Earls, Fairly W. v. McCaughtry, Gary ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2364
FAIRLY W. EARLS,
Petitioner-Appellant,
v.
GARY R. MCCAUGHTRY, WARDEN,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 02 C 46—J.P. Stadtmueller, Judge.
____________
ARGUED MAY 21, 2004—DECIDED AUGUST 16, 2004
____________
Before BAUER, KANNE, and DIANE P. WOOD, Circuit
Judges.
BAUER, Circuit Judge. This habeas corpus appeal arises
from Fairly W. Earls’ 1999 convictions for first-degree sex-
ual assault of a child pursuant to Wisconsin Statute § 948.02.
Earls appeals, claiming he was denied effective assistance
of counsel in violation of his Sixth Amendment rights. We
agree and remand this case to the District Court to issue
Earls’ writ, unless the State elects to retry him within 120
days.
2 No. 03-2364
Background
The facts of this case arise out of a camping trip that took
place over Labor Day weekend in 1997. Among those on the
trip were Earls, his wife, and the family of J.M.O., the six-
year-old child Earls was accused of having assaulted. There
were also other friends present at various times—about 15-
20 people all together. Over the course of the weekend, the
State claimed there were four incidents in which Earls
touched J.M.O. inappropriately. We will briefly summarize
the incidents.
On August 30 the families had a party at the campsite to
celebrate Earls’ birthday. J.M.O. testified that Earls touched
her vaginal area over her clothing while she sat on Earls’
lap during the birthday party. There were several people sit-
ting near Earls, but no one witnessed the touching; Earls car-
ried on conversations with other people while J.M.O. was on
his lap. J.M.O. stated that the second incident1 also occurred
during the party when she and Earls went to Earls’ shed to-
gether; again, J.M.O. testified that Earls rubbed her vaginal
area over her clothing. No one witnessed the incident, and
no one saw the two go to the shed together. The last incident
occurred the following evening after the group returned to the
campground after spending the day in nearby Dundee,
Wisconsin. About nine people were sitting in a gazebo at the
campsite in a well-lit area, J.M.O. was sitting on Earls’ lap.
No one who was present witnessed any improper touching.
Nine days after the camping trip, J.M.O. told her mother
that Earls had touched her inappropriately over Labor Day
weekend. J.M.O.’s mother waited several days before con-
1
Earls was charged with four counts of assault but convicted of
only three. The difference between the charges and the convictions
may be explained by the fact that, in her testimony, J.M.O.
considered inappropriate touching on the way to the shed and at
the shed as a single incident whereas the State counted these as
two separate incidents.
No. 03-2364 3
tacting authorities. On September 23, 1997, J.M.O. was
interviewed by a social worker at the Child Protection
Center at Children’s Hospital in Milwaukee, Wisconsin.
That interview was videotaped. J.M.O. asserted that Earls
touched her inappropriately three times. The subsequent
medical exam found no evidence of sexual abuse.
At his trial, Earls’ defense was that he never touched J.M.O.
in an inappropriate manner and that she was mistaken or con-
fused as to the events of Labor Day weekend. J.M.O. testified
at trial to three incidents of touching. Elizabeth Ghilardi,
the social worker who had initially interviewed J.M.O., also
testified at trial; in part of her testimony she stated that she
believed J.M.O. was telling the truth. Additionally, J.M.O’s
mother and father testified, as well as J.M.O’s aunt and uncle.
All testified to J.M.O.’s truthfulness regarding the accusation.
Earls’ counsel never objected. No witnesses testified to corrob-
orate J.M.O.’s story regarding the events of Labor Day week-
end; all witnesses stated that they did not see any inappro-
priate behavior. In addition to the witnesses, the jury also
viewed the videotaped interview between Ghilardi and J.M.O.;
at the conclusion of the interview Ghilardi tells J.M.O.: “I’m
very sorry that Fairly did that to you. He should not have
been touching you down there . . . [t]hat was not okay . . . .”
and “we don’t want him to do this to you anymore.” Earls’
counsel was instructed to redact that portion of the tape
prior to showing it to the jury; he failed to do so. The jury
took a transcript of the video with them into their delibera-
tions. Earls did not testify at trial. The government’s closing
argument was largely based on J.M.O.’s truthfulness.
Earls was found guilty of three counts of first-degree
sexual assault of a child and sentenced to 45 years’ impris-
onment and 20 years’ probation. Earls now files this habeas
appeal claiming he received ineffective assistance of coun-
sel; specifically, that counsel failed to object to the live tes-
timony regarding J.M.O.’s truthfulness, and that counsel
failed to redact the portions of the videotape that contained
4 No. 03-2364
Ghilardi’s judgment concerning the events of Labor Day
weekend. Earls also argues that the admission of such im-
proper testimony prevented him from receiving due process.
