Opinion
No. CIV-04-1517-PHX-DGC (GEE).
August 15, 2005
REPORT AND RECOMMENDATION
On July 26, 2004, Thomas Raymond Sullivan, an inmate confined at the New Hampshire State Prison for Men, in Berlin, NH, filed a Petition for Writ of Habeas Corpus pursuant to Title 28, United States Code, Section 2254. (Petition.); [#1] Sullivan claims he received ineffective assistance at trial because counsel (1) "fail[ed] to retain and utilize a defense expert," (2) "failed to prepare and cross-examine the state's expert witnesses," (3) "failed to object to inadmissible Rule 404(c) evidence," and (4) "failed to move to sever counts." Id. (capitalization modified)
Clerk's record number.
Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Edmonds for report and recommendation. The Magistrate Judge recommends the District Court, after its independent review of the record, enter an order denying the Petition for Writ of Habeas Corpus. Summary of the Case
On June 27, 1997, Sullivan was indicted on four counts of molestation of a child, class 2 felonies and dangerous crimes against children (counts 1, 2, 3 and 7), and five counts of sexual conduct with a minor, class 6 felonies (counts 4, 5, 6, 8 and 9). (Answer, p. 2.) Counts 1, 2, and 3 relate to an allegation of sexual contact with J.T., an eight-year old child who was staying overnight at Sullivan's house with M.F. who was baby-sitting her. Counts 4, 5, 6, 7, and 8 relate to allegations of sexual contact with M.F., a woman with whom Sullivan had an extended sexual relationship. Count 9 relates to an allegation of sexual contact with D.G., a friend of M.F. Id., p. 9.
On August 15, 1997, the state filed a general notice of its intention to introduce prior act evidence pursuant to Ariz. R. Crim. Proc. 404(b). (Petition, p. 6.) Later, the state filed a specific notice that it intended to introduce testimony from N.G., C.K., and M.F. pursuant to Ariz. R. Evid. 404(b), and 404(c) (The notice also described testimony from S.O., but this person did not testify at trial). Id. In that notice, the state supplied a brief summary of each witnesses' expected testimony. Id. Sullivan's counsel did not file a written response and did not interview N.G. or C.K. (Presumably, he had no right to interview M.F. because she was the named victim in counts 4, 5, 6, 7, 8, and 9. See A.R.S. § 13-4433.). Id., pp. 6-7. On March 11, 1998, counsel indicated to the court that he had no objection to the admission of the evidence. Id.
Shortly before trial, there arose concern that J.T. had been molested by her step-father prior to the alleged incident with Sullivan. Sullivan's counsel was informed that the police were going to interview J.T. about this alleged incident. (Answer, Exhibit Q, p. 47-48.) Counsel did not receive this report until after trial. He did, however, discuss the alleged incident with J.T. during his cross-examination. See below.
The following evidence was presented at trial: Sullivan worked as a correctional service officer for the Arizona Department of Corrections. (Answer, p. 2.) He often baby-sat his supervisor's children, M.F. and N.G. Id. Sullivan's wife worked in California and was seldom at home. Id.
The witnesses' testimony is presented in rough chronological order for the convenience of the court. At trial, the witnesses for the state testified in the following order: J.T., A.T., D.G., N.G., Detective Paul Reger, M.F., Wendy Dutton, Detective Paul Reger, Sergeant William Copeland, Detective Paul Reger, and then C.K. Testimony relating to counts 7 and 8 is not presented because Sullivan was not convicted on those counts.
C.K. testified that when she was "about nine- or ten-years old" during the Summer of 1982, she was baby-sitting her nieces, N.G., and her sister, E.O., at Sullivan's house. (Answer, Exhibit K, pp. 3-16.) There came a time when she was sitting with Sullivan on his couch watching an R-rated movie. Id. C.K. told Sullivan that she was not allowed to watch R-rated movies, but he said she was an adult because she was baby-sitting. Id. Sullivan offered to give her a back rub. Id. He instructed her to lift her shirt and began to rub her back. Id. He then moved his hands around her back and fondled her nipples. Id. C.K. felt uncomfortable and left the room. Id. Afterwards, she told her mother about the incident. Id. This incident was introduced for Rule 404 purposes.
M.F. testified that during the Summer of 1983, when she was approximately nine-years old, she and her sister went swimming with Sullivan at his community pool. (Answer, p. 2.) Sullivan would lift up M.F. and toss her into the pool. Id. When he lifted her up, Sullivan would fondle her vagina with his fingers for a considerable time. Id., p. 3. M.F. told her sister, N.G., about Sullivan's conduct but did not discuss it with Sullivan or her parents. Id.; (Answer, Exhibit I, p. 81). This incident was introduced for Rule 404 purposes.
