Molder v. Kirkegard et al

Filing 51

ORDER ADOPTING 46 FINDINGS AND RECOMMENDATIONS; denying 50 Motion to Supplement. Petition 17 DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. Signed by Judge Donald W. Molloy on 1/23/2017. (TAG)

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

JAN 2 3 2017
Clerk, US
District

.

cf~trict Court
Miss 0ntana
OU/a

CV 13-59-GF-DWM-JTJ

KIRK R. MOLDER,
Petitioner,

ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS OF
MAGISTRATE JUDGE

vs.
LEROY KIRKEGARD; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Defendants.

On August 19, 2013, Petitioner Kirk R. Molder filed an application for writ
of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) Molder was appointed
counsel and filed an amended petition on December 8, 2014, presenting claims for
relief based on ineffective assistance of counsel. (Doc. 17.) On October 19, 2015,
this Court adopted Magistrate Judge John Johnston's Findings and
Recommendations denying the State's motion for summary judgment on statute of
limitations. (Doc. 43.) Judge Johnston now recommends denying Molder's
claims. (Doc. 46.) Molder objects. (Doc. 47.) Molder is entitled to de novo
review of those specific findings or recommendations to which he objects,
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28 U.S.C. § 636(b )(1 ), while those findings and recommendations not specifically
objected to are reviewed for clear error, McDonnell Douglas Corp. v. Commodore
Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error exists ifthe
Court is left with the "definite and firm conviction that a mistake has been
committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000). Because
the parties are familiar with the factual and procedural background of this case, it
will not be restated here.
Molder presents six claims: ineffective assistance of trial counsel for failing
(1) to introduce evidence relating to Brittany Highland's 1999 anal-genital
examination in Miles City; (2) to introduce Savannah Highland's statement that
she had sex with two boys prior to being examined by Dr. Gerrity in 2001; (3) to
request a specific unanimity instruction under State v. Weaver, 964 P.2d 713
(Mont. 1998); (4) to introduce evidence bearing on the girls' motive to fabricate
sexual abuse allegations; (5) to properly address the legal relationship of Molder
to Savannah and Britany; and (6) that the cumulative impact of trial counsel's
deficiencies prejudiced Molder's defense and requires reversal. Judge Johnston
concluded that Molder' s ineffective assistance of counsel claims fail under
Strickland v. Washington, 466 U.S. 668 (1984), and that Molder fails to establish a

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single constitutional error. Molder objects as to his first, second, and sixth1
claims, arguing his first and second claims meet the Srickland standard, and that
cumulative error prejudiced him. Molder is incorrect.

LEGAL STANDARD
Counsel is ineffective if (1) his "performance was deficient" and (2) that
"deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. To
meet the first prong, "the defendant must show that counsel's representation fell
below an objective standard of reasonableness." Id. To meet the second, the
defendant must show there is a "reasonable probability" that "but for counsel's
unprofessional errors, the result of the proceeding would have been different." Id.
at 694.
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), habeas relief may not be granted "with respect to any claim that was
adjudicated on the merits in State court proceedings" unless the state decision was
( 1) "contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States," or (2)
"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). Federal review of

Molder's brief identifies his cumulative error claim as "Claim Five." (Doc. 47 at 6.)
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a state court's Strickland determination is "doubly" deferential, because Strickland
requires state courts to give deference to choices made by counsel and AEDPA in
turn requires the federal court to defer to the determination of the state court.

Harrington v. Richter, 562 U.S. 86, 105 (2011) (citing Knowles v. Mirzayance,
556 U.S. 111, 123 (2009)).
Under AEDP A, a state court decision is "contrary" to clearly established
United States Supreme Court precedent "if it applies a rule that contradicts the
governing law set forth in [Supreme Court] cases, 'or if it confronts a set of facts
that are materially indistinguishable from a decision"' of the Supreme Court and
nevertheless arrives at a result different from the Supreme Court precedent. Early

v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-06
(2000)). An "unreasonable application" of clearly established federal law occurs
if the state court's application "was objectively unreasonable." Williams, 529 U.S.
at 409-10, 413.