We address these claims below.
Discussion
We review the majority of this habeas corpus appeal
under the standards set out in the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA
applies where the state court has made an application of
Federal law. In those cases, a writ may not be granted
unless the state court proceedings resulted in a decision
that was contrary to, or involved an unreasonable applica-
tion of, clearly established Federal law. 28 U.S.C. § 2254(d)(1).
Earls argues that the State court made an unreasonable
application of Federal law. An “unreasonable application”
occurs if the state court correctly identifies the governing
legal rule but unreasonably applies it to the facts in the
petitioner’s case. Anderson v. Cowan, 227 F.3d 893, 896 (7th
Cir. 2000). While there is no exact definition of “unreason-
able,” we have noted that in reaching such a conclusion, we
must find something more than that the state court made
an incorrect application of the law. Washington v. Smith,
219 F.3d 620, 628 (7th Cir. 2000).
For one portion of the analysis below, we apply the pre-
AEDPA standard of review because the State court did not
adjudicate an aspect of a Federal claim on its merits.
Walton v. Briley, 361 F.3d 431, 432 (7th Cir. 2004). That
portion of the opinion deals with the prong of the Strickland
test that considers whether an attorney’s performance was
deficient. Under the pre-AEDPA standards we review ques-
tions of law and mixed questions of law and fact de novo.
Dye v. Frank, 355 F.3d 1102, 1107 (7th Cir. 2004).
No. 03-2364 5
I. Ineffective Assistance of Counsel Claims
Earls contends that his Sixth Amendment right to effec-
tive assistance of counsel was violated. We review these
claims under the framework established in Strickland v.
Washington, 466 U.S. 668 (1984). In so doing, we use a two-
pronged analysis, asking whether counsel’s performance was
deficient and whether that error resulted in prejudice to the
defendant’s case such that there is a reasonable probability
that, absent the error, the outcome of the case would have
been different. Id. at 687, 694.
A. Deficient Performance
Earls alleges two errors on the part of his trial counsel in-
volving failure to object to the testimony of an expert
witness. Earls also alleges error by his attorney for failure
to object to lay testimony. We will briefly discuss each
omission on the part of Earls’ attorney and the applicable
Wisconsin law.
1. Expert Testimony
The admission of expert testimony is governed by Wiscon-
sin Statute § 907.02, which states: “If scientific, technical,
or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experi-
ence, training, or education, may testify thereto in the form
of an opinion or otherwise.” Wisconsin case law directs that
an expert witness may not give testimony regarding the
truthfulness of another witness. State v. Haseltine, 352
N.W.2d 673, 676 (Wis. Ct. App. 1984). The facts in Haseltine
illustrate the problem with such testimony. In that case,
the defendant was accused of having sexual contact with his
sixteen-year-old daughter. A psychiatrist testified that in
his opinion, there “was no doubt whatsoever” that the
6 No. 03-2364
accuser was a victim of incest. Id. at 675-76. In reversing
the lower court, the Wisconsin Court of Appeals stated that
it was a violation of Wisconsin Statute § 907.02 to have an
expert witness opine as to the truthfulness of the victim’s
testimony. Id. at 676; see also State v. Romero, 432 N.W.2d
899, 904-05 (Wis. 1988) (police officer and social worker may
not offer opinions as to whether seven-year-old was telling the
truth when she said her step-father sexually assaulted her).
But see State v. Jackson, 523 N.W.2d 126, 129 (Wis. Ct. App.
1994) (finding permissible questions to defendant regarding
the veracity of witnesses testifying against him when the
purpose of the inquiries is to impeach defendant).
Wisconsin has noted that it is a duty left solely to the jury
to assess the credibility of witnesses. Such testimony is
harmful at trial because it impermissibly interferes with
the jury’s role. Romero, 432 N.W.2d at 904-05 (“The testi-
mony in this case was not helpful to the jury. Rather, it
tended to usurp the jury’s role. The credibility of a witness
is left to the jury’s judgment.”).
Earls believes his attorney committed two errors regard-
ing this provision of the law. The first was in failing to ob-
ject to portions of Ghilardi’s expert testimony when she
commented on J.M.O.’s truthfulness. Ghilardi is a social
worker who specializes in working with children who are
victims of physical or sexual abuse. The text of the relevant
testimony is as follows:
Q: In this interview with [J.M.O.] throughout the course
were you looking for those things which you already de-
scribed to see if it appears if the person is being truthful
with you?
A: Yes.
Q: And did you notice anything like that?
A: Again, she resisted suggestibility. And she appeared
to be able to let me know when she didn’t know the an-
swer to something as we were talking.
No. 03-2364 7
Q: Was there anything that you look for that you saw in
[J.M.O.] that would indicate that she was not being
truthful?
