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Garvey v. Wallace

United States District Court, E.D. Missouri, Eastern Division

September 29, 2016

JEFFREY GARVEY, Petitioner,
v.
IAN WALLACE, Respondent.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the pro se petition of Missouri state prisoner Jeffrey Garvey for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was charged with four counts of first-degree statutory sodomy, one count of first-degree statutory rape, two counts of first-degree child molestation, and one count of second-degree domestic assault. The State dismissed the domestic assault charge before trial. With respect to the statutory rape charge, after the close of evidence, the trial court found that the evidence did not support a finding of sexual penetration during the relevant time, and therefore instructed the jury only on the lesser-included offense of attempted statutory rape in the first degree. Following trial, the jury found Petitioner guilty of all counts, as modified. Petitioner was sentenced to concurrent sentences of 20 years on each of the four statutory sodomy counts, 23 years on the attempted statutory rape count, and 10 years on each of the two child molestation counts.

         In his petition for federal habeas relief, Petitioner raises eight grounds for relief, three alleging trial court errors during voir dire and trial, and five alleging ineffective assistance of defense counsel for failing to investigate and introduce certain evidence and witnesses at trial. For the reasons set forth below, habeas relief will be denied.

         BACKGROUND

         Trial

         Trial commenced on April 28, 2009. During voir dire, the State asked whether any venirepersons or their close friends or family members had been the victim of a sexual assault. Several venirepersons, including venirepersons L.L. and C.L., responded affirmatively. Venireperson L.L. indicated that she was the victim of a sexual assault by a stranger 15 or 16 years ago when she was 31 years old. L.L. stated that she did not really think about the sexual assault anymore. She further stated that she could follow the trial court's instruction and be fair to both sides. (Resp. Ex. B. at 39-40.)

         Venireperson C.L. indicated that his wife had been sexually abused by her stepfather when she was a child. C.L. stated that while he and his wife had discussed the abuse at some point in the past, they had not continued to talk about it. C.L. stated that he could be fair and impartial to both sides. Id. at 42-43.

         During Petitioner's portion of the voir dire, defense counsel asked L.L. and C.L. additional questions about whether their experiences would affect their ability to be fair and impartial. In response to defense counsel's questioning, C.L. stated that it would not affect him if the allegations in this case were similar to what happened to his wife, that his wife's experience would not make him lean toward one side or the other, and that he could consider the full range of punishment. Id. at 120-21. L.L. likewise stated that it would not affect her if the allegations in this case were similar to what happened to her and that she had no issues with considering the full range of punishment. Id. at 126-27.

         The trial court struck for cause several venirepersons who were victims or relatives of victims of sexual abuse and who indicated that they could not be fair or impartial. However, defense counsel also challenged for cause seven venirepersons who were victims or relatives of victims of sexual abuse but who indicated that they could be fair and impartial, including L.L. and C.L. The trial court denied each of these challenges, except that the trial court struck one such venireperson because she had a hardship due to a medical appointment. Id. at 182-90. Both L.L. and C.L. served on the jury.

         The evidence at trial showed the following. Petitioner dated a woman, T.B., from 2002 to 2006, during which time T.B. and her minor daughter, O.B., lived in Petitioner's house. O.B. was in third grade when her mother and she moved in with Petitioner, and O.B. was in seventh grade when they moved out. Throughout this time, T.B. would leave O.B. alone with Petitioner when T.B. had to work. O.B. had a history of behavioral problems, including attention-deficit/hyperactivity disorder (“ADHD”), which sometimes resulted in arguments in the household.[1]

         On direct examination by the State, O.B. testified that, from the time she was in the fourth grade until she was in the sixth grade, Petitioner touched O.B.'s breasts and vagina with his hands and tongue approximately two to three times a month when they were home alone together. O.B. testified that when she was in sixth grade, Petitioner started touching her vagina with his penis, and that Petitioner tried to have sexual intercourse with her on several occasions but succeeded only once, during the last attempt.

         In February 2006, when O.B. was 13 years old and in the seventh grade, Petitioner and O.B. had an argument over what O.B. wanted to wear to school. Petitioner spanked O.B., resulting in an argument between T.B. and O.B. regarding how to discipline O.B., after which T.B. and O.B. moved out of Petitioner's house. Shortly thereafter, around Valentine's Day, Petitioner tried to reconcile with T.B. by sending T.B. flowers and sending O.B. a card with money in it. On or about February 18, 2006, T.B. asked O.B. to call and thank Petitioner for the card, but O.B. refused. When it appeared that T.B. was going to reunite with Petitioner, O.B. told her mother that she did not want to go back to Petitioner's house. T.B. pressed O.B. as to why, including by asking if Petitioner had touched O.B. inappropriately. O.B. responded to this question affirmatively. This was the first time that O.B. disclosed to T.B. that Petitioner had touched her inappropriately. T.B. took O.B. to the hospital the next day, and O.B. underwent a physical examination, including a pelvic examination, performed by Peter Berglar, M.D.[2]

         On cross-examination by defense counsel, O.B. admitted that her previous statements as to the number of times Petitioner had sexual intercourse with her contradicted her trial court testimony. Specifically, O.B. admitted that, at a preliminary hearing on July 2, 2006, O.B. testified that Petitioner had sexual intercourse with her between 10 and 20 times. Evidence was also introduced that, in a forensic interview at the Children's Advocacy Center of Eastern Missouri on February 27, 2006, O.B. stated at different points during the interview that Petitioner had sexual intercourse with her once and that he did so multiple times. No evidence was introduced regarding what O.B. said in her deposition about the number of times Petitioner had sexual intercourse with her. O.B. also testified on cross-examination that she could not describe the physical appearance of Petitioner's penis, but O.B. testified during this line of questioning that she believed “most penises look the same.” Id. at 399.

