Thompson v. Weber , 2013 S.D. 87 ( 2013 )

#26345-a-JKK
2013 S.D. 87
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
ROBERT LEE THOMPSON, Petitioner and Appellant,
v.
DOUGLAS WEBER, WARDEN
OF THE SOUTH DAKOTA
STATE PENITENTIARY, OR
HIS SUCCESSOR IN OFFICE, Respondent and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
UNION COUNTY, SOUTH DAKOTA
****
THE HONORABLE STEVEN R. JENSEN
Judge
****
MARGARET V. GILLESPIE of
Gubbrud, Haugland & Gillespie, LLC
Alcester, South Dakota Attorneys for petitioner
and appellant.
MARTY J. JACKLEY
Attorney General
ANN C. MEYER
Assistant Attorney General
Pierre, South Dakota Attorneys for respondent
and appellee.
****
CONSIDERED ON BRIEFS
ON AUGUST 27, 2013
OPINION FILED 12/04/13
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KONENKAMP, Justice
[¶1.] Petitioner, Robert Lee Thompson, was convicted by a jury in 1995 of
child rape, sexual contact, disseminating harmful material to minors, and indecent
exposure. In the same trial, he was acquitted of raping two other children. Ten
years later, in his second habeas corpus proceeding, the counseling records for the
child he was convicted of raping were first disclosed. Thompson argued that he was
prejudiced by the State’s suppression of these records, because, had they been
disclosed in 1995 when they were requested and ordered to be turned over, the jury
would have acquitted him of all rape charges. Although the habeas court agreed
that the evidence could have impeached the child’s testimony and was suppressed
by the State, it denied relief, ruling that Thompson had not established prejudice.
Background
[¶2.] In March 1994, after learning about “good” touch and “bad” touch in
church classes, C.B., then age seven, told her father that two years earlier “Uncle
Bob” (Thompson) made her watch dirty movies. She shared this with her father
after he came home with movies for his children to watch that evening. He relayed
the information to C.B.’s mother, Penny, and his sister-in-law, Kim B. Penny told
C.B.’s school counselor, who reported the abuse to Carol Madsen of Child Protection
Services in Nebraska. Madsen arranged for C.B. to be interviewed by Kathy
O’Brien, a licensed social worker experienced in interviewing sexually abused
children.
[¶3.] C.B. told O’Brien that when Uncle Bob lived in South Dakota, he used
to babysit her and her sister, A.B. C.B. disclosed that Uncle Bob made her watch a
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dirty movie she called the “cowboy” movie, which began with men and women
wearing cowboy outfits. She said that Uncle Bob’s pants were down and his hand
was moving on his penis and “white” and “yellowish” “stuff would splatter out” of
his penis. She said that Uncle Bob told her he would kick her in the face if she
would not watch the movie. C.B. also claimed that Uncle Bob said he would kill her
mom and dad if she told. She made no claim that Uncle Bob touched her.
[¶4.] Uncle Bob (Thompson) was married to Mary, the sister of C.B.’s father.
Mary and Thompson did not have children of their own, but cared regularly for the
many children in the B. extended family, including the daughters of Kim B. When
Thompson would babysit these children, Mary was not always at home. She worked
varying hours as a nurse, and Thompson was unemployed. During these times,
Thompson cared for C.B. regularly because C.B.’s mother was on bed rest with her
pregnancy and C.B.’s father worked during the day.
[¶5.] After O’Brien interviewed C.B., Chief of Police Avery “Skip” Ensley of
North Sioux City, South Dakota, began a formal investigation. On March 28, 1994,
he completed a warrant application for Thompson’s arrest. The application was
based on allegations that Thompson disseminated harmful material to minors,
engaged in sexual contact with a child under sixteen years old, and indecently
exposed himself. Thompson lived in Nebraska at the time.
[¶6.] On April 4, 1994, Chief Ensley interviewed Thompson in Nebraska.
Thompson came to the interview voluntarily and was informed by Chief Ensley that
he was not under arrest. In a closed-door interview that lasted about an hour and a
half, Thompson admitted that he exposed C.B. to a pornographic movie and
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masturbated in front of her. He also admitted that C.B. touched his penis. The
interview was videotaped. Thompson then wrote a confession, but mentioned
nothing about the touching. Thompson was indicted on charges of sexual contact
with a child under sixteen, indecent exposure, and disseminating harmful material
to minors.
[¶7.] Dr. John Shelso performed a medical examination of C.B. He
documented his examination with colposcopic photographs, which were later
transferred to slides. Based on his physical examination, he found signs that C.B.
was vaginally penetrated. The slides confirmed his observations. The results of
this examination were shared with Penny and Chief Ensley.
