitioner admitted at one point that he had killed the cat, but he said that he accidentally stepped on it, as opposed to choking it.) Third, the defense presented evidence that six years earlier the Victim had falsely accused another man of molesting him. Fourth, although the Victim stated in his first interview with the police that Petitioner had also molested a 13-year-old girl, the girl testified that Petitioner had never touched her and that she had never told the Victim that he had. Finally, the girl's mother testified that the Victim was subject to mood swings and sometimes lied to get attention.
Detective Betz was the lead detective in the case. The chief function of his trial testimony was to report what the Victim had said at a police station interview on February 18, 1992. But the prosecutor also attempted to use Betz to convey two propositions that would buttress the Victim's testimony—that the Victim's accounts of the incident were basically consistent and that Betz, an experienced officer, thought the charge was valid. Petitioner points to these latter two components of Betz's direct testimony in contending that Dr. Bebensee should have been permitted to testify about the Victim's inconsistencies and the inadequacy of the investigation.
As for Betz's testimony that the Victim's statements were basically consistent, the trial court permitted the testimony only until Petitioner objected. Betz's testimony was as follows:
Q (By [PROSECUTOR]) Now, I think you just testified you heard [the Victim] testify on March 4, 1992?
A Yes, ma'am.
Q You also heard him testify on June 12, 1992?
A Yes.
Q And you heard him testify yesterday?
A Yes, I did.
Q When you were interviewing [the Victim], as part of your training and experience, did you evaluate the statements that he was making to you?
A Yes, I did.
Q And did you further evaluate it when you heard him testify later at those other hearings?
A Yes.
Q And when he testified on March 4, 1992, was it consistent with what he told you?
A Yes, it was.
Q And on June 12, 1992, was that consistent with what he told you?
A Yes, ma'am.
Q And what he testified to yesterday, was that consistent with...
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