Opinion
NO. 4:09-CV-112-A.
December 3, 2010
MEMORANDUM OPINION and ORDER
After having considered the petition for writ of habeas corpus in behalf of a person in state custody filed by S.J.P. ("petitioner") pursuant to 28 U.S.C. § 2254, the court has concluded that the petition should be conditionally granted for the reasons set forth in this memorandum opinion.
CONTENTS
I. Procedural Background ...................................... 5 II. State Court Proceedings Pertinent to Petitioner's Ineffective-Assistance-of-Counsel Claim .................... 8 A. General Remarks ....................................... 8 B. The Trial Evidence During the Guilt/Innocence Phase ................................. 9 1. A.P.'s Testimony ................................ 10 2. S.P.'s Testimony ................................ 16 3. Dr. Coffman's Testimony ......................... 23 C. Evidence Added to the Record at the State Habeas Stage ......................................... 27 1. Affidavit Testimony Provided by Petitioner ...................................... 27 a. Scott Bowles and Suzy Bowles ............... 27 b. Carmelito Adolfo ........................... 29 c. Noemi Blanco ............................... 30 d. Ester Segundo .............................. 31 e. Mary Michael-Rogers, Jessica P., Michael P., Tom Hudson, and Jennifer Biggs ............................. 31 f. Dillon Ambrose ............................. 32 g. Joann Murphey, Ph.D ........................ 33 h. Donald Gandy ............................... 36 2. Affidavits of Petitioner's Trial Counsel Provided by State ............................... 39 III. Findings Made and Conclusions Reached by the State Court With Respect to Petitioner's State Habeas Application ............................................... 42 IV. The Respects in Which Petitioner Claims the Performance of His Trial Counsel Was Constitutionally Deficient ................................ 44 A. Failure to Conduct an Adequate Investigation ......... 45 B. Failure to Use Character Witnesses at Trial .......... 45 C. Introducing into the Trial Court Record A.P.'s Claim That Petitioner Sexually Abused S.P. When S.P. Was Twenty Months of Age .............. 46 D. The Introduction by Defense Counsel of S.P.'s Letters and Journal, and Defense Counsel's Failure to Conduct Meaningful Questioning of the Witnesses Concerning Those Items .......................................... 46 E. Allowing the Testimony of Dr. Coffman to Be Received into Evidence Without Objection ............. 47 F. Failure to Obtain Expert Assistance .................. 47 G. Failure to Object Under Rule 404(b) to Evidence of Extraneous Offenses or Other Bad Acts of Petitioner ............................... 47 H. Referring to Petitioner as a Pedophile at the Punishment Phase, and Defense Counsel's Failure to Object at the Punishment Phase to the Testimony of the Probation Officer That Sex Offenders Cannot Be Cured ........................ 48 V. Conduct of Petitioner's Trial Counsel That Caused the Court to Have Sufficient Concern to Conduct a Hearing ................................................. 48 A. Trial Defense Counsel Opened the Door to Testimony from A.P. That She Saw Petitioner Molest S.P. When S.P. Was Twenty Months Old .......... 49 B. Trial Counsel Failed to Object to Dr. Coffman's Testimony, and Solicited Testimony From Which the Jury Could Infer That She Was of the Opinion S.P. Had Been Sexually Abused ......... 52 C. Failure of Defense Counsel to Seek Expert Assistance ........................................... 55 D. The Failures of Trial Counsel to Prove That Certain Testimony of A.P. and S.P. Was False Even Though the Proof Was Available .................. 57 E. Failure of Trial Counsel to Investigate .............. 59 F. The Introduction by Defense Counsel of S.P.'s Letters and Journal, and Defense Counsel's Failure to Meaningfully Conduct Cross- examination Relative to Those Items .................. 59 VI. The Hearing Conducted by This Court ....................... 60 A. The Witnesses ........................................ 61 1. Blankenship's Testimony ......................... 61 2. Miller's Testimony .............................. 69 3. Gandy's Testimony ............................... 73 B. Miller's File on Petitioner's Case ................... 74 VII. Analysis .................................................. 78 A. A Hearing on the Petition Was Appropriate ............ 78 B. The Standards to Be Applied in Determining Whether Petitioner's Trial Counsel Was Constitutionally Deficient ........................... 80 C. The Assistance Miller and Blankenship Provided to Petitioner Was Constitutionally Ineffective .......................................... 82 1. Injection By Defense Counsel Before the Jury of the Allegation of Molestation in Hawaii ........................... 83 2. The Handling of Dr. Coffman's Testimony ......... 84 3. Failure to Employ an Expert ..................... 86 4. Failure to Investigate .......................... 87 5. Failures of Trial Counsel to Discredit Certain Testimony of A.P. and S.P. Even Though Evidence Was Available to Do So ........................................ 89 D. Petitioner Has Overcome the Deference to Which the State Court's Adjudication and Determinations Were Entitled ......................... 93 VIII. Conclusion ............................................... 95 IX. Order ..................................................... 96I. Procedural Background
On November 13, 2003, petitioner was charged by indictment filed in the 371st District Court of Tarrant County, Texas, with four counts of aggravated sexual assault of a child under fourteen years of age and one count of indecency with a child by contact. The alleged victim of each offense charged in the indictment was petitioner's daughter, S.P.Petitioner pleaded not guilty. On October 5, 2005, a jury returned verdicts finding him guilty of aggravated sexual assault of a child as charged in counts one and four of the indictment, not guilty of aggravated sexual assault of a child as charged in counts two and three, and guilty of indecency with a child by contact as charged in count five. The jury assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for periods of forty years, fifty years, and fifteen years on counts one, four, and five, respectively, which the state trial court ordered to run concurrently.
Each count of the indictment charged petitioner with committing a particular act on or about a particular date. The relevant parts of the indictment are as follows:
[S.J.P.] hereinafter called Defendant . . . on or about the 15th day of January 2001, did intentionally or knowingly cause the penetration of the female sexual organ of [S.P.] . . . by inserting his finger into her sexual organ.
Count Two: And it is further presented in and to said court that the defendant . . . on or about February 15, 2001, did intentionally or knowingly cause the sexual organ of [S.P.] . . . to contact the sexual organ of the defendant.
Count Three: And it is further presented in and to said court that the defendant . . . on or about May 1, 2001, did intentionally or knowingly cause the sexual organ of [S.P.] . . . to contact the mouth of the defendant.
Count Four: And it is further presented in and to said court that the defendant . . . on or about August 1, 2001, did then and there intentionally or knowingly cause the sexual organ of [S.P.] . . . to contact the sexual organ of the defendant.
Count Five: And it is further presented in and to said court that the defendant . . . on or about December 15, 2000, did then and there intentionally . . . engage in sexual contact by touching any part of the genitals of [S.P.]. . . .
Clerk's R. for Cause No. 0907043D at 2.
Following his conviction, petitioner filed a motion for new trial, which was denied by operation of law when the state trial court failed to rule on it within seventy-five days after imposing petitioner's sentence. Petitioner appealed from the judgment against him to the Court of Appeals, Second District of Texas, at Fort Worth, which affirmed. His petition for discretionary review by the Court of Criminal Appeals of Texas was refused. The Court of Criminal Appeals denied his application for a state writ of habeas corpus.
Petitioner filed the petition initiating the instant action on February 19, 2009, asserting that his trial counsel, Martin Miller ("Miller") and Robert Blankenship ("Blankenship"), rendered ineffective assistance of counsel. On December 21, 2009, United States Magistrate Judge Charles Bleil issued his proposed findings, conclusions, and recommendation recommending that the petition be denied. Petitioner filed his objections to Judge Bleil's findings, conclusions, and recommendation on December 31, 2009.
After a complete review of the record of this action, including the state court records pertaining to petitioner's trial and state habeas application, the court determined that an evidentiary hearing should be held to allow petitioner to fully develop his claim that trial counsel rendered ineffective assistance of counsel.
An evidentiary hearing was held on July 20, 2010. The parties filed post-hearing briefs.
II. State Court Proceedings Pertinent to Petitioner's Ineffective-Assistance-of-Counsel Claim
A. General Remarks
Because the court is required by 28 U.S.C. §§ 2254(d) and (e) to give deference to the state court's adjudication and determinations of issues pertinent to the adequacy-of-representation ground, the court must consider the state court proceedings, including the evidence received at petitioner's trial, the evidence received as a part of his state habeas action, and the state court's adjudication and determinations. Therefore, the court discusses those things in some detail before proceeding to a discussion of the evidence received at the July 20, 2010, hearing and the impact that evidence has on the state court's adjudication and determinations.
Title 28 U.S.C. §§ 2254(d) (e)(1) read as follows:
(d) 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 with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
(e)(1) 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.
Necessarily the court has omitted some of the details given in the state court evidence. Nevertheless, all the evidence is being considered by the court in its analysis, findings, and conclusions.
B. The Trial Evidence During the Guilt/Innocence Phase
The evidence presented by the prosecutor at trial in support of the charges against petitioner consisted of testimony of S.P.'s mother, A.P.; S.P.; and Jamye Coffman, M.D. ("Dr. Coffman"). Petitioner did not call a witness at the guilt/innocence phase of the trial. A summary of pertinent parts of the witness testimony, and exhibits received as part of the testimony, follows:
The court is not discussing in this section all the testimony developed by petitioner's trial counsel on cross-examination, even though, as explained in later parts of this memorandum opinion, some of that testimony likely worked to petitioner's disadvantage.
1. A.P.'s Testimony
The prosecutor called as his first witness petitioner's ex-wife and S.P.'s mother, A.P. A.P., who was 40 years of age at the time of the trial, was born in the Philippines. She met petitioner, who she said was "53 or 52 or something like that" at the time of his trial, in 1986 or 1987, while he was stationed in the Philippines with the Navy. Trial Tr., Vol. 3 at 40. They married in 1991 in Japan and had a daughter, S.P., in January 1992. In December 1999, the family moved to Fort Worth. A.P. did not work outside the home because of petitioner's insistence that she stay at home to watch S.P. At the time of trial S.P. was in the eighth grade. S.P. is a good student, who has been on the A/B honor roll.
On September 4, 2003, when S.P. was eleven years old, she told A.P. she had been raped, but did not say by whom. S.P. then went to her bedroom and locked herself in. That night A.P. thought about what to do. The following night, September 5, A.P. related to petitioner what S.P. had told her, to which he responded: "Don't listen to her. She is — she is only making things up and — and only — that's only her imagination. Don't — and it's late, and I need to go to bed. Go to bed." Id. at 23. A.P. went to the living room and cried because she realized petitioner was not going to do anything about who raped their daughter. At that time, A.P. had her suspicions that petitioner was the one who raped S.P., but she also had her doubts.
At 2:00 a.m. September 9 or 10, 2003, A.P. called the police because she "cannot stand it anymore." Id. at 24. Uniformed officers came to their home. The officers did not speak to S.P. because she was asleep. Someone, perhaps the police, gave A.P. the phone number for Child Protective Services ("CPS"). Sometime thereafter, A.P. called Lindsey Dula ("Dula") at CPS and related to Dula what S.P. had told her. Around September 21, 2003, S.P. told A.P. that petitioner was the one who raped her. S.P. told A.P. that the rapes happened while A.P. was busy doing stuff, such as cooking, cleaning, showering, defecating, or playing games on the computer.
