Mark Lomholt v. State of IA ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-2236
___________
Mark Edward Lomholt, Sr., *
*
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
State of Iowa, *
*
Defendant-Appellee. *
___________
Submitted: December 9, 2002
Filed: April 29, 2003
___________
Before WOLLMAN, HEANEY, and MELLOY, Circuit Judges.
___________
MELLOY, Circuit Judge.
State prisoner Mark Edward Lomholt, Sr., appeals the district court's1 denial
of his petition for habeas corpus relief. He alleges violation of his Sixth Amendment
confrontation rights based on the use of sequestered, closed-circuit testimony from
the two children who were victims of his sexual abuse. The district court rejected
1
The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa.
his claims under the deferential standards of 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-
132, 110 Stat. 1218. We affirm.
I.
An Iowa jury convicted Lomholt on two counts of second degree sexual abuse
under Iowa Code §§ 709.1 and 709.3. Lomholt's victims were B.G., his four-year-
old niece, and N.P., her five-year-old, female friend. Evidence against Lomholt
included his signed confession as well as testimony from B.G. and N.P. The
confession was corroborated by testimony from N.P.'s mother regarding a change in
N.P.'s personality following the period of abuse. The confession was also
corroborated by evidence that during identified periods of time Lomholt, as a baby-
sitter, was alone with the children and had the opportunity to commit abuse.
The victims were allowed to testify at trial via closed-circuit television
pursuant to Iowa Code § 910A.14 (now codified as § 915.38(1)) which permits a
court to "protect a minor . . . from trauma caused by testifying in the physical
presence of the defendant where it would impair the minor's ability to communicate
. . ." and where there has been "a specific finding by the court that such measures are
necessary to protect the minor from trauma." Id. Before admitting the closed-circuit
testimony from the victims, the Iowa trial court held an evidentiary hearing and set
forth factual findings as required by Iowa Code § 910A.14 and Maryland v. Craig,
497 U.S. 836, 856 (1990) (holding face-to-face confrontation to be an important but
dispensable element of Sixth Amendment confrontation rights and setting forth the
requirement that trial courts must make case-specific findings regarding trauma to
child victims before the use of testimony via closed circuit television may be
admitted).
2
At the evidentiary hearing, Lomholt presented no evidence nor witnesses to
rebut the testimony of the prosecution's only witness, the victims' sex abuse
counselor, Ms. Patricia A. Tomson. The Iowa trial court specifically noted that it
found Ms. Tomson to be credible. Based on Ms. Tomson's unrebutted testimony,
which we discuss in some detail below, the Iowa trial court concluded:
the State produced credible testimony that testifying in the physical
presence of the defendant would be traumatic to each of the alleged
victims. In addition, the evidence was convincing that the trauma
experienced in testifying would impair the ability of the witnesses to
communicate. The court finds that testimony by closed circuit
equipment is necessary to protect the alleged victims from trauma.
Iowa v. Lomholt, No. 4311 at 3 (Iowa Dist. Ct. for Mitchell County July 8, 1996)
(Ruling on Motion to Permit Testimony by Closed Circuit Television).
Following conviction and denial of a request for post-trial relief, Lomholt
advanced his Sixth Amendment argument before the Iowa Court of Appeals. The
Iowa Court of Appeals affirmed the trial court's rulings and held the factual findings
sufficient to satisfy the requirements of Craig, 497 U.S. at 855-56. The Iowa Court
of Appeals held in the alternative that, had the admission of the children's testimony
been a Sixth Amendment violation, it would have been harmless error in light of
Lomholt's corroborated confession. The Iowa Supreme Court declined further
review, and federal habeas proceedings followed.
The district court expressly noted that it believed the factual findings of the
Iowa courts to be incorrect. Lomholt v. Burt, 219 F. Supp. 2d 977, 992 (2002) ("In
short, this court agrees with [the federal magistrate's report and recommendation] that
the trial court's findings were 'wrong,' or at least, were based on evidence that this
court would not find satisfactory if this court were the finder of fact."). Nevertheless,
the district court carefully reviewed the evidence of record, found support for the
3
factual findings, and held the findings to be reasonable under 28 U.S.C. § 2254(d)(2).
