Sittner v. Bowersox

• Decision Date: 11 August 2020
• Docket Number: No. 19-1742,19-1742
• Citation: 969 F.3d 846
• Parties: Johnny SITTNER, Petitioner - Appellant v. Michael BOWERSOX, Respondent - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

969 F.3d 846

Johnny SITTNER, Petitioner - Appellant

v.Michael BOWERSOX, Respondent - Appellee

No. 19-1742

United States Court of Appeals, Eighth Circuit.

Submitted: January 17, 2020

Filed: August 11, 2020

Rehearing and Rehearing En Banc Denied September 30, 2020

Elizabeth Unger Carlyle, Kansas City, MO, for Petitioner - Appellant.

Johnny Sittner, Pro Se.

Patrick Joseph Logan, Assistant Attorney General, ATTORNEY GENERAL'S OFFICE, Jefferson City, MO, for Respondent - Appellee.

Before KELLY, MELLOY, and KOBES, Circuit Judges.

MELLOY, Circuit Judge.

Petitioner Johnny Sittner appeals from a judgment dismissing his petition for a writ of habeas corpus brought under 28 U.S.C. § 2254. Sittner raises two grounds for relief, both under the Sixth Amendment. We affirm.

I.

In April 2009, Sittner was tried by a jury on charges of first-degree statutory rape, first-degree sodomy, and two counts of incest based on allegations that Sittner sexually abused his stepdaughter (S.S.) starting when she was nine years old. At trial, S.S., who was then fifteen, testified for the State. The State also offered the testimony of Dina Vitoux, a licensed clinical social worker at the Children's Advocacy Center of East Central Missouri. Vitoux's testimony was based on her "extended evaluation" of S.S. when the abuse was first discovered. The trial court recognized Vitoux as an expert witness in the field of child sexual abuse. Vitoux testified as to her evaluation of S.S. and the process of evaluating child victims more generally. Vitoux explained that several factors are used to determine the potential accuracy of a child's statements, including: content (e.g., sensory details and "unusual sexual knowledge" for age), context, consistency, emotion, and motive. Vitoux testified generally about how the factors applied to S.S.’s statements. Over objection from defense counsel, Vitoux testified that S.S. had "unusual sexual knowledge" for her age.

In a bench conference prior to cross-examination, defense counsel requested permission to ask Vitoux about information Vitoux had referenced pre-trial but did not address in her direct-examination testimony: statements S.S. had made during the extended evaluation that disclosed previous sexual abuse by men other than Sittner. Sittner wanted the evidence of other abuse admitted in order to show a potential source, other than Sittner, for S.S.’s unusual sexual knowledge. Defense counsel argued the admission of such testimony was a matter of Sittner's due process rights. The State argued the testimony was not allowed under Missouri's rape shield statute, Mo. Rev. Stat. § 491.015, and was also not necessary given the limited nature of Vitoux's testimony as to "unusual sexual knowledge" on direct examination. The trial court denied Sittner's request, reasoning that by not putting excessive emphasis on the subject of S.S.’s unusual sexual knowledge, the State did not "open the door" for defense counsel to ask questions about additional sources of abuse. The trial court also instructed counsel to abstain from asking any further questions on this topic. All parties complied.

The jury convicted Sittner on all charges. After unsuccessfully pursuing relief in state court,¹ Sittner filed a petition for habeas corpus in the United States District Court for the Eastern District of Missouri, raising nine grounds for relief. The district court² denied Sittner's petition on all grounds and issued a certificate of appealability on two grounds. On appeal, Sittner argues the district court should have found that, under the Sixth Amendment to the United States Constitution, (1) his right to confront witnesses against him was violated by the trial court's exclusion of evidence, and (2) his right to effective assistance of counsel was violated by his trial counsel's failure to adequately object to Vitoux's testimony as impermissible opinion testimony concerning the credibility of S.S.

II.

On a district court's denial of habeas relief, we review findings of fact for clear error and conclusions of law de novo. Ervin v. Bowersox, 892 F.3d 979, 983 (8th Cir. 2018). Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Sittner must show the state court's decision was either contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court, or was based on an unreasonable determination of the facts in light of the evidence adduced in state court. 28 U.S.C. § 2254(d)(1)–(2) ; see also Shelton v. Mapes, 821 F.3d 941, 946 (8th Cir. 2016) (stating that the standard of review under § 2254 "creates a substantially higher threshold for obtaining relief than de novo review" (quoting Renico v. Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010) (internal quotation marks omitted))).