The question and answer exchange between the prosecutor and A.P. starting at page 26 and going through page 34 of the trial transcript is puzzling. As noted in the text, A.P. initially testified that she first learned around September 21, 2003, that petitioner is the one who raped S.P. During the question and answer exchange at page 26-34, the prosecutor inquired of A.P. how her September 21 conversation with S.P. came about, and A.P. responded by relating an event that occurred on August 28, 2003, when A.P. and petitioner were watching a news segment about child abuse. A.P. expressed puzzlement over why people would abuse a little kid like that, to which petitioner responded, "[b]ecause they have power." Trial Tr., Vol. 3 at 27. Then, as they were preparing for bed, she, from the bathroom, heard petitioner talking out loud in the bedroom, saying "[w]hy did I do that to [S.P.]." Id. at 28. She asked petitioner what he had done to S.P., and he told her that she was "hearing wrong." Id. That led to an argument between A.P. and petitioner. Id. at 28-29. She thought he was going to hit her, so she left the bedroom and went into the living room in the dark to decide what to do — she was upset and was crying. Id. at 29. She said that when she was in the living room crying she had already talked to S.P. about who raped her. No attempt was made to explain or exploit the apparent discrepancies in A.P.'s testimony.
After S.P. told her what petitioner had done to her, she called the police and asked for a restraining order against petitioner to keep him from disturbing them, but he kept coming back. She did not say anything to petitioner about what S.P. said to her about petitioner's involvement.
Looking back, A.P. saw changes in S.P.'s behavior starting in 2000, which coincided with the time S.P. said petitioner was abusing her. S.P. was always mad at A.P. and would push A.P. away when A.P. tried to hug her. She thought S.P. was behaving the way she was "because of the TV." Id. at 38. In October 2001 A.P. heard S.P. crying in her bedroom. When A.P. asked S.P. why she was crying, S.P. denied that she was crying and tried to hide her tears. In December 2001 S.P. asked A.P. for a lock for her bedroom door. A.P. thought S.P. made that request because she started having her monthly period.
A.P. also noticed changes in her relationship with petitioner during the time he was allegedly abusing S.P. They fought more during that time, usually about money. When they fought, petitioner would sometimes threaten to send A.P. back to the Philippines without S.P.
In October 2001 she saw bruises on S.P.'s body that caused her concern. When she questioned S.P. about the bruises, S.P. told her that she bumped into something. At the time A.P. thought S.P. was hiding something from her. She considered calling the police at that time. The bruises were on both of S.P.'s thighs. She told S.P. that the bruises did not look like she had bumped into something, but looked like a hand. Petitioner was present when she was talking to S.P. about the bruises, and he was looking at S.P. while the conversation was taking place, and S.P. was looking at him.
At the outset of cross-examination of A.P. by Miller, he developed that A.P. did not ask S.P. for any details as to what S.P. meant when she told A.P. on September 4, 2003, that she had been raped. A.P. said that petitioner moved out of the family's house on September 18, 2003. When S.P. told A.P. on September 21, 2003, that petitioner was her rapist, A.P. did not call the police or CPS immediately. When Miller asked if it was October 1, 2003, when A.P. first told CPS that S.P. had identified petitioner as her rapist, A.P. said that she did not know. When asked why she was having difficulty remembering what happened on October 1, she testified that petitioner caused her a lot of pain and that she was confused about whether to believe her daughter or petitioner.
She recalled on cross-examination that on a Sunday, during December 2001, after petitioner had finished mowing the lawn and had taken a shower, and while A.P. was in the master bedroom and petitioner and S.P. were watching TV, she heard S.P. say "[d]addy, let's do it again on the floor." Id. at 56-57. A.P. said that she came from the bedroom to where petitioner and S.P. were, and asked what they were talking about. Petitioner responded that she was hearing wrong, and that she must be hearing the TV. A.P. explained, "I thought maybe that's the TV, so I stopped asking anything like that, and then I went back to the computer playing solitaire." Id. at 57.
In the days immediately after September 4, 2003, when S.P. told A.P. that she had been raped, there was no family discussion concerning what S.P. told A.P. Petitioner and A.P. did not ask S.P. anything like that. Instead, they all just watched TV.
During Miller's cross-examination of A.P., he introduced a subject that the prosecutor had not mentioned during direct examination. Miller developed that A.P. claimed that she saw petitioner molest S.P. when S.P. was twenty months old. Id. at 55-56. When cross-examination was completed, the prosecutor obtained permission of the judge to ask A.P. more questions about that. On redirect examination, A.P. testified that she saw petitioner fondling his penis with one hand while touching S.P.'s vagina with the other. Id. at 65-66. When she saw that, she confronted petitioner and hit him with a book, and he promised that he would not do it again.
When A.P. was recalled by the prosecutor as a witness after S.P.'s testimony was concluded, A.P. identified a letter she had received from petitioner through the mail in late October 2003. She said the letter was an attempt by petitioner to get her and S.P. to change their story under threat that he would be seeking a divorce if they failed to do so. During this session of testimony, A.P. elaborated on the nature of her relationship with petitioner over the years. She said that during the year 2000 her sexual relationship with petitioner was not the way it was before. Before then they had sexual relations four to eight times each day when petitioner was not working, but when he was working they only had sexual relations two times a day, nighttime and in the morning. Starting in the year 2001 they had sexual relations only on the weekends. Petitioner explained to her that he slowed down because he was getting old.
When Miller cross-examined A.P. on her second trip to the stand, he questioned her about the October 2003 letter the prosecutor had asked her about. A.P. characterized the letter as a request that she change her story and tell a lie. At the behest of Miller, the letter was received into evidence as Defendant's Exhibit 5. Miller then read the letter to the jury.
2. S.P.'s Testimony
S.P. described, in a general way, her daily routine and family life in 2000 and 2001. She left the house to go to school around 8:00 a.m. Petitioner left for work before she awakened. She returned from school around 3:00 p.m., and petitioner came home from his work for the Navy around 4:00 p.m. Her mother was not working outside their home. S.P. went to bed at 8:00 p.m. Her parents would go to bed around 10:00 p.m. or 11:00 p.m. She did not have friends in the neighborhood, and she spent most of her time with her mother, with whom she was very close. She did not spend a lot of time with petitioner and was not very close to him.
In November 2000, petitioner started touching S.P. At first he touched her outside her pants, outside her vagina. That happened in the living room, while S.P. and petitioner sat on the couch watching television and A.P. was in the shower. S.P. did not tell anyone what happened because she believed petitioner when he told her that she would get in trouble and go to juvenile hall if she did. The same kind of touching happened a lot while they were at the duplex where they were living when petitioner first touched her. When the family moved to another residence, petitioner continued to touch her on the outside of her clothes, on the outside of her vagina. When that touching happened, S.P. and petitioner were in the living room while A.P. was in the bedroom.
Beginning in around February 2001, petitioner began touching S.P. inside her clothes. The touching lasted for five to ten minutes at a time and took place in the living room or in S.P.'s bedroom, while A.P. was cooking or cleaning or something like that. S.P. felt "really weird" about what was happening but did not tell anyone because she was scared petitioner would hurt her or her mother. Trial Tr., Vol. 3 at 87.
Petitioner began touching S.P. inside her vagina with his fingers. When he did that, her clothes were off. He would do this in the living room after she got home from school or in her bathroom and, sometimes at night, in her bedroom, while A.P. was sleeping. She never told any of her girlfriends at school what was happening because she did not trust them.
In March or April 2001 petitioner started putting his tongue inside S.P.'s vagina. Petitioner did that to her every day. He would take her clothes off and do that to her on the floor in the living room or on her bed. While that was happening, A.P. was either taking a shower, cleaning, cooking, or something. A.P. played games on the computer for a couple of hours every night and was very focused on the computer.
Petitioner also put his penis inside S.P.'s vagina every day, either in the living room, dining room, her bedroom, or, once or twice, the master bedroom. S.P. thought petitioner's penis went all the way inside her vagina. Sometimes it hurt. Petitioner did not always use the same position. Sometimes he put S.P. on top of him, grabbed her hips, and moved her up and down. He only did it that way three or four times because he left noticeable scratch marks on S.P.'s hips. When they did that, she had part of her clothes off. She took them off when he told her to. Petitioner had his pants and underwear off when they did that. A.P. asked S.P. how she got the marks, and S.P. told A.P. that she had fallen down. Once when they were doing it in the master bedroom she "peed on the bed" when petitioner put his penis inside her vagina. Id. at 95. When that happened, A.P. was in the kitchen cooking. Petitioner explained the urine on the bed by telling A.P. that the dog had done it.
Around Christmas in 2001 S.P. had a lock put on the door of her bedroom to keep petitioner from getting in during the middle of the night. He had been coming into her room in the middle of the night three or four times a week and, when he did, he would put his penis inside her vagina. To explain why she wanted a lock, she told her mother that she did not trust the relatives who would come to visit.
When petitioner first started touching S.P. through her clothes while they lived in the duplex, she told him that she should tell A.P. about what was happening. He responded by telling her that A.P. did not know the American way.
Petitioner stopped abusing S.P. in 2002 because S.P. started hanging around her mother a lot. S.P. went to the grocery store with A.P. and sat in the bathroom and read while A.P. showered. When petitioner asked S.P. why she was following her mother around, S.P. told him she didn't want to be around him anymore, which made him angry.
In September or November 2003, S.P. told A.P. she had been raped because she "couldn't take it anymore." Id. at 108. Later that month, S.P. told A.P. that it was petitioner who raped her. Initially she did not tell A.P. who raped her because she was still scared petitioner might do something bad to her or her family.
When S.P. told A.P. petitioner was the person who raped her, A.P. called the police, who, with Dula from CPS, came to the house and talked to her. Because she did not know what was going on, and was scared and confused, she told them that nothing had happened to her. Sometime in October 2003 during S.P.'s third or fourth interview with Dula, S.P. told Dula that petitioner had touched her with his hands and tongue. She did not tell Dula about the intercourse because she was ashamed and does not like people judging her.
At Trial Tr., Vol. 3 at 110-111, S.P. seems to give contradictory testimony, first indicating that she first talked to Dula when Dula and the police came to her house before giving a contradictory answer that she first talked to Dula when Dula showed up unannounced at her school. Whichever version of S.P.'s testimony on that subject is accepted, she consistently said that when she first talked to Dula she told Dula that nothing happened.
S.P. wrote a lot after she told her mother she had been raped. Writing relieved her stress. She wrote two or three letters about what happened to her and gave them to Dula. She also wrote a journal. She wrote the letters and journal on her own.
On cross-examination by Miller, S.P. elaborated on some of the subjects discussed during her direct examination. When Dula first questioned S.P., Dula asked her if anyone had touched her inappropriately, anywhere on her private parts, and she told Dula that no one had done so. She denied during that first interview that she told her mother that she had been raped. Instead, she told Dula that her mother and dad fought a lot. She made the same denial to Dula when she visited with Dula again sometime in mid-September. She made the same denial to a police detective. She told them that her dad had never touched her and that no one else had touched her.
She said that during a videotaped interview she had with Dula on October 1, 2003, she responded to Dula's question asking her what happened to her by saying "it never happened more than five times," "twice when [she was] eight and three times when [she was] nine," and that "it never happened again." Trial Tr., Vol. 3 at 120-21. She told Dula during that interview that petitioner never performed oral sex on her, and that petitioner never inserted his penis in her vagina.
When S.P. went to see a doctor for an exam two weeks after that, she told the doctor that she had been raped, that petitioner put his penis in her vagina, and that he had put his finger inside her vagina. When she was again interviewed by Dula later that month, she told Dula that she and petitioner had sex just about every day from November 2000 to November 2001 on the living room floor while A.P. was in the shower or the kitchen or on the computer or in the garden.
S.P. testified that petitioner eventually put all four of his fingers in her vagina and that she thought he put his penis all the way in her vagina. She said that they had sex five times a day every day, both oral and vaginal. S.P. said that she did not tell Dula that petitioner had sex with her five times a day because she was scared. She said petitioner has not touched her since November 2001.
Other items of evidence introduced before the jury by Miller during cross-examination were letters and a journal S.P. wrote years after the fact setting forth her accusations against her father. Miller had S.P. identify the items, which he marked as Defendant's Exhibits 1-4, and then he offered them. After they were admitted, Miller went to other subjects, and then announced that he had no further questions of S.P. On redirect examination, the prosecutor read to the jury parts of three of the exhibits, and then on re-cross Miller read extensively from the exhibits. The contents of the exhibits that were read to the jury reiterated much of what S.P. had already said from the witness stand, thus giving emphasis to her version of events.
