Hoglund v. Superintendent
Filing
44
OPINION AND ORDER: The court DENIES the habeas corpus petition; GRANTS a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11; and DIRECTS the clerk to enter judgment in favor of the Respondent and against the Petitioner. Signed by Judge Philip P Simon on 8/22/18. (Copy mailed to pro se party)(ksp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KEITH HOGLUND,
Petitioner,
v.
CAUSE NO.: 3:16-CV-313-PPS-MGG
SUPERINTENDENT,
Respondent.
OPINION AND ORDER
Keith Hoglund was convicted of child molestation by a jury in Wells County
Circuit Court and was sentenced to fifty years in prison. Hoglund says he stands
wrongly convicted and he has filed a habeas corpus petition to vindicate his rights.
Factual and Procedural Background
In deciding this petition, I must presume the facts set forth by the state courts are
correct unless they are rebutted with clear and convincing evidence. 28 U.S.C. §
2254(e)(1). I have read the trial transcript and find that the Indiana Supreme Court’s
summary description of the evidence was accurate but incomplete. Hoglund does not
dispute the Supreme Court’s summary of the facts. Here’s how the Indiana Supreme
Court described the evidence:
Keith Hoglund and Teresa Mallott were married in June 1998. At the time,
Mallott was the mother of a four-year-old son from a prior relationship.
Two daughters were born to the marriage, A.H. in 1998 and a sister in
2001. In June 2002 the family moved from Fort Wayne to a home in Wells
County. A.H. was four years old at the time. When A.H. was about five
years old, she told Mallott about an incident in which Hoglund had taken
a shower with her. An upset Mallott confronted Hoglund; he denied the
allegation and Mallott at first believed him. In February 2006 a tearful
eight-year-old A.H. again told Mallott about possible sexual abuse. This
time Mallott reported the incident to a detective with the Wells County
sheriff's department. The detective questioned A.H. who told him, among
other things, that Hoglund “put stuff on his penis and ha[d] her lick it
off.” Hoglund was arrested and on May 4, 2006, he was charged with two
counts of child molesting as Class A felonies. At trial, then
twelve-year-old A.H. testified that Hoglund first began molesting her
when she was four years old. Hoglund would cause her to fellate him
approximately two or three times per week. And this lasted until after
A.H.’s seventh birthday. Hoglund would rub flavored substances onto his
penis and occasionally ejaculate into A.H.’s mouth. Hoglund also showed
A.H. a pornographic movie depicting oral sex, told her that her mother
viewed her with disgust and cared more for her siblings than her,
promised to give her money and toys, and told her that she would be
“covered in black and blue” and that he would go to jail if she told
anyone. After A.H. told Hoglund that she no longer wanted to fellate him,
she asked him if he would ever force her younger sister to fellate him, and
Hoglund responded, “I don't know, maybe.”
The State called as expert witnesses pediatrician Carol Butler, clinical
psychologist Amanda Mayle, and mental health counselor Christine
Shestak. Each witness had treated or counseled A.H. In varying degrees of
specificity, each witness essentially testified that A.H. was “not prone to
exaggerate or fantasize” concerning sexual matters.
The jury found Hoglund guilty on both counts of child molesting as Class
A felonies. Apparently due to double jeopardy concerns the trial court
sentenced Hoglund to a term of fifty years on Count I only.
Hoglund v. State, 962 N.E.2d 1230, 1232 (Ind. 2012); ECF 20-9 at 2-3.
As noted above, some important facts were left out of this description of the
evidence by the Indiana Supreme Court — one category of facts being favorable to
Hoglund, and the other being favorable to the State. The first category relates to the
timing of the statements by A.H. about the sexual abuse by her father. The statements
by A.H. to her mother, Teresa Mallot, that Hoglund was molesting her were made
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shortly after Mallot found out that Hoglund was having an affair. (Tr. 94-98). She was
understandably angry upon hearing the news of her husband’s infidelity, and she
sought a divorce a short time later. (Tr. 114). It was just a few days later that the
allegations of sexual abuse of their daughter were made. The defense implied that this
timing was suspicious, and that Mallot had a motive to fabricate the charge of
molestation.
