United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
AUDREY G. FLEISSIG, District Judge.
This matter is before the Court on the petition of Missouri state prisoner Richard Mercer for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. A jury convicted Petitioner of statutory rape in the second degree and incest. He was sentenced as a prior and persistent felony offender to consecutive terms of imprisonment of 15 years and 7 years, respectively. Petitioner raises 20 grounds for federal habeas relief, including that he was denied a fair trial due to certain comments by the State and rulings by the trial court concerning a Sexual Abuse Forensic Exam ("SAFE") report.
Respondent argues that habeas relief should be denied because many of Petitioner's claims were procedurally defaulted, and the state courts' adjudication of the remaining claims was factually and legally reasonable. For the reasons set forth below, habeas relief will be denied.
Petitioner was charged with the crimes of conviction on March 19, 2007. After several continuances, trial was set for March 26, 2008. Petitioner moved for a further continuance on March 6, 2008, and again on March 20, 2008, claiming inadequate time to conduct depositions. Both motions were denied.
Petitioner's trial commenced on March 26, 2008. During voir dire, after a venireperson identified herself as a parole officer, the State asked if she had any contact with Petitioner, and received a negative response. (Resp. Ex. B at 57). Later, Juror 29 identified herself as a victim of a rape or other sex related crime when she was a child. She approached the bench and confirmed that she was a victim of a sexual assault. Id. at 65, 93. The trial court found that Juror 29 did not display emotional problems as a result of her personal experience and denied defense counsel's request to strike for cause. Defense counsel did not use a peremptory strike against her and she sat on Petitioner's jury.
During opening statement, the State stated that the jury would hear that a SAFE exam was performed more than two weeks after the rape and that there were no physical findings, such as DNA, scarring, or tearing, which was not unusual given the passage of time and age of the victim. Id. at 114. There was no objection by defense counsel.
The evidence at trial showed that the victim, who was born in June 1990, was the daughter of Shirley Mercer and Petitioner. In February 2007, Shirley Mercer, Petitioner, the victim (who was then approximately 16 and a half years old), and Shirley Mercer's son Justin (then age 8 approximately) were living together. Petitioner had recently moved back in with the family after being away for five years. At the time, Shirley Mercer worked a shift that began in the afternoon and ended at 11:00 p.m. On the evening of February 25, 2007, while Shirley Mercer was at work and after Justin had gone to bed, the victim went into Petitioner's room where Petitioner was playing a video game on his computer. The victim lay down on Petitioner's bed where she fell asleep while Petitioner was on the computer.
At some point, the victim woke up to find that Petitioner had pulled her pants down and inserted his penis inside her and was having intercourse with her. When Shirley Mercer returned home that evening, she noticed that the bed that she and Petitioner shared had been messed up, which was unusual. Petitioner had not yet gone to bed. The victim was asleep on the couch. Petitioner told Shirley Mercer that their bed was messed up because he had taken a nap on the bed.
Prior to late February 2007, the victim had been "a tomboy, " "very energetic, " and "a really happy person, " as described by Shirley Mercer. Shirley Mercer started noticing changes in the victim in March 2007-she was sad a lot, and eventually depressed and symptomatic to the point of needing to be hospitalized. After March 2007, the victim threw away all of her girl clothes and shopped strictly in the men's section at stores. Id. at 123-26.
Also in March 2007, the victim told her best friend, Amanda Hayes, that she had been molested by Petitioner, and sent Hayes some letters or notes regarding the molestation. The letters were introduced into evidence; they made reference to girlfriends that the victim had "dumped." Id. at 192. Hayes eventually convinced the victim to talk about the molestation with a counselor. Subsequently, detective Paul Satterfield interviewed the victim and arranged for her to be interviewed by a forensic interviewer at the Child Advocacy Center, where the victim was given a SAFE exam.
During Hayes' testimony, the State asked her what the victim told her in early March 2007 that caused her concern. Defense counsel's hearsay objection was overruled, and Hayes testified "[t]hat her dad molested her." Id. at 136. The State asked if Hayes knew the reason why the victim did not immediately agree to get help and talk to a counselor, and Hayes answered "she was scared." Defense counsel's objection on the ground that the testimony was speculation was overruled. Id. at 139.
During cross-examination of the victim, defense counsel asked if she knew what the results of the SAFE exam were. The court sustained the State's objection on "best evidence" grounds. Id. at 163-64. When presenting Satterfield's testimony, the State offered the SAFE report into evidence. The trial court sustained Petitioner's hearsay objection. The State then asked Satterfield if there were any physical findings as a result of the SAFE exam. Petitioner objected again and the court sustained the objection. Id. at 170-73.
During closing argument, the State told the jury,
"And the fact is, there was absolutely no evidence adduced during crossexamination, the defense presented no evidence to give you any possible reason, any possible reason this victim would lie about what happened to her. No contradictory evidence, not a single word contradicts the evidence of this victim."
Id. at 184.
Petitioner objected on the ground that the State was "dangerously close to commenting on [Petitioner's] failure to testify." Id. The trial court overruled the objection, stating that the State was referring to defense counsel's cross-examination and had "probably taken it as far as [the court was] going to let him take it." Id. at 185.
The State later stated to the jury that the Petitioner "ought to be dating, going to parties, meeting young men.... Do you think she will ever be the same? Do you think she will ever have a normal sex life?" Id. at 187-88.
Additionally, the State argued during closing argument, "we could have thrown in a lot of - bring the SAFE exam, all that stuff. It doesn't mean anything because you can't prove anything by it." Id. at 199. Petitioner objected to "the reference to things that are not in evidence." Id. The trial court overruled the objection.
Petitioner moved for judgment of acquittal at the close of the State's evidence and at the close of all the evidence. The trial court overruled both motions.
Petitioner raised three arguments on direct appeal. He first argued that he was deprived of a fair trial as a result of (a) the State mentioning the SAFE exam in opening statement when the State knew the report would not be admissible because it was not authenticated, (b) the State successfully objecting when Petitioner was cross-examining the victim about the SAFE exam, and (c) the State later seeking to admit the SAFE report. Petitioner argued that the State's actions were all an attempt to have the jury infer that Petitioner was hiding something. Petitioner argued that the trial court erred in "overruling" his objections regarding the SAFE report (during Satterfield's testimony), and in failing to declare a mistrial sua sponte due to the cumulative prejudice to Petitioner. The appellate court noted that this claim included several different issues, and that, in fact, the trial court had sustained Petitioner's two objections on this matter. The court held that Petitioner failed to show manifest injustice sufficient for a plain error claim that the trial court should have sua sponte declared a mistrial.
Petitioner's second argument on direct appeal was that the trial court abused its discretion in overruling Petitioner's objection to the State's closing argument about the SAFE exam, as the SAFE report had not been introduced into evidence. Petitioner argued that the comment was prejudicial because it implied that the SAFE exam result would have hurt Petitioner's case. The appellate court concluded that the State only made a passing reference to the SAFE exam, such that the trial court did not abuse its discretion in overruling Petitioner's objection, as there was no prejudice to Petitioner.
Petitioner's third argument was that the State improperly referred to Petitioner's failure to testify when the State told the jury that no contradictory evidence was presented, and the trial court abused its discretion in overruling Petitioner's objection. The appellate court "doubt[ed]" that the comments referred to Petitioner's failure to testify, and held that in any event, the ...