Accepting the Iowa courts' factual findings as reasonable, the district court proceeded
to find the Iowa courts' application of Craig to those facts reasonable under the
standard set forth in Williams v. Taylor, 529 U.S. 362, 409-13 (2000).
II.
In the habeas setting, a federal court is bound by the AEDPA to exercise only
limited and deferential review of underlying state court decisions. 28 U.S.C. § 2254.
Under this deferential standard, the federal court may not grant habeas relief to a state
prisoner merely because the federal court might have reached a conclusion different
than that reflected in the state courts' factual determinations. 28 U.S.C. § 2254(d)(2)
and (e)(1). Similarly, the federal court may not grant habeas relief to a state prisoner
merely "because that court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or
incorrectly." Williams, 529 U.S. at 411. Rather, in the interest of furthering the goal
of finality and respecting the principles of federalism,
[t]he Antiterrorism and Effective Death Penalty Act (AEDPA) mandates
that habeas relief "shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless" the state
court's decision was "contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States," or "was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding." 28 U.S.C. § 2254(d)
Robinson v. Crist, 278 F.3d 862, 865 (8th Cir. 2002).
A state court decision is contrary to clearly established Supreme Court
precedent if "the state court arrives at a conclusion opposite to that reached by [the]
4
Court on a question of law or . . . decides a case differently than [the] Court has on
a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A state court
decision involves an unreasonable application of clearly established Supreme Court
precedent "if the state court identifies the correct governing legal principle from [the]
Court's decisions but unreasonably applies that principle to the facts of the prisoner's
case." Id. Finally, a state court decision involves "an unreasonable determination of
the facts in light of the evidence presented in state court proceedings," 28 U.S.C. §
2254(d)(2), only if it is shown by clear and convincing evidence that the state court's
presumptively correct factual findings do not enjoy support in the record. 28 U.S.C.
§ 2254(e)(1); Boyd v. Minnesota, 274 F.3d 497, 501 n4 (8th Cir. 2001) ("There is
sufficient record evidence to support such a finding and, thus, it would not constitute
an unreasonable determination of the facts in light of the evidence presented at
trial.").
III.
The Iowa courts correctly identified Craig as the controlling and clearly
established Supreme Court precedent. Under Craig, before a defendant may be
deprived the opportunity to confront a child witness face-to-face, there must be a
case-specific finding that the "use of the one-way, closed circuit television procedure
is necessary to protect the welfare of the particular child witness who seeks to
testify," "that the child witness would be traumatized, not by the courtroom generally,
but by the presence of the defendant," and "that the emotional distress suffered by the
child witness in the presence of the defendant is more than de minimis, i.e., more than
'mere nervousness or excitement or some reluctance to testify.'" Craig, 497 U.S. at
855-56 (citations omitted). The Court did not attempt to define the minimum level
of trauma required but noted that the level of trauma would be sufficient if it "would
impair the child's ability to communicate." Id. at 857.
5
Lomholt attacks the reasonableness of the Iowa courts' factual findings and
application of Craig. There is no allegation that the Iowa courts' legal conclusion was
contrary to Craig or any other clearly established Supreme Court precedent.
Accordingly, our review is limited to two questions: (1) did the Iowa courts make an
unreasonable factual determination in light of the evidence presented, or (2) did the
Iowa courts unreasonably apply Craig to these facts.
We will first examine the Iowa court's factual findings. Lomholt argues that
the findings were unreasonable because there was no showing that the children would
be more traumatized specifically by his presence than generally by the courtroom
experience and because Ms. Tomson's projections of likely harm to the children
described only de minimis anxiety rather than trauma as required under Craig. While
Lomholt attacks the factual bases of Ms. Tomson's testimony and alleges that she was
biased, he does not attack her qualifications.