[¶8.] C.B. began counseling with Nancy Hines from Associates for Mental
Health in Sioux City. In her notes about a telephone call from Penny on April 26,
1994, Hines wrote that Penny told her that the medical exam indicated evidence
that C.B. was vaginally penetrated. Penny told Hines that law enforcement
investigators would like C.B. to talk about what happened so rape charges could be
filed. But nothing in the April counseling records reveals any claim from C.B. that
Thompson touched her. These counseling records were not given to Thompson’s
lawyers until 2011.
[¶9.] On April 28, 1994, C.B. testified at a preliminary hearing. She said
Thompson did not touch her. On that same day, O’Brien conducted a forensic
interview of Ch.B. (age twelve) and V.B. (age eleven). These girls are Kim B.’s
daughters. (Kim B. was on the phone with Penny when C.B.’s father told Penny
that Uncle Bob made C.B. watch dirty movies.) O’Brien later testified that she
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interviewed Ch.B. and V.B. for “exploratory” purposes, because C.B. had claimed
that her cousins in the B. extended family were at Thompson’s home when
Thompson made her watch the pornographic movies. Over the course of the
investigation, O’Brien interviewed at least 21 children in the B. extended family.
During her “exploratory” interview of Ch.B. and V.B., additional allegations against
Thompson arose. Ch.B. and V.B., like C.B., said that Thompson made them watch
dirty movies and, like C.B., said Thompson did not touch them.
[¶10.] Dr. Gary Carlton examined Ch.B. and V.B. in May 1994 and
documented the examination with colposcopic photographs. Based on the
photographic evidence, Dr. Carlton noted evidence suggesting that V.B. was
vaginally and rectally penetrated and Ch.B. was rectally penetrated. The girls’
mother, Kim B., later testified that she shared the results of this medical
examination with Ch.B. and V.B.
[¶11.] On May 13, 1994, Thompson posted bond and was released. Upset by
his release, the B. family convened what has later been called the “family meeting.”
During this meeting, which occurred mid-May 1994, Ch.B., V.B., C.B., and Kim B.,
gathered in a room and talked. Ch.B., V.B., and C.B. later testified at trial that
they had talked together about what Thompson did to them. The family members
had also met with Chief Ensley when he hosted a barbeque for them at his home.
[¶12.] On May 17, 1994, after the family meeting, Kim B. and her husband
took their daughters, Ch.B. and V.B., to see Chief Ensley. The girls told him that
they had been sexually penetrated by Thompson. Chief Ensley began to ask the
girls about the details, but they were reluctant to talk. The girls said that they
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would feel more comfortable talking to O’Brien, which they did that same day.
During O’Brien’s separate interviews of Ch.B. and V.B., the girls each said that
Thompson had raped them in 1992. They explained to O’Brien that they did not
know they had been raped until their mother told them they had.
[¶13.] On May 25, 1994, C.B. reported to her counselor that Thompson had
digitally penetrated her. In that same counseling session, C.B. talked about the fact
that she had recently visited with her cousins who had also been abused by
Thompson. Because the counseling records were not given to defense counsel until
2011, Thompson’s counsel was unaware of C.B.’s May 1994 disclosure during the
1995 trial.
[¶14.] In June 1994, Thompson was indicted on charges of first degree rape of
V.B. and second degree rape of Ch.B. At that time, no charges were brought against
him for the rape of C.B., even though C.B. had disclosed in her May counseling
session with Nancy Hines that Thompson digitally penetrated her vagina, because
C.B. had not yet disclosed the rape to her parents or Chief Ensley.
[¶15.] On September 28, 1994, C.B. participated for the first time in group
therapy, during which she wrote “My Abuse Story.” V.B. had begun group therapy
earlier in the month, but on November 15, 1994, she joined a different group. It is
likely that V.B.’s new group was the same as C.B.’s because in C.B.’s individual
counseling notes, there is a reference to C.B. being in the same group as one of her
cousins. C.B.’s group therapy notes and her “My Abuse Story” were not disclosed to
Thompson’s attorneys until the second habeas proceeding in 2011.
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[¶16.] On December 12, 1994, C.B. and her mother met with Chief Ensley.
C.B. told him that Thompson digitally penetrated her vagina, while he was lying on
the couch and she was standing upright, during one of the times Thompson babysat
her and her sister. 1 To discuss the abuse with C.B., Chief Ensley used a body
diagram never made available to Thompson’s defense counsel. Because C.B.’s
counseling records were not disclosed, Thompson’s counsel was under the
impression that this December meeting was the first time C.B. claimed rape.