3. Dr. Coffman's Testimony
Dr. Coffman is a pediatrician and the medical director of the CARE Team, a child abuse clinic housed out of Cook Children's Hospital in Fort Worth. Children are usually referred to the CARE team by law enforcement, CPS, or a primary care provider or therapist. When a child comes who may have been a victim of sexual abuse, Coffman first obtains the child's medical history. She then performs a head-to-toe exam, just like would occur at a regular doctor's visit. Next, she conducts a detailed examination of the child's genitals and anal area using a piece of equipment called a colposcope, a microscope on wheels, with a light. Finally, she reviews the results of the exam and any lab work with the child's caretaker and refers them to counseling. An exam lasts about an hour and a half.
The witness drew a diagram of, and gave the jury something of a lecture on, the female genitalia. She described how it changes as a child matures. About eighty-five to ninety percent of the exams conducted by the CARE team are normal. That is because the tissue inside the vagina heals quickly, without scarring, meaning that no evidence of trauma remains at the time of the exam.
Interestingly, Dr. Coffman failed to mention the possibility that some percentage of the exams she conducted were normal because the child's accusations of abuse were not true.
Dr. Coffman examined S.P. on October 15, 2003. She first obtained S.P.'s medical history. Next, she asked S.P. why she was there. S.P. told Dr. Coffman that the abuse started when she was eight years old, that it began with touches outside her vagina and progressed to touches inside her vagina, and that petitioner eventually put his finger and penis inside her vagina. S.P. said she wasn't sure if petitioner's penis went all the way inside her vagina. She said it hurt, but said that she did not bleed. S.P. made no mention of oral sex. She told Dr. Coffman that the abuse last happened when she was about nine, and that petitioner told her that she could get in trouble if she told.
After listening to S.P.'s narrative, Dr. Coffman performed a head-to-toe checkup. She examined S.P.'s anal area and genitals using the colposcope. She would not expect to see any evidence of trauma in S.P.'s case. First, when she examined S.P., the abuse had not occurred for almost two years. Second, S.P. may have been within a few months of the beginning of her menstrual period when the abuse occurred, meaning that her body could have been producing estrogen, which causes the hymen and vagina to become stretchy and, therefore, more resistant to tearing.
S.P. responded to Dr. Coffman's questions with brief answers and minimal eye contact, which is not unusual.
Even though the prosecutor developed no testimony from Dr. Coffman as to what, if any, diagnosis she made, Blankenship on his cross-examination of Dr. Coffman developed testimony from which the jury could infer that Dr. Coffman made a diagnosis, based solely on history, that S.P. was sexually abused. The following exchanges occurred during cross-examination:
Q: Okay. You put in your report here that this was normal but consistent with a history of sexual abuse. . . .
. . . .
A: . . . Yes. . . .
Q: Okay. Wouldn't it also be true to say that it's normal and consistent with no sexual abuse?
A: That's correct.
Q: Okay. And so based on this, you have no way to say to a reasonable scientific certainty whether or not she was abused or not?
A: Well, it's a medical exam, and so my medical diagnosis is based not only on physical exam but on history, just as if you came in with a headache.
. . . .
Q: . . . Can you say to a medical certainty whether she was abused or not?
A: My medical impression and diagnosis — now — so in my opinion — I can give you my medical opinion.
Q: But you can't say to a certainty?
A: I'm not sure — I'm not sure how to answer that.
Q: That's — that's all right.
Trial Tr., Vol. 3 at 197-99.
Blankenship then asked Dr. Coffman if she ever went through a rotation in psychiatric or mental health. She stated that her residency was exclusively in pediatrics, but that she did a rotation in mental health in medical school. While in that rotation, she encountered people who were schizophrenic and who had encountered head trauma, and it was not uncommon for those people to make outlandish claims. She had no experience with mental health patients making claims of sexual abuse, however.
C. Evidence Added to the Record at the State Habeas Stage
1. Affidavit Testimony Provided by Petitioner
Petitioner supported his state court habeas application with the testimony of thirteen persons presented in affidavit form, the contents of which are summarized below:
a. Scott Bowles and Suzy Bowles
The Bowleses have known A.P. and S.P. for over ten years. They live in Fort Worth. They socialized with petitioner and A.P. when all four of them lived in Japan. While in Japan, A.P. accused petitioner of having an affair with a female co-worker, which the Bowleses knew was not true. A.P. believed petitioner was having an affair with every woman he worked with.
A.P. told Ms. Bowles that she looked at the monitor during the examination of S.P.'s vaginal area and could tell immediately that S.P. was not a virgin and that she had been sexually abused. From her knowledge of the female anatomy, Ms. Bowles knew that A.P. was not telling the truth. A.P. told the Bowleses that the medical exam proved that petitioner had sexually assaulted S.P.
They developed a concern that A.P. was mentally unstable when she told them a story, which she obviously believed, that an unknown man broke into their home at night and came into her bedroom and stood over her while she was in bed, staring at her. There was no sign or evidence that such a thing ever occurred. After A.P. told them that S.P. had been molested, they encouraged her to have S.P. examined medically and to contact the police. Weeks passed before A.P. reported any molestation to police. It was after that when A.P. told them that the medical exam of S.P. proved that petitioner had sexually assaulted S.P. and provided evidence of petitioner's guilt.
By the time of petitioner's trial, the Bowleses were convinced that A.P. was mentally ill. A.P. told the Bowleses that she wrote letters to President Bush asking him to get her a job as a secretary and to let S.P. skip two grades in school. In addition, they saw A.P. exercise a lot of influence over S.P.; she would not let S.P. talk to or go anywhere with other people. They found S.P. to be a child with extremely poorly developed social skills, who rarely spoke, even when accompanied by her parents. They believe S.P. would do or say anything A.P. wanted her to do or say. They believe A.P. convinced S.P. to make the allegations against petitioner; and, they thought there was no way petitioner committed the acts of which he was accused.
A.P. had told Ms. Bowles that she had witnessed petitioner molesting S.P. in Japan, not Hawaii as she claimed during petitioner's trial. She did not know what to make of what A.P. said happened in Japan because A.P. did not make any report to any authority, to her knowledge. The Bowleses gave other examples in their affidavits of conduct on the part of A.P. that would cause a person to conclude that A.P. was mentally ill.
Based on what they know of A.P. and S.P., they think A.P. and S.P. have poor character for truthfulness and are not worthy of belief under oath. They believe that A.P. convinced S.P. to make the allegations against petitioner and that the allegations are false.
Had they been contacted by petitioner's trial counsel they would have been able to assist in petitioner's defense.
b. Carmelito Adolfo
Mr. Adolfo resides in Cleburne, Texas. A.P. and S.P. lived at Mr. Adolfo's rental property in Cleburne in 2004 after A.P. and petitioner separated. Mr. Adolfo has learned that A.P. claimed he put goat feces in her cereal and that S.P. claimed he skinned their dog, treated A.P. like a slave, and destroyed their food. All of those allegations are false. He has also learned that A.P. claimed petitioner entered her bedroom at the rental property at night, kissed her, and then left. Such a thing would have been impossible because of the way he secures the property. On another occasion, A.P. called 911 because she thought she heard someone walking on the porch of the rental property, and that the person she heard attempted to force his way into the front door. When the police responded, they found no sign of any prowler or any attempted entry.
Based on what he knows of A.P. and S.P., he thinks their character for truthfulness is poor and he would not believe them under oath. Had he been contacted by petitioner's trial counsel he could have assisted in petitioner's defense.
c. Noemi Blanco
Ms. Blanco is the director of nurses at Town Hall Estates in Keene, Texas, where A.P. was employed as a dietary aide in 2003 and the first few months of 2004. The assistant director of nurses there was Star Adolfo. Ms. Adolfo helped A.P. get the job and offered them a place to live at Mr. and Mrs. Adolfo's home. While A.P. was living with the Adolfos, she made the false accusation that Mr. Adolfo was poisoning her food. A.P.'s employment at Town Hall Estates was ultimately terminated for failure to show up to work. Based on what she knows about A.P., she believes her reputation for truthfulness is poor and that she is not someone she would believe under oath.
d. Ester Segundo
Ms. Segundo was A.P.'s and S.P.'s neighbor when they lived at Mr. Adolfo's property. A.P. told Ms. Segundo lies and accused Mr. Adolfo of doing things he did not do. For example, A.P. told Ms. Segundo that Mr. Adolfo tried to kill her dog and to destroy or steal her food and that he poisoned her food, all of which accusations were false. She understands that in a journal S.P. says she wrote, which was entered into evidence at petitioner's trial, S.P. made certain statements about her and other persons at Town Hall Estates that were not true and did not make sense to her. Based on what she knows of A.P. and S.P., she thinks their character for truthfulness is poor and she would not believe them under oath.
e. Mary Michael-Rogers, Jessica P., Michael P., Tom Hudson, and Jennifer Biggs
Ms. Michael-Rogers has known petitioner for twenty-nine years, two of which he lived with her and her then-husband in their home in Austin. Steven P. is petitioner's nephew. Michael P. is another of petitioner's nephews. Mr. Hudson is a life-long friend of petitioner. Ms. Biggs is petitioner's step-niece. All of these witnesses would have been available to testify, and would have testified, favorably about petitioner's character if they had been called as witnesses at trial.
f. Dillon Ambrose
Dillon Ambrose is a lieutenant serving in the United States Navy Judge Advocate General office in Washington, D.C. Lieutenant Ambrose served as petitioner's defense counsel in military administrative proceedings initiated against him based on the allegations made by S.P. At the first level of the administrative proceedings, there was a finding that there was sufficient evidence to demonstrate that petitioner had engaged in the conducted ascribed to him by S.P. On appeal, in which Lieutenant Ambrose represented petitioner, the Appellate Board ruled that that ruling was in error. Among the documents that were presented to the Board were the results of a polygraph examination that petitioner passed with flying colors. Lieutenant Ambrose also was able to present to the Board information establishing that A.P. had falsely believed in the past that petitioner was having an affair with a female associate in the Navy. The female associate provided email evidence that she was threatened several times by A.P. over the relationship A.P. imagined that petitioner was having with her.
Lieutenant Ambrose provided the information he had to petitioner's criminal defense counsel in the spring of 2004, and met with the defense counsel for the purpose of providing them an outline of information/inconsistencies that Lieutenant Ambrose had noted from his review of all of the records regarding the allegations against petitioner. Other than that one meeting, and the memorandum he provided, he does not recall ever receiving any telephone calls or written correspondence from petitioner's trial defense counsel making any requests of Lieutenant Ambrose for anything. He would have assisted the trial defense counsel, with petitioner's consent and approval of his superiors, if he had been requested to do so. No such request was made.
g. Joann Murphey, Ph.D.
Dr. Murphey is a forensic psychologist. At the request of petitioner's habeas counsel, she had reviewed court transcripts, records, journal and diary entries, letters, and a forensic child videotaped interview conducted in connection with petitioner's criminal case. Dr. Murphey is aware of the charges that were made against petitioner, his conviction, and the sentence imposed on him. She provided in her affidavit her thoughts and concerns on certain topics growing from her review of the material she described.
She questioned the integrity of the videotaped interview Dula conducted of S.P. She thought the techniques used by Dula put words into S.P.'s mouth. She noticed that S.P. used adult terms, such as "rape," in the interview, which would be unusual for a child her age. She considered very unusual that a child would tell her mother about sexual abuse without, at the same time, naming the perpetrator.
