Donald Becker v. Al Luebbers ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-3031
___________
Donald G. Becker, *
*
Petitioner - Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Al Luebbers, *
*
Respondent - Appellee. *
___________
Submitted: December 9, 2008
Filed: August 27, 2009
___________
Before MELLOY and BENTON, Circuit Judges, and DOTY,1 District Judge.
___________
MELLOY, Circuit Judge.
In 1995, a Missouri jury convicted Donald G. Becker of sodomizing and
attempting to rape his minor daughters in violation of Missouri Revised Statutes
§§ 566.060 and 566.030, Cumulative Supplement 1991. He currently is serving a life
sentence for the attempted rape conviction and has completed a concurrent, seven-year
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.
sentence for the sodomy conviction.2 Becker exhausted his present claims in state
court and filed a timely petition for federal habeas relief.
Becker argues that trial counsel was constitutionally ineffective for failing to:
call certain witnesses or offer written statements, police reports, hospital records, or
juvenile records to show that the victims were not credible; call other witnesses to
contradict a victim’s description of one of the offenses; cross-examine the victims
more vigorously; and impeach the victims more completely with prior false
statements, prior false allegations of sexual abuse, and purported motives for falsely
accusing Becker. The district court3 rejected Becker’s claims, applying the standards
of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), codified in part
at 28 U.S.C. § 2254(d). We affirm.
I. Background
Becker and his wife had two daughters, TKB born in 1977 and TRB born in
1980. Becker separated from his wife shortly after the younger daughter, TRB, was
born, and he moved to California. TKB and TRB stayed near St. Louis. The
daughters visited Becker three times in California after about 1987 and also saw him
during some holiday visits in St. Louis when Becker returned for Christmas with his
2
Becker’s state proceedings were protracted and involved a mistrial, conviction
at a second trial, and the imposition of two concurrent life sentences. He then
received a grant of state post-conviction relief resulting in a reduction of his life
sentence for the sodomy conviction to the term of seven years. The grant of state
post-conviction relief and the remand occurred for reasons related to changes in
Missouri law and unrelated to the issues now on appeal.
3
The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri, adopting the report and recommendation of the Honorable Lewis
M. Blanton, United States Magistrate Judge for the Eastern District of Missouri.
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family at his mother’s home. Eventually, Becker moved back to St. Louis, but his
daughters saw him infrequently after his return. Neither girl made allegations against
Becker contemporaneously with any sexual abuse. Rather, the crimes came to light
several years after the fact.
In 1994, the older daughter, TKB, was placed under general anesthesia for oral
surgery. While TKB was in a semi-conscious state during administration of the
anesthesia, a nurse and an anesthesiologist heard her say that she had been sexually
molested by her father. This statement prompted an investigation that led to more
specific allegations from TKB and TRB and, eventually, to Becker’s indictment. The
State brought numerous sexual abuse charges against Becker, alleging various degrees
of lascivious contact with both of his daughters between April 1987 and July 1991.
At trial, both daughters testified that Becker touched their vaginas with his
hands on several occasions. In addition, TKB testified that Becker had attempted to
have intercourse with her on at least one occasion. Regarding this attempted rape,
TKB testified that in July 1991, at her grandmother’s house in St. Louis, Becker had
been “touching her all day” and ultimately attempted to have intercourse with her.
According to TKB, she attempted to jump out of an upper-story window after this
encounter.
Testimony from another family member who was present on the day of the
attempted rape corroborated TKB’s claim regarding her attempt to jump out of the
window. In fact, TKB was admitted to a hospital in July 1991 for injuries sustained
in an attempt to jump out of a window. At the time of this hospital admission,
officials asked TKB about possible abuse, but she denied that she was a victim of
abuse. She blamed her actions on problems and ongoing disagreements with her
mother and trouble with her boyfriend.
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Becker’s trial counsel cross-examined TKB but did not question her as to
specific details regarding her prior juvenile-court record or prior allegations of sexual
abuse that she purportedly had made against police officers. In addition, trial counsel
did not question TKB extensively about the attempted rape or events surrounding the
attempted rape. Through the testimony of other witnesses, including a psychiatrist
who treated TKB, the jury heard that TKB had psychological problems, suffered
depression, experienced suicidal ideation, and had attempted suicide repeatedly. In
addition, the jury learned that TKB had been hospitalized several times and involved
in several run-ins with the law. The psychiatrist also testified as to his diagnoses and
treatment of TKB regarding each hospital admission. The jury also learned that TKB
had been in trouble with juvenile authorities in Illinois starting around 1991 for
absenteeism from school, fighting, staying out late, running away from home, and
drinking. Importantly, and consistent with the defense theory of the case, the jury
heard that, as a consequence of TKB’s allegations against Becker, she avoided having
to serve a then-pending term of juvenile detention in Illinois related to a 1993 assault.