N.G., M.F.'s sister, testified as follows: One day in 1985 or 1986, N.G. and her sister, M.F., were watching television with Sullivan. (Answer, Exhibit I, pp. 19, 21.) Sullivan was lying on the couch. Id. He then asked M.F. to lie on top of him and then N.G. to lie on top of M.F. Id. Sullivan then moved his hips "inappropriately pushing up against her and stuff." Id. N.G. stated "I think he probably had his hands on her . . . I don't think he had his hands on me." Id. She did not talk about the incident with M.F. and told nobody about it. Id., p. 23. This incident was introduced for Rule 404 purposes.
After N.G.'s testimony, counsel objected to the admission of this Rule 404 evidence because the incident as described by N.G. did not match the description offered by the state in their notice prior to trial. He candidly admitted he did not interview any of the Rule 404 witnesses choosing to rely on the state's proffer. The court denied counsel's objection holding he had waived any objection prior to trial.
M.F. testified the couch incident occurred in 1983 shortly after her mother became pregnant with her sister S.O. Exhibit I, p. 82. They were watching the movie, Cujo, on television. Id. She felt Sullivan moving his whole body and felt his penis "jabbing and poking" her vaginal area. Id., p. 83. She discussed the incident with her sister, N.G., that night and on may occasions afterwards. Id., p. 84-85.
In July of 1990, Sullivan gave M.F., then 16-years old, driving lessons. (Answer, p. 4.) After the lesson, Sullivan and M.F. sat on his couch. Id. Sullivan began "tapping on the nipple of [M.F.'s] breast" telling her "what nice breasts" she had. Id. They then went to his bedroom where Sullivan began kissing her, "rubbing [her] crotch" and "biting [her] breast." Id. When Sullivan's son, Shane, walked into the room, M.F. quickly sat up and adjusted her clothes. Id. M.F. saw Sullivan a number of times over the next couple of months. (Answer, Exhibit I, pp. 102-07.) Sullivan tried to coax her into having sex with him. Id.
Shortly afterwards, M.F. decided to have sex with Sullivan. (Answer, p. 4.) On August 17, 1990, M.F., N.G. and her brother M. spent the night at Sullivan's house. Id. M.F. and Sullivan "snuck back" to his bedroom. Id. Sullivan fondled her vagina and then had sexual intercourse with her. Id., p. 5. This incident comprises count four of the indictment.
The following morning Sullivan and M.F. again engaged in sexual intercourse. (Answer, p. 5.) This incident comprises count five of the indictment.
On August 19, 1990, M.F., N.G. and her brother M. again spent the day with Sullivan. (Answer, p. 5.); (Answer, Exhibit I, p. 118.) That night, M.F. and Sullivan again "snuck away" to his bedroom and engaged in sexual intercourse. (Answer, p. 5.) This incident comprises count six of the indictment.
Sullivan and M.F. continued a sexual relationship for the next five years until March of 1996. (Answer, p. 5.) They had sexual relations on a regular basis almost "every weekend." Id. M.F. told several of her friends, including D.G., about her relationship with Sullivan shortly after they began having sexual intercourse. Id. She did not tell her parents because Sullivan said "if it ever came out" he would "kill himself" and M.F.'s step-father would disown her. Id.
On February 13, 1993, at Sullivan's suggestion, M.F. brought her friend, D.G., to Sullivan's house for a "threesome." (Answer, p. 5.) M.F. was eighteen years old at this time, but her friend, D.G., was only seventeen. Id. Sullivan told M.F. and D.G. to take off their clothes and lie down on the bed which they did. (Answer, p. 5-6.) Sullivan engaged in sexual relations with M.F. while he fondled D.G. Id. This incident comprises count nine of the indictment.
By 1995, M.F. was also working for the Arizona Department of Corrections as a correctional service officer. (Answer, p. 6.) She often baby-sat her co-worker's children, eight-year old J.T. and 11-year old A.T. Id. One weekend in February of 1996, M.F., J.T. and A.T. spent the night at Sullivan's house. Id. When M.F. was at work, Sullivan offered to give the girls back rubs. Id., pp. 6-7. The girls got into Sullivan's bed and Sullivan gave A.T. a back rub. Id., p. 7. She left the room to get dressed. Id. Sullivan then began giving J.T. a back rub. Id. He then fondled her vaginal area with his hand. Id. He placed J.T.'s hand on his erect penis and moved her hand. Id. He then got on top of J.T. and rubbed his penis against her vagina. Id. This incident comprises counts 1, 2, and 3 of the indictment.