Dr. Murphey discussed the letters and journal S.P. had written, which were offered into evidence at the trial. Also, she discussed S.P.'s testimony at the trial. She particularly noted that when S.P. was first interviewed by Dula, S.P. denied any form of sexual abuse, and that she did not tell Dula that she had been sexually abused until after three or four interviews, when she changed her statements. Dr. Murphey thought significant that S.P. even denied to Dula that she told her mother that she had been raped, which, Dr. Murphey thought, cast doubt on her mother's statement to the police regarding S.P.'s accusation. Dr. Murphey said that the assertions by S.P. that she and her father had sex daily, five times a day, all while her mother was at home, did not make sense and bordered on sounding delusional. And, she thought significant that S.P. did not relate that information to Dula, thus, apparently, concealing from Dula a version that would cause Dula to realize how incredible S.P.'s accusations were.
Dr. Murphey critiqued at length the testimony A.P. gave at trial. She expressed concern about A.P.'s mental status. Dr. Murphey said that A.P.'s testimony suggested that she had significant psychological issues, noting that even when A.P. understood the questions that were put to her, her testimony was often incoherent.
Dr. Murphey expressed the opinion that it is highly possible that S.P.'s accusations are a part of, or a result of, persecution by A.P. against petitioner that involves implausible and possibly delusional elements. S.P. seems to have been made a part of A.P.'s persecution of petitioner by choosing a side in the conflict between her parents. Dr. Murphey concluded that S.P.'s "allegations facially appear to be so outrageous, and the logistics of the alleged events so questionable, that it is highly possible in [Dr. Murphey's] opinion that [petitioner] is innocent of the crime or crimes with which he was charged as a result of [S.P.'s] statements." State Habeas R. at 77.
Dr. Murphey says that "[a] forensic psychologist should have been utilized by the defense in preparation for trial, and at trial, to undercut the testimony of the complainant and the complainant's mother and to point out the deficiencies of the interview conducted in this case by the CPS." Id. Had she been contacted by petitioner's defense counsel, she would have been able to assist them in the defense of petitioner. She would have been able to testify in the case if she had been contacted, and would have testified favorably to petitioner based on the information she has reviewed.
h. Donald Gandy
Mr. Gandy served as petitioner's appellate counsel in his state court appeal. He summarized in his affidavit what he, from his review and recollection of the record as petitioner's appellate counsel, saw that constituted ineffective assistance of counsel.
Mr. Gandy had concern that often evidence was received at trial without objection that would have been objectionable under Rule 404(b) of the Texas Rules of Evidence. Indeed, much of the objectionable evidence was introduced into the case by petitioner's own counsel. Examples Mr. Gandy gave were A.P. having to obtain a restraining order against petitioner; petitioner breaking the restraining order; petitioner committing adultery during his marriage to A.P.; petitioner throwing the family dog out the door; petitioner poisoning A.P. on multiple occasions; petitioner yelling a lot, having a hot temper, and lying a lot to A.P.; and, A.P.'s claim that petitioner fondled the genitals of S.P. while she was twenty months old while masturbating himself.
Mr. Gandy was particularly concerned with the number of times the questioning by defense counsel brought out information adverse to petitioner that should not have been injected into the case. Of particular concern to Mr. Gandy was the conduct of defense counsel in injecting into the case the allegation of sexual molestation by petitioner of S.P. when S.P. was twenty months of age. Also of concern to Mr. Gandy was the entry into the record by defense counsel of the letters and journals written by S.P. that reiterated in great detail the testimony S.P. already had given against petitioner. He also expressed concern as to the quality of the cross-examination, particularly the lack of penetrating questions concerning what, if any, suggestions S.P. received relative to the writing of the letters and journals.
Also criticized by Mr. Gandy was the failure during the punishment phase of the trial of petitioner's trial counsel to object to certain questions put by the prosecutor to a probation officer who had been called as a defense witness. In particular, Mr. Gandy criticized defense counsel's failure to object to the probation officer's testimony that sex offenders cannot be cured even though there was no showing that the probation officer had qualifications to render such an opinion. Mr. Gandy noted that the prosecutor took advantage of the probation officer's testimony by using it in jury argument. Also drawing criticism from Mr. Gandy was defense counsel's reference to their own client during jury argument as a pedophile, which was the first time that term had been used throughout the trial.
The subject of available character witnesses that were not called by defense counsel was mentioned by Mr. Gandy in his affidavit. He was aware of many such witnesses that would have been available but who were not called. He expressed the opinion that the failure to call such witnesses was deficient. Mr. Gandy concluded his affidavit with the following strong criticism of petitioner's trial counsel:
Any one of these errors standing alone constitutes ineffective assistance at trial. Trial defense counsel's performance was deficient. This deficient performance prejudiced the defense since there is a reasonable probability that but for counsel's omissions, the outcome of the proceeding would have been different. This reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. This constituted ineffective assistance of counsel.
State Habeas R. at 33.
2. Affidavits of Petitioner's Trial Counsel Provided by State
As part of its response to petitioner's state court application and supporting affidavits, the State provided affidavits of Miller and Blankenship. So far as the court can determine, the affidavits are identical except for the differences in the names of the affiants.
Miller and Blankenship explained that their overall trial strategy was to "let EVERYTHING in and play 'The Boy Who Cried Wolf' hoping that the jury would get fatigued with all the accusations" and that "the jury would think [A.P.] was suffering from mental problems either psychiatric or physical . . ., she used [petitioner] to get her American citizenship, and that this was a divorce gone 'nuclear.'" Second Supplemental State Habeas R. at 11. They "believed the jury would conclude that [S.P.] was being manipulated by [A.P.] and not believe her accusations." The attorneys explained that their strategy was one of last resort. They had planned to use petitioner as a witness, but that plan was frustrated when petitioner was arrested about a month after they started representing him for possession of child pornography. When that happened, their goal was to keep the child pornography facts away from the jury at all costs, which meant that they could not run the risk of using petitioner as a witness. As to petitioner's complaint that they failed to conduct an adequate investigation, for the most part their response was that petitioner provided them a limited list of possible witnesses to use at this trial, and that the list he provided did not have on it the persons who provided the affidavits petitioner used in support of his state habeas application. They were aware of Lieutenant Ambrose, with whom they met and from whom they acquired investigative materials he had.
The attorneys said that they were reluctant to call character witnesses during the guilt/innocence part of the trial because of the risk that the prosecutor would be permitted to cross-examine the character witnesses on the subject of petitioner's possession of child pornography if they were to do so, and would, as well, open the door for cross-examination of any other conduct that might be viewed to be a bad act or evidence of bad moral character on the part of petitioner.
In response to the complaint that they sponsored evidence before the jury that was damaging to petitioner, the attorneys explained:
The claims made by [A.P.] and [S.P.] were so outrageous and so numerous as to not be believable, that no reasonable person would believe them. By sponsoring this evidence we were able to establish, or we were attempting to establish for the jury that neither [A.P.] nor [S.P.] should be believed.Id. at 17. This explanation was extended by the attorneys to cover their introduction of evidence that petitioner had committed adultery, tried to poison A.P. every time he gave her coffee, threatened to kill S.P.'s dog, molested S.P. when she was a toddler, and violated the restraining order, and that A.P. made unsubstantiated claims about a man pushing on her door while she and S.P. were living in Cleburne.
The language quoted in the text was repeated verbatim several times in each of the affidavits. Similarly, other explanations were repeated time and time again. If the repetitious language were to be removed from the affidavits, each of them probably would be reduced in length from thirteen pages to three or four pages.
The only explanation the attorneys gave for their unusual handling of Dr. Coffman as a witness was that, during Blankenship's cross-examination of Dr. Coffman, they "were able to establish or attempted to establish the types of claims made were consistent with someone suffering from mental or psychiatric illness." Id. at 17, ¶ 3.1; 17-18, ¶ 3.2; 18, ¶ 3.4; 19, ¶¶ 3.5 3.6; 10, ¶¶ 3.7 4.1; 21, ¶ 5; 22, ¶ 6.
III. Findings Made and Conclusions Reached by the State Court With Respect to Petitioner's State Habeas Application
Petitioner's state court application for writ of habeas corpus made the same allegations of ineffective assistance of counsel as the instant petition. On October 23, 2008, the State filed its Proposed Memorandum, Findings of Fact and Conclusions of Law for possible adoption by the state court. The proposals included the following:
3. The two-prong test enunciated in Strickland v. Washington applies to ineffective assistance of counsel claims in non-capital cases. Hernandez v. State, 988 S.W.2d 770, 771 (Tex. Crim. App. 1999). To prevail on his claim of ineffective assistance of counsel, the applicant must show counsel's representation fell below an objective standard of reasonableness, and there is a reasonable probability the results of the proceedings would have been different in the absence of counsel's unprofessional errors. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
. . . .
13. Applicant has failed to prove that counsel failed to investigate.
. . . .
18. Counsel's decision to allow the jury to see all of the victim's and her mother's claims in hopes the jury would conclude that the claims were too outrageous and too numerous to be true was based on reasonable trial strategy.
19. Counsel's decision to cross-examine Dr. Coffman on the fact that her decision that the victim was telling the truth was not based on any scientific or medical evidence instead of objecting to Dr. Coffman's diagnosis was the product of reasonable trial strategy.
. . . .
25. Counsel's decision to not use impeachment witnesses during the guilt/innocence phase of trial to attack the credibility of the victim and the victim's mother was the result of reasonable trial strategy because the court may have allowed evidence of the child pornography allegations to rebut the defense that the victim and her mother were not truthful.
. . . .
28. Counsel's decision to not use expert testimony to impeach the victim and the victim's mother was the result of reasonable trial strategy because the court may have allowed evidence of the child pornography allegations to rebut the defense that the victim and her mother were not truthful.
. . . .
30. Counsel's tactical decision to not object and allow all of the victim's and victim's mother's claims against Applicant and others was the result of reasonable trial strategy.
. . . .
34. Applicant has failed to prove that his attorney's representation fell below an objective standard of reasonableness.
. . . .
37. Applicant has failed to show that there is a reasonable probability that, but for the alleged acts of misconduct, the result of the proceeding would be different.
38. Applicant received effective assistance of counsel.
Second Supplemental State Habeas R. at 43-46.
By order signed November 13, 2008, the state trial court adopted the State's Proposed Memorandum, Findings of Fact and Conclusions of Law as its own and recommended to the Court of Criminal Appeals of Texas that the relief requested by the application be denied. The Court of Criminal Appeals of Texas denied the application "WITHOUT WRITTEN ORDER ON FINDINGS OF THE TRIAL COURT WITHOUT HEARING" on December 17, 2008. State Habeas R. at 2d page (unnumbered behind cover sheet).
IV. The Respects in Which Petitioner Claims the Performance of His Trial Counsel Was Constitutionally Deficient
Stated somewhat generally, the complaints petitioner had at the state habeas stage, and still has, with the conduct of his trial counsel are as follows:
A. Failure to Conduct an Adequate Investigation
Petitioner complains trial counsel failed to conduct an adequate investigation, giving in his petition many examples of testimony that could have been obtained from witnesses who would have been identified and located if adequate investigation had been conducted that would have been favorable to petitioner's defense. In support of his failure-to-investigate complaint, petitioner relies heavily on the affidavit testimony he provided in support of his state habeas petition.
Emphasis is placed by petitioner on the fact that in many instances A.P. and S.P. gave testimony adverse to petitioner that could have been rebutted but was not because of the failure of defense counsel to locate and to bring forward witnesses who could do so. He also complained of instances when his counsel received denials from A.P. or S.P. when asked about unusual things they had said or done, but counsel did not follow up with evidence rebutting those denials even though the evidence was available, and would have been located by defense counsel if they had conducted an appropriate investigation.
B. Failure to Use Character Witnesses at Trial
In a similar vein, petitioner complains of defense counsel's failure to use character witnesses at trial. Again, petitioner relies on the testimony as to his good character and testimony of the poor character for truthfulness of A.P. and S.P. contained in the affidavits he submitted in support of his state habeas application.