ANALYSIS
A.

Molder' s Claims
1.

Brittany's 1999 Miles City Anal-Genital Examination.

Molder objects to Judge Johnston's finding that the state court did not
unreasonably apply Strickland in determining that Steve Hudspeth's (Molder's

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trial counsel) decision to withhold the medical record was strategic, and that
inclusion of the record at trial would not have created a reasonable probability of a
different outcome. (Doc. 47 at 3.) The record, a letter from Dr. Patricia
Pezzarossi to the Montana Department of Public Health and Human Services,
Child and Family Services Division, discussed examinations Dr. Pezzarossi
performed on Brittany and Savannah Highland on October 29, 1999. (Doc. 23-52
at 25.) It indicated that Brittany had an intact hymen and no signs of vaginal
trauma. It also stated that although Savannah "denied any sexual abuse, she
refused to let [Dr. Pezzarossi] examine her vaginal area," and that "she did not
want [Dr. Pezzarossi] to make a record of anything or write anything down that
she said as she feared her stepfather would find out what she was saying." (Doc.
23-52 at 25.)
Molder argues that Brittany's records were directly relevant to Counts III
and V, which charged Molder with having sexual intercourse with Brittany "on or
about and between February 10, 1998 and February 10, 1999." (Doc. 47 at 4.)
Molder believes the record would have rebutted Brittany's trial testimony that
Molder had sex with her "two to four times" a week during this time period. Id.
This argument, however, overlooks the fact that the examination record also
included potentially damaging information regarding Savannah and that
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Hudspeth' s decision not to introduce the record was a tactical one designed to
keep that damaging information out.
Instead of introducing the record, Hudspeth used cross-examination to
present the jury with evidence indicating the Pezzarossi examinations did not
indicate sexual abuse. (Doc. 49 at 14.) Hudspeth explained this strategic decision
in his closing argument, when he argued that the findings of Pezzarossi' s exam
undercut the prosecution's case that Molder was having sex with Brittany in early
1999 because Brittany and Savannah had been returned to Molder after the exam
took place. (Doc. 23-54 at 20.) He described his tactic as "one of the things that
[defense attorneys] can do when we represent people charged with crimes in this
country. It's called waiting in the weeds ... but I asked the witnesses questions
about [the exam] and it came in, and now they realize that maybe they charged
their case wrong." Id. Counsel's "strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable." Strickland, 466 U.S. at 690. Here, Hudspeth, after examining
Dr. Pezzarossi's letter, made a tactical decision not to introduce it. The state
court's determination that his decision did not violate the first prong of Strickland
is not objectively unreasonable.
Nor was the state court's determination that Molder was not prejudiced by
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the omission. As indicated above, the state court noted that Hudspeth was able to
elicit testimony from the family's social worker that Child and Family Services
policy was not to return children to the custody of an alleged sexual abuse
perpetrator if the children showed signs of that abuse, but that Brittany and
Savannah had undergone examinations and afterward been returned to Molder' s
custody. (Doc. 23-23 at 344-47, 361-62, 376-77.) Hudspeth also elicited
testimony from Dr. Nora Gerrity that she had learned from the family's social
worker that some sexual abuse allegations had been made while the family was
living in Forsyth, that physical examinations may have been done at the time, that
doctors are under a legal obligation to report suspected cases of sexual abuse, and
that the children were returned to Molder' s care after these allegations were made.

(Id. at 409-11, 417-18, 420.) Molder was thus given the exculpatory benefit of the
record while being shield from its inculpating elements. The state court's
determination was not unreasonable, and Molder's first claim for relief is denied.

2.

