Viers v. Warden, 13-12772
| Decision Date | 19 May 2015 |
| Docket Number | No. 13-12772,13-12772 |
| Parties | IRVIN SHAY VIERS, Petitioner-Appellant, v. WARDEN, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Non-Argument Calendar
D.C. Docket No. 2:11-cv-00062-WCO
Appeal from the United States District Court for the Northern District of Georgia
Before TJOFLAT, HULL and WILSON, Circuit Judges.
Irvin Viers, a state prisoner, appeals the district court's denial of his petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Upon review of the record, and after consideration of the parties' briefs, we affirm.
On September 23, 2002, a Georgia jury found Viers guilty of one count of aggravated sexual battery, in violation of O.C.G.A. § 16-6-22.2, and one count of cruelty to children, in violation of O.C.G.A. § 16-5-70. On December 16, 2002, the state court merged the offenses and sentenced Viers to 20 years' imprisonment. The victim, HV, was the two-year-old daughter of Viers and his codefendant wife, Terena Viers ("Terena"). Terena was convicted of cruelty to children and sentenced to 20 years' imprisonment, with 15 years to serve.
The evidence showed that, on May 9, 2001, Viers and Terena brought HV to the emergency room. HV, then two years and four months old, was bleeding from a five- to six-centimeter laceration on her perineal area, the area between her vagina and anal opening, and had multiple bruises on her trunk and legs. Ultimately, a pediatric surgeon performed corrective surgery on HV's perineum. The surgeon testified that HV's injuries were consistent with abuse, and the damage to her perineum was caused by significant force and could have been caused by repeated penetration with a stick.
A forensic pediatrician who examined HV the day after her surgery testified that he observed lacerations in her anus and that her injuries were consistent with sexual abuse and the insertion of a stick into her anus. The jury additionally heard evidence that Viers gave multiple, inconsistent explanations to the emergency room nurse and law enforcement officers of how HV received her injuries, and that blood matching HV's DNA was found on her car seat.
Dr. Nancy Aldridge, who conducted a forensic evaluation of HV, also testified.1 Dr. Aldridge completed her evaluation of HV over the course of six interviews between July 2001 and October 2001, beginning when HV was two years and seven months old. Dr. Aldridge testified that, in interviewing HV, she was careful not to ask leading or suggestive questions or provide positive reinforcement. During the interviews, HV indicated that she had "boo-boos" on various parts of her body, demonstrating on anatomically correct dolls that the injuries were on her arms, abdomen, buttocks, and vaginal and genital areas. HV indicated that the "boo-boos" came from Viers and Terena.
Dr. Aldridge testified that HV also repeatedly changed the dolls' diapers, stating that they had "doo-doo" in their diapers. More than once, HV struck a doll, and when Dr. Aldridge asked her why, she explained that the doll had soiled itsdiaper. According to Dr. Aldridge, HV obsessively demonstrated "three consistent things": "the roughness with the dolls, . . . the boo-boos and where they came from, and the baby's doo-doo and the striking of the babies and the aggressive play with the baby dolls after that."
In HV's fourth or fifth session with Dr. Aldridge, HV told Dr. Aldridge that her "da-da" (her name for Viers) caused the "boo-boo" in her vaginal area. When Dr. Aldridge asked HV what her father had used to hurt her, HV replied that he used a stick from the front yard on one occasion and a bat at another time. HV also pointed to the vaginal area of an anatomically correct doll. HV indicated that her vaginal injury was inflicted after she had a dirty diaper.
In the course of her testimony, Dr. Aldridge also made five statements to which no contemporaneous objection was raised by Viers's attorney. Viers later maintained that Dr. Aldridge's statements should have been excluded as improper opinion testimony under Georgia law. Here are the statements. First, on cross-examination, Dr. Aldridge was questioned about the report she prepared on the forensic evaluation and asked whether her "conclusion was that . . . the only . . . person [HV] had accused [of hurting her] was her father." Dr. Aldridge responded,
Second, Dr. Aldridge testified that HV could show Dr. Aldridge what "happened to the doll because it happened to [HV]." Third, in in responding to a cross-examination question about whether HV could "just be making up a story about a doll," Dr. Aldridge stated that HV had "definite medical findings," including evidence of trauma to her vaginal and anal area, which was not "just a coincidence." Fourth, when asked about HV's statements that other individuals had hurt her, including an individual named "Ginger" and a cat, Dr. Aldridge testified, "I think this child was so traumatized that she is concerned that it might happen again and that other individuals could hurt her."