[¶17.] In May 1995, Thompson’s jury trial commenced on the charges of
disseminating harmful material to minors, sexual contact (C.B.), first degree rape
(V.B.), second degree rape (Ch.B.), and indecent exposure. During a break in the
proceedings, a juror told one of the B. family members that Thompson would be
found guilty, which information was relayed to the court. The court declared a
mistrial.
[¶18.] After the mistrial, Thompson was indicted on an additional charge of
first degree rape of C.B. In August 1995, C.B. testified at a preliminary hearing
that Thompson digitally penetrated her. Penny testified that since April 1994, C.B.
1. This incident was further described in Nancy Hines’s April 26, 1995 letter to
Carol Madsen of Iowa DSS Child Protection Services, a letter not disclosed
until April 2011:
C.B. and A.B. “took a bath together and her Uncle Bob sat out
on the couch in the living room continuing to watch movies.
After they, the girls, both got their pajamas on, her Uncle Bob
asked [C.B.] to come over to him. She said at that point she did
not have any panties on. She went over to him and he touched
her clitoris and put his finger in her vagina. She told me that it
hurt very bad and that she started crying at that time. He then
asked [A.B.], her little sister, to come over and [C.B.] reported to
me that he did the same thing to her.”
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had been in counseling with Nancy Hines and in group therapy. Following the
preliminary hearing, all charges related to Ch.B., V.B., and C.B. were joined, over
Thompson’s objection, and on October 30, 1995, the matter proceeded to a jury trial.
[¶19.] At trial, Thompson was represented by Michael J. McGill and Robert
B. Freiberg. John P. Slattery was the State’s Attorney. In support of its case
against Thompson, the State offered the testimony of the doctors who examined the
girls, the girls’ mothers, C.B.’s father, Chief Ensley, Kathy O’Brien, and an aunt.
The defense called Mary Thompson and offered deposition testimony of an expert
qualified to evaluate investigations of sexual abuse victims.
[¶20.] Dr. Carlton testified about his examination of Ch.B. and V.B. He
described the McCann Classification System, later explained by Dr. Shelso to be “a
five-tiered category system,” which is a “useful tool to be able to categorize findings
done at one center by one examiner and compare them to another center.” Dr.
Carlton displayed for the jury the colposcopic slides taken of Ch.B.’s and V.B.’s
vaginas and rectums. From these slides, he explained the evidence that supported
his opinion that V.B. “had findings highly suggestive of both vaginal and rectal
penetration.” As to Ch.B., he found her vaginal exam normal, but in her rectal
exam, there were “striking findings” that she had been “penetrated rectally.”
[¶21.] Dr. Shelso explained the different levels in the McCann Classification
System. Level one is normal, level two is nonspecific, level three is suspicious, level
four is suggestive, and level five is clear evidence of a penetrating injury. He
concluded that based on his physical examination, before looking at the slides he
prepared, he found evidence suggesting that C.B. had been vaginally penetrated,
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which to him, placed C.B. at level four. He stated, “It’s something [that] truly did
occur, and these types of findings were present with [C.B.]”
[¶22.] Kathy O’Brien testified about the specific protocol she follows and her
experience in using it when interviewing children. She described the Child Sexual
Abuse Accommodation Syndrome, delineating the common characteristics of
children who have been sexually abused. She outlined the interview techniques she
used with C.B., Ch.B., and V.B. During the interviews, O’Brien made video
recordings, which were not played for the jury. She explained that all three girls
identified the same perpetrator, and although they did not disclose rape in the first
interview, a subsequent disclosure “falls in so characteristically with the disclosure
process[.]” In regard to Ch.B. and V.B., she indicated that her first interviews were
“exploratory,” because C.B. had said that Thompson had exposed other children to
pornographic material, and Chief Ensley had arranged for Ch.B. and V.B. to be
interviewed. On cross-examination, O’Brien confirmed that it would be important
to the process that there be one interviewer, saying that the disclosure could be
interfered with if more than one person conducted interviews. Specifically related
to Ch.B. and V.B., she agreed with defense counsel that “there’s a risk of
contamination,” but she “found [the children’s] statements credible[.]”
[¶23.] The girls also testified. C.B. was nine at the time. She told the jury
that when she was “four or five” Uncle Bob made her watch the “cowboy” movie that
“showed people having sex” and that he “was rubbing his penis.” She confirmed
that Thompson never asked her to touch his penis. When asked if she saw anything
come out of his penis, she said she saw “foam,” which was “[w]hite.” She then
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described the rape: after she took a bath at his trailer house, Thompson “stuck his
finger up [her] vagina.” She agreed it hurt and said that she “started to cry.” She
said that no cousins were at Thompson’s home when the rape occurred. She was
afraid of Uncle Bob: “he told me not to tell my family or - - not to tell anybody,
otherwise he’ll kill my family.” On another occasion, when Ch.B. and V.B. were at
the trailer, C.B. heard screaming and crying from one of her cousins who was with
Thompson.