Savannah's Statement She Had Sex with Two Boys

Molder also objects to Judge Johnston's finding that the state court
reasonably determined that Molder failed to establish Hudspeth was ineffective by
not attempting to introduce Savannah's statement she had sex with two boys. His
objection does not succeed.
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Montana's rape shield statute bars "evidence concerning the sexual conduct
of the victim ... except evidence of the victim's past sexual conduct with the
offender or evidence of specific instances of the victim's sexual activity to show
the origin of semen, pregnancy, or disease which is at issue in the prosecution."
Mont. Code. Ann. § 45-5-511. The state court reasonably determined that
Hudspeth's conclusion that Savannah's statement did not fall within either
exception was not deficient performance as the statute bars the evidence at issue.
First, Savannah's statement did not implicate Molder in prior sexual conduct with
her. Second, Savannah's statement would not have been offered "to show the
origin of semen, pregnancy, or disease ... at issue in the prosecution." Id. The
statement also did not fall within the limited exception recognized by the Montana
Supreme Court for evidence "narrowed to the issue of the complaining witness'
veracity" and relating to the victim's subsequently disproven prior assertion of
sexual abuse. State v. Anderson, 686 P.2d 193, 199-200 (Mont. 1984). 2 Hudspeth
did not perform deficiently by not attempting to introduce Savannah's statement in
light of the plain meaning of Montana's rape shield statute.

2

State v. Bauer, 39 P.3d 689, 696 (Mont. 2002) does not help Molder either. There, the
Montana Supreme Court noted that the Compiler's Comments to§ 45-5-511 describe the second
exception as "evidence that refutes an inference derived from physical evidence of the crime
offered by the victim." That description, however, does not control over the plain language of
the statute.
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Further, Molder was not prejudiced by the omissions of Savannah's
statement. As both the state court and Judge Johnston have noted, there was
reason to question the veracity of Savannah's statement, as it was made during the
time Savannah continued to deny sexual contact with Molder. The probative
value of Savannah's statement is also questionable, given that the injury to
Savannah's hymen would have resulted from penetration and it is unclear what
"having sex" meant in the context of the interview. 3 Savannah's statement was
also consistent with Dr. Gerrity's testimony that both Brittany and Savannah had
suffered penetrating trauma to the hymen, consistent with sexual abuse, (Doc. 2322 at 317-19; Doc. 23-23 at 388), and that she could not determine when or how
often the injury happened and who was responsible for the abuse, (Doc. 23-22 at
321, 323; Doc. 23-23 at 347, 378, 384). Finally, the jury was presented with
ample evidence, including testimony from Savannah, Brittany, and Shauna, and
the physical findings by both Dr. Gerrity and Dr. Maynard, that Molder had sexual
contact with the girls. This record demonstrates there was no reasonable
probability that the outcome of Molder' s trial would have been different had
Savannah's statement been introduced.

3

The trial court noted Molder had not produced a transcript of the interview and so it
could not address the context of Savannah's statement.
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Molder also argues his Fourteenth Amendment due process and Sixth
Amendment confrontation rights were violated by the application of the rape
shield statute. These claims are procedurally defaulted because they were not
presented to the state courts, and Molder has not presented cause and prejudice to
excuse the default, Coleman v. Thompson, 501 U.S. 722, 750 (1991); Edwards v.

Carpenter, 529 U.S. 446, 451 (2000), and, as discussed above, he has not
established a substantial claim of ineffective assistance of counsel such that
default should be excused, Martinez v. Ryan,_ U.S._, 132 S. Ct. 1309, 1320
(2012); Trevino v. Thaler,

-

U.S. -

, 133 S. Ct. 1911, 1918 (2013). Molder's

second claim for relief is denied.

3.

