McMullin v. Amsberry

310 Or.App. 542

485 P.3d 278

Keith Allen MCMULLIN, Petitioner-Appellant,

v.Brigitte AMSBERRY, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.

A164404

Court of Appeals of Oregon.

Argued and submitted March 14, 2019.

April 7, 2021

Ryan Scott argued the cause and filed the briefs for appellant.

Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Aoyagi, Presiding Judge, and DeVore, Judge, and Landau, Senior Judge.^*

LANDAU, S. J.

Petitioner was charged with numerous counts of first-degree rape, first-degree sodomy, and first-degree sexual abuse arising from his alleged sexual abuse of his adopted adolescent daughter. The nurse who examined the complainant found no physical evidence of sexual activity, but she testified at trial that it was not unusual for an adolescent victim of sexual abuse not to show physical evidence of abuse. Petitioner's trial counsel did not call an expert witness to rebut the nurse's testimony in that regard. Nor did counsel cross-examine her about her assertion that the absence of physical signs of abuse was not unusual. Petitioner ultimately was found guilty of most of the charges.

Petitioner sought post-conviction relief. He claimed that his criminal trial counsel was constitutionally inadequate, in violation of Article I, section 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the United States Constitution, because she failed to adequately investigate whether to dispute the testimony of the state's witness concerning the significance of the absence of physical evidence of abuse.

The state¹ contended that trial counsel's investigation amounted to a reasonable strategic decision under the circumstances that, in any event, did not prejudice petitioner.

The post-conviction court agreed with the state and entered judgment denying petitioner's claim for relief. Petitioner appeals, reprising his claims that his criminal trial counsel was constitutionally inadequate. We conclude that the post-conviction court erred and that petitioner is correct that trial counsel was constitutionally inadequate in failing to adequately investigate the significance of the absence of physical evidence of sexual abuse. We therefore reverse and remand with instructions to enter judgment ordering a new trial.

I. RELEVANT FACTS AND PROCEEDINGS BELOW

A. Before the Criminal Trial

Petitioner's 13-year-old adopted daughter reported that petitioner had been repeatedly sexually abusing her since she was five years old, starting with sexual touching and evolving to oral sodomy and, eventually, to repeated intercourse over several years. Following the report, Smith, a nurse practitioner at the Children's Center who specialized in child sexual assault, conducted a medical examination of the complainant. Smith observed that the child had "some decreased hymenal tissue" in one place but that it was a "normal variation" for a girl her age. Although there was no physical evidence of sexual abuse, Smith did not "expect" to find any.

The state ultimately charged petitioner with 10 counts of first-degree rape, five counts of first-degree sodomy, and 10 counts of first-degree sexual abuse.

Karabeika was appointed to represent petitioner. Karabeika anticipated that Smith would be called to testify for the state and that the nurse practitioner would state that it was not unusual for an adolescent victim of sexual abuse to show no physical symptoms of such abuse. Karabeika "struggled" with that idea and decided to consult with Dr. Brady, a former medical examiner. She sent Brady the examination report, but he responded that he would not be a helpful witness for the defense. Brady had reviewed the report but concluded that "he can't really help us." As Karabeika later recalled, Brady told her, "I've been retired for a long time. I haven't performed an exam in a while and I don't think I can help you."

Karabeika then located a second expert, Fitzgerald, a nurse practitioner whom she thought might be helpful. But after consulting with Fitzgerald, she concluded that the expert "had some really wacky ideas that weren't necessarily supported by the information I wanted to talk about." As she explained to petitioner, Fitzgerald was "an odd duck and not terribly likeable and frankly she goes off on tangents and I don't think she'd help us."