A.T. saw her sister just after she got dressed. Exhibit H, p. 67. J.T. was crying and visibly upset. Id. She told her sister, A.T., that Sullivan touched her "private part with her hand" and "got on top of her and was moving up and down." (Answer, p. 7.) She told M.F. about the incident when M.F. returned from work. Id., pp. 7-8. Sullivan admitted to M.F. he was in bed with the girls, tickled J.T. and rolled on top of her. Id., p. 8. The girls did not immediately tell their mother about the incident. Id. M.F. told a co-worker about the incident. Id. This co-worker contacted Detective Paul Reger of the Glendale Police Department. Id.
Reger testified about his investigation of the case. He described in some detail the training he has undergone to learn how child victims should be properly interviewed. (Answer, Exhibit I, p. 38.) For example, anatomically correct dolls are no longer used because they are considered too suggestive. Id. He testified specifically about how his interview with J.T. was conducted and the measures he took to ensure her statement was reliable. Exhibit I, p. 48.
Wendy Dutton testified as an expert in the field of child abuse. (Answer, Exhibit J, pp. 75-96.) She testified generally about the methods employed by child molesters to gain the trust of their victims. Id. She also testified about the general behavior of their victims and the typical reluctance to report the abuse that these victims display. Id. Dutton did not review any of the police reports or videotapes or talk to any of the witnesses in the Sullivan trial. Id., p. 95-96 Her testimony was limited to general background information.
Sullivan admitted he had a long term sexual relationship with M.F. but maintained it did not begin until M.F. was eighteen-years old. (Answer, p. 8.) He asserted M.F. fantasized about anything she claimed happened before she was eighteen-years old. Id. He denied engaging in the couch incident with M.F. and N.G. Id. He denied having a "threesome" with M.F. and D.G. Id., pp. 8-9. He admitted he gave the girls, J.T. and A.T., back rubs but denied any inappropriate touching. Id., p. 9.
Donald E. Toothman, a DOC officer testified he had conversations with M.F. after her allegations against Sullivan became generally known. (Answer, Exhibit L, pp. 46-51.) M.F. was upset because "it had gone too far." Id., p. 49. "She never figured it would go as far as it has." Id. She was worried about Sullivan and worried about her job. Id. The warden told her "that she better be telling the truth because her career was on the line." Id., p. 50.
Sullivan was convicted on three counts of molestation of a child (counts 1, 2, and 3), and four counts of sexual conduct with a minor (counts 4, 5, 6, and 9). Id., (Petition, p. 2.) On July 9, 1998, the court sentenced Sullivan to three concurrent terms of 17 years for the molestation counts and four consecutive terms of 1.87 years for sexual conduct counts. (Petition, p. 2.)
On July 9, 1998, Sullivan filed a notice of appeal. (Respondent's answer, Exhibit B, #96.) He argued the trial court (1) improperly admitted testimony of other acts pursuant to Ariz. R. Evid. 404(c), and (2) failed to give the jury a written copy of the instruction on the defense of lack of sexual motivation. (Respondents' answer, Exhibit N.) The appeals court affirmed his conviction and sentences on July 1, 1999. Id. Sullivan's petition for review by the Arizona Supreme Court was denied on April 14, 2000. Id.
Sullivan filed a notice of post-conviction relief pursuant to Ariz R. Crim. Proc. 32 on May 5, 2000. Id., Exhibit B, #128. He argued his trial counsel failed to conduct an effective investigation by failing to consult with qualified experts, failing to object to sexual propensity evidence admitted pursuant to Rule 404(c), and failing to seek severance. Id., Exhibit C, # 136. He amended his petition to add a claim of newly discovered evidence — a police report describing an interview with J.T. in which J.T. states she was molested by her step-father before the alleged incident with Sullivan and that she lied earlier when she told the detective she had never before been touched improperly. Id., #170. The trial court held an evidentiary hearing on June 29, August 30 and September 20, 2001. Id., p. 10; Exhibit S. The trial court denied the petition on December 20, 2001. Id. Sullivan filed an appeal on March 7, 2002. Id., p. 10. The court of appeals denied review on May 7, 2003. Id. The Arizona Supreme Court denied review on September 11, 2003. Id.
