Haas v. Commonwealth

74 Va.App. 586

871 S.E.2d 257

Michael HAAS, Petitioner,

v.COMMONWEALTH of Virginia, Respondent.

Record No. 0878-20-2

Court of Appeals of Virginia.

April 19, 2022

Michael Haas filed a petition on July 30, 2020, seeking a writ of actual innocence under Chapter 19.3 of Title 19.2 of the Code of Virginia. In a bench trial, the circuit court convicted him of forcibly sodomizing his sons, A.H. and L.H., who were eleven and nine years old, respectively. By final order entered July 22, 1994, the Circuit Court of Powhatan County sentenced him to two terms of life imprisonment, to be served concurrently.

Haas asserts that he is actually innocent of the offenses because expert consensus has evolved since his convictions and "under current standards," the physical examinations of his sons "reveal ... no indicia of sexual abuse." He also asserts that new scientific evidence both validates his sons’ recantations and shows that their accusations and trial testimony "were unreliable and invalid."

Upon review of the petition, the Commonwealth's response, Haas’ reply, the exhibits submitted with these pleadings, the record, the findings of fact certified by the circuit court under Code § 19.2-327.12, supplemental briefing ordered by the Court, and a joint evidentiary submission of the parties, we grant Haas’ petition.

BACKGROUND

I. Trial, appeal, and habeas proceedings

In 1992 and 1993, Haas lived with his then-wife, Elaine, A.H., L.H., and his daughter, J.H. J.H. had her own bedroom and the boys shared another bedroom, each with a twin bed.

Because Haas and Elaine were "continuously fighting," Haas slept about five nights a week in the boys’ bedroom.

A.H. testified that beginning in the summer of 1992, Haas "stuck his penis up [A.H.’s] butt." A.H. said Haas did this "[o]nce a month" for a total of "[f]ive times." A.H. said that afterwards, he had trouble going to the bathroom and "messed [his] pants." A.H. said that to deter Haas, he surrounded himself in bed with stuffed animals, had the family dog sleep in bed with him, and slept in his clothes. A.H. said that during "[t]he same year," Haas slept in L.H.’s bed, too. A.H. sometimes saw "[s]omebody's body" move "[u]p and down" when Haas slept in L.H.’s bed. A.H. said that one day after Haas slept with L.H., L.H. complained that "[h]is butt hurt." A.H. said he initially did not tell L.H. or anyone else what Haas had done to him because he was afraid of Haas. A.H. said Haas told him "[n]ot to tell anybody because it would probably split [the] family apart" and that if A.H. did tell, Haas would "get him." Haas also had hit A.H. with a belt, and A.H. had seen him hit J.H., too.

L.H. testified that Haas slept in his bed "lots of times." L.H. said Haas "took his private part and stuck it up my – my rear" "lots of times." L.H. said Haas continued doing so until the summer of 1993. L.H. said that he pushed his mattress up against the adjacent wall so he "wouldn't fall in the crack between [it and] the bed" while Haas was "[p]ushing [him] against the wall" when Haas’ penis was inside him. L.H. said that although it hurt, he "didn't scream that much out loud." He made "[l]ittle screams" "[l]ike crying" and told Haas that it hurt. L.H. said that he suspected Haas did the same thing to A.H. when Haas slept with him, but L.H. never discussed it with A.H. L.H. said he never told A.H. what Haas did to him because he "was scared [Haas] was going to kill" him.

Elaine testified that she was initially unaware that Haas was sexually abusing the boys, but she made several observations that corroborated their testimony. In the summer of 1992, Elaine noticed that A.H. started having the family dog sleep in bed with him. She said that A.H. later told her that he slept with the dog because it kept Haas from getting into his bed. At about the same time, A.H. was "messing in his pants a lot." She also observed that L.H.’s mattress was shoved against the adjacent wall. When she asked L.H. why it was in that position, he told her that he "didn't want to fall in the crack." She found blood in the middle of L.H.’s mattress "on a couple of occasions." At the time, she assumed either Haas or L.H. had a cut. Between December 1992 and March 1993, L.H. began occasionally smearing his feces on walls. He also started having trouble in school.