C. Introducing into the Trial Court Record A.P.'s Claim That Petitioner Sexually Abused S.P. When S.P. Was Twenty Months of Age
This claim is self-explanatory from the summary of testimony given first at the behest of petitioner's counsel and then expanded upon in redirect examination by the prosecutor. See supra at 15.
D. The Introduction by Defense Counsel of S.P.'s Letters and Journal, and Defense Counsel's Failure to Conduct Meaningful Questioning of the Witnesses Concerning Those Items
E. Allowing the Testimony of Dr. Coffman to Be Received into Evidence Without Objection
F. Failure to Obtain Expert Assistance
In reliance on Dr. Murphey's affidavit testimony, petitioner urges that his trial counsel should have obtained the assistance of someone with qualifications comparable to Dr. Murphey's to assist them in trial preparation and at trial on the subjects mentioned by Dr. Murphey in her affidavit.
G. Failure to Object Under Rule 404(b) to Evidence of Extraneous Offenses or Other Bad Acts of Petitioner
The complaints made under this heading in the petition overlap some of the other complaints. Petitioner is concerned that his trial counsel did not object to testimony to the effect that he was a womanizer, had committed adultery, had tried to poison his wife, had been subjected to a restraining order, and had violated the restraining order.
H. Referring to Petitioner as a Pedophile at the Punishment Phase, and Defense Counsel's Failure to Object at the Punishment Phase to the Testimony of the Probation Officer That Sex Offenders Cannot Be Cured
These contentions of petitioner are not related to the guilt/innocence phase of his trial, but bear only on the punishment phase. Because, in order to resolve this case in favor of petitioner, the court does not need to decide, and has not decided, whether the representation Miller and Blankenship provided petitioner at the punishment phase was constitutionally deficient, the court is not discussing that phase of the trial further in this memorandum opinion.
V. Conduct of Petitioner's Trial Counsel That Caused the Court to Have Sufficient Concern to Conduct a Hearing
If, in fact, a part of the trial strategy of petitioner's trial counsel was to emphasize to the jury that the allegations of A.P. and S.P. against petitioner were too numerous and outrageous to be true, such a strategy would not be an unreasonable one. The court is concerned, however, that the manner in which that strategy was carried out was not reasonable. In particular, the court's decision to order a hearing resulted from concerns the court developed from a review of the state court trial and habeas records that the conduct of petitioner's trial counsel about which petitioner complains was constitutionally deficient in the following respects:
A. Trial Defense Counsel Opened the Door to Testimony from A.P. That She Saw Petitioner Molest S.P. When S.P. Was Twenty Months Old
During his cross-examination of A.P., Miller introduced the following subject into the record for the first time:
Q: Did you make a statement to anyone that in 1993, when [S.P.] was 20 months old, that he was molesting her in Hawaii?
A: No, I did not make a report on that.
. . . .
Q: Did you see that?
A: I see — I was sick.
. . . .
Q: So did you make an allegation that he abused her when she was 20 months old or not?
A: I see him touching. I told him to go check on [S.P.], but he takes so much time. He spend so much time there in her room. And then I was wondering why he was so long over there, and then I go look, and that's what I see.
Q: You saw?
A: Yeah.
Trial Tr., Vol. 3 at 55.
When Miller finished questioning A.P., the prosecutor approached the bench and informed the judge of his intent to present testimony regarding extraneous offenses, including "the touching when she was 20 months old." Id. at 59. Before the lawyers left the bench, the judge told the prosecutor "you can get into the accusation in Hawaii of the fondling because [the defense] brought it up." Id. During the prosecutor's redirect examination of A.P., the jury heard the following:
Q: Okay. Now, let's talk about something you saw in Hawaii when [S.P.] was 20 months old. What did you see?
A: He was touching. He said he was cleaning her.
Q: Okay. Well, first of all, where did it take place?
A: The dressing table.
. . . .
Q: Okay. And what was he doing?
A: He was touching his — for example, this is the short pant loose. He was touching inside.
Q: Inside the baby's clothing?
A: I mean, his penis and the other one is the vagina.
Q: Okay. All right. Let's — okay. So he is touching [S.P.]. Where is he touching [S.P.]?
A: While he's touching [S.P.], he's touching his penis.
Q: All right. Where is he touching [S.P.]?
A: On top.
Q: Top of what?
A: Vagina.
Q: Okay. What's she — she's 20 months old. What's she wearing?
A. Nothing.
Q: She's naked?
A: Yes.Id. at 65-66.
The record reflects that petitioner's trial counsel made no effort to rebut A.P.'s allegation that petitioner molested S.P. when she was twenty months old or to otherwise convince the jury that the incident did not happen. All the jury knew was that A.P. said it did happen. The court can think of no sound reason petitioner's trial counsel would open the door to such testimony if they were not in a position to demonstrate to the jury that it was false. Not many things could be more damaging to petitioner's defense than the unrebutted testimony defense counsel injected into the trial that while S.P. was a baby petitioner engaged in conduct similar to that for which he was on trial.
B. Trial Counsel Failed to Object to Dr. Coffman's Testimony, and Solicited Testimony From Which the Jury Could Infer That She Was of the Opinion That S.P. Had Been Sexually Abused
Dr. Coffman purported to give expert testimony. Under the Texas Rules of Evidence, the testimony should have been received only if it would "assist the trier of fact to understand the evidence or to determine a fact in issue." Tex. R. Evid. 702. Nothing Dr. Coffman said on her direct examination could assist the jury to understand the evidence or to determine a fact in issue. Summed up, her testimony was that she performed an examination on S.P. that was normal — in other words, that did not prove anything probative for the prosecution. Dr. Coffman went on to opine, in effect, that the examination results really were meaningless in the case on trial. Needless to say, such an opinion did not assist the trier of fact to understand the evidence or to determine a fact in issue.
Even so there was a negative from petitioner's standpoint from the testimony given by Dr. Coffman upon questioning by the prosecutor. Dr. Coffman was able to lend credibility to S.P.'s version of sexual abuse by repeating the hearsay information she received from S.P. during her interview of S.P. And, the mere fact that a physician, who was an expert in evaluating whether a child has been sexually abused, was called by the prosecutor to testify concerning her examination of S.P. undoubtedly would influence the jury to think that such a witness's involvement must be some indication that sexual abuse occurred. Put another way, the mere fact that Dr. Coffman was called as a witness and testified as she did on direct examination likely influenced the jury to reach a decision against petitioner.
Petitioner's trial counsel did not take any action whatsoever to prevent Dr. Coffman from testifying, or to limit her testimony. They did not file a motion in limine seeking to exclude Dr. Coffman's testimony, nor did they request to question her on voir dire prior to her giving testimony. They did not object to any portion of her testimony. Instead, they added to the significance the jury would give to Dr. Coffman's presence as a witness by developing on cross-examination testimony from which the jury might infer that Dr. Coffman had the opinion that S.P. had been sexually abused. If such an opinion had been elicited by the prosecution, it would have been inadmissable. See Salinas v. State, 166 S.W.3d 368, 371 (Tex. App. — Fort Worth 2005, pet. ref'd).
Counsel for petitioner failed to avail themselves of petitioner's absolute right to conduct a voir dire examination directed to the underlying facts or data upon which Dr. Coffman would base any opinion she might give. Tex. R. Evid. 705(b) (saying "[p]rior to the expert giving the expert's opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall . . . be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based."). Had such a voir dire examination been conducted, counsel would have been able to demonstrate to the trial judge that Dr. Coffman should not be permitted to relate to the jury the hearsay information she received from S.P. inasmuch as that information did not provide any underlying facts or data in support of any opinion Dr. Coffman had to offer. In that event, the trial judge undoubtedly would have been receptive to a request by defense counsel that even if Dr. Coffman were to be permitted to give an opinion concerning the results of her examination, the hearsay information provided by S.P. should be excluded as inadmissible hearsay. See Tex. R. Evid. 705(d) (saying "[w]hen the underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the expert's opinion outweighs their value as explanation or support or are unfairly prejudicial."). Counsel for petitioner did not even ask the trial court to give the jury a limiting instruction concerning the hearsay information Dr. Coffman related she received from S.P., as Rule 705(d) directs shall be given upon request.
There might be the thought that petitioner gained from Dr. Coffman's testimony that the sexual abuse examination was normal, but when that part of Dr. Coffman's testimony is considered in the context of the other testimony she gave, it is obvious that counsel for petitioner did not make a strategic decision to allow her to testify as she did for the sole purpose of putting before the jury that the examination was normal. If that had been counsel's goal, there were ways under the Texas Rules of Evidence that they could have limited Dr. Coffman's testimony to that fact.
C. Failure of Defense Counsel to Seek Expert Assistance
D. The Failures of Trial Counsel to Prove That Certain Testimony of A.P. and S.P. Was False Even Though the Proof Was Available
The affidavits provided by petitioner in support of his state habeas application suggest that if defense counsel had exercised proper diligence in their pretrial preparation and investigation they would have been able to refute denials, or accusations, made by A.P. and/or S.P. on the following subjects:
1. that petitioner had an adulterous affair with a female coworker and was a womanizer;
2. that a man broke into their home at night and came into her bedroom and stood over her while she was in bed, staring at her;
3. that people broke into A.P.'s attic, and lived there;
4. that petitioner molested S.P. as a toddler while they were in Hawaii (which is inconsistent with a statement she made to an acquaintance at that time that something of that sort happened while they were in Japan, not in Hawaii);
5. that when she moved to Johnson County someone put knives in their walls;
6. that when they were in Johnson County a tall man tried to force his way into their residence;
7. that Mr. Adolfo put goat feces in A.P.'s cereal;
8. that Mr. Adolfo skinned S.P.'s dog;
9. that Mr. and Mrs. Adolfo treated A.P. like a slave; and
10. that Mrs. Adolfo destroyed the food of A.P. and S.P.
E. Failure of Trial Counsel to Investigate
More generally, if defense counsel had properly investigated and prepared for trial they would have had available for use as witnesses several persons who would have been able to testify to facts that would have strengthened defense counsel's theory that A.P. was mentally unstable and had an inordinate influence on the thinking and conduct of S.P.
F. The Introduction by Defense Counsel of S.P.'s Letters and Journal, and Defense Counsel's Failure to Meaningfully Conduct Cross-examination Relative to Those Items
The court cannot think of any rational reason why defense counsel would have put S.P.'s letters and journal into the record as exhibits unless they had in mind that they could, through questioning of S.P. or otherwise, establish that S.P.'s writings contained exaggerations or falsities or that A.P. caused S.P. to create the writings. As it turned out, the receipt of the writings into evidence served the interests of the prosecutor rather than petitioner by substantiating S.P.'s contentions of sexual abuse. Defense counsel were unprepared to discredit the writings in any respect. As noted above, had they been prepared they could have discredited the assertion in S.P.'s writings that Mr. and Mrs. Adolfo treated A.P. like a slave, skinned her dog, and destroyed their food.
The contents of S.P.'s writings concerning sexual abuse are so outlandish and absurd that perhaps defense counsel had some justification for putting them before the jury, but the risk that the jury would be incensed against petitioner by the writings if nothing was done by defense counsel to discredit them was so great that the court developed a concern that defense counsel acted appropriately in introducing the writings as exhibits.
VI. The Hearing Conducted by This Court
The witnesses who testified in person at the July 20, 2010, hearing were Miller, Blankenship, and Gandy. The court also received testimony of twelve witnesses through the same affidavits petitioner presented with his state habeas application. The following is a summary of the hearing evidence, other than the previously summarized affidavits, pertinent to the court's decision.
The state did not dispute at the July 20, 2010, hearing the accuracy of any of the statements made in the twelve affidavits that were received as hearing exhibits. Hr'g Tr. at 129-30.
Although some of the exhibits and portions of the live witnesses' testimony are not summarized in this section, the court has considered all of the evidence received at the hearing.