A careful review of the trial court's findings and Ms. Tomson's unrebutted
hearing testimony is necessary to address Lomholt's arguments. The Iowa Court of
Appeals described her testimony from the evidentiary hearing:
Tomson testified B.G. became anxious when describing the abuse and
wet her pants on one occasion. She stated B.G. indicated she felt "sad
and tired" when she thought of Lomholt. Her drawing of herself did not
include arms which Tomson stated was an indication of powerlessness.
. . . Tomson maintained N.P. was afraid of Lomholt and played like a
baby when the subject was broached. Tomson testified N.P. said she
was frightened of Lomholt and that "she doesn't want to see him. Her
words are, I want him to stand in the corner for a long, long time."
Tomson further testified it would be "very traumatic" for either child to
testify in Lomholt's presence. She stated, "I'm not sure either child
would talk." Tomson also thought testifying before Lomholt would
impair both girls' ability to testify and make it less likely they would tell
the truth.
6
Iowa v. Lomholt, No. 7-588/96-1965 at 4 (Iowa Ct. App. 1998). In addition, Tomson
testified that B.G. was reluctant to talk about Lomholt and that when Tomson tried
to discuss Lomholt with her, B.G. would resort to talking like a baby, become hard
to understand, and engage in distracting behavior. Evid. Hearing Trans. at 16.
Finally, Tomson testified that B.G. was "pretty disintegrated emotionally, particularly
when thinking about the subject we were talking about which was court . . . ." Evid.
Hearing Trans. at 10.
Whereas Tomson expressly noted that N.P. was afraid of Lomholt, she did not
unequivocally state that B.G. was afraid or unafraid of Lomholt.2
2
Lomholt argues that Tomson specifically testified B.G. was not afraid of
Lomholt. The relevant testimony does not support Lomholt's position. The relevant
questions from defense counsel and responses from Tomson were as follows:
Q. I want to discuss [B.G.] right now. Is [B.G.] scared of the defendant?
A. When I asked her that question directly, she didn't answer me. She
had a relationship with [Lomholt]. He was her care giver. So I'm not
certain that she's frightened of him.
Q. How about [N.P.]?
A. Yes, [N.P.] is frightened of [Lomholt].
Q. How do you know this?
A. She has said that she is. She doesn't want to see him. Her words are,
I want him to stand in a corner for a long, long time.
Q. How about [B.G.]? Is she apprehensive or scared about testifying in
court with [Lomholt] present?
A. [B.G.]'s anxious about talking about the abuse at all. I was present
when she talked with you about that. And she sat in my lap and did
as many distracting things as she could rather than talk about what
had happened to her. The fact that she resorts to baby talk and is
very difficult to understand when she starts talking about the abuse.
And the fact that she wets her pants or has – now she asks to go to
the bathroom, but at first, she didn't. She just wet her pants.
7
Tomson testified in response to questions from the prosecutor that she believed
it would be "very traumatic" for the children to testify in court in front of the
defendant. The defense attorney challenged this testimony, and Tomson clarified that
while the children may have trouble talking in a different room where only the
attorneys and the judge would be present, testifying in front of the defendant would
Evidentiary Hearing Transcript at 15-16.
Q. It's your testimony that you don't believe [B.G.] is afraid of
[Lomholt]?
A. She has not indicated that to me.
Q. And since she broke off any kind of relationship, you really don't
know today what her mental thought pattern is or her ideas are on
[Lomholt]?
A. No, I don't.
Evidentiary Hearing Transcript at 23.
Q. You testified that [B.G.] has never told you that she is afraid of
[Lomholt]?
A. That's right.
Q. Based on her drawings and based upon your other communications
with her, has she indirectly indicated that she's afraid of [Lomholt]?
A. Based on her drawings, there is more indication that of shame about
talking about the abuse than of [Lomholt] himself.
Q. Based upon your education, based upon your experience, would
testifying in the physical presence of Mark Lomholt impair [B.G. and
N.P.]'s ability to communicate?
A. Yes, it would.
Evidentiary Hearing Transcript at 24-25.