The second category of evidence not recounted by the Indiana Supreme Court
was decidedly not favorable to Hoglund. There was highly incriminating testimony
concerning a statement that Hoglund made to the police when he was first questioned
by them. (Tr. 149-152). Hoglund described an incident where he was masturbating and
his daughter walked in on him just as he was ejaculating. This was Hoglund’s
explanation of how his daughter knew about ejaculation, not that she learned it from
performing fellatio on him. When asked point blank whether he ever had his daughter
perform fellatio on him, his answer was an odd one: he offered that perhaps it
happened when he had fallen asleep and she did it without him knowing about it. (Tr.
152).
Based on this evidence, Hoglund was convicted by a jury of child molestation
and was sentenced to a fifty year term of incarceration. After exhausting his appeals
through the Indiana court system, he filed the present motion for habeas corpus under
28 U.S.C. § 2254.
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Discussion
Hoglund argues that he is entitled to habeas corpus relief, and his claims can be
divided into errors allegedly made by the trial court, on the one hand, and claims of
ineffective assistance of counsel, on the other. As to the first category, Hoglund claims
1) that the trial court violated his due process rights by admitting expert testimony that
served to vouch for the credibility of the victim; 2) that the trial court violated his right
to a jury trial by sentencing him based on aggravating factors that had not been found
by a jury; and 3) that the trial court violated his right to a jury trial and his right against
self-incrimination by issuing a more severe sentence for Hoglund’s assertion of those
rights.
As to the second category of alleged error — all of which are claims of ineffective
assistance of counsel — Hoglund raises fourteen separate grounds. He alleges that his
trial counsel: 1) failed to keep Hoglund informed of the pending trial; 2) failed to
conduct an independent investigation; 3) failed to depose or interview any of the State’s
expert witnesses; 4) failed to procure expert witnesses to contradict the State's expert
witnesses; 5) failed to object to the trial court's lack of jurisdiction; 6) failed to object to
improper jury instructions; 7) failed to utilize remaining strikes to remove biased jurors;
8) failed to object to duplicate charges; 9) failed to object to leading questions; 10) failed
to object to an “evidentiary harpoon”; 11) failed to object when the trial court failed to
state a claim upon which relief could be granted; 12) failed to object to testimony on the
basis of hearsay and lack of foundation; 13) failed to object to expert testimony that
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served to vouch for the victim's credibility; and 14) failed to request a mistrial after the
introduction of overt and direct vouching testimony.
Exhaustion and Procedural Default
Before considering the merits of a habeas petition, I must ensure that the
Hoglund has exhausted all available remedies in state court. 28 U.S.C. § 2254(b)(1)(A);
Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). This involves navigating a byzantine
world full of procedural traps for the petitioner. Fall into one, and your case is over. To
get to the merits of a case a petitioner must fully and fairly present his federal claims to
the state courts. Boyko v. Parke, 259 F.3d 781, 788 (7th Cir. 2001). Fair presentment “does
not require a hypertechnical congruence between the claims made in the federal and
state courts; it merely requires that the factual and legal substance remain the same.”
Anderson v. Brevik, 471 F.3d 811, 814–15 (7th Cir. 2006) (citing Boyko, 259 F.3d at 788). It
does, however, require “the petitioner to assert his federal claim through one complete
round of state-court review, either on direct appeal of his conviction or in postconviction proceedings.” Lewis, 390 F.3d at 1025 (internal quotations and citations
omitted). “This means that the petitioner must raise the issue at each and every level in
the state court system, including levels at which review is discretionary rather than
mandatory.” Id. at 1025-26. “A habeas petitioner who has exhausted his state court
remedies without properly asserting his federal claim at each level of state court review
has procedurally defaulted that claim.” Id. at 1026.
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Applying the rules of procedural default to this case, I’ll start with his claims of
trial error. Hoglund presented the claim that the trial court violated his right to a jury
trial by sentencing him based on aggravating factors that had not been found by a jury
to the Court of Appeals of Indiana (ECF 20-4 at 27-29) but abandoned the claim when he
petitioned for transfer to the Indiana Supreme Court (ECF 20-8). Additionally, Hoglund
never presented to any State court the claim that the trial court violated his right to a
jury trial and his right against self-incrimination by issuing a more severe sentence for
Hoglund’s assertion of those rights. Because he did not fully and fairly present these
claims through one full round of state court review, he has procedurally defaulted these
claims.
