Thill v. Richardson, 20-2965

996 F.3d 469

Ross R. THILL, Petitioner-Appellant,

v.Reed A. RICHARDSON, Respondent-Appellee.

No. 20-2965

United States Court of Appeals, Seventh Circuit.

Argued April 1, 2021

Decided May 3, 2021

Thomas Brady Aquino, Attorney, WISCONSIN STATE PUBLIC DEFENDER, Appellate Division, Madison, WI, for Petitioner - Appellant.

Abigail C.S. Potts, Attorney, OFFICE OF THE ATTORNEY GENERAL, Wisconsin Department of Justice, Madison, WI, for Respondent - Appellee.

Before Manion, Rovner, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

A Wisconsin jury found Ross Thill guilty of sexual contact with A.M.M., his ex-girlfriend's eight-year-old daughter. At trial, A.M.M. testified that Thill had sexually assaulted her, and the prosecution presented forensic evidence corroborating her testimony—Thill's semen was found on her underwear. Thill's defense was that his jilted ex-girlfriend framed him by saving his semen for over a year, planting it on her daughter's underwear, and then coaching her to make false accusations. While cross-examining Thill and in closing arguments, the prosecutor referenced Thill's failure to tell the police during his initial interview that he believed his ex-girlfriend had the means or motivation to frame him.

In state postconviction proceedings, Thill argued that the prosecutor impermissibly used his silence after receiving Miranda¹ warnings to impeach him—violating Doyle v. Ohio , 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) —and that his trial counsel was ineffective for failing to object. The Wisconsin Court of Appeals concluded Thill had not demonstrated prejudice. Because this conclusion was not contrary to nor an unreasonable application of clearly established federal law, we affirm the district court's denial of habeas relief.

I. Background

A. Charges and Trial

In late 2011, Thill dated A.M.M.’s biological mother, April Gray. After they broke up, A.M.M. would occasionally stay the night at Thill's house to spend time with his two daughters. The sexual assaults allegedly occurred during these visits. The last of these visits occurred on March 8, 2013. A.M.M. claimed that Thill sexually assaulted her in his car on the way to his house. A.M.M. underwent a sexual assault exam and a forensic interview with a social worker. Shortly afterward, the state charged Thill with one count of repeated sexual assault of A.M.M. In June 2014, a four-day trial commenced.

1. The State's Case

Gray testified that she and Thill had dated for a few months near the end of 2011. When they were together, she would sometimes bring A.M.M. with her to Thill's house because Thill had two daughters around A.M.M.’s age. According to Gray, she cared more about Thill than he did about her, and so they broke up. After their breakup, A.M.M. continued to occasionally spend the night at Thill's house.

Though A.M.M. is Gray's biological daughter, her legal guardian is Gray's mother, Barbara Martin. Martin was out of town with her husband during the weekend of March 8, 2013, and Gray was taking care of A.M.M. She and Thill arranged for A.M.M. to spend the night at his house on Friday, March 8. Gray testified that the morning of March 8, as A.M.M. was getting ready to go to school, she told Gray that Thill had touched her inappropriately in the past. Gray told A.M.M. that if that were true, she would not be able to go back to Thill's house. A.M.M. began to cry and said she wanted to spend time with her friends. According to Gray, she did not believe A.M.M. at the time.

Gray testified that while A.M.M. was normally excited to go to Thill's, she seemed distressed when Thill arrived to pick her up alone and without his daughters around 5 p.m. A.M.M. packed a change of clothes and brought it with her, even though Martin had told Gray not to allow A.M.M. to pack any clothes. According to Martin, she stopped sending clothes with A.M.M. when she went to Thill's house because she would come home without them. Specifically, Martin testified that A.M.M.’s undergarments or pants would be missing. Thill would sometimes return them later in the week, after washing them.

Around 6:45 p.m., Gray received a call from Thill. He told her they were still on the road headed to his house but A.M.M. was crying and wanted to go home because she missed her grandmother. Thill put A.M.M. on the phone, and A.M.M. told Gray she wanted to come home. Shortly afterward, A.M.M. called back and said she wanted to go see Thill's daughters.

