Washington v. Hofbauer

• Decision Date: 14 March 2000
• Docket Number: No. 98-2250,98-2250
• Citation: 2000 WL 1475785,228 F.3d 689
• Parties: (6th Cir. 2000) Rufus Washington, Petitioner-Appellant, v. Gerald Hofbauer, Respondent-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 689

228 F.3d 689 (6th Cir. 2000)

Rufus Washington, Petitioner-Appellant, v. Gerald Hofbauer, Respondent-Appellee.

No. 98-2250

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: March 14, 2000

Decided and Filed: October 6, 2000

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 97-71849--Gerald E. Rosen, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Debra A. Gutierrez, STATE APPELLATE DEFENDER OFFICE, Detroit, Michigan, for Appellant.

Janet A. Van Cleve, OFFICE OF THE ATTORNEY GENERAL, HABEAS CORPUS DIVISION, Lansing, Michigan, for Appellee.

Before: JONES, BATCHELDER, and CLAY, Circuit Judges.

OPINION

NATHANIEL R. JONES, Circuit Judge.

The petitioner, Rufus Washington, a Michigan prisoner convicted of second-degree criminal sexual conduct, appeals the district court's dismissal of his § 2254 habeas petition. His petition alleged prosecutorial misconduct and ineffective assistance of counsel. We find that the prosecutor's misconduct was sufficiently egregious to violate Washington's due process rights, that Washington's trial counsel was ineffective in not objecting to that conduct, and that the state court did not reasonably apply the relevant law in finding otherwise. We are thus compelled to REVERSE and issue the writ.

I.

In 1991, Washington was charged with first-degree criminal sexual conduct against complainant Tamara Beard in violation of Mich. Comp. Laws § 750.520b(1)(a), and with being a habitual offender-fourth offense under Mich. Comp. Laws § 769.12(a). On January 8, 1991, a Michigan jury found Washington guilty of second-degree criminal sexual conduct, in violation of Mich. Comp. Laws § 750.520c. Washington then pleaded guilty to being a habitual offender-fourth offense. On March 7, 1991, the trial court sentenced Washington to twenty to thirty years' imprisonment, which was later reduced to seventeen to thirty years' imprisonment.

A.

At the time of the crime, Washington was the boyfriend of Ms. Cora Beard, the mother of the complainant. Washington and Beard lived together, along with Beard's five sons and one daughter. Tamara Beard, the daughter,¹ testified at trial that Washington had sexually abused her on two occasions in 1989. The first incident occurred when Tamara was nine years old. Tamara testified that on Memorial Day, 1989, she, Washington, her mother, and a brother traveled to Lansing, Michigan. On arriving home, she and her brother went to sleep on a couch in the den, while her mother went to work. Later that night, Tamara awoke in her mother's bedroom, with her brother asleep next to her; she did not remember how she got there. Washington was also in the bed. According to Tamara, Washington then ordered her to take off her gown and panties or he would kill her. He then inserted a finger in her vagina. When Tamara asked him to stop, he refused. J.A. at 154. He did not stop for "a long time." J.A. at 155. Washington then ordered Tamara to hold his penis, which she did. Tamara testified that she did not tell her mother of the incident because Washington had threatened to kill her if she did so. In June 1989, a similar episode occurred. Again, after falling asleep on the couch, Tamara awoke to Washington's demand that she remove her panties. He once again inserted his finger into her vagina. While the family continued to live with Washington, Tamara told no one of these incidents.

In February 1990, Cora Beard moved out of the house she shared with Washington and began to stay with her mother, bringing her three youngest children with her--including Tamara. At trial, she explained that she moved out because Washington had been both mentally and physically abusive, and because he had begun drinking heavily. After a short time, and after Washington pleaded for her to return, Beard decided to move back into the house with Washington. At that time, Tamara told her mother about Washington's actions the prior year. Cora Beard immediately took Tamara to the hospital, where a social worker examined her. Beard also took Tamara to Dr. Joyce Woodson of the Michigan Department of Social Services, who interviewed Tamara on four occasions. After these interviews, Dr. Woodson contacted the Flint police.

At trial, although Washington acknowledged that he and Cora Beard often fought, and that he drank alcohol, he denied committing the alleged assaults on Tamara: "I never touched Tamara sexually in any form." J.A. at 200. He explained further:

[T]he only conclusion I can come to is that she wanted to maybe protect her mother or there's a possibility that they wasn't visiting their grandmother that regular and that she might want to stay over there, that's the only reason I can think of, you know. Because I certainly didn't ever mistreat [the children].