Hoglund did present a claim that the trial court erred by admitting expert
testimony that served to vouch for the credibility of the victim to the Indiana Supreme
Court and Court of Appeals. (ECF 20-4 at 16-26; ECF 20-8 at 11-14.) But Respondent
argues that Hoglund based this claim on state evidentiary rules rather than federal law.
This is another trap in the habeas corpus process that I referenced above. In
determining whether a claim has been fairly presented to the State courts as a federal
claim, courts consider:
1) whether the petitioner relied on federal cases that engage in a
constitutional analysis; 2) whether the petitioner relied on state cases
which apply a constitutional analysis to similar facts; 3) whether the
petitioner framed the claim in terms so particular as to call to mind a
specific constitutional right; and 4) whether the petitioner alleged a
pattern of facts that is well within the mainstream of constitutional
litigation.
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Anderson, 471 F.3d at 815. Hoglund relied exclusively on State cases and evidentiary
rules when presenting this claim to the State courts. Therefore, he did not “alert the
state courts to the federal underpinnings of his claim.” Perruquet v. Briley, 390 F.3d 505,
519 (7th Cir. 2004). Moreover, even though the Indiana Supreme Court’s fundamental
error analysis (ECF 20-9 at 13) resembles a federal due process analysis, see Howard v.
O’Sullivan, 185 F.3d 721, 723–24 (7th Cir. 1999), this does not remove the procedural bar,
see Willis v. Aiken, 8 F.3d 556, 567 (7th Cir. 1993). Nevertheless, because the claim is
closely related to one of Hoglund’s properly exhausted claims, I will consider whether
the trial court’s admission of the vouching testimony violated Hoglund’s due process
right to a fundamentally fair trial. Federal courts may consider claims for habeas relief
under certain circumstances even if such claims are procedurally barred. 28 U.S.C. §
2254(b)(2).
As for the claims of ineffective assistance of counsel, although Hoglund raised
some of his claims regarding his trial counsel before the Court of Appeals of Indiana, he
raised only the following claims before the Indiana Supreme Court: (a) that his trial
counsel failed to object to testimony on the basis of hearsay and lack of foundation for a
hearsay exception; and (b) that his trial counsel failed to object to expert testimony that
served to vouch for the victim’s credibility and failed to request a mistrial after the
introduction of overt and direct vouching testimony. (ECF 20-18 at 2.) Therefore, I will
consider the merits of these claims. However, Hoglund has procedurally defaulted all
of his other claims regarding his trial counsel.
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Having decided that some of Hoglund’s claims are procedurally defaulted, the
next question is whether there is any way for Hoglund to avoid the procedural default
on those claims. A habeas petitioner can overcome a procedural default by showing
both cause for failing to abide by state procedural rules and a resulting prejudice from
that failure. Wainwright v. Sykes, 433 U.S. 72, 90 (1977); Wrinkles v. Buss, 537 F.3d 804, 812
(7th Cir. 2008), cert. denied, 556 U.S. 1239 (2009). Cause sufficient to excuse procedural
default is defined as “some objective factor external to the defense” which prevented a
petitioner from pursuing his constitutional claim in state court. Murray v. Carrier, 477
U.S. 478, 492 (1986). A habeas petitioner can also overcome a procedural default by
establishing that the Court’s refusal to consider a defaulted claim would result in a
fundamental miscarriage of justice. House v. Bell, 547 U.S. 518, 536 (2006). To meet this
exception, the petitioner must establish that “a constitutional violation has resulted in
the conviction of one who is actually innocent of the crime.” Schlup v. Delo, 513 U.S. 298,
324 (1995). Hoglund does not argue that he was prevented from pursuing the
procedurally defaulted claims in State court or that he is actually innocent. He thus
cannot overcome procedural default.
Standard of Review
Having worked our way through the procedural thicket that plagues habeas
corpus litigation, it is now on to the merits of the claims that survive. But first, some
basics about the standards that govern the decision making. Habeas corpus is an
important error correction tool that helps to ensure the proper functioning of the
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criminal justice system. But the available relief is very limited. “Federal habeas review
... exists as a guard against extreme malfunctions in the state criminal justice systems,
not a substitute for ordinary error correction through appeal.” Woods v. Donald, 135
S.Ct. 1372, 1376 (2015) (quotations and citation omitted). Habeas relief can only be
granted in one of two ways: if it is shown that the adjudication of the claim by the state
court resulted “in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States;” or if the state court decision 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).