A. The Witnesses
1. Blankenship's Testimony
Blankenship and Miller, who were with the firm of Bailey Galyen ("B G"), served as petitioner's trial counsel. Miller was hired to try the case. Blankenship became involved in petitioner's defense only two or three weeks prior to trial.
He has been licensed to practice law since 1995, and had been practicing criminal law for eight years at the time of petitioner's trial, having been involved as an attorney in criminal trials ten to fifteen times. He was lead counsel in five or six of those cases.
When initially asked what he did in preparation for trial, he said that he looked at the computer records pertaining to the child pornography charge and he talked with petitioner and Miller about how to go forward with the sexual assault case. Upon subsequent questioning he said that he reviewed Miller's file on petitioner's case prior to the trial, which included the police report, indictment, motions, CPS report, witness statements, and S.P.'s journals. The defense theory Miller and Blankenship pursued at trial was that A.P. was delusional and mentally unbalanced, was controlling S.P., fed allegations to S.P. that petitioner assaulted her, that the allegations of A.P. and S.P. were false, and that S.P. could not be believed under oath.
Miller and Blankenship did not hire an investigator or an expert psychologist. Blankenship did not know why they did not do those things. Blankenship did not make any decisions relative to the case. Miller was his boss, and made the decisions. Blankenship acknowledges that Miller's file on the case discloses the identities and addresses of potential witnesses in Johnson County (including ones who provided affidavits for use with petitioner's state habeas application). Blankenship did not interview any witness before trial or during trial. He was not aware of any witness interviewed by Miller in preparation for trial, nor did an investigator interview any for them. He did not know of any witness that anyone interviewed in preparation for petitioner's trial, though he understands that Miller talked to petitioner's brother and sister-in-law and Lieutenant Ambrose. No potential witness was ever discussed by Miller or Blankenship other than the brother, sister-in-law, and Lieutenant Ambrose.
With respect to what he and Miller might have gained at petitioner's trial from use of the persons who provided the habeas affidavits, Blankenship provided the following responses:
THE COURT: Of course, you're not to be judged by hindsight, you and Mr. Miller, but I'm curious as to whether had you known what's in these affidavits at the time of trial or before trial, would you have given some thought to using one or both of the Bowleses as witnesses?
THE WITNESS: Maybe.
THE COURT: What would you have used them for?
THE WITNESS: The only thing I can see bringing any of these people in for is, pure and simple, to get it up there that [A.P.] is nuts.
THE COURT: Well, that was important, wasn't it?
THE WITNESS: Sure.
THE COURT: That was your theory?
THE WITNESS: Yes, sir.
THE COURT: What evidence was offered at trial to establish that other than the conduct of [A.P.] and the child, their own testimony?
THE WITNESS: Cross examination of Dr. [Coffman].
Hr'g Tr. at 37.
Blankenship summed up the basis of the defense they made at trial for petitioner as follows:
THE WITNESS:. . . .
As far as the allegations in the case that [A.P.] and [S.P.] made, they were on their face so ridiculous that it was — you couldn't imagine that anybody would believe them.
THE COURT: So the whole case — your whole defense was based on that proposition?
THE WITNESS: Yes, sir.Id. at 36.
Blankenship acknowledged that they did not gain anything meaningful from their cross-examination of Dr. Coffman. He explained why he and Miller did not move before trial to exclude Dr. Coffman as a witness by saying that they thought they would benefit by being able to question her about the possibility that the claims A.P. was making were consistent with those made by a person having a mental disease or defect. He added that excluding Dr. Coffman's testimony would be inconsistent with the whole defense theory, which was to "put every single thing in, and not let's try to keep stuff out." Id. at 44. No one interviewed Dr. Coffman before trial.
He acknowledged that the defense did nothing to prove the accusations of things that happened to A.P. in Johnson County, which is located about forty-five miles from Fort Worth, such as the skinning of the dog, et cetera, were false. They had contact information for the persons in Johnson County who would testify that the allegations were false, but they did not attempt to contact those persons. He admitted that it would have been helpful to the defense if the defense had interviewed the persons in Johnson County whose affidavits were presented in support of the state habeas application.
He did not know if any thought was given before trial to hiring an expert to evaluate A.P.'s mental stability, but he acknowledged that it could have been helpful for an expert to testify that A.P. was delusional.
He did not agree that the defense would have benefitted from testimony that A.P. had falsely accused petitioner of adultery on prior occasions as bearing on A.P.'s lack of credibility. According to him, the object was to get A.P. to accuse petitioner of everything in the world, and they were successful in accomplishing that. He did not think it important that they prove that what she said was untrue. His belief was that the nature and variety of things A.P. was accusing petitioner of made it impossible for any sane person to believe her. Therefore, defense counsel did not believe they needed to prove that any of the unusual events about which A.P. and S.P. testified were false. He did not believe that the cumulative effect of testimony contradicting A.P.'s allegations would have helped nudge the jury to believe that the allegations against petitioner were not true.
He explained why they did not call any witnesses for petitioner by saying that they felt that the risk of a witness saying something that would open the door to child porn evidence was too high for a witness to be called.
He cannot recall whether he and Miller discussed in advance of trial whether it would be helpful to introduce A.P.'s testimony that she had seen petitioner molesting S.P. when S.P. was twenty months of age. They never had any plan to disprove A.P.'s statement that the prior molestation occurred. Their point was just to get her to make the accusation. By way of further explanation on that subject, the following exchange occurred:
THE COURT: How in the world can the defense possibly benefit from making known to the jury that when [S.P.] was 20 months old, the mother saw him molesting [S.P.] . . .?
THE WITNESS: If that actually happened, why didn't she do something about it?
THE COURT: And that was the reason that came in?
THE WITNESS: That's my thinking. I can't tell you what Martin's thinking is.
THE COURT: Well, then she was permitted to explain why she didn't do anything about it? Did you assume she would explain that?
THE WITNESS: I can't tell you what Martin's thinking is. I can tell you what my thinking is.
THE COURT: What is your thinking?
THE WITNESS: Get her to make every accusation possible. The more the better.
. . . .
THE COURT: Had the decision been made — at that point in time when that issue was raised about him supposedly molesting [S.P.] when she was 20 months of age, had the decision been made by that point in time that the defendant would not testify?
THE WITNESS: Yes, sir.
THE COURT: So that was going to be — you and Mr. Miller knew at that point in time that that would go unchallenged, didn't you?
THE WITNESS: Yes, sir.Id. at 76-78.
Blankenship was unable to give a satisfactory explanation as to why they introduced S.P.'s letters and journal into evidence. He does not think it would have been helpful to use the witnesses from Johnson County to establish the falsity of things S.P. stated in her journal happened while A.P. and S.P. were living in Johnson County.
On cross-examination, Blankenship agreed with the attorney for the state that the entire defense strategy was to keep out evidence of the child pornography charge at all costs. Because of that concern, the attorneys felt that their only option was to get A.P. and S.P. to make as many outlandish allegations as possible. He thought the allegations about the goat feces, and such as that, were outlandish enough that they did not need to prove that they were false. He gave answers indicating that neither he nor Miller pointedly questioned petitioner in advance of trial as to the identities of persons who might be in a position to testify that the outlandish allegations made by A.P. and S.P. as to the things that happened while they were in Johnson County were false.
In explaining the strategy of the defense attorneys as to Dr. Coffman, he said, during cross-examination, that the strategy was to make it clear to the jury that Dr. Coffman was merely repeating what the victim had told her and had no evidence to offer. He gives answers that suggest that he and Miller really had not thought out what their strategy would be if for some reason evidence of the child pornography came out before the jury except to say that, in such an event, petitioner would have to testify.
2. Miller's Testimony
B G was hired to represent petitioner in September or October 2003. Blankenship was brought into the case a few weeks before the October 2005 trial to help Miller try it. The plan was that Blankenship would help Miller with jury selection, cross-examination of witnesses, and whatever Miller needed. Prior to trial, Blankenship helped Miller go through the evidence, and they talked about strategy with petitioner. Miller has been a criminal lawyer twenty-three years, serving as a prosecutor eleven and one-half years and as a defense attorney the same length of time.
They did not hire an investigator or an expert in psychology. He does not know why they did not do so. He does not know of anyone on the defense team interviewing any witnesses or prospective witnesses. The defense in the case was that neither A.P. nor S.P. was credible, that A.P. and S.P. were delusional, and that S.P. was controlled by A.P. The defense did not call any witnesses to contradict what A.P. and S.P. said because they did not want the child pornography charges to come in.
It was their strategy to introduce the prior Hawaii molestation allegation because they felt it was one of the wild allegations that S.P. or A.P. was making. He elaborated in the following exchange:
THE COURT: Were you all prepared to disprove that?
THE WITNESS: Disprove the —
THE COURT: That the molestation occurred? Or were you prepared to disprove the evidence that he molested [S.P.] when she was 20 months old?
THE WITNESS: Okay. I didn't have any witnesses to rebut it, no.
THE COURT: What was the strategy in you all proving that it happened?
THE WITNESS: Because she had made all these allegations before and nothing happened.
THE COURT: Well, the jury didn't know it didn't happen. All it knew is that somebody said it did happen. How were you going to convince the jury that it didn't happen, that it was a false allegation?
THE WITNESS: On cross examination, I asked her — I followed up on that. I can't recall right now.
. . . .
THE COURT: What's worse for the jury to hear, that he molested his daughter when she was 20 months of age or that he watched child pornography?
. . . .
THE WITNESS: I guess molesting the daughter.
Hr'g Tr. at 135-37.
Miller says that they did not object to all of the extraneous act evidence, such as the restraining order against petitioner, petitioner trying to poison A.P., petitioner throwing the dog, yelling, having a bad temper, et cetera, because "[y]es. Let it all come in and let the jury see how its [sic] building up, all these allegations." Id. at 137-38. Again, they did not bring in any witnesses to contradict A.P. and S.P.'s allegations that defense counsel asked about "[b]ecause of the child pornography case." Id. at 138. He conceded that if the witnesses' testimony wouldn't open the door to evidence of the child pornography, he would definitely want to call those witnesses to impeach A.P. He also agrees that if the trial judge did not allow the state to introduce the child pornography evidence, even after defense introduced the prior molestation, there was no reason not to reevaluate their strategy not to call rebuttal witnesses.
When asked if he ever considered that A.P. had fabricated the whole story about petitioner molesting S.P. because she knew that petitioner had watched child pornography and would therefore be defenseless against allegations that he molested S.P., he said that he cannot recall having done so, but added that it makes sense.
Miller and Blankenship discussed their strategy with petitioner before trial, and petitioner understood that if he were to testify he would run the risk of opening the door for the introduction of the child pornography.
With respect to the failure of the defense attorneys to offer any testimony to prove that A.P. was testifying falsely when she denied outlandish things she was asked about, Miller testified:
THE COURT: Well, you all asked her those things that you thought were outlandish?
THE WITNESS: Right.
THE COURT: What was your plan to do if she denied those things? How were you going to prove that she really did say those things?
THE WITNESS: I don't recall, Your Honor.Id. at 145.
He did not give any thought to filing a motion asking the trial judge to give the defense a ruling as to how far the defense could go without opening the door for the child pornography evidence to come in. He did not file a motion in limine. The impression Miller leaves is that the prosecutor and the defense attorneys agreed before trial that the prosecutor would approach the bench before offering child pornography evidence.
3. Gandy's Testimony
Gandy testified that he has been practicing criminal defense law since 1976. He worked briefly as a prosecutor for the Tarrant County District Attorney's Office before opening his own criminal defense practice. He has been trial defense counsel in eight to ten aggravated sexual assault cases and has worked on the same number of appeals in such cases. He represented petitioner on direct appeal and on his petition for discretionary review.
