O'Bryant v. Nunn

1

ALEN DEAN O'BRYANT, Petitioner, v. SCOTT NUNN, Warden, Respondent.

No. CIV-21-153-R

United States District Court, W.D. Oklahoma

May 20, 2022

ORDER

DAVID L. RUSSELL UNITED STATES DISTRICT JUDGE

Petitioner appearing through counsel, seeks a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Doc. No. 1. Pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) the matter was referred to United States Magistrate Judge Suzanne Mitchell for preliminary consideration. Judge Mitchell issued a Report and Recommendation in which she recommended the Petition be denied. Doc. No. 23. Petitioner has timely filed his objection [Doc. No. 24], and the matter is ripe for decision. On de novo review, for the reasons set forth below the Court ADOPTS the Report and Recommendation to the extent it is consistent with this Order and DENIES the Petition.

I. Background

Petitioner was convicted of four counts of child sexual abuse based on the testimony of the victim L.W. Having exhausted his claims before the Oklahoma Court of Criminal Appeals, Petitioner presents four grounds for relief to this Court: (1) ineffective assistance of trial counsel; (2) denial of due process as a result of improper bolstering of witnesses by other witnesses; (3) improper vouching for L.W.'s testimony by the prosecutor; and (4) cumulative error. Doc. No. 1 at 5-10. Judge Mitchell recommends the Court deny the petition on all four grounds. Doc. No. 23 at 1. The Court will address Petitioner's grounds for relief in the same order as the Report and Recommendation.^[1]

The Court's obligation in assessing Petitioner's objection to the Report and Recommendation is to conduct a de novo review of those portions of the Report and Recommendation to which Petitioner makes specific objection. The issues are considered in the context of the highly deferential standard of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) as discussed by Judge Mitchell. Petitioner, although represented by counsel, provides few citations to Supreme Court precedent, and does not address the standard of review, which requires that the Oklahoma Court of Criminal Appeals' application of federal law, as set forth by the Supreme Court, be unreasonable.^[2]Owens v. Trammel, 792 F.3d 1234, 1242 (10th Cir. 2015).

II. Ground Two

In Ground Two Petitioner argues that the trial court improperly allowed certain testimony by pediatrician Dr. Stockett, DHS employee Abby Walden, forensic investigator Kara Marts, ^[3] and the victim's mother, Beth Miller. He contends the objectionable testimony served to improperly bolster the victim's credibility, which deprived him of fair trial in violation of his due process rights. The Court will consider Petitioner's argument as to each witness separately, and then in total, paying close attention to the deferential standard of the AEDPA.^[4]

Regarding the State's expert, Dr. Stockett, on direct appeal the Oklahoma Court of Criminal Appeals concluded that “the expert testimony incidentally corroborated the other testimony, but it did not tell the jurors which result to reach.” Doc. No. 17-5 at 6. Judge Mitchell concluded that the testimony to which Petitioner objects did not deprive him of a fair trial. Her conclusion was premised in part on the fact that Dr. Stockett did not opine that Petitioner had abused L.W. Doc. No. 23 at 15-16.^[5] Petitioner disagrees with Judge Mitchell's conclusion, arguing:

First, the magistrate makes the claim that although Dr. Stockett testified that she relied on the statements of L.W., “she did not opine that Petitioner had committed the sexual abuse.” Report and Recommendation at 15-16. Petitioner asserts that this is a dubious mode of analysis.

Petitioner was on trial, was in fact the only defendant on trial in this case, accused of sexual abuse against L.W.-whom Dr. Stockett claims to believe. The magistrate makes it appear that there might be a third-party perpetrator, that Dr. Stockett may have believed that L.W. had been abused but that Petitioner is not the one who did it.

With respect to the magistrate, this observation is nonsensical under the circumstances of the trial. No third-party was charged. No party or evidence suggested a third-party perpetrator, and the testimony of Dr. Stockett was clearly vouching for [the] truth of the specific allegations of L.W. made against Petitioner, not some unknown, un-named third-party.

Doc. No. 24 at 10-11 (emphasis in the original).

To prevail on his claim, Petitioner must establish that the complained about testimony rendered his trial fundamentally unfair. Dr. Stockett testified:

Q: Have you ever had a child come in and it was later proven that the child was lying?

A: Yes.

Q: Okay. And I assume you've had cases where it's proven that the child is not lying?