When A.M.M. arrived home the next morning, Gray testified she was acting unusual and so Gray became concerned something had happened. Martin arrived home later that night. Martin testified that she spoke with A.M.M. the next morning and A.M.M. told her that Thill had touched her. Martin then brought A.M.M. to the hospital, where she was examined by a sexual assault nurse examiner ("SANE"). At the hospital, when Gray spoke to the police, she told them that she did not believe A.M.M. because A.M.M. lies a lot.

The SANE nurse did not find any physical injuries on A.M.M. At trial, a state forensic scientist testified that semen was detected on A.M.M.’s underwear and the DNA from the semen stain matched Thill's DNA. No DNA or semen was detected on a swab of A.M.M.’s vaginal opening. Male DNA was found on a wipe of A.M.M.’s external genitalia area, but there was not enough to tell if Thill was the source.

About a week later, a social worker conducted a forensic interview with A.M.M. A videotape of the interview was played at trial in lieu of A.M.M.’s direct examination. During the interview, A.M.M. read portions of her journal to the social worker. She stated that, when they were in his car, Thill had put both his finger and his "peter" in her crotch. She told the social worker it happened in the car's front seat and Thill had taken her pants and shirt off. She further stated that the incident in the car was not the first time it had happened, and that Thill had touched her previously in various locations in his house and car.

On cross-examination, A.M.M.’s testimony conflicted somewhat with the details she told the social worker over a year earlier. She testified, for example, the assault on March 8 took place in the car's back seat. She also stated that her shirt was on and her pants were pulled down. Defense counsel asked her about some "stories" she had told, including that her grandmother had died and that Thill's neighbor found her wandering in the woods near his house.

2. The Defense

Thill's defense at trial was that Gray had framed him by planting semen on A.M.M.’s underwear and coaching her to make false accusations. On Gray's cross-examination, she admitted that she had been untruthful to law enforcement officers in the past.

Thill testified in his own defense. According to Thill, when he and Gray had sex and did not use a condom, she would have him ejaculate into Tupperware-like containers near the bed. He stated that after he and Gray broke up, her behavior began to concern him. Gray would call his work and ask about him. She would also hang out in the parking lot outside his workplace and show up to his house. Thill's former boss testified that the restaurant where Thill worked from October 2011 until February 2012 would occasionally receive several calls in one night from the same number. The female caller would ask whether Thill was working. When she asked Thill about the calls, he told her it was his "crazy ex."

According to Thill, when he picked A.M.M. up on March 8, Gray tried to hug and kiss him. He then ran some errands with A.M.M. in tow. On the drive back to his house, A.M.M. began to ask him some "unusual" questions that he thought were inappropriate. He thought Gray had put her up to it. Shortly afterward, he noticed that A.M.M. was crying. He called Gray and put A.M.M. on the phone with her. He began to turn around to bring A.M.M. home, but she then changed her mind and decided to go to his house. Thill testified that the rest of the night was uneventful. A.M.M. seemed to not be getting along with his daughters. When he dropped her off the next morning, he told Gray that he no longer wanted A.M.M. to come to his house.

The defense also called an expert witness, Dr. David Thompson. He is a specialist in child clinical psychology. He testified that false memories can be planted in children. Children's memories can be shaped by external influences, like their parents.

Repeated interviews can also influence what a child remembers. Dr. Thompson identified several "red flags" in the social worker's interview with A.M.M. These included that A.M.M. was relying on her journal and had difficulty reading some of the words in her journal.

3. The Prosecutor's Comments

After Thill was arrested, he was taken in for an interview and read his Miranda rights. He then made some statements to the police about his whereabouts on March 8, 2013, and what he was doing. He told the police he had contact with A.M.M. that day and had made a phone call to Gray. Thill then invoked his right to remain silent. He did not tell the police during that initial interview that he thought Gray was framing him for sexually assaulting A.M.M.²

During trial, the prosecutor referenced Thill's failure to tell the police his theory that Gray had framed him. Specifically, during his cross-examination, the following exchange occurred:

Q: Isn't it true that the first time you've told this account is today?

A: No. I've had discussions with [my attorney] before.

Q: Aagh. But when you had the opportunity to tell law enforcement these facts that you hoped would exonerate you, you did not do that?

A: No, I did not.

During closing argument, the prosecutor made the following argument:

Now, folks that are under investigation are absolutely entitled to remain silent. I must have said that to 150 clients when I was a defense attorney, you shut your mouth, I'll tell you when you can speak, and God help the ones who didn't listen to me. But if what he told you is true, wouldn't we want to know

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