The jury also heard that, not only had TKB denied being a victim of sexual
abuse at the time that she attempted to jump through the window, she had repeatedly
denied being a victim of sexual abuse when asked by hospital personnel at the time
of several other hospital admissions. During her hospital admissions, she repeatedly
blamed her actions and psychological problems on her boyfriend, her mother, and her
mother’s boyfriend. Finally, the jury learned that TRB, TKB’s younger sister, did not
make any allegations of sexual abuse until after her sister had done so.
TKB and TRB testified that Becker also molested their female cousin, JB, who
was a minor, and that a male relative who was also a minor had witnessed Becker’s
crimes. These two relatives testified at trial, denied having witnessed Becker abuse
TKB or TRB, and denied being victims of Becker’s abuse. JB claimed that TKB had
attempted to coerce her into making allegations of sexual abuse against Becker. In
fact, JB had surreptitiously recorded a telephone call from TKB that JB characterized
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as an attempt by TKB to convince her to make false allegations against Becker.
Prosecutors characterized the tape as a show of support by TKB encouraging JB to
reveal abuse rather than an attempt by TKB to have JB fabricate allegations of abuse.
The jury listened to the tape, and based on the verdict, it is clear that the jury believed
TKB’s testimony and the prosecutors’ characterization of the tape and disbelieved JB.
The jury heard from TKB and TRB, as well as other family members, that the girls’
allegations against Becker had caused a split in Becker’s extended family and that the
two other family-member minors referenced above were aligned with the side of the
family that supported Becker.
The jury also heard descriptions of two instances of suspicious conduct or
statements that preceded TKB’s revelation of abuse. First, a neighbor testified that
she saw Becker kiss TKB and TRB inappropriately when they were very young by
putting his tongue in their mouths. Second, the wife of one of TKB’s cousins testified
that, on one occasion after TKB had been very upset, TKB stated that she hated her
father “because he always treats me like I’m his girl friend or something.” TKB
herself recited this statement in her own testimony when asked whether she had ever
spoken of the abuse to an adult prior to her anesthesia-induced revelation in the
operating room.
Based on this evidence, the jury convicted Becker of seven counts that included
several counts of sexual abuse and sodomy, and one count of attempted rape. Five of
these counts were dependant, in part, upon Becker’s status as a prior felon based on
a 1989 felony theft conviction. Becker moved for a new trial as to these five counts
because the date of his prior felony was later than the dates alleged in these counts.
The trial court granted the motion, and the state elected not to pursue the five counts
further. As noted above, Becker received sentences of life imprisonment on each of
the two remaining counts (one count of sodomy as to TRB and one count of attempted
rape as to TKB), but the state courts reduced the sentence on the sodomy count to
seven years’ imprisonment based on issues not relevant to these federal proceedings.
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Regarding the issues now on appeal, Becker filed a Missouri Rule of Criminal
Procedure 29.15 motion in state court seeking post-conviction relief. He argued that
trial counsel was ineffective for failing to offer juvenile records, medical records, and
available written reports and testimony from several potential witnesses. Becker
argued these materials and testimony would have shown details of TKB’s prior
interactions with law enforcement, prior interactions with other public officials and
medical personnel, prior false allegations of sexual abuse, and attempts to encourage
TRB to make claims against Becker. Becker argued that these details would have
established TKB and TRB to be non-credible.
Becker also alleged that trial counsel was ineffective due to inadequate cross-
examination of TKB and TRB and due to a failure to offer available evidence
regarding a purported motive for TRB to falsely accuse Becker of sexual abuse.
Becker asserted that TRB was mad at him for not buying her a Notre Dame jacket and
that this anger served as her motive to make false accusations.
Becker also argued that trial counsel was ineffective for failing to fully question
certain family-member witnesses regarding their memory of the day of the attempted
rape. Finally, he argued ineffectiveness based on a failure to call as witnesses several
other family members and TKB’s boyfriend from the time of the attempted rape, all
of whom he claimed would have offered testimony contradicting TKB’s description
of the day of the attempted rape. The state court granted Becker an evidentiary
hearing on his claims.