This is a demanding standard that has been described by the Supreme Court as
being “intentionally difficult to meet. We have explained that clearly established
Federal law for purposes of §2254(d)(1) includes only the holdings . . . of this Court’s
decisions. And an unreasonable application of those holdings must be objectively
unreasonable, not merely wrong; even clear error will not suffice.” Woods, 135 S. Ct. at
1376 (quotation marks and citations omitted). What this means is that to succeed on a
habeas claim the petitioner must show that the state court’s ruling “was so lacking in
justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Id.
Criminal defendants are entitled to a fair trial but not a perfect one. Rose v. Clark,
478 U.S. 570, 579 (1986). To warrant relief, a state court’s decision must be more than
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incorrect or erroneous; it must be objectively unreasonable. Wiggins v. Smith, 539 U.S.
510, 520-21 (2003). “A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists could disagree on the correctness of
the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quotation marks
omitted).
With these standards in mind I will now finally turn to the difficult claims raised
by Hoglund that have not been procedurally defaulted.
1.
Failure to Object to Hearsay and for Lack of Foundation to a Hearsay Exception
The first issue relates to the admissibility of the testimony of the three expert
witnesses who were allowed to hit the stand and parrot for the jury what the victim had
told them. The State argued that these were statements made for the purpose of
obtaining medical treatment and thus were admissible as exceptions to the hearsay rule
under Indiana Rule of Evidence 804(4). Hoglund claims that the State court made an
objectively unreasonable determination that trial counsel’s failure to object to testimony
on the basis of hearsay did not prejudice him. Relatedly, Hoglund argues that the basis
for the admission of the hearsay under an exception to the rule was improper and that
his lawyer was ineffective for failing to recognize that point and argue it appropriately.
(ECF 20-18 at 13-14.)
To prevail on a claim of ineffective assistance of counsel, Hoglund had to show
that counsel’s performance was deficient and that the deficient performance prejudiced
him. Strickland v. Washington, 466 U.S. 668 (1984). The test for prejudice is whether there
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was a reasonable probability that “but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694. A reasonable probability is a
probability “sufficient to undermine confidence in the outcome.” Id. In assessing
prejudice under Strickland, “[t]he likelihood of a different result must be substantial, not
just conceivable.” Harrington, 562 U.S. at 112. On habeas review, the standard is even
more stringent —“[the] inquiry is now whether the state court unreasonably applied
Strickland . . . .” McNary v. Lemke, 708 F.3d 905, 914 (7th Cir. 2013). “Given this high
standard, even ‘egregious’ failures of counsel do not always warrant relief.” Id.
Just like the federal rules, the Indiana Rules of Evidence provide an exception to
the general rule against hearsay for statements made for medical diagnosis or
treatment. Ind. R. Evid. 803(4). For the exception to apply, “the declarant must
subjectively believe that he was making the statement for the purpose of receiving
medical diagnosis or treatment.” McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996).
“Where that inference is not obvious, as in [a] case involving a young child brought to
treatment by someone else, there must be evidence that the declarant understood the
professional’s role in order to trigger the motivation to provide truthful information.”
Id. The evidence should show that the declarant understood that she was speaking for
the purpose of obtaining a diagnosis or receiving treatment. Id.
At trial, the victim, then twelve years old, testified about her abusive relationship
with her father, the defendant. (Tr. 23-36.) Carol Butler is a pediatrician who performed
a medical examination following the initial report to law enforcement. Dr. Butler saw
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A.H. on one occasion and she did it at the request of the Department of Child Services
and the Wells County Sheriff’s Department. (Tr. 75-77). The exam occurred on March
16, 2006, shortly after the report of abuse. Christine Shestak, a mental health counselor,
saw A.H. on two occasions, and she saw her in January 2007 to help her in “managing
the anxiety that she was experiencing as the trial approached.” (Tr. 119). During their
testimony, these expert witnesses each recounted the victim’s narrative that took place
during an examination. (Tr. 77-79, 123-29.)
Trial counsel objected to the testimony on the basis of hearsay, which the court
overruled. What trial counsel failed to do was effectively follow up the objection with
an argument that the hearsay exception that the state was relying on— Rule 804(4) —
may not have applied in this case. (Tr. 77, 123, 127.) Instead, trial counsel essentially
conceded by saying “I understand the exception” referring to the exception for hearsay
statements made to medical providers for purposes of receiving medical care. (Tr. 123.)
