Robertson v. Ryan, Civil Action No. 16-cv-10609-ADB

• Decision Date: 17 June 2019
• Docket Number: Civil Action No. 16-cv-10609-ADB
• Parties: KENVILLE ROBERTSON, Petitioner, v. KELLY RYAN, Respondent.
• Court: U.S. District Court — District of Massachusetts

KENVILLE ROBERTSON, Petitioner, v. KELLY RYAN, Respondent.

Civil Action No. 16-cv-10609-ADB

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

June 17, 2019

MEMORANDUM AND ORDER

BURROUGHS, D.J.

On November 22, 2011, following a jury trial in Norfolk County Superior Court ("Superior Court"), Petitioner Kenville Robertson ("Petitioner" or "Robertson") was found guilty of aggravated rape of a child and related counts and sentenced to a term of ten to twelve years at MCI Cedar Junction followed by ten years of probation. Currently pending before this Court is Robertson's petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 ("Petition"). [ECF No. 1]. The Petition identifies one ground for relief: that "[t]he introduction of prior bad act evidence and the instruction to the jury that the prior bad act evidence could be used to corroborate all of the alleged victim's testimony" violated the Petitioner's rights under the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution, including his rights to due process of law, to remain silent and not to incriminate himself, to present a complete defense and to not be required to simultaneously defend against uncharged, but pending, criminal conduct. [ECF No. 1 at 19]. For the reasons set forth below, the Petition is DENIED.

I. FACTUAL BACKGROUND

In Commonwealth v. Robertson, 35 N.E.3d 771 (Mass. App. Ct. 2015), the Massachusetts Appeals Court ("Appeals Court") summarized the relevant facts as follows:¹

The defendant is the biological father of the younger brother of the victim, N.M. Although the defendant did not live with N.M., he had a key to her house and visited often. N.M. called the defendant, "Dad," and he provided for her financially.² In 2004, when N.M. was eight years old, the defendant began sexually abusing her.³ The abuse occurred while N.M. and the defendant slept in the same bed, along with N.M.'s mother and brother. N.M. testified that on numerous occasions the defendant performed oral sex on her, engaged in vaginal intercourse, forced her to touch his penis, and touched her breasts, vagina, and buttocks. The defendant warned N.M. that if she reported the abuse "the police would get involved," and N.M. believed that meant she would be taken away from her family. The abuse continued until N.M. was thirteen years old.

The defendant's biological daughter, J.R., also testified at trial.⁴ She stated that from around 1990, when she was approximately seven or eight years old, until about 1994 or 1996 (when she was eleven or twelve years old), the defendant sexually abused her.⁵ During that period of time, J.R. and her siblings lived with the defendant while their mother remained in St. Vincent. J.R. testified that the defendant would call her into his bedroom and then force her to perform oral sexon him and to engage in vaginal intercourse. The defendant would also rub her "chest area." J.R. reported the abuse to a teacher, and a social worker was sent to visit her at home. Subsequently, the defendant told J.R. that if she continued to report the abuse, she and her siblings would be put in different foster homes and she would never see them again. Afterwards, J.R. recanted her allegations.⁶

Robertson, 35 N.E.3d at 773.

II. PROCEDURAL BACKGROUND

Before trial, the Commonwealth filed a motion in limine to admit evidence that Petitioner sexually abused J.R., his biological daughter, between 1990 and 1994. [Suppl. Answer ("S.A.") at 105-14]. On July 26, 2011, the trial court (Kaplan, J.) granted the motion in limine and ruled that the prior bad act evidence could be admitted, subject to appropriate time limits and limiting instructions, "to prove that [Petitioner] had a plan to sexually assault young girls with whom he had a parenting like relationship, or to show [his] pattern of conduct in doing so, or to corroborate the testimony of the alleged victim concerning the crimes charged." [Id. at 126, 129].

On November 15, 2011, the first day of trial, counsel discussed the motion in limine ruling with the trial court. [Id. at 373-74]. Petitioner's trial counsel advised the trial court (Cosgrove, J.) that "Judge Kaplan's rulings . . . left some flexibility to the trial judge as to how much of the testimony of the biological daughter [J.R.] would come forward" and renewed his objection to any testimony from J.R. being admitted. [Id. at 373]. In addition, Petitioner's trial counsel objected to any testimony that J.R. became pregnant due to the sexual abuse as unduly prejudicial and inflammatory. [Id. at 374]. The Commonwealth agreed to exclude evidence of J.R.'s pregnancy. [Id.].