Fifth, Dr. Aldridge was asked whether HV's repeatedly associating soiling her diaper with "harm by her parents" could be "consistent with the fact that she was abused." Dr. Aldridge replied,
On cross-examination, Dr. Aldridge admitted that she did not videotape her interview sessions with HV; that she referred to HV several times in her report as a "very precious little girl"; and that she picked up HV and carried HV from the waiting room to her office at the beginning of each session. Dr. Aldridge noted, however, that she generally did not hold HV during the sessions. Dr. Aldridgeconceded that, before her first session with HV, HV already had been interviewed by several people, including a caseworker and an investigating officer. Finally, although HV's foster family reported that HV had a small vocabulary, Dr. Aldridge found her to have a larger vocabulary than was reported, to be very talkative, and to sometimes speak in full sentences.
Dennis Abercrombie, HV's foster father, testified that HV came to live with his family in June 2001 after about a month with another foster family. At that time, HV was "very frail," had "quit taking solid food," and was losing weight and failing to thrive. HV seemed afraid of men and was tentative around women. She had frequent nightmares and would become hysterical after soiling her diaper. On one occasion, in July or August 2001, while looking at photographs of her family, HV said to Abercrombie, without prompting or questioning, "Daddy hurt my boo-boo," referring to her bottom or back side. On cross-examination, Abercrombie admitted that he and his wife wished to adopt HV if the opportunity arose.
At trial, attorney Drew Powell represented Viers. After the State rested, attorney Powell called Dr. James Stark, a psychologist, to testify for the defense.2
Based on his extensive experience as a certified forensic examiner, Dr. Stark outlined various mistakes by child forensic interviewers that could undermine the accuracy of an evaluation: (1) losing their objectivity; (2) using anatomical dolls, which studies had shown to be problematic; (3) touching or hugging the child, which could positively "reinforce whatever happened just before" the contact; (4) relying on a "little kid['s]" ability to think abstractly, as "very, very young" children tend to think concretely; (5) failing to audiotape or videotape the forensic evaluation, especially in cases of alleged sexual abuse, so that subsequently it can be determined if the evaluator was encouraging certain responses; and (6) evaluating a child over the course of several sessions, or allowing different people to interview the child, as the child can take on questions and comments as real events.
Dr. Spark also specifically criticized various methods of Dr. Aldridge and aspects of her evaluation of HV, including that Dr. Aldridge evaluated HV over the course of six sessions, which could have some "practice effects"; that Dr. Aldridge failed to videotape or audiotape the sessions; and that Dr. Aldridge failed to reconcile some inconsistencies in HV's statements. Based on Dr. Stark's examination of Dr. Aldridge's report, it appeared to Dr. Stark that Dr. Aldridge,from the beginning, "assumed" that Viers caused HV's injuries and ignored HV's allegations against other individuals, such as "Ginger" or the cat. For example, Dr. Aldridge's report did not include any history on HV's first foster family, and it was possible that HV was attempting to communicate "something" that happened with that family. Dr. Aldridge also showed a lack of objectivity, referring to HV as "precious" and "cute" in her report, and may have positively reinforced HV through holding and hugging her. Finally, the fact that HV apparently knew only a few words before starting her sessions with Dr. Aldridge, but demonstrated her large vocabulary as the sessions progressed, suggested that someone was teaching her new words.
In closing argument, attorney Powell argued, inter alia, that Dr. Stark's testimony demonstrated the problems with Dr. Aldridge's report and methods, including her bias.
On January 2, 2003, with the assistance of new court-appointed counsel, Viers filed a motion for new trial. In May and June 2008, respectively, Viers's counsel filed two amended motions for new trial.
Viers alleged, inter alia, that trial attorney Powell rendered ineffective assistance of counsel through...
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