At the Rule 29.15 evidentiary hearing, Becker presented several witnesses,
including trial counsel and the potential family-member witnesses. He also presented
a St. Louis police officer against whom TKB had allegedly made claims of sexual
abuse, the police officer’s wife, and an internal affairs investigator involved with an
investigation of possible abuse by the officer. These witnesses did not state that TKB
had made claims of abuse. Rather, the officer and wife stated that they had heard
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rumors regarding claims against the officer, and the investigator stated that she did not
know whether TKB or someone else had made the allegations. Becker did not offer
as witnesses several other law enforcement officials, social workers, or medical
personnel whom he claimed had knowledge regarding TKB’s prior allegations of
sexual abuse and her credibility in general. He did, however, offer written reports
from several such people. He did not offer testimony from TKB or TRB, and they
have not recanted their allegations or trial testimony.
The state motion court rejected Becker’s ineffective-assistance claims related
to the failure to offer testimony from law enforcement officials, social workers, or
medical personnel. The court held that, with no testimony from these witnesses at the
Rule 29.15 hearing, the court could not know what the witnesses might have said at
trial. Becker argued that the witnesses’ written reports and statements provided at the
Rule 29.15 hearing sufficiently demonstrated what the witnesses would have said if
called to testify. The motion court, however, held that the reports were not self-
proving in that they did not clearly show TKB had made prior false allegations of
sexual abuse.
The state motion court also rejected Becker’s claims related to trial counsel’s
alleged failure to more vigorously cross-examine the victims as to credibility issues,
including the victims’ interactions with the witnesses mentioned above, the victims’
purported motivations to falsely accuse Becker, and the victims’ purported prior
allegations of sexual abuse. The state motion court held that trial counsel had
adequately cross-examined the victims and that the evidence from the post-conviction
hearing did not prove that further or different cross-examination of the victims would
have substantially detracted from the victims’ credibility or produced testimony
favorable to Becker. Regarding Becker’s explanation of TRB’s purported motive to
fabricate accusations against him, Becker argued that TRB was mad at him for not
buying her a Notre Dame jacket. Trial counsel explained that he elected not to
impeach TRB regarding this purported dispute, or present testimony regarding the
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dispute, because he did not believe the dispute was of sufficient gravity to serve as a
motive to fabricate such serious allegations. The state motion court rejected Becker’s
ineffective assistance claim related to TRB’s purported motive to lie as a matter
attributable to counsel’s trial strategy.
Trial counsel explained the general strategy employed at trial. He also
explained several of his decisions regarding specific witnesses. As to family members
and the events that occurred on the day of the attempted rape, trial counsel stated that
he elected to have a witness describe the small house where the attempted rape
allegedly occurred to demonstrate the infeasibility of the victim’s allegations. He
chose this path rather than using the testimony of other family members to contradict
specific aspects of TKB’s testimony because he did not believe the other family
members’ testimony would “ring true.” Trial counsel stated specifically that the trial
occurred several years after the day at issue, and he did not believe a jury would
believe that the members of Becker’s extended family would have remembered the
events of the day so long after the fact. The state motion court determined that
counsel’s election not to call several potential witnesses to describe these events was
a decision within the wide area of permissible attorney strategy.
On appeal, the Missouri Court of Appeals affirmed the denial of post-conviction
relief regarding the family-member testimony on the same grounds as the motion
court, finding that trial counsel, as a matter of trial strategy, elected not to pursue this
testimony. It also affirmed as to the claims of ineffectiveness related to cross-
examination of the victims and related to testimony and reports from the non-family-
member witnesses. The Court of Appeals went further, however, and provided two
additional grounds for denying relief. First, the court held that extrinsic evidence of
prior bad acts reflecting on credibility would not have been admissible in Missouri at
the time of trial. The court concluded, therefore, that trial counsel’s failure to
introduce testimony or reports regarding TKB’s prior acts and prior false allegations
of abuse could not be considered ineffective assistance. Finally, the Missouri Court
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of Appeals held in the alternative and as a matter of law that a failure to introduce
impeachment evidence can never serve as a basis for Rule 29.15 relief.4
Becker then sought habeas relief in the federal district court, asserting twenty-
seven claims for relief. The district court denied relief. We granted a certificate of
appealability as to six allegations of ineffective assistance: (1) failure to call medical
personnel or public officials as witnesses or introduce their reports to establish that
TKB previously had made false reports of sexual abuse; (2) failure to call certain
family members or TKB’s boyfriend and failure to more vigorously question other
family members about the events on the day of the attempted rape; (3) failure to
introduce evidence that TKB previously had made prior false allegations of sexual
4
This broad statement appears to be an established aspect of Missouri law. See,
e.g., State v. Daugherty, 906 S.W.2d 812, 818 (Mo. Ct. App. 1995). In fact, there is
language in Eighth Circuit cases suggesting this broad and unqualified rule might
comport with Strickland v. Washington, 466 U.S. 668 (1984). See Mills v.