During trial, when Petitioner's trial counsel anticipated that the Commonwealth was about to elicit testimony from J.R. on direct examination concerning her abuse, Petitioner's trial counsel requested "that the instruction be given at this time regarding bad acts and what relevance they have to this case." [Id. at 844-45]. The trial court then gave the following instruction:

Ladies and gentlemen, at this point I want to underscore for you again that Mr. Robertson is not charged here with committing any crime other than the crimes specified in the indictments that you heard the Clerk read at the start of the trial and that will be submitted to you at the end of the case. As you're aware, those indictments involve events that happened in Norfolk County and the alleged victim was [N.M.].

Now, I anticipate that at this point, that you are going to hear testimony involving defendant's daughter on the issue of the Commonwealth's theory that the defendant raped and assaulted [N.M.] as part of a common scheme or plan. You may consider whether this testimony corroborates the testimony of [N.M.] and shows a common scheme and pattern of behavior, modus operandi, if you will. You may also consider it to the extent it shows motive and intent.

You may not consider this evidence for any other purpose; specifically, you may not use it to conclude that if you determine the defendant committed acts with his daughter [J.R.], it must follow that he committed acts with the Complainant [N.M.], as well.

[Id. at 845-46]. J.R.'s testimony on direct examination followed. [Id. at 846-53]. Petitioner's trial counsel did not object to J.R.'s testimony on sexual abuse, see [id.], but objected to a question about J.R.'s reporting of the abuse, [id. at 849]. Petitioner's trial counsel then cross-examined J.R. at length. [Id. at 853-99]. On redirect examination, when J.R. was asked by the Commonwealth why she contacted law enforcement in 2010, J.R. stated that it was "because I heard that [Petitioner] had done it again . . . ." [Id. at 902]. An objection from Petitioner's trial counsel cut off the response, and the trial court instructed the jury to consider J.R.'s response only for state of mind. [Id. at 902-03].

At the close of trial, the final charge to the jury included the following instruction:

You have also heard testimony about incidents involving the defendant's daughter, [J.R.], on the issue of the Commonwealth's theory that the defendant raped and assaulted the complainant [N.M.] as part of a common scheme or plan. You may consider whether this testimony corroborates the testimony of [N.M.] and shows a common scheme and pattern of behavior, modus operandi, if you will, and you may consider it to the extent it shows motive and intent. You may not consider this evidence for any other purpose. Specifically, you may not use it to conclude that if you determine the defendant committed acts with his daughter [J.R.], it must follow that he committed acts with the complainant [N.M.] as well. Moreover, you may not take this testimony as a substitute for the proof that the defendant committed the crimes charged in the indictments. Nor may you consider it as evidence that the defendant has a criminal personality or a bad character.

[S.A. at 1085-86].

On November 22, 2011, a jury found Petitioner guilty on all counts. [Id. at 6]. Also on November 22, 2011, Petitioner filed a notice of appeal. [Id. at 7]. The Appeals Court stayed the appeal until November 2012 and gave Petitioner leave to file a motion for new trial, which he filed on October 22, 2012. [Id. at 8, 10, 132-53].

Petitioner's motion for a new trial challenged the motion in limine ruling allowing testimony from J.R. and challenged the admission of the testimony as not probative of a course of conduct and unduly prejudicial. [Id. at 134-37]. The motion for a new trial also alleged a due process violation. [Id. at 152-53].⁷ Attached to the motion was an affidavit from one of Petitioner's daughters who was present for the verdict, but not present for trial. [Id. at 139-41]. She stated that a juror mistook her for J.R. and said, "Good job, if it wasn't for your testimony, the jury would not have found [Petitioner] guilty." [Id. at 140].

The trial court held a hearing on the motion for new trial and denied the motion. [Id. at 209-24]. Petitioner appealed the denial of his motion for a new trial and presented the following issues for review: (i) whether the motion judge erred when he allowed the motion in limine; (ii) whether the trial judge erred when he failed to sua sponte reconsider the motion judge's order or limit the prior bad act testimony given its prejudicial effect; (iii) whether the trial judge erred when he held that prior bad act evidence can be used to corroborate victim testimony; and, (iv) ineffective assistance of counsel. [Id. at 18-19]. The Appeals Court affirmed both the conviction and the denial of Petitioner's motion for a new trial. Robertson, 35 N.E.3d at 771-78.

Robertson then filed an application for leave to obtain further appellate review ("ALOFAR") with the Massachusetts Supreme Judicial Court ("SJC"), which was summarily denied. Commonwealth v. Robertson, 41 N.E.3d 1092 (Table); [S.A. at 319-56]. The ALOFAR presented one issue, "whether the Court erred in holding that prior bad act evidence may be utilized to corroborate...