Tague v. Richards
| Decision Date | 31 August 1993 |
| Docket Number | No. 91-2411,91-2411 |
| Citation | 3 F.3d 1133 |
| Parties | 39 Fed. R. Evid. Serv. 498 Henry TAGUE, Petitioner-Appellant, v. Thomas RICHARDS and Attorney General of the State of Indiana, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Robert J. Palmer, May, Oberfell & Lorber, South Bend, IN, (Janet Cabarl and Daniel Myers, Law Students, argued), for petitioner-appellant.
Lisa McCoy, John T. Roy (argued), Office of Atty. Gen., Federal Litigation, Indianapolis, IN, for respondents-appellees.
Before BAUER, Chief Judge, CUDAHY and KANNE, Circuit Judges.
Henry Tague was convicted in an Indiana state court of child molesting and was sentenced to twelve years imprisonment. The Indiana Supreme Court affirmed his conviction, 539 N.E.2d 480 (1989), and he subsequently filed a petition under 28 U.S.C. Sec. 2254 seeking habeas corpus relief, in the United States District Court for the Northern District of Indiana. The district court denied his petition. On appeal, Tague raises several issues, most important of which are whether the state trial court's application of Indiana's rape shield statute, Ind.Code Sec. 35-37-4-4, violated his Sixth Amendment right to confrontation, and whether allowing amendment of the charging information shortly before trial deprived him of due process. We hold that the state trial court's application of Indiana's rape shield statute violated the federal constitution, but, in light of the other evidence introduced at trial, this violation was harmless. Furthermore, no constitutional violation resulted from the amendment of the information on the day of the trial. Thus, we affirm the district court's denial of Tague's habeas petition.
In October 1986, A.T., an eleven-year old girl, reported to her school counselor that she had been molested by her neighbor, Henry Tague. The school counselor notified the local welfare department, which ultimately led to the involvement of state law enforcement. On May 1, 1987, a criminal information was filed alleging Tague had "perform[ed] deviate sexual conduct with A.T., a child under twelve years of age," in violation of Ind.Code Sec. 35-42-4-3(a). Tague pleaded not guilty and the case proceeded to trial. Just prior to the commencement of trial, over Tague's objection, the charging information was amended to also allege that he had sexual intercourse with A.T.
At trial, A.T. testified that Tague molested her on three separate occasions during the summer of 1986. A.T. lived across the street from Tague, who was her father's cousin and a friend of her family. A.T. spent considerable time at Tague's house. Early in the summer of 1986 Tague took her on a motorcycle ride to a house in the country. Upon entering the house, Tague fondled her breasts and vagina. Tague's requests for intercourse and oral sex were denied by A.T., and the two returned to his home.
A.T. further testified that in July or August of 1986, she went to Tague's home to request a package of cigarettes for her mother. Under the guise of retrieving cigarettes from the kitchen, he led her to his bedroom. While in his bedroom, Tague forced A.T. onto his bed, removed their clothes, and placed his penis between her legs. A.T. testified that she was uncertain if penetration actually took place. After the attack, Tague threatened A.T. that if she told anyone about the incident, he would take care of her with a rope that was in the room.
A.T. testified that the last incident occurred on either August 23 or August 24, 1986, when she went to Tague's home to see if a foster child (a friend of hers) was still living with Tague. On that day, an attack similar to the earlier one occurred, except this time in addition to placing his penis between her legs, Tague forced her to perform oral sex.
A school counselor testified that on October 26, 1986, A.T. told her of the two incidents of molestation that occurred at Tague's home. A welfare department worker assigned to the case testified that A.T. recited virtually identical versions of the incidents to her. On the evening of October 26, A.T. told her mother of Tague's attacks, giving an account of the events substantially similar to those conveyed to the school counselor and the welfare department worker. The testimony of A.T.'s mother also verified that A.T. went over to Tague's home on August 24 and returned upset, apparently because the foster child was no longer staying with Tague.
The prosecution also presented the testimony of Dr. Roberta Ann Hibbard, who had interviewed and physically examined A.T. Her examination of A.T. revealed that "there was some extra tissue on her hymen" and that she was infected with gardnella vaginitis, a disease rarely found in children and generally thought to be sexually transmitted. Dr. Hibbard testified that A.T. told her that the main symptom of the disease, vaginal discharge, surfaced around the time of the attacks. Based on these facts, Dr. Hibbard concluded that A.T. "was most likely a victim of sexual abuse."