On July 26, 2004, Sullivan filed the instant Petition for Writ of Habeas Corpus pursuant to Title 28, United States Code, Section 2254. He claims he received ineffective assistance at trial because counsel (1) "fail[ed] to retain and utilize a defense expert," (2) "failed to prepare and cross-examine the state's expert witnesses," (3) "failed to object to inadmissible Rule 404(c) evidence," and (4) "failed to move to sever counts." (Petition.) (capitalization modified) The respondents filed an answer on January 24, 2004.
Discussion
The writ of habeas corpus affords relief to prisoners in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2241. If the petitioner is in custody pursuant to the judgment of a state court, the writ shall not be granted unless prior adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). The petitioner must shoulder an additional burden where the issues presented have been previously considered by the state court and the state court has made findings of fact.
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.28 U.S.C.A. § 2254 (e)(1).
A decision is "contrary to" Supreme Court precedent if the "state court confronted a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrived at a result different from Supreme Court precedent." Vlasak v. Superior Court of California ex rel. County of Los Angeles, 329 F.3d 683, 687 (9th Cir. 2003). A decision is an "unreasonable application" if "the state court identified the correct legal principles, but applied those principles to the facts of her case in a way that was not only incorrect or clearly erroneous, but objectively unreasonable." Id. "It is not enough that our independent review of the legal question leaves us with a firm conviction that the state court decision was erroneous." Id.
Federal review is limited to those issues that have already been fully presented to the state court. This so-called "exhaustion rule" reads in pertinent part as follows:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State. . . .28 U.S.C. § 2254(b)(1)(A). This rule permits the states "the initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picardy v. Connor, 404 U.S. 270, 275 (1971) (quoting Wilwording v. Swenson, 404 U.S. 249, 250 (1971)).
To be properly exhausted, the federal claim must be "fairly presented" to the state courts. Picard v. Connor, 404 U.S. 270, 275 (1971). In other words, the state courts must be apprised of the legal issue and given the first opportunity to rule on the merits. Id. at 275-76. Accordingly, the petitioner must "present the state courts with the same claim he urges upon the federal courts." Id. The state courts have been given a sufficient opportunity to hear an issue when the petitioner has presented the state court with the issue's factual and legal bases. Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999). In addition, the petitioner must explicitly alert the state court that he is raising a federal constitutional claim. Duncan v. Henry, 513 U.S. 364, 366 (1995); Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), as modified 247 F.3d 904 (9th Cir. 2001); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996).
If the petitioner is in custody pursuant to a judgment imposed by the State of Arizona, he must present his claims to the state appellate court for review. Swoopes v. Sublett, 196 F.3d 1008 (9th Cir. 1999), cert. denied, 529 U.S. 1124 (2000). If state remedies have not been exhausted, the petition may not be granted and should ordinarily be dismissed. See Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991). In the alternative, the court has the authority to deny on the merits rather than dismiss for failure to exhaust. 28 U.S.C. § 2254(b)(2).
The court does not agree with the respondents' argument that Swoopes was overruled by Baldwin v. Reese, 124 S.Ct. 1347, 1349 (2004). It does agree with the respondents' observation that resolution of this issue is unnecessary.
A claim is "procedurally defaulted" if the state court declined to address the issue on the merits for procedural reasons. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002). Procedural default also occurs if the claim was not presented to the state court and it is clear the state would now refuse to address the merits of the claim for procedural reasons. Id. A claim that is procedurally defaulted must be denied unless the petitioner can "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Boyd v. Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
Ineffective Assistance of Counsel
"The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel." Luna v. Cambra, 306 F.3d 954, 961 (9th Cir. 2002), reissued as amended, 311 F.3d 928 (9th Cir. 2002) (quoting Strickland v. Washington, 466 U.S. 668 (1984)). Habeas relief is available only if "counsel's performance was deficient" and the "deficient performance prejudiced the defense." Id. To show prejudice, the petitioner "must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Because Sullivan challenges his conviction, he must show "there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id.
"Judicial scrutiny of counsel's performance must be highly deferential." Strickland v. Washington, 466 U.S. 668, 689 (1984). "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (internal citation omitted).
Failure to Retain a Defense Expert
Sullivan argues his trial counsel was ineffective for failing to consult with an expert in child interviewing procedures. Such an expert could have identified shortcomings in the state's interview of J.T. casting doubt on the reliability of her allegations. Further, he argues an expert could have assisted counsel in his cross-examination of the state's expert witness, Wendy Dutton. Sullivan maintains counsel's cross-examination of Dutton was particularly ineffective because he failed to interview her prior to trial. Assuming arguendo failure to retain an expert was deficient performance, Sullivan cannot show he suffered prejudice as a result.