[¶24.] V.B. testified next. She was twelve at the time. She was asked if
Uncle Bob made her watch a dirty movie, to which she replied, “Yeah.” She did not
remember what it was called, but said, “It was just kids naked.” She said he made
her watch the movie in his bedroom and that Ch.B. and C.B. were in the room too.
V.B. said that during the movie Thompson was “touching me in my vagina and
butt.” Thompson put his finger in her butt, she said, and it hurt and she cried. She
also said he put his finger in her vagina. He had his pants off and his penis “was
ugly and hairy.” She said she told her Aunt Mary about it, but Aunt Mary “just
ignored” her. V.B. never saw anything come out of Thompson’s penis. She did not
tell anyone what happened right away because Thompson “said he would kill my
mom and dad. . . . If I told.”
[¶25.] Lastly, Ch.B. testified. She was thirteen at the time. Ch.B. is
developmentally disabled and suffers from a seizure disorder. She said that she
remembered watching a cowboy movie at Uncle Bob’s, during which people were
“kissing.” In addition to V.B. and C.B., she said that A.B. was also present. She
said that she, V.B., and C.B. were having a pillow fight and got in trouble with
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Uncle Bob. After that, Uncle Bob had her come to the living room. He told her to
get on her back, and he cut a rope in half and tied her right arm and right leg down.
He pulled her underwear down and put his penis in her vagina. He then turned her
over and “touched” her butt, and it hurt, but she denied that he did anything to her
butt. On cross-examination, however, she said Thompson stuck “his finger” in her
butt. Thompson told her he “would kill her family” if she told anyone.
[¶26.] Following the girls’ testimony, Chief Ensley testified. He explained
that he first became involved when Children’s Services in Woodbury County
referred the case to him based on the allegations made by C.B. He reviewed C.B.’s
video from her interview with O’Brien and began his investigation. On cross-
examination, defense counsel questioned Chief Ensley extensively about his
relationship with the B. extended family. He confirmed that he invited the B.
extended family to a barbeque at his home. In regard to Ch.B. and V.B., Chief
Ensley could not remember if he talked to Kim B. or whether he talked to O’Brien
about having the girls medically examined. Nonetheless, he testified that he talked
with Ch.B. and V.B. multiple times and talked to the B. family in many phone and
in-person discussions.
[¶27.] The defense theory was that the girls’ disclosures were tainted by the
B. family’s involvement and the overzealous and out-of-protocol actions of Chief
Ensley. As Mr. Freiberg argued in his closing statement, “there’s a potential that
these kids have been instilled with a false memory.” Defense counsel blamed Chief
Ensley, who “didn’t have the evidence to go on,” but conducted “dozens of
interviews” without preserving any notes or recordings, and repeatedly interrogated
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the girls, possibly “telling them what happened.” “They trusted Skip [Ensley],”
counsel argued: “[i]f he told them, they probably believed it.”
[¶28.] Defense counsel focused cross-examination of the State’s witnesses on
the timing of and inconsistencies in the girls’ disclosures. When C.B. testified, she
was questioned about not having mentioned being touched by Thompson when she
testified at the preliminary hearing and when she spoke with Kathy O’Brien. Each
time C.B. responded, “I don’t remember.” She acknowledged the meeting in May of
the previous year when Thompson’s abuse was discussed with Aunt Kim, V.B., and
Ch.B. After this meeting, V.B., Ch.B., and C.B. all changed their previous
renditions to indicate that they had been sexually abused.
[¶29.] Defense counsel called an expert, Karen Ham, who testified by
deposition on children’s memories and suggestibility. She explained that proper
protocol suggests the use of an integrated team approach to child abuse
investigations. Ham criticized Chief Ensley’s conduct in the case, faulting his
communications with and repeated interviews of Ch.B. and V.B. in May 1994. Ham
thought Chief Ensley had contaminated the children’s disclosures. As to C.B.,
however, Ham, through defense counsel, was under the impression that C.B. did not
claim until December 1994 that Thompson raped her, which was much later than
Ch.B.’s and V.B.’s disclosures. Therefore, defense counsel felt that Ham could not
impeach C.B.’s disclosure as forcefully as she was able to with the cousins’
disclosures. Defense counsel considered C.B. a more credible witness, testifying to
this belief during the second habeas hearing.
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[¶30.] The jury found Thompson guilty of first degree rape of C.B., sexual
contact with her, indecent exposure, and disseminating harmful materials to
minors. He was acquitted on the two counts of rape against Ch.B. and V.B. He was
sentenced to life in prison on the first degree rape conviction, twenty years for
sexual contact to be served concurrent to the life sentence, and consecutive
sentences of one year in jail and a $1,000 fine for disseminating harmful material to
minors and indecent exposure. On his direct appeal to this Court, we reversed the
sexual contact conviction, but affirmed the other convictions. See State v.