8
be different.3 Finally, Tomson testified about studies involving children other than
B.G. and N.P. and stated that, in her expert opinion, it would be traumatic for any
children who had been sexually abused to testify in front of their abusers. Evid.
Hearing Trans. at 19-20. Lomholt points to these comments in particular to support
his argument that the evidence was not sufficiently case-specific.
In summary, Ms. Tomson provided a detailed account of her counseling
sessions with both girls, specifically testified that she believed it would be "very
traumatic" for them to testify in front of Lomholt, and specifically noted that
testifying in front of Lomholt would be different than testifying outside of his
presence. We note that the Court in Craig stated that expert testimony could provide
a sufficient basis for the factual findings necessary to admit closed-circuit testimony.
Craig, 497 U.S. at 860 ("The trial court in this case, for example, could well have
found, on the basis of the expert testimony before it, that testimony by the child
witnesses in the courtroom in the defendant's presence 'will result in [each] child
suffering serious emotional distress such that the child cannot reasonably
communicate.'") (citations omitted). Here, Lomholt failed to rebut such testimony
and the Iowa courts deemed it credible. Further, Ms. Tomson's qualifications were
unchallenged. Accordingly, the fact that the Iowa courts' findings were based solely
on the testimony of one expert does not provide a basis for finding the Iowa courts'
findings unreasonable.
3
Q. And you said that [B.G. and N.P.] would have trouble talking. They may
have trouble talking in a different room with just myself, [the prosecutor]
and the judge present; is that correct?
A. Yes, they may.
Q. So there actually may be no difference between that and a courtroom
setting?
A. I believe there would be a difference.
Evidentiary Hearing Transcript at 22.
9
In light of Ms. Tomson's conclusions and her discussion of the children's
behavior during counseling sessions, it was not unreasonable for the Iowa courts to
conclude that the emotional impact described by Ms. Tomson was "more than de
minimis, i.e. more than 'mere nervousness or excitement or some reluctance to
testify.'" Craig, 497 U.S. at 856 (citations omitted). Ms. Tomson specifically noted
that testifying before Lomholt would be "very traumatic" and that this trauma would
be sufficient to impair the girls' ability to communicate. It is not fatal to Ms.
Tomson's testimony that she did not unequivocally state that B.G. was afraid of
Lomholt. As noted in footnote 2, supra, Ms. Tomson did not testify that B.G. was
unafraid of Lomholt. To attribute such a statement to Ms. Tomson would be to
ignore the deference owed to the findings of the Iowa courts.
Further, even if she had provided such testimony, the Supreme Court requires
a showing of trauma, not necessarily a showing of fear. See Craig, 497 U.S. at 856,
857 and 860 (describing the requisite impact on a child-witness as "emotional
trauma," "serious emotional distress," and "serious emotional distress such that the
child cannot reasonably communicate."). Fear, shame, guilt, and countless other
emotions may overwhelm a child victim's ability to communicate. The Court in Craig
appropriately omitted any narrow descriptions that would have limited the type of
trauma necessary to overcome a defendant's confrontation rights. The Iowa courts'
refusal to read such a limitation into the definition of trauma does not make their
factual findings unreasonable.
Similarly, it was not unreasonable for the Iowa courts to conclude that Ms.
Tomson's testimony adequately differentiated between trauma attendant to the general
experience of testifying in court and trauma attendant to testifying before Lomholt.
She stated that the latter would be "very traumatic" and that this experience would be
different than testifying only before the judge and the attorneys. While more
testimony in this regard would have strengthened the Iowa courts' conclusions, we
cannot find the evidence so lacking that we may declare those conclusions
unreasonable.
10
Turning to the reasonableness of the Iowa courts' application of Craig, Lomholt
argues that the Iowa courts failed to enforce the case-specific requirement of Craig.