A: Nothing that I noted at the time, no.
....
Q: Or anything to indicate that she was just trying to
say what you wanted to hear?
A: No.
Q: Or anything to indicate to you that she was just telling
you what somebody else had told her to tell you?
A: No.
Tr. Vol. 112 at 196-97.
When asked at the post-conviction hearing why he did not
object, Earls’ counsel acknowledged that Ghilardi’s testimony
violated Haseltine, and said that his failure to object was
“an oversight” and that the impermissible testimony “slipped
by” him. Tr. Vol. 118 at 11.
The second error occurred when Earls’ attorney failed to
redact portions of the videotaped interview between Ghilardi
and J.M.O. in which Ghilardi ends the interview with her
assessment that she’s “sorry that Fairly did that to you,”
“[h]e should not have been touching you down there,” and
“we don’t want him to do this to you any more.” Tr. Vol. 118
at 16-17. In the pre-trial hearing, both sides’ attorneys and
the trial court judge agreed that the statement should be
redacted from the tape; the judge instructed Earls’ counsel
to make the redactions before the tape was shown to the
jury. Earl’s attorney failed to do this and did not object
when the jury requested a transcript of the tape to bring
into the jury room. When asked to explain, the attorney
stated that he had “forgotten” to redact the tape and
characterized this failure to act as an “oversight.”
8 No. 03-2364
With regard to the above-listed attorney errors, the
Wisconsin Court of Appeals did not make a finding as to
whether counsel’s failure to object to Ghilardi’s testimony
and failure to redact the videotape constituted deficient per-
formance, it moved instead directly to the issue of prejudice.
We now consider whether Earls’ counsel’s conduct constituted
deficient performance.
We recognize that review of counsel’s performance under
Strickland must be “highly deferential”; the propriety of all
actions should be viewed at the time of counsel’s conduct
rather than with the benefit of hindsight; we also recognize
that there is a wide latitude for behavior stemming from
trial strategies. Strickland, 466 U.S. at 689-90. In reviewing
trial counsel’s actions in the above situations, we find that
the repeated failure to object to the testimony in question
clearly fell below an objective standard of reasonableness.
The nature of the case highlights the central role that
J.M.O.’s credibility played in Earls’ conviction. There were
no witnesses who could corroborate J.M.O.’s story, there
was no physical evidence of the assaults, and no witnesses
testified to any impropriety involving Earls. Whether Earls
was found guilty hinged on whether the jury believed
J.M.O. We can think of no strategic reason why Earls’
counsel would not have objected to the pieces of question-
able testimony going to this issue; indeed, counsel admits
such failures to object and redact were unintentional “over-
sights.” Similarly, we can think of no reason that the impor-
tance of that testimony would not have been apparent at the
time of the trial. The areas of Wisconsin evidentiary law in
play here are sufficiently clear; indeed the cases in which
these evidentiary questions are examined are almost
factually identical to Earls’ case. See Haseltine, 352 N.W.2d at
674-76 (involving psychiatrist testimony going to veracity
of 16-year-old accuser where there was no other evidence of
incest); Romero, 432 N.W.2d at 900-05 (involving testimony
of seven-year-old’s mother, school guidance counselor and
No. 03-2364 9
a police officer going to her veracity when there was no
other evidence of sexual assault).
2. Lay Testimony
Earls also objects to testimony given by J.M.O.’s mother,
father, aunt, and uncle. The questioning of each of these
witnesses followed a similar pattern in which the prosecu-
tor would ask the witness whether, from their experience,
they believed J.M.O. to be truthful, and whether he or she
thought there was any reason J.M.O. would have made up
her story regarding the weekend. Each witness testified
that they believed J.M.O. was truthful and did not make up
her story about Earls.2 Earls’ counsel did not object to this
testimony.
Wisconsin Statute § 906.08(1) allows the introduction of
reputation evidence after a witness’s character for truthful-
ness has been attacked, but cautions that, “[t]he [reputation]
evidence may refer only to character for truthfulness or
untruthfulness.” The case, State v. Romero, makes clear that
2
For example, J.M.O.’s aunt’s testimony was as follows:
Q: Do you know any reason that [J.M.O.] would be making up
stories or making up this sort of allegation against Mr. Earls?
A: No.
Q: And I guess as [J.M.O.’s] aunt you’ve know her since she was
little, obviously?
....
A: Yes.
Q: And do you think you know her well enough to be able to tell
us whether you have an opinion as to whether she is generally
a truthful child?
A: I believe she is.
Tr. Vol. 113 at 153-54.