Thompson, 1997 S.D. 15, 560 N.W.2d 535. The sexual contact conviction was
reversed because there was “not a single fact in this evidence that corroborates
[Thompson’s] admission that C.B. touched his penis. C.B. testified at trial and at
all times steadfastly denied that such contact ever occurred and there [was] no
physical or circumstantial evidence that establishe[d] otherwise.” Id. ¶ 38.
[¶31.] Thompson petitioned for a writ of habeas corpus in September 1997.
After a hearing, the habeas court quashed the petition. A certificate of probable
cause was denied by both the habeas court and this Court.
[¶32.] In October 2003, Thompson again petitioned for a writ of habeas
corpus. Represented by new counsel, Thompson asserted multiple deficiencies,
including his trial counsel’s failure to obtain C.B.’s counseling records. Rejecting all
Thompson’s claims, the second habeas court, in a memorandum decision issued in
June 2007, ruled that the first habeas counsel was not ineffective and denied all
other relief based on res judicata. Specifically related to C.B.’s counseling records,
the second habeas court noted: “the [first] habeas court found trial counsel did
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obtain all the records and did a complete review of these records. This finding is
supported by a reading of the transcript from the first habeas hearing.” Thompson
moved the second habeas court to reconsider its ruling. A hearing was held in May
2011, to reconsider several issues, including whether Thompson’s trial counsel and
first habeas counsel were ineffective for failing to obtain C.B.’s counseling records.
[¶33.] In June 2011, the second habeas court issued a memorandum decision,
resolving all remaining issues. 2 Because this appeal concerns only C.B.’s counseling
records, we limit our analysis to that question. The habeas court recognized that
while Thompson received C.B.’s medical and school records at trial and in the first
habeas proceeding, “there were additional counseling records for C.B.,” which
neither trial counsel nor Thompson’s first habeas counsel received. Therefore, the
court addressed the substance of Thompson’s claims that counsel was ineffective
and that the State committed a Brady violation. See Brady v. Maryland, 373 U.S.
83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
[¶34.] In its memorandum decision, the second habeas court noted that a
Brady violation occurs when (1) “[t]he evidence at issue [is] favorable to the
[accused] because it is exculpatory or impeaching,” (2) the “evidence [was]
suppressed by the State either willfully or inadvertently,” and (3) “prejudice [has]
2. Before the habeas court addressed the substance of Thompson’s petition, it
assessed whether Thompson’s claims were untimely under SDCL 21-27-3.2
repealed 2012 S.D. Sess. Laws ch. 118, § 2, and whether it should be
dismissed based on res judicata under SDCL 21-27-16.1 repealed 2012 S.D.
Sess. Laws ch. 118, § 2. Neither of those statutes is at issue in this appeal,
and the habeas court did not dismiss Thompson’s claims as untimely or on
the basis of res judicata.
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ensued from the suppression.” See Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.
Ct. 1936, 1948, 144 L. Ed. 2d 286 (1999); State v. Leisinger, 2003 S.D. 118, ¶ 14, 670
N.W.2d 371, 375. The court found that “the State failed to comply with direct
discovery orders of the trial court to produce all the counseling records, including a
motion to compel which was granted by the trial court.” The prosecutor certainly
knew of these materials because the record contains letters from C.B.’s counselor,
Nancy Hines, to State’s Attorney Slattery in July and October 1995 detailing C.B.’s
progress in therapy. 3 According to the second habeas court, “[t]he State’s failure to
comply with these orders, along with its obvious receipt of a letter from the
counselor shortly before trial raise questions about the information available to the
State and the State’s failure to communicate this information to defense counsel.”
Yet “the State’s file, which may have contained relevant information was destroyed
or misplaced by the current or former State’s Attorney.” Thus, the court concluded
that “the evidence does suggest that the State may have willfully or inadvertently
suppressed this information.”
[¶35.] Nonetheless, the court ruled that Thompson “failed to show prejudice
from not having the counseling records at trial.” According to the court, although
defense counsel was unaware of the exact timing of C.B.’s disclosure in May 1994,
“[t]he counseling notes essentially mirror the evidence presented at trial.” In
particular, at trial, defense counsel was able to show that C.B. initially denied
3. Four days before Thompson’s jury trial, Nancy Hines sent State’s Attorney
Slattery a letter dated October 26, 1995, detailing the sexual abuse that C.B.
reported she suffered at Thompson’s hands and outlining her progress in
therapy. See footnote 1.