Elaine took the children and moved to her parents’ house in December 1993 because of Haas’ increasing domestic violence. She testified that he would throw furniture at them and beat the children. Elaine began taking the boys to a counselor named Susan Boyles; on Boyles’ advice, Elaine refused to let Haas see the children. As a result, Haas filed a petition for visitation. Elaine testified that on the Friday before a court hearing the following week, Boyles told the boys that they would be spending weekends with Haas. According to Elaine, the boys panicked because "they didn't want to go visit their dad, especially to spend the night." That same night, L.H. told her for the first time what Haas had done to him. A.H. testified that L.H. told Elaine that Haas "had been doing it to [L.H.]." When Elaine asked what that meant, L.H. said that Haas had "been molesting" L.H. A.H. confirmed that L.H. used the word "molested." A.H. said he himself then left the room and went to bed, but that he told Elaine the next day what Haas had done to him, too. According to Elaine, the boys said they had remained silent because Haas "threatened to kill [her] if [they] told."

L.H. testified that he told his mother that Boyles "told [him] that [Haas] probably did something to [him] when [Haas] slept with" L.H. L.H. confirmed that Boyles made that statement to him before he had told her or his mother about any abuse. According to Elaine, Boyles told her that J.H. reported seeing L.H. position two G.I. Joe toys "like two men making love." L.H. confirmed that Boyles asked him about this incident.

According to L.H., that was when Boyles told him "that [Haas] did something to [him] when" they slept together.

A.H. testified that Boyles asked him if Haas "has been doing anything weird to [him]" but A.H. denied it. She told him that if Haas "has been molesting you, just tell somebody." According to A.H., Boyles then told him that Haas himself had told Boyles that he had molested the boys. A.H. confirmed that, regardless of Boyles’ actions and statements, Haas had in fact "put his penis up [A.H.’s] butt."

Elaine testified that after the boys’ revelations, she reported the accusations to Powhatan County Sheriff's Detective Gregory Neal. Detective Neal separately interviewed Elaine, A.H., and L.H. Detective Neal thereafter arrested Haas in the presence of counsel. Haas denied the charges and said Elaine "has to be evil, that they were brain washing the kids." Haas also asked Detective Neal to have the boys medically examined.

L.H. and A.H. were subsequently examined at the emergency room of the former Medical College of Virginia ("MCV"). Dr. Jil Ryland, then a second-year pediatrics resident in MCV's emergency room, examined L.H. and testified as an expert witness without objection. Ryland testified that she had seen between twenty and twenty-five child victims of sexual abuse. She had also been trained "on the physical exam and physical findings that are abnormal" by Dr. Berrond, a "sexual abuse expert" at MCV. She sedated L.H. for the examination because he was scared. Referring to photographs taken during the examination, she identified "old healed tears ... at 12, 10 and 2 o'clock" as well as "a loss of anal puckering ... from 10 to 12 o'clock." She also identified loss of puckering "from 4:00 to 8 o'clock." She noted "a jagged appearance to the anal opening, which is abnormal, it should be circular or elliptical. It's very jagged from the old healed tears." "A rectum would be circular or oval in shape, not jagged with these old healed tears."

Ryland also noted "funneling, indicating repeated penetrating, something penetrating repeatedly causing a scarring in the area and a funnel appearance around the anus. And there's also venous pooling in that area, and it becomes congested, it turns kind of a purplish color to it." She opined that "[t]his was chronic, this was repeated and not in the past couple of months." She denied that the tears could have been caused by "a normal body function" or "a substance exiting the anus." To the contrary, she testified, "[i]t had to be a penetration from the outside, some penetrating object in a chronic nature." She concluded that "[i]t's consistent with sexual abuse."

On cross-examination, Ryland confirmed that she was familiar with "the book written by Hobbs & Wynn on the sexual abuse of children." Counsel questioned her about the "triad of ... signs that would be confirmatory with frequent anal intercourse." She confirmed that she detected the first sign, "thickening of the anal skin with reduction or obliteration of ... skin folds." She admitted that she could not confirm or deny the other two signs, "[i]ncreased elasticity of the anal sphincter muscle" and "reduction of the power of the anal sphincter muscle," because she did not perform a rectal exam, which "we normally don't do when we look at these children." She denied that L.H. had any underlying medical conditions that could have caused the healed trauma she identified. She also agreed that L.H. had been in a prone position when she examined him and that venous pooling and anal dilation could be seen in unabused children who were maintained in a "prone knee-chest position for five minutes."

Dr. David Marcello, an attending pediatrician in MCV's emergency room, observed L.H.’s examination by Ryland and also testified as an expert witness with Haas’ stipulation. Referring to the photographs of L.H.’s examination, Marcello, too, identified

a ragged appearance to the rectal anal area. It has an uneven pattern to it. There is evidence of decreased tissue wrinkling or folds.

There is evidenced loss of subcutaneous tissue

...