Sullivan argues the assistance of an expert would have enabled trial counsel to attack the interview techniques of the police as failing to utilize "criteria-based content analysis." (Petition, p. 23.) (This, apparently, is a term of art that describes a particular method for assessing the reliability of the interview technique.) Moreover, with the aid of an expert, counsel could have explored "the very real possibility that J.T.'s recorded statement obtained by Reger [was] actually the result of transference, invention, fantasy or influenced by another person." (Petition, p. 23.)
It is unlikely, however, that expert assistance would have significantly improved trial counsel's cross-examination. At trial, Detective Reger described in some detail the training he has undergone to conduct a proper interview. (Answer, Exhibit I, p. 38.) For example, anatomically correct dolls are no longer used because they are considered too suggestive. Id. He testified specifically as to how the interview J.T. was conducted, and the measures he took to ensure her statement was as reliable as possible. He stated, "[Y]ou want to ask questions that are very open-ended and non-leading." Id., p. 48.
Sullivan maintains Reger "had a preconceived belief about what allegedly occurred and was merely trying to get J.T. to validate this belief during both of his interview sessions with her." p. 25 He argues counsel could have raised this issue if only he had consulted an expert.
It is unlikely, however, that this line of cross-examination would have yielded much fruit. At the post-conviction hearing, Reger was asked, "[I]n preparing for your interview of [J.T.] did you work out in your own mind what narrative hypothesis that you would like to explore with her?" (Answer, Exhibit O, p. 25.) He replied, "No. If a child is not going to disclose that I'm not making the child say something. If she has independent recollection and disclosure that is fine. I'm not going to lead that child into to telling me something, I did not do that." Id. He later explained, "The information I had was something happened with Tom Sullivan at Tom Sullivan's house and that's all the information I have." Id., p. 26. He was later asked, "When you went into the interview did you have any preconceived knowledge about whether Tom Sullivan actually molested [J.T.]?" Id., p. 45. He replied, "None whatsoever. My job is to be gather (sic) of facts." Id. He further stated, "I go in with an open mind, I don't go in with any conceptions or preconceived ideas as far as what I think happened. I have to go with a, so to speak, hand that is dealt me. I have got to go with what the victim tells me." Id. Reger, apparently did not have a preconceived belief about what happened between Sullivan and J.T.
Sullivan further argues an expert consultant could have helped him establish the possibility that J.T. was molested by her step-father prior to the incident with Sullivan and that she was confusing the two incidents. This hypothesis, however, was adequately covered by counsel at the trial. During J.T.'s cross examination, she admitted her step-father, John, molested her when she was "about two or three." Exhibit H, p. 48. Sullivan's counsel asked her pointedly, "Isn't it true that what John did you (sic) to you is what you told us that Tom did to you?" He further explored this theory during his cross-examination of the state's expert, Wendy Dutton. He asked whether a molest victim exposed to more than one incident might "lump together" the incidents in her mind. He asked, "You mean assuming that it occurs with one individual, and then we have this other incident with another individual, is it possible the two get mixed into one?" Dutton replied, "It's possible." This possibility of "transference" was adequately covered by counsel at trial. Sullivan cannot show an expert consultant would have improved this line of questioning.
Sullivan further argues trial counsel's failure to retain an expert prevented him from adequately cross-examining the state's expert, Wendy Dutton. He does not, however, specify how counsel's performance at trial was deficient. Dutton testified generally about the methods employed by child molesters to gain the trust of their victims. She also testified about the general behavior of their victims and the victims' typical reluctance to report the abuse. On cross-examination, Sullivan's counsel established that these general characteristics do not always hold in every case. Further, while child molesters may engage in seemingly friendly behavior with their intended victims, this friendly behavior by itself is not a useful indicator of criminal intent. Most friendly behavior is just that — friendly behavior. Counsel's performance at trial was more than adequate. Sullivan cannot show an expert consultant would have improved this line of questioning.
Sullivan further argues an expert consultant could have helped trial counsel effectively cross-examine Dutton on the shortcomings in Reger's interview technique. Dutton, however, did not offer an opinion as to whether or not Reger's interview technique was appropriate. In fact, Dutton did not review any of the police reports or videotapes or talk to any of the witnesses in the Sullivan trial. Her testimony was limited to general background information only.
Sullivan cannot show counsel's failure to retain an expert prevented him from adequately challenging the interview procedures employed by detective Reger or the expert testimony offered by Wendy Dutton. Assuming arguendo counsel's failure to consult with an expert was deficient performance, he cannot show this failure caused him prejudice.
Prior Act Evidence Admitted Pursuant to Rule 404(c)
Sullivan argues his trial counsel was ineffective because he failed to interview N.G. and C.K. prior to trial and failed to object to the admission of their prior act testimony pursuant to Rule 404(c).