Amanda Mayle, a clinical psychologist who examined the victim to assess her
ability to testify at trial, also offered testimony at trial. She was the third expert who
was allowed to testify to what A.H. had told her. (Tr. 179.) Mayle saw A.H. on one
occasion — July, 8, 2009. She candidly admitted that the reason she saw A.H. was at the
direction of the Wells County Prosecutor’s Office. (Tr. 177). Her task was to “assess her
emotional stability and her ability to testify.” (Tr. 177). Perhaps knowing that his
objection would in all likelihood be overruled — after all, his earlier objections to
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similar testimony from Butler and Shestak were overruled — trial counsel did not object
to Ms. Mayle’s testimony on the basis of hearsay. (Tr. 177).
At the post-conviction relief stage, the Court of Appeals of Indiana found that
trial counsel’s failure to object on the basis of hearsay and lack of foundation constituted
deficient performance. (ECF 20-17 at 10-13.) However, the appellate court found that the
objectionable testimony did not prejudice Hoglund and was merely cumulative because
it mirrored the victim’s testimony. Id.
I agree with the Court of Appeals of Indiana that counsel was ineffective for
failing to object to the hearsay testimony. What’s more, when he did object he should
have been better prepared to articulate why the exception to the hearsay rule for
statements made to a medical provider was inapplicable in this case. It seems from the
record that the victim met with two of three medical witnesses not for the purpose of
obtaining treatment or a diagnosis but rather for the purpose of prosecuting Hoglund.
This suggests that an objection for lack of foundation to the medical hearsay exception
under Rule 804(4) would have been sustained if properly articulated.
On the issue of whether Hoglund was prejudiced by counsel’s failure, it is a close
question. For starters, after reviewing the trial testimony, I agree that the hearsay
testimony from the medical providers parroting what the victim told them was similar
to the victim’s testimony at trial. So in one sense, the hearsay testimony was simply
cumulative evidence. But this facile response ignores the practical realties of the
courtroom. The victim in this case was 12 years old when she testified and was
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recounting things that happened to her five years earlier. Her testimony was much
stronger when it was combined with the testimony of three expert witnesses all of
whom said that she told them the same story. This unquestionably bolstered the
credibility of the victim making her testimony much more believable. Considering that
the prosecution’s case primarily relied on the victim’s testimony, a strong argument
could be made that the outcome of the trial may very well have been different without
this added boost to the victim’s credibility.
Nevertheless, I also recognize that the victim’s testimony was compelling with
respect to the graphic nature of the conduct described and its consistency and detail. A
reasonable jury could have convicted on the basis of this testimony alone. But there was
more. The statement that Hoglund gave to the police, although not a confession, was
especially incriminating. Recall that Hoglund told the detective that the reason his
daughter was knowledgeable about the topic of male ejaculation was because she
“walked in on him” while he was masturbating and in the process of ejaculating. The
jurors likely looked askance at such statements. What’s more, instead of simply denying
when asked if his daughter had performed fellatio on him, he instead told the police
that perhaps she did this to him when he was sleeping. The jury likely viewed this as
extremely incriminating — who would theorize such a thing? — and revealed
Hoglund’s true state of mind. Finally, there was the testimony of Hoglund’s ex-wife
recounting an earlier episode where Hoglund was alleged to have been bathing with his
then five year old daughter, A.H. In sum, the case against Hoglund was strong — not
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overwhelming, but strong — even without the testimony of the three experts. So I
cannot find that the state courts’ determination that the error did not prejudice
Hoglund was unreasonable.
Further, even if trial counsel had properly objected for lack of foundation to the
Rule 803(4) hearsay exception, the prosecution may have been able to establish a
foundation for at least one of the expert witnesses — the testimony of the pediatrician
Dr. Butler for whom a strong argument could be made that she was actually treating
A.H. In addition, it may well be that the testimony of the experts could have been
admitted in any event as prior consistent statements of the victim to rebut a charge of
recent fabrication. See Ind. R. Evid. 801(d)(1)(B). The victim’s account of the events was
undeniably challenged by the defense, and this may have opened the door to the prior
consistent statements made by the victim to the three experts. This is another reason to
doubt whether there was actual prejudice to Hoglund. In other words, the statements
from the experts may have been wrongly admitted into evidence, but they could have
been admitted anyway under a different theory.