He thinks it was not reasonable that petitioner's trial counsel did not consult with a health care expert, a psychiatrist or psychologist, on the subject of how to deal with the statements A.P. and S.P. were making against petitioner. Also, it was not reasonable for the attorneys not to attempt to locate and speak with the persons whose affidavits are described in section II.C.1 of this memorandum opinion. It was not reasonable for petitioner's trial counsel to believe that calling those persons to rebut A.P.'s testimony concerning peculiar events would have opened the door to admission of evidence relative to the child pornography charges. Nor was it reasonable for defense counsel to ask about absurd things A.P. or S.P. said happened without being prepared to contradict A.P. or S.P. if she denied that she said those things.
At the least, a reasonable attorney would have filed a motion in limine to determine what evidence could be presented without opening the door to the child pornography evidence. It was also unreasonable for petitioner's trial counsel to develop testimony that A.P. saw petitioner molest S.P. when she was twenty months old. He can't imagine that developing such testimony benefitted the defense in any way; and, he thinks it was harmful to the defense to have developed it.
B. Miller's File on Petitioner's Case
Petitioner's Hearing Exhibit 28 was identified as a copy of Miller's entire file on petitioner. The file contains documents that appear to be from the CPS file on petitioner, A.P., and S.P. One, titled "CPS Monthly Summary/Assessment," shows a log of all contact made between CPS and A.P. in November 2003. Pet'r's Hr'g Ex. 28 at 126. An entry in the log reads:
November 21, 2003: Office visit with [A.P.] and [S.P.] (DV/11 YR). . . .
[A.P.] told that the family moved to Keene, Texas with the help of friends and that [petitioner] is not to be told and does not know for protective reasons. A friend helped the family move in with Star Adolfo, the aunt of Suzy Bowles (FR). Ms. Adolfo lives at 2129 CR 805, Cleburne, Texas 76031, 817/774-3146. Ms. Bowles live at 7509 Trimble Drive, F.W., TX. 76134, 817/975-0701.Id. at 126-27. Thus, defense counsel had contact information that, if used, would have led them to most, if not all, the Johnson County witnesses who testified at the July 20, 2010, hearing through their affidavits.
Another, titled "Intake Report," which appears to have been written by a CPS employee, reads:
On 04/29/2004, it was reported that [S.P.] has been "molested" by her [father] and this [sexual abuse] included multiple incidents of intercourse. However, [A.P.] is separated from [petitioner] and it does not appear that a recent [sexual abuse] incident has occurred. It should be mentioned, [A.P.] stated she has seen the [father] come to the home where her and [S.P.] have been staying. But, it is believed that [A.P.] has been imagining this. Furthermore, [A.P.] said she got some type of weapon, since she thinks someone has been "pushing a knife into her wall at night." [A.P.] got the weapon, since she thinks this person wants to kill her and [S.P.], however, it is believed that [A.P.] is hallucinating. It should be mentioned, some people have been saying that [A.P.] is "crazy", but it is unknown if she has ever been diagnosed with a mental impairment and it does not appear that she collects SSI. Furthermore, [A.P.] plans on waiting [sic] the president, so she can ask him to promote [S.P.] to highschool and she also claims that someone put goat feces in her cereal, however it doubtful that this occurred. [A.P.] has also been exhibiting poor boundaries, since she has been telling everyone about the [sexual abuse] [S.P.] has been experiencing. [A.P.] has been holding down a job at an unknown nursing home and she carries pepper spray for protection.Id.
The Exhibit 28 file material also contains police reports, reports of statements made by A.P. and S.P. to the police and CPS, and chronological reports of activities of CPS. Many of the things contained in this material appear to reflect statements made by A.P. and S.P. to the police and CPS personnel that were inconsistent with the testimony they gave at trial. For example, a police report indicates that on September 16, 2003, A.P. told a detective that she had new information about her daughter being raped and sexually assaulted by petitioner, a significant variance from her trial testimony that she did not know the identity of S.P.'s rapist until September 21, 2001. In one of the reports of a statement given by A.P., she suggests that petitioner abused S.P. while he was alone with her during A.P.'s trips to the grocery store. No such suggestion was made in the trial testimony. Also inconsistent with the trial testimony that S.P. first implicated petitioner in sexual abuse on September 21, 2001, is a notation in the CPS records that the author of the notation received on September 9, 2003, saying that A.P., S.P.'s mother, said that S.P. "made an outcry to [A.P.] that when [petitioner] is hungry, he 'eats her . . . vagina.'" Id. at 108. Immediately following that entry pertaining to the September 9, 2003, interview are reports of interviews of S.P. by Dula, first the following day on September 10, 2003, and then one week later, on September 17, 2003. Dula's notes of those interviews were as follows:
09/10/03 An audiotaped interview was conducted with [S.P.] (DOB 01/08/92) at Tanna Hill Intermediate School. S.P. appeared clean, healthy, and active. She appeared developmentally on target and understood the difference between a truth and a lie.
S.P. was screened for all forms of abuse and no concerns were noted. She was screened for sexual abuse and made no outcry. S.P. did report that her parents fight at home. She stated she stays in her room when they fight.
09/17/03 A face to face interview was conducted with [S.P.] at 908 Southland Ave., Fort Worth, Texas 76104. She stated she remembered talking to this worker at her school. This worker screened her for all forms of abuse. [S.P.] made no outcry.
Case note: Det. Shedd, Fort Worth Police Department, stated he spoke with [S.P.], directly asking her if she ever talked to her mother about the difference between men and women. He stated she did not make an outcry of sexual abuse to him.Id. at 109. Another report of an interview between Dula and A.P. contained in the exhibit that significantly departs from A.P.'s trial testimony is the following entry:
[A.P.] stated she talked to her daughter on September 4th, 2003, and [S.P.] told her she had been raped and sexually assaulted. She stated [S.P.] would not tell her who did it. She stated she confronted her husband that night, and they had a "bad fight." She stated he said he was not doing anything to their daughter. She stated she has been sleeping on the floor in her daughter's room since that night.
She stated on September 9th, her husband tried to talk to her and convince her not to report anything. She stated he said he still loves her.Id. at 111-12.
The contents of the exhibit appear to provide an abundance of cross-examination material that was not used by defense counsel at petitioner's trial.
VII. Analysis
A. A Hearing on the Petition Was Appropriate
The court was not constrained by 28 U.S.C. § 2254(e)(2) in determining whether to hold a hearing. Section 2254(e)(2)'s restriction on the grant of a hearing on a claim made in a petition under § 2254 applies only when "the applicant has failed to develop the factual basis of [the] claim in State court. . . ." Petitioner developed the factual basis of his claim in his state habeas application by providing testimonial affidavits, and citing to facts in the trial record, supporting his claim. See Hall v. Quarterman, 534 F.3d 365, 367-68 (5th Cir. 2008).
Section 2254(e)(2) provides:
(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
Where an evidentiary hearing is not barred by § 2254(e)(2), "the decision to grant such a hearing rests in the discretion of the district court." Schriro v. Landrigan, 550 U.S. 465, 468 (2007). In exercising its discretion, the court was guided by the principles of Townsend v. Sain, 372 U.S. 293 (1963), and Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts, which provides that "[i]f the petition is not dismissed, the judge must review the answer [and] any transcripts and records of state-court proceedings . . . to determine whether an evidentiary hearing is warranted." See Hall, 534 F.3d at 368; see also Brian R. Means, Federal Habeas Manual, A Guide to Federal Habeas Corpus Litigation §§ 4.10 to 4.12, at 323-26 (2010 ed.). The court concluded that a hearing was warranted because of the court's concerns expressed in an earlier section of this memorandum opinion.
B. The Standards to Be Applied in Determining Whether Petitioner's Trial Counsel Was Constitutionally Deficient
As the Supreme Court explained in Strickland v. Washington:
The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.
For that reason, the Court has recognized that the right to counsel is the right to the effective assistance of counsel.466 U.S. 668, 685-86 (1984) (quotation marks omitted). Counsel "can also deprive a defendant of the right to effective assistance, simply by failing to render adequate legal assistance. . . ." Id. at 686 (quotation marks omitted).
In order to prevail on his ineffective-assistance-of-counsel claim, petitioner must show (1) that his counsel's performance fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceedings would have been different. Id. at 688, 694. "A reasonable probability is a probability sufficient to undermine the confidence in the outcome." Id. at 694. Both prongs of the Strickland test must be met to demonstrate ineffective assistance. Id. at 697.
To establish the first prong, petitioner must overcome a strong presumption that his counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689. Judicial scrutiny of counsel's conduct must be highly deferential, with every effort made to avoid the distorting effects of hindsight.Id. at 689-90. It is not enough to show that some, or even most, defense lawyers would have handled the case differently. Green v. Lynaugh, 868 F.2d 176, 178 (5th Cir. 1989). For the second prong, petitioner must show that his counsel's errors were "so serious as to deprive [him] of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. The Fifth Circuit, quoting from Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), added in Paredes v. Thaler, 617 F.3d 315, 319 (5th Cir. 2010), that "[a]n error is prejudicial if it 'had substantial or injurious effect or influence in determining the jury's verdict.'"
C. The Assistance Miller and Blankenship Provided to Petitioner Was Constitutionally Ineffective
The court now turns to a further discussion of each of the aspects of petitioner's ineffective-assistance-of-counsel ground that the court has concluded has merit.
Miller and Blankenship had a difficult case to defend. The sexual abuse charges against petitioner could hardly be more serious, and the attorneys were faced with the task of conducting the defense in such a way that the jury would not be made aware of petitioner's possession and viewing of child pornography. The court cannot criticize defense counsel for having the belief that the allegations of A.P. and S.P. against petitioner were so numerous and outrageous that a jury could well, based on the nature of the allegations alone, conclude that the versions of events related by A.P. and S.P. were not believable beyond a reasonable doubt.
Nor can the court criticize defense counsel for attempting to add through cross-examination to the outrageous nature of accusations A.P. and S.P. made against petitioner over the years. However, the court concludes, and finds, that the techniques employed by defense counsel to that end fell far below an objective standard of reasonableness. The court has concluded, and finds, that all of the conduct of defense counsel that caused the court to have sufficient concern to conduct a hearing, as that conduct is described in section V of this memorandum opinion, was constitutionally deficient.
1. Injection By Defense Counsel Before the Jury of the Allegation of Molestation in Hawaii
No rational criminal defense attorney would have injected into the case for the jury to hear A.P.'s contention that petitioner sexually molested S.P. when she was a toddler while, at the same time, fondling himself, unless the attorneys were prepared to present to the jury a strong rebuttal to A.P.'s allegation. The record makes clear that not only did defense counsel not have any rebuttal to make, they apparently did not even concern themselves with the possibility of making a rebuttal.
As Miller conceded, the testimony concerning petitioner's alleged molestation of S.P. at twenty months of age was more harmful for the jury to hear than evidence that petitioner watched child pornography would have been. If defense counsel had been prepared to rebut A.P.'s accusation, the defense might have gained a point by proving the accusation false. As it turned out, defense counsel, with knowledge that no rebuttal evidence was available, severely damaged petitioner's defense by injecting into the case that he previously engaged in essentially the same conduct for which he was being tried. If petitioner's attorneys had conducted themselves in an objectively reasonable way, the jury would not have learned of the Hawaii abuse allegation.
2. The Handling of Dr. Coffman's Testimony
Equally inexplicable, in the sense that no rational attorney would have performed as Miller and Blankenship did, was their reaction to and handling of Dr. Coffman's testimony. Any reasonable attorney under the circumstances would have used every technique available to prevent Dr. Coffman from testifying. There were things defense could easily have done to persuade the trial judge that Dr. Coffman should not have been permitted to testify. Petitioner had the absolute right to conduct voir dire examination of the witness. They could have filed, and obtained, a ruling on a motion in limine. They could have objected as the testimony was being given. Because none of those things were done, Dr. Coffman was able to enhance the strength of the prosecutor's case by reiterating what S.P. claimed petitioner had done to her and by lending credibility, as a child sexual abuse expert, by her mere participation as a prosecution witness.