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under oath that Thompson touched her and that she talked to her school counselor,
parents, a child forensic interviewer, and others and did not disclose that Thompson
touched her. Defense counsel highlighted, through C.B.’s testimony, that it was not
until after C.B. spoke with her family and had law enforcement contact that she
disclosed that Thompson raped her. The habeas court further referred to trial
counsel’s testimony at the second habeas hearing that C.B.’s “claims of rape were
much more credible than her cousins for which verdicts of not guilty were obtained.”
Thus, except for the exact timing of the rape disclosure, the counseling notes were
cumulative of what already was known to the defense at trial.
[¶36.] Accordingly, the court held that Thompson had “not shown a
reasonable probability that the specific timing of the disclosure would have created
reasonable doubt in the jurors’ minds considering the entire record” and that “the
April 21 note and the hypnotism information provide nothing of significance to the
evidence presented by the defense at trial.” The court issued findings of fact and
conclusions of law and an order denying Thompson’s amended petition for a writ of
habeas corpus. The court also denied Thompson’s amended motion for a certificate
of probable cause.
[¶37.] We issued a certificate of probable cause, resulting in this appeal.
Thompson raises two issues: (1) he was denied due process because of the State’s
failure to produce C.B.’s counseling records in violation of Brady, 373 U.S. 83, 83 S.
Ct. 1194 and Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490
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(1995), and (2) his trial counsel and first habeas counsel were ineffective for failing
to obtain C.B.’s counseling records. 4
Analysis and Decision
[¶38.] Thompson contends that he was denied due process in his 1995 trial
when the State withheld C.B.’s counseling records in violation of Brady, 373 U.S. at
87, 83 S. Ct. at 1196-97. In Brady, the United States Supreme Court held “that the
suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Id.; see Leisinger,
2003 S.D. 118, ¶ 14, 670 N.W.2d at 374. Undisclosed evidence is “material” when
“there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” Strickler, 527 U.S.
at 280, 119 S. Ct. at 1948 (citation omitted). A Brady violation occurs when (1)
“[t]he evidence at issue [is] favorable to the accused, either because it is
exculpatory, or because it is impeaching;” (2) the “evidence [has] been suppressed by
the State, either willfully or inadvertently;” and (3) “prejudice [has] ensued.” Id. at
281-82, 119 S. Ct. at 1948.
4. Since habeas corpus is a collateral attack on a final judgment, our standard
of review is limited. Lodermeier v. Class, 1996 S.D. 134, ¶ 3, 555 N.W.2d 618,
621. Habeas petitioners bear the initial burden to establish a colorable claim
for relief. Jenner v. Dooley, 1999 S.D. 20, ¶ 11, 590 N.W.2d 463, 468.
Correspondingly, the State has only the burden of meeting the petitioner’s
evidence. Davi v. Class, 2000 S.D. 30, ¶ 26, 609 N.W.2d 107, 114. We review
factual findings for clear error and legal conclusions de novo. Meinders v.
Weber, 2000 S.D. 2, ¶ 5, 604 N.W.2d 248, 252 (citations omitted); Rodriguez v.
Weber, 2000 S.D. 128, ¶ 12, 617 N.W.2d 132, 138.
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[¶39.] Here, it is undisputed that C.B.’s counseling records were favorable to
Thompson as impeachment evidence. During the 1995 trial, the defense theory was
that Chief Ensley and C.B.’s extended family had tainted the girls’ disclosures.
Defense counsel was able to present evidence to challenge the disclosures by Ch.B.
and V.B. based on the fact that they disclosed to Chief Ensley after a family
meeting in May 1994. Yet, although defense counsel knew that C.B. had
participated in the same family meeting, counsel did not have quite the same
evidence with which to attack C.B.’s disclosure. Indeed, at trial, counsel believed
that C.B. disclosed the rape to Chief Ensley in December 1994. Had they possessed
C.B.’s counseling records, defense counsel could have challenged C.B.’s disclosure
with the fact that she told her counselor in May 1994, just after the family meeting,
that Thompson digitally penetrated her vagina. Moreover, the counseling records
showed that C.B. and her cousin, V.B., were in group therapy together and that
C.B. was apparently hypnotized. Certainly, Thompson could have impeached C.B.’s
testimony with these parts of the undisclosed counseling evidence.
[¶40.] Does the record support that this evidence was suppressed by the
State, either willfully or inadvertently? It is undisputed that Thompson’s trial
counsel sought discovery of C.B.’s counseling records on multiple occasions. After a
preliminary hearing in which C.B.’s mother testified about the fact that C.B. was in
counseling and group therapy, Attorney McGill twice wrote State’s Attorney
Slattery seeking C.B.’s counseling records. These requests went unanswered. What
followed were court orders mandating disclosure. But as the second habeas court
concluded, “[i]n light of the court orders requiring the State to produce all the
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counseling records; the State’s receipt of the letter [from the counselor]; and law
enforcement’s direct contact with the counselor, the evidence does suggest that the
State may have willfully or inadvertently suppressed this information.”