         After the close of the State's case, Petitioner called Dr. Berglar to testify about the results of his pelvic examination of O.B. in February 2006. Dr. Berglar testified that O.B.'s pelvic examination was normal, her genitals appeared normal, and there was no evidence of tearing, scarring, or notching around O.B.'s genitals.

         On cross-examination, Dr. Berglar testified that he saw approximately six cases of alleged sexual abuse per year during his five years of practice. The State asked Dr. Berglar about what he would expect to see in a pelvic examination if sexual penetration had occurred six months before the examination. Dr. Berglar indicated that, in such cases, the hymen might appear normal or there could be notching, and that whether there would be any physical findings would depend upon several factors, including the age of the child, the amount of force used, and the amount of time that has elapsed. He testified that the absence of physical findings did not preclude the possibility that penetration had occurred several months before the examination. The State then asked about Dr. Berglar's experiences in other examinations where sexual abuse was alleged. Defense counsel objected to this question as irrelevant, and the trial court overruled the objection. In response to the State's question, Dr. Berglar testified that there were no physical indicators of sexual abuse in the “overwhelming majority” of those examinations.

         Petitioner also testified in his own defense and denied that he had any sexual contact with O.B. Petitioner testified about one instance when he walked in on T.B. taking photographs of O.B. and a female friend around the same age (12 or 13 years old at the time). The pictures were of the two girls in T.B.'s “adult clubbing clothes.” Petitioner testified that he got upset about the pictures and sent the friend home.

         After the close of evidence, the trial court found that there was not sufficient evidence of actual penetration to submit the statutory rape charge to the jury, but that there was sufficient evidence to submit the lesser-included offense of attempted statutory rape.

         Before closing arguments, the trial court instructed the jurors that closing arguments were not evidence and that the jurors should base their verdicts on the evidence and the instructions. In closing argument, defense counsel argued that the inconsistencies in O.B.'s statements regarding the extent of sexual abuse showed that O.B. was lying. Defense counsel further argued that if witnesses lied to the jury about one thing, the jury “had to throw their testimony away.” Id. at 608-09.

         In rebuttal, the State argued that O.B.'s deposition testimony regarding the number of times Petitioner had sexual intercourse with her was consistent with her trial testimony, and that defense counsel had thus “lied” to the jury about O.B.'s testimony being contradictory. The State also argued that defense counsel “lied” when he told the jury that they had to take an “all or nothing” approach to O.B.'s testimony. Defense counsel objected to each of these statements as an improper personal attack on the attorney, and the trial court sustained both objections. Defense counsel did not ask for any further relief. Id. at 621-24.

         Direct Appeal

         On direct appeal, Petitioner argued that (1) the trial court erred in denying Petitioner's challenges for cause to jurors C.L. and L.L., or that the court committed plain error in failing to further inquire into the qualification of these individuals; (2) the trial court plainly erred in failing to sua sponte declare a mistrial or to admonish the prosecutor after the prosecutor twice told the jury in closing argument that defense counsel had lied to them; and (3) the trial court erred in overruling Petitioner's objection to Dr. Berglar's testimony about the frequency with which he had found physical indications of sexual trauma in other pelvic examinations he had conducted.

         The Missouri Court of Appeals rejected these claims. Regarding Petitioner's first claim, the appellate court found that a venireperson's past exposure to sexual abuse or assault did not automatically render him or her unqualified to serve on a jury involving similar allegations. Rather, the appellate court held, the relevant question is whether the venirepersons' experiences or views “would prevent or substantially impair their ability to perform as jurors.” Id. The appellate court found that because C.L. and L.L. both stated unequivocally that they could be fair and impartial, and that they could follow the trial court's instructions, the trial court did not err in refusing to strike these jurors for cause or in failing to conduct an independent inquiry into these jurors' qualifications.

         Regarding Petitioner's second claim, the Missouri Court of Appeals held that the prosecutor's remarks during closing argument did not rise to the level of impropriety that would require a mistrial or further instruction. Specifically, the appellate court held that, under plain error review, improper closing arguments do not constitute reversible error unless the improper remark had a decisive effect on the outcome of trial. The appellate court found that, here, the prosecutor's rebuttal argument that defense counsel had lied was “based upon the prosecutor's interpretation of the evidence, namely that defense counsel was not being truthful in arguing that O.B.'s testimony was wholly inconsistent with her prior statements.” (Resp. Ex. G at 12.) The appellate court found that because the jury was capable of determining which characterization of O.B.'s testimony was accurate, and because the jury was instructed that closing arguments were not evidence, the trial court did not plainly err in failing to sua sponte declare a mistrial or admonish the prosecutor.

         Regarding Petitioner's third claim, the Missouri Court of Appeals held that the trial court did not abuse its discretion in admitting Dr. Berglar's testimony regarding his findings in other pelvic examinations involving allegations of sexual abuse. The appellate court held that the testimony was relevant to negate the inference raised by Petitioner that the absence of physical findings in O.B.'s pelvic examination undercut O.B.'s allegations of sexual penetration. The appellate court further found that there was little prejudice to Petitioner. The appellate court noted that, although Dr. Berglar's testimony could support the State's theory that a lack of physical evidence does not exclude the possibility of penetration, it could also support an inference favoring Petitioner that “the majority of girls who alleged that they have been sexually abused are not truthful.” Id.

         State ...


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