Waters v. Kassulke

• Decision Date: 04 October 1990
• Docket Number: No. 89-5974,89-5974
• Parties: Sandra Baker WATERS, Petitioner-Appellant, v. Betty KASSULKE, Warden, Kentucky Correctional Institution For Women, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 329

916 F.2d 329

Sandra Baker WATERS, Petitioner-Appellant, v. Betty KASSULKE, Warden, Kentucky Correctional Institution For Women, Respondent-Appellee.

No. 89-5974.

United States Court of Appeals Sixth Circuit.

Argued Aug. 2, 1990.

Decided Oct. 4, 1990.

Marguerite Neill Thomas (argued), Dept. of Public Advocacy, Frankfort, Ky., for petitioner-appellant.

Denise A. Garrison (argued), Asst. Atty. Gen., Frankfort, Ky. (Frederick J. Cowan, Atty. Gen., Frankfort, Ky., on the brief), for respondent-appellee.

Before KENNEDY, BOGGS and TIMBERS, ^* Circuit Judges.

TIMBERS, Circuit Judge:

Appellant Sandra Baker Waters, a state prisoner, appeals from an order entered June 30, 1989, in the Western District of Kentucky, Thomas A. Ballantine, Jr., District Judge, granting in part, and denying in part, her petition under 28 U.S.C. Sec. 2254 (1988) for a writ of habeas corpus.

Appellant was convicted on eight counts of complicity in the rapes of her three minor daughters by her boyfriend, Merton "Doc" Bond, pursuant to Ky.Rev.Stat. Sec. 502.020 (1985). The Supreme Court of Kentucky affirmed appellant's conviction on April 10, 1986. Her state remedies have been exhausted.

On December 28, 1988, appellant filed the instant petition for a writ of habeas corpus in the United States District Court for the Western District of Kentucky contending that: (1) the evidence was insufficient to support the verdicts; (2) the testimony of a pediatrician invaded the province of the jury; and (3) the introduction of evidence of prior bad acts denied her due process of law. The district court vacated the convictions on counts one and seven of the indictment, ruling that the evidence was insufficient to support those verdicts, but denied the petition as to the remaining six counts. On appeal, appellant renews her claims as to counts two through six and eight.

For the reasons that follow, we affirm the judgment of the district court.

I.

We shall summarize only those facts and prior proceedings believed necessary to an understanding of the issues on appeal.

Appellant was indicted by a grand jury sitting in Nelson County, Kentucky. The indictment was returned February 28, 1983. It charged her with seven counts of complicity in the first degree rapes of her daughters P.W., age 12; D.W., age 10; and R.W., age 8, by her boyfriend Bond, between February 13, 1983 and February 25, 1983. She also was charged with one count of complicity in the second degree rape of P.W.. Bond has been tried and convicted separately.

The indictment originally charged that appellant had a duty to prevent the rapes of her daughters and failed to do so. Prior to trial, appellant moved that the Commonwealth elect between the theory charged in the indictment and a theory based on aiding, abetting and counseling that the Commonwealth mentioned during jury selection. The Commonwealth moved to amend the indictment to charge appellant with aiding, abetting and counseling Bond in the rapes of her daughters. The trial court allowed that amendment and restricted the Commonwealth's proof to that theory.

Appellant and her three daughters lived with Bond for most of the five year period preceding the events set forth in the indictment. Bond was not the girls' natural father. Throughout this period, the family subsisted on appellant's welfare benefits and Bond's social security disability benefits. The family was nomadic. After the girls were removed from a foster home in New York, they traveled with appellant and Bond to Hillsdale, Michigan; Altmire, New York; Sandy Creek, New York; Clarksburg, West Virginia; Lone Oak, Arkansas; New Haven, Kentucky; Mexico, New York; and Clarksburg, West Virginia; before returning to New Haven, Kentucky, where the events involved in this case took place.

Appellant's three daughters testified at her trial. We shall summarize their testimony.

P.W. testified that she was eight years old when Bond first had sexual intercourse with her, while they were living in Michigan. Appellant was present on that occasion and told P.W. to calm down when she started crying. Appellant told P.W. not to tell the social workers or her teachers what had happened. P.W. also was sexually abused by a baby sitter in Michigan.

P.W. testified further that Bond continued to have sexual intercourse with her in the ensuing years. Appellant was present on one occasion when Bond threatened to kill P.W. if she did not submit to him. On other occasions, appellant warned P.W. that, if she told anyone about Bond's abuse, she would have to go back to a foster home. Appellant also told P.W. that she loved Bond and would not leave him. P.W. testified that, when they lived in West Virginia, appellant would bring one of her daughters to Bond's bedroom when he desired to have sexual intercourse.