A: Yes, the majority of the cases in fact.

***

Q. Are you the one who makes that determination of whether a child is lying or not?

A. Well, I determine whether what they tell me is consistent with what they have previously reported. And I make my own judgment of whether what they're saying is reliable.

Tr. Vol. III at 634. She testified that the absence of physical signs of abuse did not mean that L.W. was lying and that due to the consistency between the history reported by L.W. to the forensic interviewer and the information conveyed directly by L.W., she believed L.W. had been sexually abused. Tr. Vol. III at 640, 642-43.

“Inquiry into fundamental fairness requires examination of the entire proceedings, including the strength of the evidence against the petitioner ....” Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002) (citing Donnelly v. DeChristophoro, 416 U.S. 637, 643 (1974)). “Because a fundamental-fairness analysis is not subject to clearly definable legal elements, when engaged in such an endeavor a federal court must tread gingerly and exercise considerable self-restraint.” Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002)(quotation marks and citation omitted).

First, the Court addresses Petitioner's characterization of Judge Mitchell's conclusion as “nonsensical” because she characterized the testimony as not implicating Petitioner. The Tenth Circuit considered similar expert testimony in Parker v. Scott, 394 F.3d 1302 (10th Cir. 2005). Considering the similarities, the Court quotes from the opinion at length:

Dr. Inhoffe, who had interviewed and physically examined the child after the incidents, testified as an expert in child abuse. Parker objects to Dr. Inhoffe's opinion testimony during three parts of the trial where she concluded that the child's excessive sexual knowledge was “consistent with” that of a victim who had been sexually abused. Near the close of her direct examination, Dr. Inhoffe testified as follows:

Q: From what you reviewed, was [the child] consistent in what she was saying?

A: Yes.

Q: And after the detailed history that she had given you and that you had conducted, do you feel as though you are able to give your opinion as to whether or not she was sexually abused?

A: Yes.

Q: Would you please tell the ladies and gentlemen of this jury what your expert opinion is as to whether or not [the child] was sexually abused?

A: I believe that her information throughout the entire evaluation was consistent with a child who had been sexually abused.

App. at 411. Next, after a lengthy cross-examination that challenged the credibility of Dr. Inhoffe's direct testimony, on redirect examination the prosecution asked Dr. Inhoffe, “And is your opinion today that sexual abuse took place?” She responded “Yes.” Id. at 428. Finally, Parker called Dr. Inhoffe as an adverse witness in the defense's case in chief. During crossexamination by the prosecution, she responded “Yes, it is” to the prosecution's question, “And is it still your opinion that [the child] was the victim of sexual abuse of a minor child?” Id. at 553.

Whether Dr. Inhoffe's testimony amounted to impermissible vouching is a close call. Nevertheless, viewed in its entirety, we cannot conclude that her testimony violated the general due process standard outlined in Supreme Court precedent. Dr. Inhoffe's testimony centered around her medical examination of the child and statements made by the child showing precocious familiarity with the sexual function. It was Dr. Inhoffe's opinion, taken in context, that the child's statements of excessive sexual knowledge were consistent with abuse. The expert did not opine or testify that Parker committed sexual abuse.

Parker, 394 F.3d 1302, 1311-12 (10th Cir. 2005) (footnote omitted and emphasis added). Here, similarly, Dr. Stockett did not opine that Petitioner committed sexual abuse. Judge Mitchell's analysis is in accordance with Tenth Circuit authority.

Even assuming that Dr. Stockett's testimony was vouching, when considered in the context of the entire trial, her testimony did not render the trial fundamentally unfair.^[6] Cross examination of Dr. Stockett was directed to the defense theory that the absence of physical findings was because L.W. had not been sexually abused. In addition, L.W. testified, was subject to thorough cross-examination and the jury had ample opportunity to consider her credibility. Furthermore, the prosecutor's closing argument made no effort to rely on Dr. Stockett's opinion to support L.W.'s credibility.

[W]e did not call Dr. Mary Stockett to come in here and say that Alen O'Bryant committed those crimes against [victim]. That wasn't her purpose. Her purpose was because . . . in a case like this you'd expect [physical evidence of abuse]. And guess what? That doesn't match up with what her experience is. And this is what she does for a living. And this is what she's researched . . . That's the reason that we called her. Not to say Alen O'Bryant did

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