Wehmeyer v. Roy
| Decision Date | 12 August 2011 |
| Docket Number | Civil No. 11-330 (MJD/AJB) |
| Parties | RICKY LEE WEHMEYER, Petitioner, v. TOM ROY, Commissioner of Corrections, Respondent. |
| Court | U.S. District Court — District of Minnesota |
REPORT AND RECOMMENDATION
Ricky Lee Wehmeyer, Minnesota Correctional Facility - Stillwater,
Bayport, Minnesota, 55003, Petitioner, pro se.
Robert C. O'Connor, Jackson County Attorney, Jackson,
Minnesota, 56143, for Respondent.
This matter is before the undersigned Magistrate Judge of the District Court on the petition of Ricky Lee Wehmeyer for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket No. 1.) Respondent has filed a response, (Docket Nos. 6-7), contending that the petition should be dismissed. The case has been referred to this Court for report and recommendation under 28 U.S.C. § 636 and Local Rule 72.1. For the reasons discussed below, the Court will recommend that Petitioner's habeas corpus petition be DENIED, and that this action be DISMISSED WITH PREJUDICE.
In September 2006, a criminal complaint was filed against Petitioner in the state district court for Jackson County, Minnesota, charging him with two counts of second degree criminal sexual conduct. One of the charges was dismissed. In the remainingcount, which is at issue here, Petitioner was accused of violating Minn. Stat. § 609.343, subd. 1(a), by having sexual contact with a person who was under the age of thirteen, and more than 36 months younger than Petitioner.
The criminal complaint against Petitioner was based on allegations made by a six-year-old girl whose mother had been involved in an extra-marital affair with Petitioner. The girl, who is referred to in the record as "TR," told her mother that Petitioner had put his hand on her genital area, over her clothes. The incident allegedly occurred while TR was at the home of a babysitter named Kelly Hatfield.
Petitioner contends that he was never arraigned on the criminal charge against him, and he never appeared at any pre-trial hearings. Respondent does not dispute that assertion. However, Respondent contends that Petitioner was in prison for another unrelated criminal conviction when he was charged for assaulting TR, and he was fully informed about the criminal sexual conduct charges against him. Petitioner does not dispute that assertion.
A jury trial was conducted in March 2007, but the jury became deadlocked, and a mistrial was declared. A second jury trial was conducted in August 2007.
At the second trial, TR's mother testified that one day in April 2006, while she was outside with her children, TR said that she "had a secret." (Respondent's Appendix, ["RA"], Docket No. 7-9, p. 5.1 ) TR's mother then took TR into the house, and TR said thatPetitioner "touched my privates." (Id.) According to TR's mother, this accusation was made "out of the blue." (Id.) Shortly thereafter, TR's mother left the house and went to look for a police officer, so she could report what her daughter had told her. (Id., p. 7.) She was unable to locate a police officer that night, but she or her husband called and left a message at the local police department. (Id., p. 8.)
The following day, TR's mother talked to a police officer named Trevor Anderson. He suggested that TR's mother should contact the local child protection services. (Id., p. 9.) TR's mother followed that suggestion, and soon thereafter TR was interviewed by a social worker named Roslyn Luers. (Id.) That interview was video-recorded, and the recording was played for the jury at Petitioner's second trial.
During the interview, Luers asked TR several questions pertaining to the allegations against Petitioner. TR told Luers that Petitioner had touched her bottom and her "private" while she was at Kelly Hatfield's house. (RA 7-10, pp. 27-29.) TR said the touching occurred while Petitioner was sitting on a couch by a computer, and TR was standing next to him. (Id., p. 29.) TR said that she had her clothes on, and Petitioner touched her over her clothes. (Id., pp. 29-31.) TR told Luers that the touching occurred the previous year, when she was five years old. (Id., p. 36.) Near the end of the interview, TR added that Petitioner "wanted to touch me." (Id., p. 40.)
TR also testified in person at Petitioner's trial. She identified Petitioner, and said that she knew why she was in court. (RA 7-9, p. 53.) TR testified about an incident that occurred in the living room at Hatfield's home at some unspecified time in the past. She said that while she was in the living room, Petitioner touched her. (Id., p. 54.) She also said that both of her parents, and Hatfield, were in the living room when the touching occurred. (Id.) TR testified that the touching occurred while Petitioner was sitting on a chair in front of a computer, and she was standing next to him. (Id., p. 55.) She said that Petitioner touched her between her legs on "the private," and on her bottom, over her clothes. (Id., pp. 56-57; p. 63.) TR said the touching made her feel "bad," and she "didn't like it." (Id., pp. 57-58, p. 63.)