All of which is to say that I cannot say the state court’s determination that there
was no prejudice was unreasonable under the stringent AEDPA standards that govern
this review. On these bases I conclude that the State court’s determination was not
objectively unreasonable. Hoglund’s claim that his trial counsel was ineffective for not
objecting on the basis of hearsay and lack of foundation is not a basis for habeas relief.
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Admission of Vouching Testimony
The next issue also concerns the testimony of the same three expert witnesses
and their impermissible vouching for the victim. Hoglund claims that the State court
made an objectively unreasonable determination that trial counsel’s failure to
continuously object to testimony that served to vouch for the victim’s credibility and
failure to request a mistrial in response to direct and overt vouching testimony did not
constitute deficient performance. He also claims that the admission of vouching
testimony violated his due process right to a fundamentally fair trial. “To be of
constitutional import, an erroneous evidentiary ruling must be so prejudicial that it
compromises the petitioner’s due process right to a fundamentally fair trial.” Howard,
185 F.3d at, 723–24. “This means that the error must have produced a significant
likelihood that an innocent person has been convicted.” Id.
The vouching claim in this case is both convoluted and unique. It involves a State
evidentiary rule that was changed as a result of Hoglund’s direct appeal, but from
which Hoglund derived no benefit. To fully understand what took place, it is necessary
to review the status of Indiana law regarding vouching testimony as it stood at the time
of Hoglund’s trial, which occurred in 2010. At that time, for cases in which a child was
called to testify about sexual conduct, Indiana law allowed “some accrediting of the
child witness in the form of opinions from parents, teachers, and others having
adequate experience with the child, that the child is not prone to exaggerate or fantasize
about sexual matters.” Lawrence v. State, 464 N.E.2d 923, 925 (Ind. 1984). However,
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Indiana did not allow the vouching testimony to “take the direct form of ‘I believe the
child’s story’, or ‘In my opinion the child is telling the truth.’” Id. Though Indiana later
adopted the Indiana Rules of Evidence, which included a rule to exclude opinion
testimony on “the truth or falsity of allegations” or on “whether a witness has testified
truthfully,” Ind. R. Evid. 704(b), the State courts nonetheless continued to interpret
Lawrence as an exception to the Indiana Rules of Evidence. See Rose v. State, 846 N.E.2d
363, 367 (Ind. Ct. App. 2006); Krumm v. State, 793 N.E.2d 1170, 1178-79 (Ind. Ct. App.
2003).
Against this backdrop, at trial, as discussed above, the prosecution elicited
testimony from the three medical witnesses. Not only were the three experts allowed to
tell the jury what A.H. had told them, as discussed in the prior section, something much
more odious occurred. Each was allowed to get on the stand and essentially tell the
jury that they believed A.H.’s story; they were allowed to vouch for her testimony. For
example, the prosecution asked Dr. Butler whether she believed that the victim was
“prone to exaggerate or fabricate sexual matters.” (Trial Tr. 80.) Trial counsel objected,
arguing that Dr. Butler was not qualified to answer the question due to her limited
interaction with the victim, and the trial court overruled the objection. (Tr. at 80-82.)
The trial was replete with vouching testimony from all three experts, and in
order to appreciate the weight of this evidence, I will quote it at length:
Prosecutor: Dr. Butler, in the time you dealt with [the victim] and
interviewed her and examined her, based upon that experience and your
training and experience as a doctor and pediatrician, do you believe that
[the victim] was, is prone to exaggerate or fantasize in sexual matters?
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Defense counsel: And before she answers can I have a continuing
objection Your Honor just to make sure for the record.
Court: Objection overruled.
Dr. Butler: When it comes to sexual, speaking about sexual matters, I may
answer this in more in generality in the specific in a sense that an eight
year old is not going to come, I don’t believe an eight year old would
come into a physician’s office to speak about sexual fantasies or made up
stories. For almost anybody speaking about sexual issues even as an adult
in a physician’s office is an uncomfortable position and for an eight year
old to come in and speak about that in my opinion is not usually a fantasy
or a story. To be seven or eight and to have this knowledge is also not
usual. So I believe that what [the victim] told me was the truth because of
her age and because people don’t –
Defense Counsel: Again, I’m going to object as far as, a running objection
Your Honor as far as what she is saying is the truth. That’s the decision for
the jury to make, not, or the fact finder, not for her to decide, this is not an
opinion that she has the ability to make at this point as to whether or not a
young witness on the stand is telling the truth. Again, a continuing
objection as to any opinion as to whether or not she is telling the truth.