Specifically, Lomholt argues that Ms. Tomson's blanket statement that all child-
victims of sexual abuse would be traumatized if forced to testify in front of their
abuser demonstrates that her opinions were not case-specific. If her general
statements had comprised the entirety of her testimony, Lomholt's attack might
warrant a grant of relief. However, Tomson's general statement concerning all child
victims was an isolated statement at the end of her testimony following a detailed
discussion concerning her counseling sessions with both victims. As noted by the
district court, "the fact that case-specific observations and conclusions are consistent
with an expert's general opinions or other studies concerning the reaction of young
children to testifying about wrongdoing in the presence of the perpetrator doesn't
mean that the expert's opinion concerning the specific children in question wasn't
'case-specific.'" Lomholt v. Burt, 219 F. Supp. 2d at 998. Given the detailed accounts
of sessions with each child and the separate discussions of each child's reactions, it
was not unreasonable for the Iowa courts to conclude that Ms. Tomson's testimony
satisfied the case-specific requirement of Craig.
The district court is affirmed.
HEANEY, Circuit Judge, dissenting.
By finding B.G. would be traumatized by Lomholt’s presence at trial, the state
trial court unreasonably determined the facts in light of the evidence presented.
Similarly, allowing closed circuit television testimony without evidence that it was
necessary to protect B.G. from trauma associated with Lomholt’s presence is an
unreasonable application of Maryland v. Craig, 497 U.S. 836 (1990), the governing
Supreme Court precedent on this matter. As habeas relief is appropriate both where
there has been an unreasonable determination of the facts and where there has been
an unreasonable application of the law, see 28 U.S.C. § 2254(d), I would grant the
petition in part in this matter. I therefore dissent from that portion of the majority’s
11
opinion that affirms the district court’s denial of habeas relief with regard to
Lomholt’s conviction involving B.G.
Subject to a limited number of exceptions, a criminal defendant enjoys the
well-established constitutional right to face his accusers. One of those exceptions
exists for child witnesses who would be severely traumatized by testifying in front
of their victimizers. Craig makes clear that to satisfy the Confrontation Clause when
a witness testifies via closed circuit television, the government must establish that
testifying in this manner is necessary to protect the welfare of the child. 497 U.S. at
855 (1990). This inquiry is case-specific; the government cannot rely on general
evidence that children as a group are traumatized by testifying. Id. Moreover, it does
not suffice to show that the child may be traumatized by the court process. The
touchstone is whether the defendant’s physical presence causes the child harm. Id.
at 856 (“[I]f the state interest were merely the interest in protecting the child
witnesses from courtroom trauma generally, denial of face-to-face confrontation
would be unnecessary because the child could be permitted to testify in less
intimidating surroundings, albeit with the defendant present.”) In other words, to
deny a defendant face-to-face confrontation of his accuser, the evidence must
establish that “the child witness would be traumatized, not by the courtroom
generally, but by the presence of the defendant.” Id.Consistent with the above standard, in order to allow B.G. to testify by closed
circuit television, the state was required to show that B.G. would have be traumatized
by Lomholt’s presence at trial. The trial court concluded that “the State produced
credible testimony that testifying in the physical presence of the defendant would be
traumatic to each of the alleged victims.” The record simply does not support such
a finding as to B.G.
The state produced a single witness, Patricia Tomson, at the hearing on this
matter. Tomson testified that, in her expert opinion, it would be traumatic for all
four- or five-year-old children to testify in front of their abuser. She also testified
12
that, based on part of a study she had read, she thought it was less likely that children
would tell the truth in front of their accusers. She also concluded that based on the
children’s “anxiousness,” testifying in front of the defendant would be “very
traumatic and I’m not sure either child would talk.” (Evidentiary Hr’g Tr. at 16.)
With regard to N.P., Tomson’s specificity supports her conclusion that it would
be traumatic for N.P. to talk in front of Lomholt. N.P. had been treated by Tomson
for some time, and she specifically told Tomson that she “is frightened of Mark
[Lomholt] . . . . She has said that she is. She doesn’t want to see him. Her words are,
I want him to stand in a corner for a long, long time.” (Id. at 15.) Tomson also
observed that N.P. would divert attention from talking about the abuse, and would
draw pictures that Tomson interpreted to show a feeling of powerlessness and lack
of family support.
