United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE
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
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.
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
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.
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.
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.
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
(“ADHD”), which sometimes resulted in arguments
in the household.
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.
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.
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.
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.
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.
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
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.
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.
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, 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.
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'
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.
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