J.A. at 200. On cross-examination, Washington denied the prosecution's questions about whether he drank heavily. When the prosecutor asked whether he "d[id] something to Tamara," Washington responded, "[n]o, I didn't." J.A. at 209. Although he acknowledged that he had at one time told Cora Beard he would kill her, he denied ever threatening Tamara. J.A. at 211.²

B.

Washington raises two issues in this appeal. First, he challenges several instances of alleged prosecutorial misconduct during the State's examination of Washington and closing argument. Second, he challenges as constitutionally ineffective his counsel's failure to object to this misconduct, as well as his flawed articulation of the burden of proof. These issues require a detailed look at portions of the trial record.

The record shows that the prosecutor extensively berated Washington's character before the jury, emphasizing that Washington did not work, beat Cora Beard regularly, consumed alcohol excessively, and did not make payments on Cora's home. These statements emerged initially in the State's cross-examination of Washington. First, the prosecutor emphasized that Washington moved into the Beard's home--that "it was their home," not his. J.A. at 201. At a later point, the prosecutor tried to elicit that the car Washington and Cora Beard used was not Washington's, but hers. J.A. at 206 (noting that Washington "didn't have a car" himself). The prosecutor then questioned Washington's work history, doubting the reasons he provided to explain periods when he was out of work: "You're telling the jury the virus kept you from working? . . . Then all of a sudden you got this virus? . . . So you didn't keep this other job too long either then?" J.A. at 201-02. Next, the prosecutor emphasized that Washington "drank a lot" when he was living at the Beard home. J.A. at 202. Finally, the prosecutor emphasized several times that Washington "smacked" Cora Beard regularly. J.A. at 203-08. Only for a brief portion of the cross-examination did the prosecutor focus on the alleged acts against Tamara Beard, which Washington denied. During this cross-examination, defense counsel, Sanford Keston, only objected one time--stating, after the prosecutor asked Washington if it was his "life style to smack the lady," that he was "repeating the same question." J.A. at 210.

The prosecutor again focused on Washington's character during his closing argument. Summarizing the sequence of events, he reminded the jury that "Rufus here stays in the house that he doesn't support, that he doesn't own." J.A. at 246. The prosecutor speculated as to why Tamara did not initially tell her mother of the incidents: "You heard him testify that when things didn't go his way, he just kind of smacked the girlfriend whose house he was living in. . . . I think he talked about hitting and smacking and it wasn't hard but it was pretty hard . . . ." J.A. at 247-48. This showed that Tamara "ha[d] reasons to be fearful of some guy who says he's going to kill her . . . ." J.A. at 249. Finally, the prosecutor asked the jury to consider whether Tamara's allegations "fit" the general description they had heard of Washington's character. He then answered the question himself: "I'll tell you this, it fits what we know about him in terms of the evidence of this case, what you've been told about him." J.A. at 254.

He certainly would fit that kind of pattern that was his kind of lifestyle that may allow it to happen. The alcoholism, the drugs as testified to by the mother . . . . The irrational behavior . . . . That he's living in her home, driving her car, kind of smacks her around when something doesn't quite suit him. Does that sound like a logical compassionate family type of person or does that sound like someone who lives a little bit out of control, someone who has no control in fact over there [sic] own life, someone who doesn't act according to logic . . . . Whether the motivation is a pervert, a child molester or just a selfish alcoholic inhumane, for whatever reason the results are the same on the victim . . . .

J.A. at 254-55. Keston did not object to these statements.

Finally, in his rebuttal, the prosecutor directly instructed the jury to consider Washington's character in deciding whether he committed the alleged crime.

Does what Tamara [told] you happened fit him in the testimony that was told you about him, coming from other people and from his own mouth . . . . [D]oes it fit the self-serving, illogical selfish non-compassionate, no emotional interest in a family type of person? . . . I mean it would be different if he was portrayed in a different light during this case and it was something contradictory with what Tamara testified happened . . . .

J.A. at 270-71. He asked whether Washington was "a person that just acted irrational caused by drugs and alcoholism and a general not caring about other people, just caring about him and his resentment," and concluded once again that the alleged crime "sure fits him." J.A. at 271. In his penultimate statement, he...