Not only that, defense counsel made a bad situation worse by asking questions of Dr. Coffman that caused her to give answers from which the jury could infer that Dr. Coffman was of the opinion that S.P. had been sexually abused. Instead of doing what any reasonable attorney would have done to prevent Dr. Coffman from testifying, petitioner's counsel took steps no rational attorney would have taken to cause Dr. Coffman to be a more forceful witness for the prosecution than she was before the cross-examination started. If defense counsel had conducted themselves in an objectively reasonable way, they would have taken action that probably would have prevented Dr. Coffman from testifying.
The suggestion by defense counsel that their strategy as to Dr. Coffman was to use her on cross-examination to develop testimony that would support their contention of mental instability, or the like, on the part of A.P. and/or S.P. is nonsense. First, though they knew ahead of trial that Dr. Coffman would be a witness for the government, they did not interview Dr. Coffman to find out what she might be able to offer on that subject. Second, there is no indication whatsoever that Dr. Coffman, who is a pediatrician — not a mental health specialist — had the expert qualifications that would be required for her to give any testimony on such a subject. Third, if defense counsel thought testimony on such a subject was important, they could, and presumably would, have retained an expert with the qualifications of Dr. Murphey to familiarize herself with the facts and to testify for petitioner as to the mental status of A.P. and S.P. and related matters, such as A.P.'s influence and control over S.P.
3. Failure to Employ an Expert
While petitioner's counsel were correct in thinking that testimony that would support their contention of mental instability, or the like, on the part of A.P. and/or S.P. would be important to petitioner's defense, they were badly mistaken in thinking that they could accomplish their goal by cross-examination of Dr. Coffman. Rather, any reasonable attorney handling petitioner's defense would have retained an expert qualified by education and experience as a forensic psychologist or psychiatrist to assist in preparation of petitioner's defense and to give testimony, as appropriate, on the mental status of A.P. and S.P. and on the subject of A.P.'s influence over S.P.
Moreover, a reading of the aimless cross-examination by defense counsel of A.P. and S.P. leads inevitably to the conclusion that defense counsel would have benefitted from the assistance of such an expert in formulating lines of effective cross-examination. Had petitioner's attorneys conducted themselves in an objectively reasonable way, they would have retained a qualified forensic psychologist, such as Dr. Murphey, or psychiatrist to assist them in their trial preparation, trial presentation, and as a witness for petitioner.
4. Failure to Investigate
A related deficiency in the performance of petitioner's trial counsel was counsel's failure to properly investigate. The court became aware of the magnitude of counsel's dereliction in this regard when the court heard the attorneys testify on July 20, 2010, that they conducted virtually no investigation in preparation for, or during, petitioner's trial. They testified that no one on the defense team interviewed any prospective witness prior to the trial.
The failure of defense counsel to explore defense possibilities with a forensic psychologist or psychiatrist is, in itself, a serious failure to investigate. But that is only one of many things that stand out in the record as examples of defense counsel's failure to conduct the kind of investigation that any defense attorney acting in an objectively reasonable way would have conducted in the defense of petitioner's difficult case.
Defense counsel had information, namely the CPS documents discussed in section VI.B of this memorandum opinion, that would lead them to Scott and Suzy Bowles, Carmelito Adolfo, Noemi Blanco, and Ester Segundo, whose testimony by affidavits was presented in support of petitioner's state habeas application and received at the July 20, 2010, hearing conducted by this court. There is no doubt that petitioner would have benefitted at trial from the testimony those persons would have offered if defense counsel had gone to the trouble to locate and interview them and arrange for them to testify.
The failure of defense counsel to interview Dr. Coffman in advance of trial is inexcusable. Had they done so, perhaps they would have awakened to the fact that they should have done something to prevent her from testifying. Nor is there any excuse for the failure of defense counsel to interview Dula, other CPS employees, and the police detective who were involved in the investigation of the claims A.P. and S.P. were making. The entry in the CPS records quoted at pages 75-76 of this memorandum opinion discloses information that would have fit perfectly with a contention by petitioner that A.P. was mentally unstable and delusional. Yet, defense counsel did not interview the CPS employee who made that entry; and, needless to say, they were unprepared to use the employee as a witness in support of such a defense theory.
Dula and the detective were included on the State's witness list, but, for some reason, the State chose not to call either of them as a witness. For all defense counsel knew, Dula and/or the detective would have testified, if called to testify, about facts that would have cast doubt on the veracity of the allegations A.P. and S.P. were making.
If defense counsel had conducted themselves in an objectively reasonable way, they would have taken all of the investigative steps mentioned above, and would have improved petitioner's chances of a successful defense by having done so, and they would have followed up by making use at petitioner's trial of the results of such an investigation.
5. Failures of Trial Counsel to Discredit Certain Testimony of A.P. and S.P. Even Though Evidence Was Available to Do So
The court's concerns on this subject are set out at pages 57-60 of this memorandum opinion. After having heard Blankenship and Miller testify at the July 20, 2010, hearing, the court's concerns are heightened. The court has the impression that the attorneys simply were not conscious that they had an obligation to petitioner to take reasonable steps to advance petitioner's defense by discrediting through available evidence testimony given by A.P. and S.P. If defense counsel had conducted themselves in an objectively reasonable way, they would have adduced at petitioner's trial testimony that would have discredited the testimony of A.P. and S.P. in such a way that the jury could have been influenced to have a reasonable doubt as to whether the testimony of either of them should be taken at face value. Miller and Blankenship testified at the July 20, 2010, hearing that they did not attempt to present evidence rebutting certain allegations or denials made by A.P. and/or S.P. because they were concerned that doing so would open the door to presentation by the State of evidence concerning petitioner's possession and viewing of child pornography. In his post-hearing brief, respondent contends that such a decision was reasonable because, under Texas law, evidence of similar, extraneous offenses committed by a defendant are admissible in sexual abuse cases to rebut a defense theory that the allegations of abuse are fabricated, or that the defendant is a victim of a "frame-up." Respondent cites Bass v. State, 270 S.W.3d 557, 562 (Tex. Crim. App. 2008), and Powell v. State, 63 S.W.3d 435, 438-40 (Tex. Crim. App. 2001), in support of his contention.
The court does not find credible defense counsel's assertions at the July 20, 2010, hearing that the reason they did not attempt to impeach A.P. and/or S.P.'s credibility was because they were concerned that doing so would open the door to evidence of the child pornography. In their affidavits provided to the state habeas court, Miller and Blankenship did not give that as a reason they did not attempt to contact and present testimony from the witnesses, such as Mr. Adolfo, whose affidavits petitioner provided. Instead, they stated that they felt as though they did not need to call witnesses to refute A.P.'s and S.P.'s claims because those claims were so numerous and outrageous that no reasonable person would believe them. The state habeas court made a finding of fact to that effect. Second Supplemental State Habeas R. at 40, ¶ 63.
Their contention at the hearing that they did not attempt to contact and call witnesses to refute A.P. and/or S.P.'s claims because they were worried about the child pornography appears to be a post-hoc rationalization for defense's counsel's conduct that was concocted by the State in defense of petitioner's state habeas application and then adopted by Miller and Blankenship for purposes of the July 20, 2010, hearing. The court can tell it was concocted by the State because the State's Proposed Memorandum, Findings of Fact and Conclusions of Law submitted to the state habeas court contained a conclusion stating that such a strategy was a reasonable one, but did not include a factual finding stating that Miller and Blankenship actually adopted such a strategy. There was nothing in the state habeas record that would support such a finding. The court is confident that defense counsel did not even consider the possibility of questioning A.P. or S.P.'s character for truthfulness, even though they had information that would lead them to witnesses who would have testified in petitioner's favor on that subject.
* * * * * *
All of the conduct of defense counsel described above fell below an objective standard of reasonableness. Petitioner has overcome the presumption that his counsel's conduct, as described above, falls within a wide range of reasonable professional assistance. The court's scrutiny of conduct of petitioner's counsel has been highly deferential, and every effort has been made by the court to avoid the distorting effects of hindsight. The court finds that any reasonable criminal defense attorney would have handled petitioner's case differently in the sense that such an attorney would not have engaged in the conduct the court has described above. The conclusions of the state habeas court to the contrary are unreasonable applications ofStrickland.
The conduct of petitioner's counsel described above amounted to constitutionally ineffective assistance of counsel that permeated petitioner's entire trial, causing his trial proceeding to be fundamentally unfair and unreliable. Such conduct had a substantial and injurious effect, and the court is satisfied that such conduct influenced the jury to find defendant guilty as to three counts of the indictment when, had defense counsel conducted themselves appropriately, the jury might well have had a reasonable doubt as to his guilt as to any count of the indictment.
D. Petitioner Has Overcome the Deference to Which the State Court's Adjudication and Determinations Were Entitled
The ability of this court to make determinations supplementing or at variance with the adjudication and findings made by the state court is controlled by an application of 28 U.S.C. § 2254(d).
The court has concluded, first, that the state court's rejection of petitioner's ineffective-assistance-of-counsel claim was based on unreasonable determinations of the facts in the light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d)(2). The contents of the record of petitioner's criminal trial, without more, establish the major constitutional deficiencies in the performance of petitioner's counsel. When the record of the trial was supplemented by the testimonial affidavits petitioner provided the state court with his state habeas application, the state court had an abundance of evidence that the performance of petitioner's trial counsel was constitutionally inadequate in each of the respects mentioned in this memorandum opinion.
Moreover, the decision of the state court denying petitioner's state habeas application involves an unreasonable application of clearly established federal law, as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1). "The court may grant relief under the 'unreasonable application' clause if the state court correctly identifies the governing legal principle from [the Supreme Court's] decisions but unreasonably applies it to the facts of the particular case." Bell v. Cone, 535 U.S. 685, 694 (2002). And, "[t]he focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable. . . ." Id.; Harrison v. Quarterman, 496 F.3d 419, 424 (5th Cir. 2007) (stating that "[a] decision constitutes an 'unreasonable application' of clearly established federal law if it is 'objectively unreasonable.'"). While the state court correctly identified principles adopted by the Supreme Court in Strickland, it unreasonably applied them to the facts of this particular case. In this case, the decision of the state court denying petitioner's ineffective-assistance-of-counsel claim was an objectively unreasonable application of Strickland under the state court record.
Any presumption of correctness of determinations made by the state court relevant to petitioner's ineffective-assistance-of-counsel claim has been rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
VIII. Conclusion
For the reasons stated in this memorandum opinion, the court has concluded that Miller and Blankenship deprived petitioner of his right to effective assistance of counsel by failing to render the effective legal assistance Strickland mandates he should have received. 466 U.S. at 685-86. The attorneys failed to play the role necessary to ensure that petitioner's trial was fair. They failed to play the role that is critical to the ability of the adversarial system to produce just results. Their failures were prejudicial to petitioner. Therefore, the court is conditionally granting petitioner's application for a writ of habeas corpus. The jury's verdicts, the state court judge's pronouncement of punishment, and the judgment signed October 10, 2005, in the state court criminal case against petitioner are being vacated. The court is ordering that, within ninety (90) days of the date of the signing of this order, the State either retry petitioner or release him from custody.
IX. Order
Therefore,
The court ORDERS that petitioner's application for writ of habeas corpus be, and is hereby, conditionally granted.
The court further ORDERS that the jury's verdicts, the state court judge's pronouncement of punishment, and the judgment signed October 10, 2005, in the state court criminal case against petitioner, be, and are hereby, vacated.
The court further ORDERS that within ninety (90) days of the date of the signing of this order, the State either retry petitioner or release him from custody.
The court further ORDERS that within thirty (30) days from the signing of this order, the State notify petitioner and this court of its intention relative to retrial.
SIGNED December 3, 2010.