[¶41.] Further obscuring the situation, the State’s Attorney’s file on
Thompson’s case went missing. The State’s Attorney from the first habeas
proceeding said that he had the file at that time. He insisted he would not have
removed or destroyed it. He left office in 2004. The State’s Attorney for the second
habeas proceeding said that Thompson’s file was gone and that there was a gap in
the office files from the mid-80s to the mid-90s. Because the file remains missing,
there is no way to know if the State possessed the counseling records in 1995. But a
letter in the record from C.B.’s counselor to State’s Attorney Slattery regarding
C.B., along with the other evidence, supports the second habeas court’s conclusion
that the State knew of and suppressed the undisclosed evidence willfully or
inadvertently.
[¶42.] Was Thompson prejudiced by the suppression of this evidence?
Prejudice ensues when “‘there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been
different.’” See Erickson v. Weber, 2008 S.D. 30, ¶ 18, 748 N.W.2d 739, 745
(emphasis omitted) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct.
3375, 3383, 87 L. Ed. 2d 481 (1985)). A “reasonable probability” exists when
evidence reasonably could “be taken to put the whole case in such a different light
[so] as to undermine confidence in the verdict.” Kyles, 514 U.S. at 434-35, 115 S. Ct.
at 1566. The test is not for sufficiency of the evidence, but instead, an examination
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of the cumulative effect of the suppression, viewing the error in the context of the
entire record. Id. We must ask ourselves if we are confident the verdict would be
the same. See id. at 453.
[¶43.] Thompson insists that he was prejudiced because the counseling
records show that C.B.’s disclosure was “in the same way” as Ch.B. and V.B., and
because the jury acquitted Thompson on the charges related to Ch.B. and V.B.,
there is a reasonable probability that the jury would have acquitted Thompson on
the rape charge related to C.B. Thompson points to “My Abuse Story,” written by
C.B., in which she wrote that Thompson raped her until she was eight years old.
Emphasizing the impossibility of C.B.’s claim — Thompson was arrested four
months before C.B. turned eight — he argues that he could have further impeached
C.B.’s claims. He also contends that he could have confronted Penny (C.B.’s mother)
about her call to Nancy Hines on April 26, 1994, during which Penny told Hines
that the medical evidence showed abuse and that law enforcement wanted C.B. to
talk about it so rape charges could be filed. Lastly, Thompson contends that had
defense counsel known that C.B. was placed under hypnosis, their expert could have
testified about the use of memory-enhancing techniques on sexually abused
children.
[¶44.] After examining all the record evidence, which includes transcripts
from O’Brien’s interviews of the children, the notes related to C.B.’s counseling
sessions, C.B.’s “My Abuse Story,” the group therapy notes, the testimony from the
1995 trial, 1994 and 1995 preliminary hearings, and the evidence and transcripts
from the first and second habeas proceedings, we cannot say that the second habeas
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court erred in concluding that the suppressed evidence, as a whole, did not put the
case in such a different light so as to undermine confidence in the jury’s verdict. In
fact, even with the counseling records and defense counsel’s impeachment of C.B.,
the jury could have reasonably believed C.B.’s claims and found her more credible
than Ch.B. and V.B.
[¶45.] Contrary to Thompson’s insistence, C.B.’s disclosure to her counselor
in May 1994, although at the same time as Ch.B.’s and V.B.’s, was not “in the same
way.” The jury heard that Ch.B. and V.B. were interviewed only for exploratory
purposes on Chief Ensley’s suggestion. Kim B., their mother, told Ch.B. and V.B.
the results of Dr. Carlton’s medical examination — that they had been sexually
penetrated. Then Ch.B. and V.B. talked at the family meeting with C.B. about
what Thompson had done to them. After being told by their mother that the doctor
found evidence that they had been abused and after talking at a family meeting,
Ch.B. and V.B. were taken by their parents to tell Chief Ensley that they had been
raped, during which they claimed they did not know they were raped until their
mother told them they were. C.B., on the other hand, was interviewed by O’Brien
because she made a specific claim that Thompson made her watch dirty movies.
And, although she disclosed the rape right after the family meeting in May, she
made that disclosure to her counselor and did not tell Chief Ensley until December
1994. Moreover, she never claimed that she did not know she was raped until her
mother told her she was. Unlike Ch.B. and V.B., C.B. was not told by her mother or
anyone else the results of Dr. Shelso’s medical examination.