Sittner first argues he should have been allowed to question Vitoux regarding S.S.’s out-of-court statements indicating she had previously been sexually abused by individuals other than Sittner. Sittner argues the denial of his opportunity to cross-examine Vitoux on this subject violated his Sixth Amendment right to confront witnesses against him. Generally, in the habeas context, "[q]uestions regarding admissibility of evidence are matters of state law." Rousan v. Roper, 436 F.3d 951, 958 (8th Cir. 2006) (quoting Logan v. Lockhart, 994 F.2d 1324, 1330 (8th Cir. 1993) ). "A federal issue is raised only where trial errors infringe on a specific constitutional protection or are so prejudicial as to amount to a denial of due process."

Bucklew v. Luebbers, 436 F.3d 1010, 1018 (8th Cir. 2006). Therefore, to succeed, Sittner "must show ‘that the alleged improprieties were so egregious that they fatally infected the proceedings and rendered his entire trial fundamentally unfair.’ " Rousan, 436 F.3d at 958–59 (quoting Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995) ).

The Sixth Amendment guarantees a criminal defendant the "right to be confronted with the witnesses against him," including "the right to conduct reasonable cross-examination." Olden v. Kentucky, 488 U.S. 227, 231, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988) (per curiam). Pursuant to this right, a criminal defendant must be given "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." United States v. Jasso, 701 F.3d 314, 316 (8th Cir. 2012) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam)). Accordingly, the right to cross-examination "may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Michigan v. Lucas, 500 U.S. 145, 149, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991) (quoting Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) ). Any "[r]estrictions on a criminal defendant's rights to confront adverse witnesses and to present evidence ‘may not be arbitrary or disproportionate to the purposes they are designed to serve.’ " Id. at 151, 111 S.Ct. 1743 (quoting Rock, 483 U.S. at 56, 107 S.Ct. 2704 ).

On direct review, the Missouri Court of Appeals ruled the trial court did not abuse its discretion in excluding the evidence because "the State did not use evidence of S.S.’s unusual sexual knowledge to establish Sittner's guilt," and because S.S's "knowledge merely arose as one [factor] Vitoux used to determine the accuracy of S.S.’s statements." Sittner, 294 S.W.3d at 91. It further concluded that "[a]ll relevant evidence was available to the jury, no rights of the defendant were violated, and the privacy of the victim was preserved." Id. at 92.

Missouri's rape shield statute precludes the admission of all "opinion and reputation evidence of the complaining witness’[s] prior sexual conduct" and, subject to four exceptions, "specific instances of the complaining witness’[s] prior sexual conduct." Mo. Rev. Stat. § 491.015 ; see also id. § 491.015.1(2) (listing as an exception, "[e]vidence of specific instances of sexual activity showing alternative source or origin of semen, pregnancy or disease"). If evidence falls within a statutory exception, the evidence is admissible only to the extent the trial court finds it relevant to a material fact or issue. Id. § 491.015.2. Here, Sittner's trial counsel did not argue the proffered evidence fell into an exception. Instead, defense counsel relied upon arguments related to fundamental fairness and Sittner's right to due process.

In State v. Douglas, 797 S.W.2d 532, 535 (Mo. Ct. App. 1990), the Missouri Court of Appeals explained that Missouri's "rape shield statute may not be applied so strictly as to deprive the defendant of the fair trial comprehended by the concept of due process." To that end, Missouri courts have allowed a criminal defendant to present evidence about the victim's prior other abuse if the State highlights the victim's unusual sexual knowledge during trial. As explained in State v. Samuels, 88 S.W.3d 71, 82 (Mo. Ct. App. 2002) :

Typically, in a case of this nature, young victims will describe inappropriate experiences in words they should not know. The State has no choice but to present the victim's description of the events. However, we find that for purposes of considering a defendant's due process rights in a case such as the one at bar, there is an important distinction between evidence that is offered as part of presenting the facts of the case, i.e., an essential part of the State's case in chief, and evidence or comments by the State that go the extra step to highlight the testimony to suggest that the defendant is ... the sole source of the precocious sexual knowledge. If the latter category of evidence is presented, basic principles of fairness entitle the defendant to counter with evidence that there are other potential sources of the ... knowledge.

Compare Samuels, 88 S.W.3d at 82 (ruling defendant should have been allowed to put on evidence showing...