Armontrout, 926 F.2d 773, 774 (8th Cir. 1991) (“Generally, trial strategy and tactics
‘are not cognizable in a federal habeas corpus proceeding.’ We agree that the decision
not to attempt to impeach the witness was a strategic one.” (internal citation omitted)).
We suggest, however, that it is appropriate to limit Mills to its facts and that
Missouri’s blanket rule may not, in fact, comport with Strickland. Arguably, such a
rule could be deemed an unreasonable application of Strickland in cases where
impeachment evidence is sufficiently strong and clear, and the witness’s testimony is
so critical to a conviction, that no reasonable attorney could fail to use the
impeachment evidence. In such a case, there is a strong argument that prejudice
would be clear. See, e.g., Steinkuehler v. Meschner, 176 F.3d 441, 445–46 (8th Cir.
1999) (holding, in a pre-AEDPA case, that a trial attorney’s failure to impeach a
critical witness with a strong basis for impeachment merited habeas relief for an Iowa
inmate). In general, Strickland is a flexible standard broadly applicable to the full
spectrum of attorneys’ actions. As such, an attempt to hold, categorically, that
ineffectiveness regarding impeachment evidence can never support a Strickland claim
may go too far. In the present case, however, it does not matter because, as discussed
below, the other grounds that the state courts offered for rejecting Becker’s claims are
valid and adequate to support the state court’s rulings.
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abuse; (4) failure to more fully cross examine TRB regarding motives for falsely
accusing Becker and failure to impeach TRB regarding testimony that she had not
seen Becker since 1991; (5) failure to more fully cross examine TKB regarding the
events surrounding the attempted rape, letters she wrote to her sister regarding
allegations against Becker, and her purported anger towards Becker at the time of the
allegations; and (6) failure to introduce nine specific items of evidence related to the
witnesses that counsel elected not to use at trial.
II. Discussion
Although the certificate of appealability identifies six separate issues, these
issues overlap in that some deal with the failure to call witnesses, others involve a
failure to introduce statements, reports, or other credibility evidence regarding those
same witnesses, and still others relate to a failure to more fully cross examine TKB
or TRB as to issues that the unused testimony or evidence purportedly would have
addressed. The overlap between the issues reduces the points that require discussion
to five allegations of ineffective assistance based upon: (A) a failure to introduce
credibility evidence in the form of reports or testimony from third parties regarding
specific past actions bearing on TKB’s credibility; (B) a failure to more fully cross
examine TRB; (C) a failure to introduce impeachment evidence in the form of
testimony or hospital records indicating that TKB had written letters to TRB
encouraging her to support TKB’s claims against Becker; (D) a failure to more fully
cross examine TKB; and (E) a failure to more fully question family-member
witnesses, or call as witnesses additional family members and a boyfriend, all of
whom purportedly witnessed some of the events on the day of the attempted rape.5
5
Becker also argues that the cumulative effect of the alleged errors establishes
prejudice. Because we hold none of Becker’s individual claims of error amount to
constitutionally defective representation, Becker’s cumulative error argument is
without merit. Even if we were to deem some aspect of counsel’s performance
deficient under Strickland, any prejudice analysis would have to be limited to
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“We review the district court’s conclusions of law de novo and its factual
findings for clear error.” Hunt v. Houston, 563 F.3d 695, 702 (8th Cir. 2009). We
may grant a habeas corpus petition under AEDPA only where “the relevant state court
decision was either ‘contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,’
. . . or ‘based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.’” Id. (quoting 28 U.S.C. § 2254(d)(1), (2)).
All of Becker’s claims assert constitutionally ineffective assistance of counsel under
the standard of Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel is
ineffective within the meaning of Strickland if “(1) trial counsel’s performance was
so deficient as to fall below an objective standard of the customary skill and diligence
displayed by a reasonably competent attorney, and (2) trial counsel’s deficient
performance prejudiced the defense.” Armstrong v. Kemna, 534 F.3d 857, 863 (8th
Cir. 2008).
A. Evidence Regarding TKB’s Credibility Based on Specific Past Acts
The evidence related to this issue includes reports and potential testimony from
public officials reflecting on TKB’s credibility and concerning prior false statements
and past allegations regarding sexual abuse by a police officer. The evidence also
includes TKB’s juvenile records and medical records purportedly showing TKB had
spoken and written letters to TRB trying to convince her to fabricate allegations
against Becker. We address the question of letters from TKB to TRB separately
consideration only of the consequences of the constitutionally defective aspects of
representation, not an accumulated prejudice based on asserted but unproven errors
as urged by Becker. In Middleton v. Roper, 455 F.3d 838 (8th Cir. 2006), we
reiterated the position that only prejudice from actual instances of constitutionally
ineffective assistance can support the granting of habeas relief on a Strickland claim.