***
Court: Ladies and gentlemen of the jury, I’m going to instruct you that her
comment regarding her opinion regarding whether she was truthful or
not is stricken from the record and you should treat that as if it had never
been said.
(Tr. at 82-83.)
With respect to Christine Shestak’s testimony, the record indicates as follows:
Prosecutor: During and based on your contacts with her do you perceive
any indication that she made or fabricated this story –Defense Counsel: Again, Your Honor, for the record I’m going to object
as far as the form of the question, as far as fabrication. I think that’s
something that wouldn’t be within the realm of the counselor to make a
determination of whether or not she is telling the truth. She can take a
history from a young lady as to what she believes happened, but she
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certainly can’t make a determination as to whether or not she is telling the
truth or not.
Court: Had you finished the question?
Prosecutor: I had not finished the question.
Court: Complete the question and then we’ll address the objection.
Prosecutor: Ms. Shestak, based on your contacts with the victim, did you
perceive any indication that she may have fabricated the story about her
abuse out of some need?
Defense Counsel: Again Your Honor, the same objection I just stated
seconds earlier with regard, I don’t think she has the ability to make a
determination as to whether or not she is telling the truth or not telling the
truth. She has the ability to take a history and go off of that history that
she is being provided, but I certainly don’t think she has the ability to
make a determination as to whether or not she is telling the truth and
would object to any opinion rendered by this lady regarding that aspect of
this question.
Court: Objection overruled.
Prosecutor: You may answer now.
Shestak: Her statements were congruent with her experience and I did
not see anything that indicated that she had any need to tell this story.
***
Prosecutor: Did you learn anything from your interviews with the child
that, which would be inconsistent with [the victim] being the victim of a
sexual abuse?
Shestak: No, I did not.
***
Prosecutor: And generally, not with regard to [the victim], generally do
you have an opinion on the credibility of child sexual abuse victims as a
whole?
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Shestak: In general the research demonstrates and my clinical experience
upholds that the majority of children who talk about having been sexually
abused are giving truthful details and that it has happened to them.
(Tr. at 119-20, 133-34.)
With respect to Amanda Mayle’s testimony, the record indicates as follows:
Prosecutor: Do you perceive any indication that she may have fabricated
the story –Defense Counsel: I again Your Honor for record purposes object to her
making any type of opinion with regard to whether or not she has
fabricated this matter. Again, that’s for the fact finder to determine
whether or not she has fabricated this matter or telling the truth. If this
lady had the ability to be able to determine whether or not a person that
comes in to see her has the ability to tell the truth I think she would make
a lot of money as far as being able to do this and be able to come into
Court and testify. There is no lie detector test that has the ability to do
that, that is admissible in Court and there is no device that I’m aware of
that has the ability to determine whether or not a person is or is not telling
the truth. So whether or not she is fabricating something I don’t believe
she has that ability based on her qualifications to give an opinion as to
whether or not she was fabricating what was told to her.
Court: Objection overruled.
***
Court: Why don’t you ask the question in its total again.
Prosecutor: Dr. Mayle, do you perceive any indication that [the victim]
may have fabricated this story of her abuse out of some need?
Mayle: No.
***
Prosecutor: Do you believe that, in your opinion, do you believe that [the
victim] is prone to exaggerate or fantasize in sexual matters?
Mayle: I saw no indication of that.
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Prosecutor: Did you learn anything about [the victim] which you believe
would be inconsistent with the victim being a victim of sexual abuse?
Mayle: No.
Prosecutor: Do you have an opinion on the credibility of child abuse
victims as a whole?
Mayle: Yes.
Prosecutor: What is it?
Mayle: I believe any child that makes any accusations should be believed
initially, it’s not up to them to prove that it happened, but rather that they
be believed and helped through the process.
(Tr. at 180-81.)