Karabeika also consulted with two other attorneys. As she later recalled, both lawyers told her that "[y]ou're not expected to see damage unless there's an acute incident. There's really not going to be—she's a menstruating teenager and she's of a certain age. There is not going to be findings one way or the other." One of the lawyers, Cohen, gave what Karabeika regarded as a "glib" response that "you can't make nothing out of no hymen anymore." The other lawyer, Maxfield, told Karabeika that "[i]f you plan to aggressively cross the expert on the ‘normal’ exam, we should talk about which studies she is likely to hide behind and what weaknesses there are in those studies." Maxfield noted that "[t]here is plenty of literature to suggest that it would be highly unusual for a girl to suffer repeated ‘blunt force trauma’, especially recently and not have physical evidence that the hymen has been torn." Maxfield cautioned, however, that such cross-examination "needs to be done surgically or it can blow up."

Maxfield suggested a different approach, one that appealed to the jurors’ common sense:

"Invite them to use their common sense. Does it make sense that a very thin, taut, nonelastic hymen would not tear when a hard penis that is two or three times the size of the opening is thrust into the vagina again and again? There is a reason married women no longer have hymens. Penetration tears the hymen. You know that. Yet the state wants you to believe that an adult erect penis was thrust into [the victim] again and again, twice a week for years and it never tore."

Karabeika ultimately decided not to retain an expert witness to testify for the defense and further decided not to challenge on cross-examination Smith's expected testimony concerning the insignificance of any physical evidence of sexual abuse. Based on her conversation with Maxfield, she concluded that the strategy of aggressively cross-examining Smith "could blow up in your face. It could backfire and you could basically give [the state] another platform to say the same thing that they've already said but in a new way with new information."

B. The Criminal Trial Proceedings

At trial, Karabeika's strategy was to challenge the complainant's credibility and, without expert testimony, appeal to the jurors’ "common sense," asserting the unreasonableness of the idea that an adolescent girl could be repeatedly sexually abused without any resulting physical evidence of abuse. In her opening statement, Karabeika told the jury that people working at the Children's Center "diagnose or at least look for injuries to support allegations of child abuse." Nevertheless, she continued, "despite the fact that [the complainant] claimed to have been abused for nine years and having intercourse for two-plus years, there isn't one shred of proof during that physical exam that she has been sexually abused." During the trial itself, Karabeika elicited from one of the state's witnesses that the child had a reputation for being untruthful, and from the complainant's pediatrician's testimony that the child had reported to him that she had never had any sexual experiences nor ever been forced to do something sexual that she did not want to do. Petitioner also testified, denying ever having any sort of sexual contact with the child.

As Karabeika expected, Smith testified that, although the complainant had reported multiple instances of sexual intercourse with petitioner, the child's physical examination was normal. Smith explained that a "Kellogg" study² of 36 pregnant adolescents established that "you can have a penetrating trauma and have a completely normal exam." Karabeika did not object to Smith's testimony and conducted no cross-examination about the Kellogg study or the witness's assertion that she had "expected" a normal physical examination despite the allegations of repeated penetrative trauma.

In closing argument, Karabeika returned to her chosen strategy:

"The physical piece of this doesn't add up. [The complainant] is about 5 feet tall, maybe shorter than that. She alleges nine years of abuse, two and a half years of being raped on a regular basis daily by her father, who is a large man. They say there are no physical findings that she was raped. No physical findings that there are any injuries to her. How is it possible that this small child could be forced to be raped this many times and for there not to be one shred of proof that she was abused in this action? Now the Children's Center people said, ‘Oh well, that's what we expected.’ Well, that's not true, because that's why they do this exam. They are looking for evidence of injuries or tearing or scarring or something. She had nothing—nothing. So that gives you nothing to go on except, wow, is she telling us the truth. Why is she saying she is being raped this often? Wouldn't there be some evidence of it? Nothing."

The jury returned verdicts of guilty on 10 counts of first-degree rape, two counts of first-degree sodomy, and 10 counts of first-degree sexual abuse.

C. The Post-Conviction Hearing

Petitioner filed a petition for post-conviction relief. He alleged, among other things, five claims for relief related to Karabeika's handling of Smith's testimony: (1) Trial counsel "failed to retain a qualified expert witness to help her prepare to cross-examine the state's expert on the ‘Kellogg Study’ "; (2) counsel "failed adequately to cross-examine *** Smith to show that her understanding of the Kellogg study was incorrect"; (3) counsel "failed to...