See id. at 851 (“We repeatedly have recognized a habeas petitioner cannot build a
showing of prejudice on a series of errors, none of which would by itself meet the
prejudice test.” (internal quotation omitted)).
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below. Regarding TKB’s juvenile records, the trial court excluded the details of those
records. Trial counsel, nevertheless, discussed in general terms the contents of the
juvenile records. As a result, the jury learned about TKB’s troubled past and her
avoidance of juvenile detention due to the timing of her allegations against Becker.
The jury also learned that TKB was a troubled girl with several suicide attempts,
hospitalizations, and run-ins with law enforcement and that TKB or her mother had
purportedly accused a police officer of sexually abusing TKB. The state courts
correctly determined that trial counsel was not ineffective for abiding by the court’s
ruling excluding the specifics of TKB’s juvenile records. Counsel still conveyed the
material aspects of those records to the jury as relevant to the general theory that TKB
was a troubled girl who fabricated serious allegations to avoid detention.
The potential testimony from officials and the officials’ reports would have
been extrinsic evidence of TKB’s prior bad acts reflecting on credibility but not rising
to the level of prior convictions. The state courts determined that the absence of Rule
29.15 testimony from these witnesses precluded relief because Becker failed to prove
what their testimony would have been had trial counsel called them to testify. Becker
argues the written reports sufficed to prove the content of the missing testimony.
The state courts rightly rejected this argument. The record was unclear as to
whether TKB herself or her mother had actually made the allegations. The officer
who purportedly had assaulted TKB denied knowledge of the allegations and stated
only that he had heard rumors of such allegations. That officer’s wife provided similar
testimony at the Rule 29.15 hearing. There was an internal investigation regarding
allegations of sexual abuse, which started following a referral from other officials, but
TKB had not made any allegations to the internal affairs officer investigating the
matter. The investigation did not result in any charges against the officer, and TKB
denied that any abuse occurred. At trial, the psychiatrist stated that TKB’s mother
may have been the source of allegations against the police officer. Whether or not this
statement by the psychiatrist was true, Becker failed to develop evidence in his post-
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conviction proceedings demonstrating that the psychiatrist was incorrect and that TKB
was the source of any such allegations.
Further, and more generally, this evidence and forecasted testimony (with the
exception of the purported draft letters from TKB to TRB) was merely credibility
evidence unrelated to the allegations against Becker; it was evidence of prior
misconduct reflecting on credibility but not amounting to prior convictions. In
Rousan v. State, 48 S.W.3d 576, 590 (Mo. 2001) (en banc), the Missouri Supreme
court stated that certain records were not admissible for impeachment purposes
because the records were extrinsic evidence of prior bad acts reflecting on credibility,
and such evidence was not admissible in Missouri’s courts. The Missouri Supreme
Court later described this rule more completely:
While a party may cross-examine the witness regarding specific acts of
misconduct relating to credibility, these prior acts may not be proven by
extrinsic evidence. Thus, when a defendant cross-examines a witness
about prior misconduct, the defendant is bound by the witness’s answer
and cannot offer evidence to the contrary, unless, of course, the character
of the witness has been put in issue on direct examination.
State v. Long, 140 S.W.3d 27, 30 (Mo. 2004) (en banc) (internal citations omitted).
Accordingly, although trial counsel was free to cross-examine TKB regarding
the alleged prior false reports and alleged coercion of her sister, Missouri law
prohibited counsel from introducing the testimony and reports Becker relies upon to
prove that TKB was non-credible. The state correctly argues that trial counsel was not
ineffective for abiding by the evidentiary rule applicable at the time of trial.6
6
Becker correctly notes that the Missouri Supreme Court , in Long, 140 S.W.3d
at 30-31, amended the seemingly strict exclusionary rule of Rousan. In Long, the
court noted that the rationale behind the exclusionary rule of Rousan was the desire
to avoid mini-trials on collateral issues that would arise every time parties attempted
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Becker’s claim also fails on other grounds. The state’s theory of the case was
that sexual abuse by Becker had driven much of TKB’s delinquent behavior and
psychological problems. The state presented evidence to this effect including
testimony from the psychiatrist who had treated TKB over the course of several years.