On cross-examination of Dr. Hibbard, Tague sought to elicit testimony regarding A.T.'s statements to Dr. Hibbard that she had been molested several years earlier by her father. Relying on Indiana's rape shield statute, the trial court refused to permit this testimony because it related to prior sexual acts involving A.T. Tague was limited to eliciting testimony from Dr. Hibbard that she could not verify whether the hymenal damage occurred within "three months or three years prior to the examination."
In addition to a flat denial of the charges, Tague presented an alibi defense. Several witnesses, many of whom were his relatives, testified that on the weekend of August 23 and 24, they spent time with him. The cumulative effect of this testimony was that at no time during that weekend was Tague alone at his home, and thus he could not have molested A.T. on those dates.
The jury returned a verdict of guilty. The Indiana Supreme Court affirmed the conviction on appeal. The federal district court denied Tague's habeas corpus petition, and this appeal followed.
Ind.Code Sec. 35-37-4-4 prohibits a criminal defendant from introducing in his defense against a sex crime charge, including child molesting, any evidence of the victim's past sexual conduct, with the exception of evidence:
(1) of the victim's or a witness's past sexual conduct with the defendant;
(2) which in a specific instance of sexual activity shows that some person other than the defendant committed the act upon which the prosecution is founded; or
(3) that the victim's pregnancy at the time of trial was not caused by the defendant.
Ind.Code Sec. 35-37-4-4(a) and (b).
At trial, Dr. Hibbard testified that her physical examination of A.T. in January 1987 revealed that she had an enlarged hymen and a disease that is generally thought to be sexually transmitted. Based on these two facts, as well as statements A.T. made to her, Dr. Hibbard opined that A.T. had been sexually abused. On cross-examination by Tague's counsel, Dr. Hibbard explained that she could not determine if the hymenal damage occurred three months or three years before the examination and that, while the condition of A.T.'s hymen was consistent with sexual intercourse, other possible, but unlikely, causes of the damage existed. Finally, Dr. Hibbard agreed with the statement by Tague's counsel that while the enlarged hymen indicated penetration had occurred, this evidence in and of itself did not indicate Tague had intercourse with A.T.
Following this testimony, the trial court granted the request of Tague's counsel, Mark Greenwell, to elicit testimony of Dr. Hibbard, without the jury present, and the following exchange occurred:
Mr. Greenwell: ... Did you question A.T. if she claimed that she had been sexually molested by any other male beside[s] Henry Tague?
Dr. Hibbard: Yes, I did.
Mr. Greenwell: And what did she tell you when you questioned her regarding that?
Dr. Hibbard: Uh, she told me that she had unwanted sexual relations with her father years ago.
Mr. Greenwell: Okay.
Dr. Hibbard: Several years [prior] to my having seen her.
Mr. Greenwell: And wouldn't that statement also be consistent with the physical evidence of the damage to her hymen?
Dr. Hibbard: That evidence could and certainly would be consistent with ... the physical damage to her hymen[,] would be consistent with her having a sexual experience years previously.
Relying on the Indiana rape shield statute, the trial court granted the state's request to exclude this evidence of prior sexual activity. On review, the Indiana Supreme Court agreed that the evidence regarding A.T.'s molestation by her father did not fall within any of the exceptions contained in Ind.Code Sec. 35-37-4-4(b), an issue of state law which we cannot review. Estelle v. McGuire, --- U.S. ----, ----, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991).
In his federal habeas petition, Tague challenges the constitutionality of Sec. 35-37-4-4, arguing that its application denied him his Sixth Amendment right to confrontation. There is a substantial question of whether Tague presented his federal constitutional challenge to the state courts as required for its inclusion in a federal habeas petition. Tague never raised the constitutional issue in the state trial court. In addition, although our record does not contain the arguments presented on direct state court appeal, the opinion by the Indiana Supreme Court does not mention any federal constitutional challenge to Indiana's rape shield statute. Nevertheless, the state waived any procedural objection by not arguing that Tague failed to exhaust his state remedies related to this issue, Fagan v. Washington, 942 F.2d 1155, 1157 (7th Cir.1991), and thus we address the merits of Tague's federal constitutional challenge.
While the Indiana rape shield statute has been held...
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