D.W. testified that at the age of eight, Bond "hurt" her when the family lived in New York. D.W. also testified that Bond "hurt" her in West Virginia. She contemplated running away from home while living in West Virginia.

R.W. testified that Bond first "hurt" her in New York when she was five years old. R.W. also testified that appellant was present on some of the occasions when Bond "hurt" her.

On February 12, 1983, Bond, appellant, her three daughters, and the family dog arrived in New Haven, Kentucky. They were living in a camper, parked beside a playground.

On February 13, appellant went grocery shopping, taking D.W. and R.W. with her, and leaving P.W. in the camper with Bond. Bond had sexual intercourse with P.W.. On February 16, P.W. visited a friend's home after school. The others (appellant, Bond, D.W. and R.W.) drove in the camper to a rural area of Nelson County and parked near a roadside park. Appellant took the dog and left the camper. Bond instructed R.W. to remove her clothes. Bond "hurt" R.W. while D.W. watched. When R.W. finished dressing, appellant was waiting outside the camper. Bond instructed appellant to take R.W. and the dog where she had been before. Appellant did so, leaving D.W. in the camper with Bond. Bond proceeded to "hurt" D.W.

The next day, February 17, they returned to the same area. This time, the three girls were present. Bond instructed appellant, P.W. and D.W. to walk the dog. They walked to a location near the river about one half mile from where the camper was parked. R.W. remained in the camper with Bond. After supper, appellant, D.W. and R.W. took the dog for a walk. Bond had sexual intercourse with P.W., who had been left behind in the camper.

P.W. ran away from "home" on February 22. She stayed at a friend's home the next two nights. On February 24, P.W. was taken in by a woman who saw her on the road. P.W. told this woman that she was 15 years old. She stayed at this woman's home for the next two nights.

D.W. testified that in the meantime Bond "hurt" her on February 25, and on one other occasion after P.W. ran away. Appellant was present in the camper on both occasions. On one of these occasions, Bond threatened to gag D.W. if she screamed. On another occasion, D.W. told her mother that she hated what Bond was doing to her. Appellant replied, "I don't care." R.W. testified that Bond "hurt" her again after P.W. ran away, but did not remember if he "hurt" her more than once. D.W. and R.W. both testified that appellant knew what was taking place in the camper. P.W. testified that she did not think appellant knew what was going on in the camper.

On February 26, the woman P.W. was staying with found out her true age. The woman told P.W. that she would have to take her home. P.W. began to cry and told the woman what was taking place in the camper. The woman took P.W. to the police station, where she tape recorded a statement for the police. Bond and appellant were arrested later that night.

The girls were interviewed by a police officer and a social worker, and were examined by a pediatrician. These three people testified at appellant's trial. The social worker, Jane Shams, testified that the three girls told her they had been sexually abused by Bond. She testified further that their behavior was consistent with a family situation where one or more small children are being sexually abused. The police officer, Roger Gagne, testified to events concerning the investigation leading to appellant's arrest. The social worker and the police officer both identified the area the camper had been driven to on February 16 and February 17 from the descriptions the girls had given of the area.

The pediatrician, Dr. James Hedrick, testified that, based on his physical and oral examinations of the girls, he believed they had been the victims of sexual abuse. He also testified that the girls' behavior was consistent with that of sexually abused children, and that their detailed sexual knowledge was greater than one would expect of girls their ages. He further testified that "I assume [R.W.] was telling the truth as far as who she said did it."

Appellant testified on her own behalf. She said that she was not aware of Bond sexually abusing her daughters, but that she believed they were sexually abused while in foster care. She further testified that she had a hostile relationship with P.W., who developed drug, alcohol and truancy problems in October 1982, while the family was living in West Virginia.

Appellant speculated that the girls' allegations were the result of a plot hatched by P.W., and consented to by D.W. and R.W., who were intimidated by P.W. and wanted to live with their natural father. According to the defense, this plan was concocted some time prior to P.W. running away, when the three sisters took a walk together and discussed an episode of "Different Strokes" they had seen on television which dealt with child molestation. P.W. and R.W. confirmed that they discussed the program. D.W. denied having participated in such a discussion.

A jury convicted appellant on all eight counts. She was sentenced to seven life terms on the seven...