Trial counsel’s theory of the case was that TKB’s behavior and psychological
problems were evidence that TKB was untruthful, manipulative, and vindictive and
that, as a result, her testimony and allegations were not sufficiently reliable to support
a conviction. Given these competing potential views of the case, trial counsel faced
a delicate balancing act regarding the issue of TKB’s credibility, and trial counsel
made its decisions regarding use of the contested testimony and evidence as a matter
of trial strategy. See Middleton v. Roper, 455 F.3d 838, 846 (8th Cir. 2006)
(“Judicial scrutiny of counsel’s performance is highly deferential, indulging a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional judgment.” (quotation omitted)).
to prove facts regarding prior bad acts not established by prior convictions. Id. at 30.
The court determined in Long that, in certain cases, a witness’s testimony might be
so vital to the prosecution, and the impeachment evidence so strong, that the strict
exclusionary rule had to be amended to include limited exceptions in order to strike
the proper balance between giving the jury full exposure to relevant credibility
information and preventing inefficient mini-trials on collateral issues. Id. at 30–31.
In any event, the Missouri Supreme Court did not decide Long until 2004, long after
Becker’s 1995 trial.
Given the fact that Rousan was controlling at the time of trial, the state court
reasonably applied Strickland, in rejecting Becker’s claims of ineffective assistance.
AEDPA requires only that state courts apply clearly established U.S. Supreme Court
precedent in a reasonable manner, Williams v. Taylor, 529 U.S. 362, 407–10 (2000),
and Strickland requires only that trial counsel perform in a manner consistent with that
of “reasonably competent attorney.” Strickland, 466 U.S. at 687. Here, the Missouri
Court of Appeals concluded that trial counsel’s failure to attempt to introduce
inadmissible evidence comported with the attorney-performance standard of
Strickland. This determination withstands our scrutiny under AEDPA.
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B. A Failure to More Fully Cross-Examine TKB
A separate but related question is whether counsel failed to adequately cross-
examine TKB as to the issues referenced above. Even Rousan permitted trial counsel
to question TKB as to prior bad acts not established by a prior conviction, and specific
similar instances of prior false allegations could be fertile ground for questioning an
accuser. Becker’s current ineffective-assistance claim based on this theory fails,
however, because the evidence of TKB’s prior, purportedly false allegations and
evidence regarding the coercion or coaching of her sister was mixed and confusing at
best. In light of this fact, Becker needed to present evidence at his Rule 29.15 hearing
sufficient to show what TKB’s answers or testimony might have been had counsel
cross-examined her about these issues. Without such evidence, there can be no
showing of prejudice as required to prevail on a claim of ineffective assistance.
Strickland, 466 U.S. at 691–92.
As already discussed, Becker alleges that TKB falsely accused a police officer
of sexually assaulting her. The evidence Becker presented at his Rule 29.15 hearing
regarding this issue, however, failed to showed that TKB herself had made any such
allegation, and at trial, the mental health professional stated that TKB’s mother, and
not TKB, had made this prior accusation. Given the uncertainty as to whether TKB
or her mother had made this allegation, and the absence of evidence at the Rule 29.15
hearing to prove that TKB had made the prior, false allegation of sexual abuse, Becker
failed to establish that trial counsel acted outside the permissible bounds of
professional conduct by not questioning her as to this issue. On the present record,
the results of different or further cross-examination of TKB are speculative at best.
As such, there was no unreasonable application of Strickland in the state court’s denial
of Becker’s claim.
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C. A Failure to Introduce Evidence Regarding Letters from TKB to TRB
We address the draft letters from TKB to TRB separately because, unlike the
other documents and records identified by Becker, these letters relate to the facts of
the case; they are not merely general background evidence of prior acts purportedly
bearing on credibility. Becker did not produce the draft letters from TKB to TRB, and
medical records referencing the letters do not make clear what the content of the
letters had been. As such, it is by no means certain that the letters reflected an attempt
by TKB to induce TRB to falsely accuse Becker rather than mere encouragement to
disclose truthful claims of abuse and support TKB in her claims of abuse. In short,
the documents Becker presented were not self-proving, and without more evidence or
testimony in the Rule 29.15 hearing, it is unknown what, if any, prejudice may have
resulted from the failure to introduce these materials.
D. A Failure to More Fully Cross-Examine TRB
Becker also argues trial counsel should have cross-examined TRB about her
anger at Becker for not buying her the Notre Dame jacket and about false trial
testimony in which TRB claimed not to have seen Becker since 1991, when Becker
claims to have seen her and traveled with her after that time. He also argues trial
counsel should have cross-examined TRB regarding letters from TKB and
conversations with TKB in which Becker claims TKB asked TRB to make false
accusations against Becker. The state courts determined counsel’s performance in
these areas comported with Strickland, and we agree.