The rule reads as follows:
In a criminal case in which a defendant is charged with having committed a sexual offense, or a civil case in which a claim is predicated on a party's alleged commission of a sexual offense, evidence of other crimes, wrongs, or acts may be admitted by the court if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged. In such a case, evidence to rebut the proof of other crimes, wrongs, or acts, or an inference therefrom, may also be admitted.
(1) In all such cases, the court shall admit evidence of the other act only if it first finds each of the following:
(A) The evidence is sufficient to permit the trier of fact to find that the defendant committed the other act.
(B) The commission of the other act provides a reasonable basis to infer that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the crime charged.
(C) The evidentiary value of proof of the other act is not substantially outweighed by danger of unfair prejudice, confusion of issues, or other factors mentioned in Rule 403. In making that determination under Rule 403 the court shall also take into consideration the following factors, among others:
(i) remoteness of the other act;
(ii) similarity or dissimilarity of the other act;
(iii) the strength of the evidence that defendant committed the other act;
(iv) frequency of the other acts;
(v) surrounding circumstances;
(vi) relevant intervening events;
(vii) other similarities or differences;
(viii) other relevant factors.
(D) The court shall make specific findings with respect to each of (A), (B), and (C) of Rule 404(c)(1).
Arizona Rules of Evidence, Rule 404.
In this case, Sullivan's trial counsel failed to interview either N.G. or C.K. choosing to rely on the description of their testimony in the state's moving papers. Before trial he conceded the admissibility of the prior act evidence, and consequently the trial court did not make explicit findings of admissibility as required by the statute. When N.G.'s testimony at trial differed from the proffer, counsel raised an objection. The trial court held Sullivan waived his right to object.
Prior bad act testimony from M.F. and C.K. was introduced without further objection. When Sullivan filed his Rule 32 motion, Sullivan's trial counsel offered an affidavit in which he stated his failure to interview the 404(c) witnesses was not a tactical decision on his part. (Answer, Exhibit C.)
In the instant petition, Sullivan argues trial counsel was ineffective for failing to interview the 404(c) witnesses and failing to object to the admission of 404(c) material. The trial counsel's failure to interview the 404(c) witnesses is problematic and, accordingly, the court assumes arguendo trial counsel's performance was deficient. Nevertheless, Sullivan is unable to show counsel's deficient performance caused him prejudice. It is unlikely his motion to preclude 404(c) evidence would have been successful had he made one.
Sullivan argues first the other acts related by C.K. and N.G. could not be established by clear and convincing evidence. See Arizona v. Terrazas, 189 Ariz. 580, 582, 944 P.2d 1194, 1196 (1997) (establishing the clear and convincing standard). He correctly notes the summary offered by the state in their notice was brief at best. Nevertheless, had an objection been made, the proffer could have been strengthened. Presumably, the court could have held an evidentiary hearing at which C.K. and N.G. could have offered the same testimony they offered at trial. The other act testimony offered by C.K. and N.G. at trial was rich in detail. There is no indication that the witnesses' demeanor was such that the court should have doubted their veracity. Moreover, the incident related by N.G. was corroborated by M.F. Sullivan cannot show the other acts related by C.K. and N.G. could not have been established by clear and convincing evidence.
Sullivan further argues trial counsel should have "challenged the proposed testimony on the basis of its dissimilarity and remoteness." Pursuant to Ariz. R. Evid. 404(c)(1)(C) (i, ii) the trial court must weigh the evidentiary value of the other act evidence by considering, inter alia, the "remoteness of the other act" and the "similarity or dissimilarity of the other act." These are "important factors to be considered in deciding whether the probative value of the evidence is outweighed by the danger of unfair prejudice." Arizona v. Arner, 195 Ariz. 394, 396, 988 P.2d 1120, 1122 (App. 1999).
The incident related by C.K. is similar to the offense conduct related by J.T. Both incidents occurred in Sullivan's home. Both incidents began as an innocent back rub and then escalated to sexual contact. In both cases, Sullivan was baby-sitting the children of a friend. The age of the children involved is also similar. C.K. was "about nine- or ten-years old" when the incident occurred. J.T. was eight-years old.