Specific Unanimity Instruction

Molder does not object to Judge Johnston's finding as reasonable the state
court's decision that Hudspeth's failure to request a specific unanimity instruction
and appellate counsel's decision not to raise a corresponding claim on direct
appeal did not constitute deficient performance.
The Montana Supreme Court has held that Article II, § 26 of the Montana
Constitution requires a trial court to give a specific unanimity instruction where
the defendant is charged with "a series of unrelated allegations of sexual
misconduct taking place over a period of years." Weaver, 964 P.2d at 721. In
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contrast, where the evidence shows the defendant's "persistent illegal acts were so
frequently perpetuated and so closely connected as to be properly viewed as a
single, continuous, running offense," a specific unanimity instruction is not
required. State v. Harris, 36 P.3d 372, 375-76 (Mont. 2001).
Here, the charged conduct is similar to that in Harris, and unlike that in
Weaver. The course of conduct that occurred, and the close connection between

the criminal acts against each girl, demonstrate that Molder' s acts formed a
continuous, running offense. As discussed at length by Judge Johnston, the jury
was presented with ample evidence of sexual contact between Molder and the
girls, including evidence specific to each count. (Doc. 46 at 33-37.) Neither
Hudspeth's failure to request a unanimity instruction nor appellate counsel's
failure to raise the issue on appeal constitute deficient performance. United States
v. Aguon, 851F.2d1158, 1172 (9th Cir. 1988) (en bane) (counsel's failure to

object not deficient where the claim lacked merit) (overruled on other grounds
Evans v. United States, 504 U.S. 255 (1992). The ample and specific evidence of

sexual conduct further shows that Molder was not prejudiced by the lack of a
specific unanimity instruction as there is no reasonable probability that such an
instruction would have altered the outcome of the trial.
To the extent Molder asks to evaluate Montana law regarding specific
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unanimity instructions, a federal habeas court may not "reexamine state-court
determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). Finally, Molder's attempt to advance a federal due process claim is
procedurally defaulted because he did not raise it in state court; even if the due
process claim were proper, Molder has not shown that lack of a specific unanimity
instruction so infected the entire trial that the resulting conviction violated due
process. Estelle, 502 U.S. at 71-72; Henderson v. Kibbe, 431U.S.145, 154
(1977); Cupp v. Naughten, 414 U.S. 141 (1973). Molder's third claim is denied.

4.

Evidence Related to the Girl's Motive to Fabricate Allegations

Molder does not object to Judge Johnston's finding that the state court
reasonably determined Hudspeth did not provide deficient performance when he
chose not to attempt to introduce evidence of a supposed shared motive between
Savannah, Brittany, and Shauna for fabricating their allegations against Molder.
The evidence at issue was a statement in Kirk Molder, Jr. 's guardian ad !item's
report providing that Kirk's therapist had reported that Kirk told her that he had
sex with Shauna at the direction of his sisters, and that his sisters were lesbians.
(Doc. 23-52 at 90.) Molder contends the statement demonstrates a motive for the
girls' to fabricate their abuse allegations: to draw attention from their own
misbehavior.
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The state court noted this hearsay-within-hearsay statement was inherently
unreliable and was uncorroborated. (Doc. 23-54 at 28.) Additionally, no evidence
showed the girls were even aware of Kirk's disclosure to his therapist. The state
court also noted the rape shield statute would bar the statement even were it
otherwise admissible. Id. Hudspeth's determination that Kirk's statement was
inadmissible was reasonable in light of these circumstances, as was his decision
not to use the statement to impeach the girls. 4 The evidence was suspect and its
probative value limited. And in light of the weight of evidence against Molder,
there was no reasonable probability that introduction of the statement would have
altered the outcome of his trial. Molder's fourth claim is denied.

5.