On Hoglund’s direct appeal, the Indiana Supreme Court overruled Lawrence and
held that vouching testimony, even in the context of sexual abuse cases, was no longer
admissible under the Indiana Rules of Evidence. (ECF 20-9 at 9.) But surprisingly, the
Court affirmed the judgment of the trial court on the basis that the admission of the
vouching testimony was harmless error. Id. at 13. In reaching this conclusion, the Court
considered the victim’s compelling testimony. Id. The Court also reasoned that, even
though the trial court improperly admitted vouching testimony, it was harmless error
because the testimony was cumulative of other vouching testimony admitted without
objection. Id. The State court noted that trial counsel’s objections to Shestak and Mayle’s
vouching testimony were not continuing and that trial counsel did not reassert the
objections when the focus of testimony returned to the victim’s credibility. Id.
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At the post-conviction relief stage, Hoglund argued that trial counsel was
ineffective for failing to continuously object to the testimony of Amanda Mayle and
Christine Shestak about the victim’s credibility and for failing to request a mistrial after
Dr. Carol Butler testified that the victim was telling the truth. (ECF 20-18 at 11-13.) The
appellate court reasoned that trial counsel’s performance was not deficient because, at
the time of trial, the change in the evidentiary rule regarding vouching testimony had
not yet occurred and because a mistrial was not warranted in light of the trial court’s
prompt admonition to the jury. (ECF 20-17 at 8-9.)
To summarize: on direct appeal, Hoglund was told that the trial court error was
harmless due to trial counsel’s mistakes; but, on post-conviction appeal, Hoglund was
told that trial counsel’s performance was not deficient; and neither decision discussed
whether the vouching testimony in its entirety was prejudicial. Though such
circumstances do not necessarily violate due process, here, I am concerned that the
direct appeal decision did not consider the context of trial counsel’s inaction.
Specifically, the reasoning of the Indiana Supreme Court suggests that trial counsel
should have made repeated objections even after the trial court indicated that such
objections would be futile. That approach entirely ignores the pragmatics of the
courtroom. As a practical matter, trial counsel must weigh the consequences of how
such objections appear to the judge and jury and balance that against preserving the
issue for appeal. Considering that the State courts had followed Lawrence for more than
25 years at the time of the trial, the balance weighed heavily in favor of not objecting --
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which the State court acknowledged at the post-conviction stage by finding that trial
counsel did not perform deficiently. At bottom, it is troubling that the Indiana Supreme
Court denied Hoglund a new trial because trial counsel did not satisfy the unreasonable
expectation of repeatedly making what would have been, at that time, entirely futile
objections.
Nevertheless, I find that neither of these claims presents a basis for habeas relief.
Even though I strongly question the State court’s harmless error analysis, the issue
before me is whether the vouching testimony produced a significant likelihood that an
innocent person has been convicted. See Howard, 185 F.3d at 723–24. I simply cannot
come to that conclusion. First, the victim’s testimony was extremely compelling.
Second, as detailed above, the defendant’s statement to the police was damning
evidence indeed. The jury was likely repulsed by Hoglund’s claim that his daughter
knew about male ejaculation because she “walked in on him” while he was in the
process of ejaculating. And when he was asked if his daughter had performed fellatio
on him, he said “not unless he . . . Was passed out sleeping and (she) took it upon
herself.” (Tr. 152.) He then offered to the police that maybe it happened when he was
“fucked up.” (Tr. 152.) I think it is fair to say that the jury likely viewed this as
extremely incriminating. As I found above, in my view, the case against Hoglund was
strong even without the testimony of the three experts. So I cannot find that the state
courts’ determination that the error did not prejudice Hoglund was unreasonable.
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Certificate of Appealability
Pursuant to Section 2254 Habeas Corpus Rule 11, I must grant or deny a
certificate of appealability. To obtain a certificate of appealability under 28 U.S.C. §
2253(c), the petitioner must make a substantial showing of the denial of a constitutional
right by establishing “that reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
I grant a certificate of appealability on the following issues: 1) whether trial
counsel’s failure to properly object to the hearsay statements from the three experts
relaying what the victim had told them constitutes ineffective assistance of counsel; 2)
whether the admission of vouching testimony was a due process violation; and 3)
whether the due process claim on the vouching testimony was procedurally defaulted.
For these reasons, the court DENIES the habeas corpus petition; GRANTS a
certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11; and
DIRECTS the clerk to enter judgment in favor of the Respondent and against the
Petitioner.
SO ORDERED on August 22, 2018.
/s/ Philip P. Simon
Judge
United States District Court
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