Gabaree v. Steele

792 F.3d 991

Clifton A. GABAREE, Jr., Petitioner–Appellee

v.Troy STEELE, Warden, Respondent–Appellant.

Clifton A. Gabaree, Jr., Petitioner–Appellant

v.Troy Steele, Warden, Respondent–Appellee.

Nos. 13–3486

13–3568.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 13, 2014.

Filed: July 8, 2015.

Gregory M. Goodwin, Asst. Atty. Gen., Jefferson City, MO, argued (Chris Koster, Atty. Gen., on the brief), for appellant-cross-appellee Troy Steele, Warden.

Elizabeth Unger Carlyle, Kansas City, MO, argued, for appellee-cross-appellant Clifton A. Gabaree, Jr.

Before BYE, SHEPHERD, and KELLY, Circuit Judges.

Opinion

KELLY, Circuit Judge.

Clifton Gabaree, a Missouri inmate, petitioned the district court¹ for a writ of habeas corpus, 28 U.S.C. § 2254. The court concluded that Gabaree's trial counsel had rendered ineffective assistance and granted Gabaree's petition in part and denied it in part. The State appeals the partial grant of relief, and Gabaree appeals the partial denial. We agree with the district court's conclusions and affirm the judgment.²

I. Background

In 1992, Gabaree began living with a woman who had two daughters, B.S. and A.S. Gabaree and the woman later had two children together, M.G. and B.G. In December 1996, B.S., A.S., and M.G. told an employee of the Missouri Department of Social Services that Gabaree was physically abusing them and B.G. The children “had marks, burns, and bruises consistent with the physical abuse they described; they were dirty and covered with untreated scratches and scrapes.” Gabaree v. State, 290 S.W.3d 175, 177 (Mo.Ct.App.2009). Dr. James Kelly, a pediatric physician, examined the children and determined that the marks had been inflicted intentionally.

Six-year-old B.S. also told a social worker that Gabaree had “put his ‘thingy’ and finger inside of her bottom ‘a long time ago,’ when she was three years old.” Gabaree, 290 S.W.3d at 177. B.S. said she saw Gabaree doing the same thing to A.S.; but A.S., who then was five years old, told the social worker that Gabaree had not “given her or her sister a bad touch.” Id. Yet A.S. had told her mother that Gabaree had “played with her privates with Q-tips when she and the other children were playing hide-and-go-seek with him.” Id. The daughters later gave videotaped interviews at the Child Protection Center in Missouri. B.S. again told the interviewer that Gabaree had “put his ‘private’ in A.S.'s ‘back private’ ” and had “put his finger in her front private and made her ‘suck his private.’ ” Id. A.S. this time said Gabaree had “touched her ‘butt’ and ‘pee pee’ with a belt and his hand.” Id. Both girls were examined for physical evidence of sexual abuse, but no evidence was found.

Gabaree was arrested and charged with three counts of statutory sodomy, three counts of first-degree child molestation, and six counts of child abuse. A jury found him guilty of all 12 counts, and the Missouri Court of Appeals upheld his convictions. On post-conviction review, however, the trial court granted Gabaree relief on his claim of ineffective assistance of trial counsel. The post-conviction court concluded that Gabaree's trial attorney had failed to impeach the girls by introducing statements they had made recanting their allegations of sexual abuse. The court concluded that counsel's performance prejudiced Gabaree and ordered the State to retry him.

Gabaree's second trial took place in 2003. At the trial, B.S. testified that Gabaree had sex with her when she was between three- and seven years old and that it “ ‘felt like being in hell.’ ” Gabaree, 290 S.W.3d at 179. B.S. also said she saw Gabaree having sex with her sister, A.S., who testified that Gabaree had “touched her ‘private part’ with his hands.” Id. Gabaree testified in his defense that he did physically discipline the children but explained that he did not do so in an abusive manner. He denied any sexual abuse but testified that he, his ex-wife (the mother of all the children), and the girls had bathed naked together and that during those baths, he may have had an erection that touched the girls. He suggested that the contact made during the baths may have led the girls to believe that they had been molested. The attorney for the State asked Gabaree on cross-examination if he had “leaned back and smiled ... kind of reliving this experience” when describing the possible sexual contact; counsel did not object to that suggestion. Also presented into evidence was the statement of an unavailable witness who had testified at the first trial that B.S. and A.S. had recanted their allegations of sexual abuse.