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[¶46.] Not only was C.B.’s rape disclosure in May 1994 not “in the same way”
as her cousins’ disclosures, the evidence at trial related to C.B. was different from
that presented on Ch.B.’s and V.B.’s claims. To summarize: (1) The jury heard that
C.B. told her dad that “Uncle Bob” made her watch dirty movies, which later led to
O’Brien’s forensic interview. The cousins, on the other hand, were referred by Chief
Ensley for an “exploratory” interview. (2) Dr. Shelso examined C.B. and concluded
that based on his physical examination, C.B. had been vaginally penetrated. The
cousins were examined by Dr. Carlton, and although he found signs of penetration,
it was only after he viewed the colposcopic slides of their vaginas and rectums. (3)
C.B. consistently described the scene of the pornographic movie, which Thompson
made her watch in the living room while he rubbed his penis. She also consistently
described the circumstances surrounding the rape. The cousins, on the other hand,
varied in their descriptions of the movie and the rape. V.B. said that kids were in
the movie and that she, C.B., and Ch.B. watched it in Thompson’s bedroom. She
said at one point that the rape happened in the afternoon, but at trial, she said it
happened at night. She said she screamed. She also claimed that Thompson
penetrated her while they watched the pornographic movie with the cousins in the
bedroom. Ch.B. said the cousins watched the movie together, but in the living
room. She said she was the second one to get abused and that C.B. was the first.
Ch.B. claimed, at one point, that Thompson tied her up and penetrated her vagina
with his penis in the living room after Thompson yelled at the cousins in the
bedroom for having a pillow fight. Dr. Carlton found no evidence of vaginal
penetration of Ch.B. In direct examination, Ch.B. said that other than touching her
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butt, Thompson did not do anything to her butt, but on cross-examination, she said
she was anally penetrated. (4) Although the jury heard how the B. extended family
was greatly involved in the investigation, the jury heard more evidence about Kim
B.’s involvement. In particular, Kim B. told Ch.B. and V.B. the results of Dr.
Carlton’s medical examination. Then Kim B. and her husband took Ch.B. and V.B.
to Chief Ensley to report the rape, but the girls said they did not know they were
raped until their mother told them they were. The jury heard no evidence that
Penny was connected to C.B.’s disclosure. (5) Finally, both O’Brien and the defense
expert, Ham, testified that delayed disclosure — child revelation of additional abuse
at a later date — is not uncommon, thereby buttressing C.B.’s late disclosure.
Although the counseling records reveal that C.B.’s disclosure was at the same time
as Ch.B.’s and V.B.’s, the similarities end there, and therefore, there is not a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. As the second habeas court
concluded: “Nearly all the information disclosed by C.B. in the counseling notes was
known to the defense at trial.”
[¶47.] Nonetheless, Thompson argues that there is a reasonable probability
that the cumulative effect of C.B.’s counseling records, “My Abuse Story,” and the
circumstances surrounding her hypnotism would have resulted in his acquittal for
the rape charge related to C.B. Indeed, C.B.’s claim in her abuse story that
Thompson raped her until she was eight is an impossibility, because she turned
eight four months after Thompson was arrested. But, considering the entire
evidence, this child-witness’s testimony with a four-month discrepancy in memory
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does not substantially impeach her credibility. Moreover, although the hypnosis
tape no longer exists and C.B.’s counselor told Penny not to show anyone the tape,
there is no evidence that C.B. disclosed a perpetrator other than Thompson during
hypnosis, or that as a result of the hypnosis, C.B. alleged additional acts of abuse or
denied any abuse.
[¶48.] In the end, the habeas court did not err when it ruled that Thompson
failed to establish the requisite prejudice. To prevail on his claim that a Brady
violation occurred or that his due process rights were violated because his counsel
was ineffective, Thompson must establish that there is a reasonable probability that
the results of the proceeding would have been different if the suppressed evidence
had been disclosed. 5 On the evidence presented, we cannot say that the production
of C.B.’s counseling records would have made a markedly stronger case for the
defense or a markedly weaker case for the State. See Kyles, 514 U.S. at 441, 115 S.
Ct. at 1569. More importantly, we think there is no reasonable probability that,
had this evidence been timely disclosed to the defense, the result of his trial would
have been different.
[¶49.] Affirmed.
[¶50.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and
WILBUR, Justices, concur.
5. We need not determine the sufficiency of defense and habeas counsels’
performances, because, “[i]f it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice, . . . that course should be
followed.” Rodriguez, 2000 S.D. 128, ¶ 29, 617 N.W.2d at 143 (quoting
Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069, 80 L. Ed.
2d 674, 699 (1984)).
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