Regarding the Notre Dame jacket, TRB’s anger at Becker, and her purported
motive to falsely accuse Becker of sexual abuse, we agree with the state post-
conviction court that counsel acted well within the scope of reasonable representation
in electing not to pursue this line of questioning. The purported basis for TRB’s anger
was not proportionate to the accusations she made, and trial counsel is not ineffective
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for making the strategic decision not to pursue cross-examination as to a theory that
he described at the Rule 29.15 hearing as making “no sense.” See, e.g., Link v.
Luebbers, 469 F.3d 1197, 1205 (8th Cir. 2006) (“Generally, only when ignored issues
are clearly stronger than those presented, will the presumption of effective assistance
of counsel be overcome.” (internal citation omitted)).
Regarding TRB’s testimony that she had not seen Becker since 1991, the state
post-conviction court held it was not ineffective representation to fail to question TRB
about her misstatements. TRB was a child-witness who was upset at the time of trial.
Her failure to correctly remember the dates of visits with Becker around 1991 was not
of great value in discrediting her testimony or defending Becker against the claims of
sexual abuse. As to the counts involving TRB, timing was not an element of the
offenses, and as such, the value of further cross-examination on this topic would have
been solely related to TRB’s general credibility. Counsel in cases such as this may
make strategic decisions as to when to continue with cross-examination of upset
witnesses and when to terminate questioning due to the perceived limited value of
exposing minor inconsistencies in testimony that does not bear directly on the offense.
Regarding cross-examination as to TRB’s desire to help TKB, TRB admitted
her desire to support her sister, and as such, cross-examination was not absent as to
this issue. To the extent Becker argues counsel should have delved into conversations
or letters between TRB and TKB, the state court correctly determined that the value
of any such cross-examination would be speculative at best. As already discussed,
there is no evidence that TKB asked TRB to lie. TRB did state that she did not have
an opportunity to speak with TKB between the time when TRB initially denied being
a victim of abuse and the time when TRB disclosed the abuse to her mother. The
medical records appear to contradict this claim, suggesting that TRB and TKB did, in
fact, speak to one another during this time. Without evidence showing that TKB
encouraged TRB to lie, however, and without evidence tending to show that TRB’s
possible misstatement about talking to her sister on a particular date was anything
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more than an innocent mistake, the impeachment value of this statement is limited.
The testimony as a whole showed that the sisters were aware of each other’s abuse,
had confided in each other for years, and were attempting to support each other.
Finally, we note that trial counsel cross-examined TRB about the house where
Becker attempted to rape TKB, and TRB provided a response helpful to Becker. In
reference to a question about a Christmas in 1987 or 1988 when TRB was present in
the house and when TRB alleged Becker sexually abused her, she stated that the house
was small and some family member likely would have seen what Becker had done.
This cross-examination was consistent with trial counsel’s strategy to show the
improbability of abuse occurring in the small crowded space. In the context of the
trial as a whole, trial counsel was not ineffective in his cross examination of TRB.
E. Failure to Call Certain Family Members and a Boyfriend as Witnesses
and Failure to Question Witness Linda Bays Regarding Events on the
Day of the Attempted Rape
Becker alleges that counsel was ineffective for failing to call three of Becker’s
family members and TKB’s boyfriend to describe the events that occurred on the day
of the attempted rape. Becker also alleges trial counsel was ineffective for failing to
elicit more detailed testimony about that day from a family member who did testify
at trial. According to testimony from these witnesses at the Rule 29.15 hearing, they
would have stated that TKB and her boyfriend arrived at Becker’s mother’s house in
the late afternoon or early evening approximately one half hour after Becker arrived
and that TKB and Becker immediately began fighting. These witnesses claimed TKB
and Becker were fighting because TKB had run away from her mother and Becker had
refused to let her stay with him, instead ordering her to return home or wait for her
mother or an aunt to pick her up. The witnesses testified generally consistently with
one another that Becker and TKB’s argument started outside, moved inside, and
continued in an upstairs room for five to ten minutes until other family members went
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into the room to check on Becker and TKB. TKB subsequently tried to jump out of
a window.
The witnesses were inconsistent in their precise descriptions of the amount of
time that elapsed between TKB’s arrival and her attempt to jump out of the window.