These two incidents occurred fourteen years apart which is a considerable period of time. If these were the only two incidents introduced at trial, the trial court might have found the other act evidence too remote in time to be probative of Sullivan's aberrant sexual propensity at the time of the offense. In this case, however, additional evidence was introduced establishing a pattern of aberrant behavior lasting from the early 1980s until the mid-1990s. The C.K. incident occurred in 1982. The community pool incident related by M.F. occurred in 1983. The couch incident between Sullivan and M.F. and N.G. occurred between 1983 and 1986. The couch incident with M.F. after the driving lesson occurred in 1990. The "threesome" incident with M.F. and D.G. occurred in 1993. The incident with J.T. occurred in 1996. Accordingly, the other act evidence related by C.K. is probative of Sullivan's aberrant sexual propensity as it was in early 1980s and as it continued up until 1996 when the offense conduct with J.T. occurred. See Arner, 195 Ariz. at 396, 988 P.2d at 1122; Ariz. R. Evid. 404(c)(1)(C)(vi) (instructing the trial court to consider "relevant intervening events").
The prior incident related by N.G. is particularly probative because it not only establishes Sullivan's long standing aberrant sexual propensity but also establishes his predisposition toward a particular victim — M.F. See Arizona v. Garcia, 200 Ariz. 471, 476, 28 P.3d 327, 332 (App. 2001). It is unlikely N.G.'s prior act testimony would have been precluded had Sullivan filed a timely objection. Moreover, N.G.'s testimony provides direct corroboration for M.F.'s testimony and establishes a pattern of "grooming behavior" which Sullivan directed toward M.F. See Garcia, 200 Ariz. at 476, 28 P.3d at 332. Accordingly, N.G.'s testimony would have been admissible as evidence intrinsic to the charged offenses against M.F. even if it was not admissible under Rule 404(c).
This issue was first raised by Sullivan in his Rule 32 post-conviction petition. The trial court concluded Sullivan's trial counsel was not ineffective because the 404(c) evidence would have been admitted even if counsel had objected. (Answer, Exhibit S.) The trial court's decision is not an unreasonable application of Strickland.
Severance
Sullivan further argues his trial counsel was ineffective for failing to sever counts 1-3. He argues if these counts were severed "he could have defended those counts as having been indicted upon a potentially false statement, obtained without the benefit of scientific method, and subject to error through transference, or alternate source of sexual knowledge." (Petition, p. 30. This issue was first raised in Sullivan's Rule 32 post-conviction petition.
In support of that motion, Sullivan provided an affidavit from trial counsel which reads in pertinent part as follows:
I also believe I was ineffective because I failed to seek a severance of Counts I-III from the remaining counts of the Indictment. If I had effectively investigated Mr. Sullivan's case, by consulting with a qualified expert, by investigating the allegations of a prior unrelated molestation, and by testing the State's attempted use of Rule 404(c) evidence, I would have been sufficiently informed to have filed a motion urging the Court to sever Count I-III from the rest of the counts in the Indictment. I would have sought a severance because I would have been advised of the problems with the interview of witness J.T. I would have also sought a severance because J.T. is the only witness to the acts alleged against Sullivan in Counts I-III, and accordingly, her ability to accurately describe them without transference from another similar event, or suggestibility from Detective Reger during the course of the interview are issues wholly unrelated to the trial testimony of M.F. and D.G.
(Answer, Exhibit C, #15 Exhibit 1.) The trial court held an evidentiary hearing at which trial counsel testified. Trial counsel was asked about his theory of the case. His response is as follows:
Pretty much that Tom didn't do it from a factual standpoint. What was described to me that happened when I interviewed these children[?] that they would possibly testify to, just in [my] mind it didn't make sense. He just simply didn't do it.
Exhibit O, p. 6.) Counsel was asked: "Was part of your theory of the case that [M.F.] was angry at Mr. Sullivan because he had forgotten her birthday, he did not observe her birthday in a way she thought he should, that is why [she was] making the allegation she was making?" p. 6. Counsel replied
I don't know theory of the case but certainly from [a] factual standpoint I knew about that and knew she was an angry person and that came across very clearly on the stand and [I] think, you know, it wasn't away more to her[?], you know, her bias and motive either fabricated this or, you know, put Tom in a very drastic position.pp. 6-7. Trial counsel was asked if he considered filing a motion for severance. Exhibit O, p. 8 He replied, "Yes, I considered it. I discussed it with Tom and you know, in all honesty and fairness I probably should have." p. 8. Later in the hearing, the issue of trial strategy was raised again. Trial counsel was asked, "Was it your theory of defense that [M.F.] was lying about conduct she accused Tom Sullivan of?" Exhibit Q, p. 35. He replied, "Absolutely." Id. Counsel was asked: "Was it your theory of defense that [M.F.] encouraged [J.T.] to lie about conduct?" He replied, "Yes." Id.