The Legal Relationship Between Molder, Savannah, and Brittnay

Judge Johnston rejected Molders claim that Hudspeth was ineffective
because he "conceded" one of the elements of the four incest charges, namely that
Molder was stepfather to Brittany and Savannah. (Doc. 46 at 45.) Molder does
not object to Judge Johnston's finding. In his petition, Molder argues that
4

Molder's reliance on Olden v. Kentucky, 488 U.S. 227 (1988) is misplaced.
In Olden, the victim was undisputably in a relationship with another man who saw
her exit Olden's vehicle after the rape occurred, allowing a reasonable juror to
infer the victim had motive to lie about the consensual nature of her sexual
encounter with Olden. Here, no evidence shows the victims knew of Kirk Jr.'s
statements, and the inference (that the girls invented the allegations to hide their
own sexual encounter) is beyond what a reasonable juror would make.
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Hudspeth should have introduced Judge McKittrick's order from the Youth in
Need of Care proceeding to undermine the incest charges, and that his failure to do
constituted ineffective assistance. (Doc. 17 at 40.) However, as Judge Johnston
observed, Hudspeth worked assiduously, and strategically, to challenge the legal
relationship element of incest. (Doc. 46 at 45.) Notably, Hudspeth elicited
testimony from the social worker involved in the Youth in Need of Care
Proceedings that Molder had been determined not to be the legal step-father of
Brittany or Savannah. (Doc. 23-23 at 408.) Additionally, Hudspeth's decision to
agree to the stipulation concerning Molder' s involvement in the Youth in Need of
Care proceeding was strategic, designed to prevent the recall of a witness, Rachel
Cotu, who the state proposed would discuss Judge McKittrick's initial finding that
Molder and Shannon Berg were common-law married. (Doc. 23-24 at 686.)
The state court reasonably found that Hudspeth's strategic decisions
regarding the stipulation and Judge McKittrick's order were not deficient.
Hudspeth articulated his strategy at the pre-trial conference and the record
demonstrates he made tactical decisions to carry that strategy out. (Doc. 23-22 at
26, 40-41.) Molder has not shown that the introduction of Judge McKittrick' s
ruling would have created a reasonable probability that the outcome of his trial
would have been different. Importantly, Hudspeth did not concede an element of
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incest, as Molder alleges. Instead, he chose a reasonable trial strategy which
included repeatedly attacking the family relation element of incest. Molder' s fifth
claim is denied.

6.

Cumulative Error

Molder argues cumulative error violated his constitutional rights. However,
as Judge Johnston found, Molder is unable to establish a single constitutional
error, and therefore no cumulative error exists. Fuller v. Roe, 182 F.3d 699, 704
(9th Cir. 1999). Molder does not object to this finding, and his claim of
cumulative error is denied.

B.

Certificate of Appealability
A certificate of appealability should issue for those claims where a

petitioner makes a "substantial showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2). Molder has not made a substantial showing that he was
deprived of a constitutional. See Miller-El v. Cockrell, 537 U.S. 322, 338 (2003).
A certificate of appealability is not appropriate.

C.

Molder's Pro Se Objections
After Molder's attorney filed objections to Judge Johnston's Findings and

Recommendations, Molder filed his own prose objections on September 9, 2016.
(Doc. 48.) "It is settled law that a defendant has the right to represent himself in a
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criminal trial and that he has the right to the assistance of counsel." United States
v. Daniels, 572 F.2d 535, 540 (5th Cir. 1978). However, a defendant "does not

have an absolute right to both self-representation and the assistance of counsel."
United States v. Bergman, 813 F.2d 1027, 1030 (9th Cir. 1987) (emphasis in

original). Because Molder has not been granted permission for hybrid
representation, Berman, 813 F.3d at 1030, his prose objections will not be
considered here.
CONCLUSION

Molder' s claims alleging ineffective assistance of counsel fail to show
ineffective assistance of either appellate or trial counsel. Strickland, 466 U.S. at
687. Accordingly,
IT IS ORDERED that the Findings and Recommendations of Judge
Johnston (Doc. 46) are ADOPTED in full.
IT IS FURTHER ORDERED that the petitioner's motion to supplement
(Doc. 50) is DENIED. Molder's petition (Doc. 17) is DISMISSED WITH
PREJUDICE. The Clerk of Court is directed to enter, by separate document, a
judgment in favor of the respondents and against the petitioner.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

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~

DATED this

1'.1J day of January, 2017.

lloy, District Judge
istrict Court

I

l_

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