Two doctors also testified regarding their meetings with Gabaree and his step-daughters. Dr. Kelly described the marks on the children's bodies as “angry” and suggested they had been caused by belt buckles and cigarettes. He told the jury that, in his opinion, the wounds had been intentionally inflicted. Dr. Kelly also was permitted to testify about another doctor's finding that there was no physical evidence of sexual abuse, which he said was not surprising based on the passage of time and the body's ability to heal.³ Dr. Kelly also testified, without objection, that although he had not interviewed B.S. and A.S. regarding any allegations of sexual abuse and was not present when they were interviewed on that subject, he believed that their disclosure of the details of the sexual abuse was “a very consistent ... very credible disclosure from both of them.” On cross-examination, counsel asked few questions and made no attempt to impeach Dr. Kelly's assessment of the girls' credibility.

Dr. Gregory Sisk, a clinical psychologist, testified that he had interviewed Gabaree and administered psychological questionnaires designed to uncover abusive or neglectful attitudes. According to Dr. Sisk, Gabaree's answers suggested that he was using his children “to meet his needs, to give him comfort or love,” and also possibly to meet his sexual needs. Dr. Sisk opined that Gabaree “was holding onto parenting beliefs that contributed to abuse and neglect.” Gabaree's trial counsel did not object to Dr. Sisk's testimony. During cross-examination, in response to counsel's questions, Dr. Sisk further testified that if a person with children received the same scores on the questionnaires as Gabaree, “they're probably abusing or neglecting the children if they're acting on those beliefs.” When asked if a person necessarily acted in accordance with the beliefs documented by the questionnaire, Dr. Sisk responded, “I don't know how someone would approach the questionnaire and start writing down beliefs that were abusive but, yet, in practice, were not doing those.”

The State relied on the testimony of the doctors in its closing argument, reminding the jury that Dr. Kelly believed the girls were “credible, believable, and consistent” when talking about the sexual abuse and that Dr. Sisk had suggested that Gabaree had a “propensity toward violence” and “would use children to satisfy his own needs, including sexual needs.” In her closing argument, Gabaree's counsel mentioned neither doctor nor their testimony. Gabaree again was convicted of all 12 counts. He was sentenced to life imprisonment on the sodomy convictions, 7 years' imprisonment for each of the three child-molestation convictions, and a total of 38 years' imprisonment on the six counts of child abuse, with all terms to be served consecutively. His convictions and sentences again were upheld on direct appeal.

Gabaree then petitioned the state trial court for post-conviction relief, which was denied without a hearing. The Missouri Court of Appeals, however, reversed the trial court's decision and remanded for an evidentiary hearing. During that hearing, Gabaree's trial counsel testified that she had no memory whatsoever of the case except Gabaree's “unusual name” and an interview she had conducted with the two girls. Nor did counsel have any memory of what her trial strategy may have been, though she insisted that she has “never gone to trial without a theory or defense.”

Counsel also was questioned about her strategy regarding Drs. Kelly and Sisk. Although she did not remember any of the testimony, she agreed that a witness, even an expert witness, is not allowed to comment on the truth or veracity of another's statement. She stated that, as a general matter, she tries to object to testimony “that is really bad,” but she sometimes does not hear it and fails to object. In other circumstances, she added, she intentionally refrains from objecting because “it's easier just to let it go than to make a big deal and make the jury obvious that this is a problem.” Counsel reviewed the testimony of the doctors from Gabaree's second trial. She characterized Dr. Kelly's testimony as “non-responsive” and suggested that she “could also very possibly have just missed it.” Counsel described Dr. Sisk's opinion that Gabaree's tests suggested he was abusing his children merely as suggesting that Gabaree “needed parenting classes, in a sort of complicated ‘I am a doctor’ sort of way.” Counsel was less sure that she did not object to avoid drawing attention to Dr. Sisk's testimony and suggested that she “could have been [sic] easily been thinking I could argue this way. Then, of course, the question is, did I argue it away or did I not get that far?” Counsel acknowledged that, regarding arguing away Dr. Sisk's conclusions, “it could very easily not have been in the closing, because I didn't say it because I didn't think to put it in.”

After the hearing, the trial court again denied Gabaree's petition. Though it noted that the questionable excerpts of both doctors' testimony were inadmissible, the court of appeals affirmed the trial court's decision, concluding that counsel's stated possible reasons for not objecting to the doctors' testimony were not necessarily unreasonable. The Supreme Court of Missouri denied Gabaree's petition to transfer.

Gabaree then petitioned for a writ of...