The trial court concluded Sullivan's trial counsel decided not to move for severance because his overarching theory of defense was that M.F. was angry at Sullivan and, because of that anger, fabricated her accusations against him, fabricated the incident between Sullivan and J.T. and then encouraged J.T. to lie in support. Exhibit S. This is a factual issue and is presumed correct unless the petitioner can offer clear and convincing evidence in rebuttal. 28 U.S.C. § 2254(e)(1). See Jackson v. Herring, 42 F.3d 1350, 1366 (11th Cir. 1995). Sullivan cannot do so.
Trial counsel conceded his trial strategy was to accuse M.F. of fabricating her accusations and further accuse her of encouraging J.T. to lie to support these accusation. He further acknowledged discussing the severance issue with the defendant. Although, trial counsel did not elaborate on these discussions or the reason why he decided not to file a motion for severance, the trial court reasonably concluded counsel intentionally decided against filing such a motion because it would have been inconsistent with his overarching plan of blaming the entire prosecution on M.F. and her anger toward Sullivan.
This plan was discussed in greater detail in counsel's closing argument. According to counsel, M.F. was angry at Sullivan and falsely told her co-worker that Sullivan had molested J.T. When the co-worker insisted on informing the authorities, M.F. was reluctant, not as she claimed because she still had feelings for Sullivan, but because she knew the story was false. When the authorities began investigating, M.F. encouraged J.T. to lie in support of her false accusation. At one point during the investigation, J.T. asked, "Does this mean my mom is going to get Tom's money?" Trial counsel implied this was further evidence that M.F. was the moving force behind J.T.'s allegations.
The trial court further concluded trial counsel's decision to not file a severance motion was not ineffective assistance, but was a reasonable tactical decision. This is not an unreasonable application of Strickland. M.F. was angry with Sullivan and had a motive to fabricate allegations against him. Her initial accusations against him were riddled with inconsistencies. It was a reasonable strategy to attack the testimony of J.T. indirectly by attacking the motivation of M.F. who originally brought the incident to light.
Trial counsel now believes his decision to not seek severance was error. He believes a better strategy would have been to sever the J.T. counts from the remainder of the indictment and simply attack the reliability of the police interview procedure. In retrospect, he may be right. This, however, is not the test. It does not matter whether trial counsel made the best choice possible. The question is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). The trial court concluded counsel's performance was not so deficient that it violated Sullivan's rights under the Sixth Amendment. This was not an unreasonable decision.
Sullivan further argues counsel's decision to not seek severance could not be considered a reasonable trial strategy because it was made without consulting an expert in child interview techniques. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-691. "In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id.
Here, counsel apparently believed he was able to accurately identify the critical issues in the case and formulate his strategy without expert assistance. In spite of his offered affidavits, Sullivan cannot show counsel's self-assessment was unreasonable. As the court discussed above, Sullivan cannot show an expert would have brought anything significant to the table. Counsel already knew J.T. had been molested by her step-father and might be confusing that abuse with the Sullivan incident. He already knew an improper interview could produce a distorted statement. See (Petition, p. 8.) In fact, he implied at trial that the words used by J.T. in her statement were not originally hers but put into her mouth by others — possibly as the result of her interview by Reger. (Answer, Exhibit G, p. 27.) Moreover, if trial counsel had consulted an expert, it is not at all certain he would have adopted a different trial strategy. An expert might have suggested Reger's interview techniques were faulty and vulnerable to challenge, but if counsel explored this avenue of attack before trial, he would have quickly found it a dry hole. If counsel interviewed Reger (it is not clear whether or to what extent counsel interviewed Reger before trial.) and asked him about his interview techniques, counsel would have heard Reger defend his techniques in the same unequivocal manner that he employed at the Rule 32 hearing. See above. Faced with this emphatic line of testimony it is unlikely counsel would have made Reger's "faulty" interview technique the centerpiece of his defense strategy. Counsel's ultimate choice of trial strategy was reasonable.
The trial court concluded counsel's decision to not file a severance motion was not deficient performance but a tactical decision. This is not an unreasonable application of Strickland. RECOMMENDATION
The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order DENYING the Petition for Writ of Habeas Corpus. [#1]
Pursuant to 28 U.S.C. § 636 (b), any party may serve and file written objections within 10 days of being served with a copy of this report and recommendation. If objections are not timely filed, the party's right to de novo review may be waived. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). If objections are filed, the parties should direct them to the District Court by using the following case number: CIV-04-1517-PHX-DGC.
The Clerk is directed to send a copy of this report and recommendation to the petitioner and the respondents.