In addition, some witnesses’ testimony was generally suspect in that the witnesses
described TKB as arriving at the home at about 5:30 or 6:00 p.m. and stated that a
matter of minutes elapsed before TKB attempted to jump through the window, but
they also stated that it was dark or getting dark when she attempted to jump through
the window. Counsel noted at the Rule 29.15 hearing that, given the time of the year
(July), it would not have been approaching dark until two or more hours later.
Counsel also made the point that, with the exception of the boyfriend, these potential
witnesses were aligned with Becker in a family divide caused by the allegations
against Becker.
According to Becker, the testimony from these witnesses would have shown
that Becker did not have an opportunity to attempt to rape TKB, Becker and TKB
were fighting about an issue related to TKB’s mother and related to Becker refusing
to let TKB live with him, and the events of the day were dramatically different than
described by TKB (she had testified that Becker had been attempting to touch her “all
day”). Becker argued the testimony from TKB’s boyfriend would have been
particularly helpful to his defense because the boyfriend, unlike Becker’s relatives,
presumably would have been more inclined to support TKB’s version of events rather
than Becker’s version.
Trial counsel stated at the Rule 29.15 hearing that he did not believe the
testimony from these witnesses would “ring true” because he did not think jurors
would believe that these witnesses would remember the details of the event several
years after the fact (the day at issue was in July 1991 and the trial was in 1995). Trial
counsel interviewed and personally assessed the credibility of these potential
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witnesses, other than the boyfriend, and made a decision not to call the family-
member witnesses based on his own professional judgment and credibility assessment.
Regarding the decision not to call the family-member witnesses that counsel actually
interviewed, counsel’s actions fall within the broad range of performance permitted
by Strickland. See Strickland, 466 U.S. at 690 (“[S]trategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.”).
Regarding the boyfriend, Becker’s argument presents a closer question. Becker
argues that counsel failed to interview TKB’s boyfriend, and therefore, could not have
exercised professional judgment in electing not to call him at trial. The boyfriend
testified at the Rule 29.15 hearing that no one had contacted him at the time of
Becker’s trial. A decision not to call a witness generally does not comport with
Strickland if the record establishes that counsel did not actually assess the credibility
of the witness. See, e.g., Armstrong v. Kemna, 534 F.3d 857, 864–65 (8th Cir. 2008)
(“[S]trategic choices resulting from lack of diligence in preparation and investigation
[are] not protected by the presumption in favor of counsel.”) (quotations omitted).
Here, however, the primary motive for trial counsel’s election not to use the witnesses
was his belief that jurors would find it incredible that onlookers would remember the
particular details of the day four years after the fact. The trial in this case did not
occur shortly after the alleged crime, but several years after the fact. Counsel
reasonably questioned the general credibility of detailed accounts of a day several
years after the fact provided by minor participants. This same rationale applies to
testimony from the boyfriend just as it applies to the family-member testimony, even
if trial counsel did not interview the boyfriend.
Further, the boyfriend’s testimony, even if offered at trial and believed by the
jury, would not have precluded the jury from finding Becker guilty. The potential
testimony, while contradicting TKB’s claim that Becker had been trying to touch her
“all day,” still left a window of time during which TKB and Becker were alone in an
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upstairs bedroom from which family members heard fighting and commotion.
Accordingly, even if circumstances surrounding the boyfriend could support a finding
of ineffective assistance of counsel, Becker has failed to show prejudice related to this
witness. The boyfriend does not claim to have entered the house, and his potential
testimony describes his observations from outside the house. His potential testimony
is fully consistent with Becker and TKB having had an opportunity to be alone in an
upstairs room for a short period of time prior to TKB’s attempt to jump through the
window.
To the extent Becker urges us to view the impeachment value of the boyfriend’s
testimony as sufficient to support a claim of ineffective assistance of counsel, we
reject his arguments. The boyfriend’s testimony would have been of greater
impeachment value than the family members’ because the family members clearly
were aligned with Becker whereas there is no suggestion that the boyfriend was biased
in favor of Becker. It would not have been of great impeachment value, however,
because TKB herself had not offered a highly detailed description of the day at issue.
Rather, she described the abuse, described trying to jump out the window, and only
obliquely referenced Becker as having been trying to touch her “all day.” We note
that all of these potential witnesses testified consistently with one another and with
trial witnesses as to the fact that TKB attempted to jump through an upper-story
window. The state courts reasonably determined that counsel’s performance
comported with Strickland when noting that counsel’s strategy was based on the
likelihood of witnesses remembering such a dramatic occurrence but not necessarily
remembering all the details that occurred earlier on that same day. Accordingly, we
reject Becker’s claims based on counsel’s failure to call the family members and
boyfriend as witnesses.
We affirm the judgment of the district court.
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