Police Officer Trevor Anderson also testified at Petitioner's trial. He testified that in April 2006 he received a "possible child protection report" involving TR. (RA 7-13, p. 20.) Anderson called Roslyn Luers, (the social worker), and made arrangements for her to interview TR at the police department. (Id., p. 21.) Anderson later reviewed the recording of Luers' interview with TR, and used it to prepare a report. (Id., p. 22.) He then turned the recording over to the County Attorney. (Id.)
Anderson also attempted to determine when Petitioner might have touched TR at Hatfield's home. Based on an interview with TR's mother, he determined that the incident probably occurred sometime in September or October of 2005, because Hatfield had been babysitting TR quite a bit during those months. (Id., pp. 23-24.)
During Anderson's cross-examination he was asked whether he had ever interviewed Kelly Hatfield. (Id., p. 25.) Anderson said that he did interview Hatfield, but he could not remember whether he talked to her about TR's accusations against Petitioner.(Id., p. 26.) Anderson thought he had interviewed Hatfield about a different matter. Petitioner's attorney asked Anderson whether his file on that other matter might include any information relevant to TR's accusations against Petitioner. Anderson said he did not think any such information could have been "misfiled," but he agreed to return to his office to check his files. (Id., p. 27, 29.)
Later during the trial, Anderson informed the parties and the trial court judge that he had located a transcript of an interview with Kelly Hatfield. The interview pertained to TR's accusations against Petitioner, but it had been erroneously placed in a file for a different matter. The record consistently shows that both the prosecutor and the defense were surprised to learn about Anderson's interview with Hatfield. Nothing in the record suggests that either the County Attorney or defense counsel was aware of the Anderson-Hatfield interview until it was disclosed during the course of Petitioner's second jury trial. Petitioner's attorney had an opportunity to review a transcript of the Anderson-Hatfield interview while the trial was still ongoing, and he did not raise any objection to the late disclosure of the interview.
The transcript of the interview shows that Hatfield was aware of TR's accusations against Petitioner. Hatfield assumed that the accusations were based on an incident that had occurred in her home one day in August or September of 2005, when she was babysitting TR and her younger brother, and Petitioner was present. (RA 7-4, p. 92.) According to Hatfield, Petitioner was never alone with TR that day. (Id.) Hatfield told Anderson that she saw TR crawl onto Petitioner's lap while he was playing solitaire on the computer. (Id., p. 93.) Hatfield said that Petitioner was holding onto TR "to steady her orbalance her" and "his hand was on her knee." (Id.)
During the interview, Hatfield speculated that "it happened " - apparently referring to TR's accusation against Petitioner - but not at her house. (Id., p. 94.) She thought "it could have happened" sometime while Petitioner was visiting TR's mother - presumably during their affair, but perhaps at some earlier time. (Id.) Hatfield also told Anderson that she did not think she could provide any testimony that would support TR's accusation against Petitioner, i.e., that the touching incident occurred at Hatfield's home. However, Hatfield also told Anderson that she wanted "nothing more" than to have Petitioner "be locked up and throw away the key." (Id.)
After Petitioner's attorney learned about the Anderson-Hatfield interview, he spoke briefly to Hatfield. Petitioner's attorney had already subpoenaed Hatfield, in case he needed to elicit testimony from her regarding the layout and furnishings of her home. However, after reviewing the Anderson-Hatfield interview, and talking briefly with Hatfield, Petitioner's attorney decided not to call Hatfield as a witness at Petitioner's trial.
The jury at Petitioner's second trial, (unlike the jury at the first trial), was allowed to consider evidence showing that Petitioner had been previously convicted for criminal sexual conduct in a 1995 case. In that earlier case, Petitioner was accused of exposing himself to a ten-year-old girl, and having her touch his penis.
At the conclusion of Petitioner's second trial, the jury found him guilty of second degree criminal sexual conduct. Based on Petitioner's prior criminal record, and the jury's determination that he is "a danger to public safety," the trial court judge imposed a life sentence with a minimum term of 360 months.
After Petitioner was convicted and sentenced, he...
To continue reading
Request your trial