10 No. 03-2364
there is a line between admissible testimony that goes to a
witness’s general reputation for truthfulness and inad-
missible testimony that goes to whether a witness is being
truthful in a specific instance. In Romero the Wisconsin
Supreme Court found that certain testimony from a police
officer and a social worker regarding their interviews with
a seven-year-old who accused her stepfather of molesting
her was inadmissible. The Court noted, “[t]he statements
were not simply opinions as to [the child’s] character for
truthfulness under sec. 906.08(1), Stats. Rather, they were
impermissible opinions that [the child’s] accusations were
true.” Romero, 432 N.W.2d at 904.
We believe this is the correct framework in which to eval-
uate the testimony of J.M.O.’s family members. On appeal,
the Wisconsin Court of Appeals held that the testimony was
admissible under Wisconsin Statute § 906.08(1), reasoning
that because J.M.O.’s character for truthfulness had been
attacked, the testimony was admissible. We view askance
this holding by the State court. However, because it is not
our place to second-guess state courts in interpreting state
law we must find that the State court did not make an
unreasonable application of Strickland when it found
counsel’s failure to object to testimony given by J.M.O.’s
mother, father, aunt and uncle did not constitute deficient
performance.
B. Prejudice
Having found that Earls’ representation fell below an ob-
jective standard of reasonableness with regard to the social
worker’s testimony and videotape, we turn to the issue of
whether that deficient performance prejudiced Earls’ trial.
As noted above, prejudice occurs when we can determine
that there is a reasonable probability that, but for the er-
rors, the outcome of the trial would have been different.
Strickland, 466 U.S. at 694. The Wisconsin Court of
No. 03-2364 11
Appeals found that the attorney’s errors did not prejudice
the trial; we find this determination to be unreasonable.
As discussed above, the sole issue before the jury was
whether J.M.O. was telling the truth. There was no physi-
cal evidence of abuse and no witnesses who could corrobo-
rate J.M.O.’s version of the events of Labor Day weekend.
The lack of witnesses is especially disturbing given the fact
that two of the incidents were said to have occurred when
there were numerous others present. For the most part, the
witnesses that the government called were family members of
J.M.O., who could not verify her story—the only support they
could lend was asserting that, in their experience, they had
not known J.M.O. to lie. Ghilardi was the only non-biased
witness who appeared before the jury; she appeared as an
expert who specialized in working with children who were
likely victims of sexual abuse.
We have previously held that when a trial comes down to a
single issue such as the credibility of a witness, deficient per-
formance by defense counsel regarding that credibility issue
may cause prejudice. Montgomery v. Petersen, 846 F.2d 407,
412-13 (7th Cir. 1988) (finding that counsel’s failure to
introduce a witness to corroborate defendant’s alibi was
prejudicial where government based its case on the testi-
mony of defendant’s purported accomplice). Similarly, we
have noted that where, like here, the defense attorney made
multiple errors as opposed to a single error, the cumulative
effect of those errors should be considered together to
determine the possibility of prejudice. Washington v. Smith,
219 F.3d 620, 634-35 (7th Cir. 2000). In this case, Ghilardi’s
testimony was pivotal—indeed, the jury asked for a tran-
script of her videotaped interview to consider while they
deliberated. Unfortunately, that testimony twice wandered
into assessing the credibility of J.M.O.’s accusation—an issue
that should have been left solely for the jury to determine.
Given the facts and circumstances of this trial, we find that
the State court was unreasonable in finding that there was
12 No. 03-2364
not a reasonable probability that, absent counsel’s errors,
the outcome of the trial would have been different.
C. Procedural Default
We briefly address an issue of procedural default raised
by the government regarding Earls’ counsel’s failure to
redact the videotape. The government argues that Earls
failed to raise his claim in his brief for the State appellate
court and that omission “deprived the Wisconsin Court of
Appeals the opportunity to address this claim separately.”
Br. of Respondent-Appellee at 26; see also Ellsworth v.
Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001) (stating a
petitioner must fairly present a claim so that the state court
has a “meaningful opportunity” to address it). This argu-
ment is baseless. Earls brief before that court explicitly
states, in its argument labeled “Earls’ Counsel was Ineffec-
tive,” that: “Mr. Earls was denied the effective assistance of
counsel at trial guaranteed by the Sixth Amendment to the
United States Constitution . . . by his counsel’s failure to . . .
redact the videotape to exclude Ghilardi’s comments about
Earls.” Docket 10: Exhibit B at 28. The brief goes on to
discuss and apply the Strickland test. Id. The Wisconsin
Court of Appeals then addressed the claim in paragraphs 3-
7 of its resulting opinion. We find Earls’ claim was not
procedurally defaulted.
II. Due Process Claim
Because we find for Earls on his first claim, we decline to
address his Due Process claim.
Conclusion
Accordingly, this case is REVERSED and REMANDED to the
district court to grant Earls’ writ of habeas corpus, unless
the State elects to retry him within 120 days.
No. 03-2364 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-16-04