The evidence did not support such a conclusion for B.G. Tomson testified that
she only saw B.G. for a total of three or four weeks, and had not seen B.G. for nearly
six weeks before the hearing. She stated that when she first saw B.G., B.G. would
become anxious when talking about the abuse and would wet her pants. Tomson
went on to testify that Lomholt was B.G.’s uncle, and that B.G. may not be truthful
in front of him for fear of getting him in trouble. B.G. had told Tomson that thinking
about Lomholt made her feel “sad and tired.” (Id. at 7.) Notably, when asked
specifically if B.G. was frightened of Lomholt, Tomson stated B.G. “had a
relationship with [Lomholt]. He was her care giver. So I’m not certain she’s
frightened of him.” (Id. at 15.) She reiterated on cross-examination that she did not
believe B.G. was scared of Lomholt, but that “[i]t’s very hard for people to testify in
front of anyone they have a relationship with.” (Id. at 23.) On re-direct, when asked
if B.G. had indicated indirectly that she was afraid of Lomholt, Tomson stated that
she interpreted B.G.’s drawings to be “more indication . . . of shame about talking
about the abuse than of [Lomholt] himself.” (Id. at 24.) Because B.G. had
discontinued treatment with Tomson six weeks prior to the hearing, Tomson
conceded that she did not know B.G.’s current mental state.
13
Tomson’s testimony that any four- or five-year-old would be traumatized by
testifying in front of their abuser does not satisfy the Supreme Court’s requirements
for permitting child witnesses to testify via closed circuit television. Craig mandates
that the inquiry must be case-specific: The government must show that this particular
child, B.G., would be traumatized because of the defendant’s presence. Craig, 497
U.S. at 855, 858.
As to the rest of the government’s evidence, Tomson testified that B.G. was
ashamed of her abuse, and was anxious when talking about it. This is different from
being harmed by the defendant’s presence in court. Despite several attempts to elicit
such testimony, the government could not adduce evidence that B.G. was scared of
Lomholt. Other than Tomson’s general statements regarding all children, the
government also failed to elicit specific evidence that B.G. would be traumatized by
Lomholt’s presence at trial. Under the governing law of Craig, I believe that allowing
B.G. to testify by closed circuit television violated Lomholt’s Confrontation Clause
rights.4
After finding a violation of Lomholt’s constitutional right to confront his
accuser, the next question is if any relief is warranted. See Delaware v. Van Arsdall,
475 U.S. 673, 681-82 (1986) (holding Confrontation Clause violations are subject to
a harmless error inquiry). The proper analysis on remand would be to completely
exclude the child witness’s testimony, and consider the strength of the remaining
evidence against the defendant. Coy v. Iowa, 487 U.S. 1012, 1021-22 (1988).
4
Although the majority notes that Lomholt failed to rebut Tomson’s testimony,
he is not required to do so. As the Craig court made clear, the state bears the burden
of proof in these matters. Craig, 497 U.S. at 855. Generalized and conclusory
statements from a person who had known the victim for only three or four weeks and
had not spoken to the victim for six weeks prior to the hearing is not sufficient to
carry the day. Therefore, Lomholt was under no obligation to produce contrary
evidence, as the majority suggests.
14
Without B.G.’s testimony, I do not believe there is sufficient evidence to
sustain a conviction with regard to her. Lomholt confessed, but he then recanted.
Under Iowa law, “[t]he confession of the defendant, unless made in open court, will
not warrant a conviction, unless accompanied with other proof that the defendant
committed the offense.” Iowa Code § 813.2, Rule 20(4). The majority of the
remaining evidence appears to be the testimony B.G., or hearsay testimony of the
children’s mothers, recounting what the children had told them. Excluding all of this
testimony, as we are required to do, it does not appear there is enough remaining
evidence to convict Lomholt with respect to B.G. Accordingly, I would grant
Lomholt’s petition as to that conviction.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
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