Craig v. Young

          OPINION AND ORDER

          CHARLES B. KORNMANN United States District Judge

         INTRODUCTION

         Jerry Lee Craig, Sr. filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his September 12, 2013, conviction and 150 year sentence for rape, sexual contact with a minor, and aggravated incest. After conducting an initial consideration of the petition I determined that he had raised claims under the Fifth, Sixth, and Eighth Amendments to the United States Constitution and ordered the respondents to file an answer or other responsive pleading. Respondents filed a motion to dismiss.

         BACKGROUND

          The victim of Craig's offenses, age nine at the time of the offenses, and her two younger siblings lived with Craig and his wife in Aberdeen and Presho, South Dakota, episodically when their mother was homeless or otherwise unable to care for them. In May 2012, the children's mother picked up her children from Craig in Presho and drove them to Aberdeen. Craig contends in his papers filed in support of his petition that the mother picked them up because she was concerned that Craig was trying to get custody of the children. The victim testified at trial that her mother picked them up from Presho . because the .victim called her mother and reported that she was being touched by Craig. The mother reported to the South Dakota Department of Social Services the next day that, during the trip, the victim reported inappropriate sexual contact with Craig. Six days after the initial disclosure, the victim was interviewed by Colleen Brazil ("Brazil") from Child's Voice, a medical evaluation center that specializes in conducting forensic interviews of children when there is suspected physical or sexual abuse. That interview was recorded by video tape and the video tape became a part of the victim's medical record at Child's Voice, along with the record of the medical checkup performed upon the child after the interview.

         Based upon the victim's allegations made during the interview with Brazil, Craig was indicted in August 2012 and charged with first degree rape, sexual contact with a child, and incest.^[1] Brazil also interviewed the victim's younger brother six days after the victim was interviewed. The victim's younger brother, age 8 at the time of the interview, claimed Craig had physically abused him and had "raped" him but he could not explain what, he meant by "rape." Brazil did not think his report of rape was reliable.. No sexual abuse charges were ever filed as to that allegation.

         Craig was interviewed by an Aberdeen police officer. He denied the allegations and claimed that the victim made the allegations in retaliation after being caught stealing from Craig. Craig did admit that, on one occasion, he awoke and realized he was touching the victim, mistakenly believing that he was touching his wife.

         At trial, the victim, who was by then age 10, testified that Craig put his fingers "down my pants and my underwear and he'd start touching my private parts, " that Craig touched her where her "poop comes out, " that he stuck his tongue in her vagina, forced her to touch his penis, that he kissed her chest and vagina, that he touched her vagina, and that he touched her bare chest. She denied that he had penetrated her vagina with his finger. The prosecutor did not ask the victim any questions as to date, place, number of times, or any sensory questions. He told the jury in opening statements that he was going to let the victim tell the details through the playing of the video recording of her interview with Child's Voice. The admissibility of the video had already been settled at an evidentiary hearing held prior to trial. Prior to cross examination of the victim, the video of the victim's interview with Brazil was played to the jury. A compact disc containing that interview was admitted into evidence but that exhibit is not part of the record and there is no transcript of that interview in the record for this Court to review. Some of the details that must have been given by the victim in the interview were referred to in the examination of other witnesses and in closing arguments. Following the playing of the victim's interview with Brazil, counsel for defendant then cross-examined the victim about her testimony and about statements she made during the interview.

         Brazil testified the day after the victim testified. The prosecution elicited testimony about delayed disclosure of sexual abuse, interview protocol, specific questions that an interviewer asks to determine what a child knows based upon personal experience and what a child knows based upon being told by someone, children's conception of dates and number of times an event occurs, and suggestibility. Brazil also testified that a common reason for inconsistencies between a victim's testimony on the stand and statements made during an interview is the phrasing of the question asked.

         Defense sought, both prior to trial and at trial, to question Brazil about the victim's brother's claims. Counsel for defendant argued that such questioning was necessary to support the defense theory that the victim and her siblings were coached by their mother to claim sexual abuse. The brother told Brazil that he had been "raped" but he could not tell Brazil what he meant by rape. The trial court excluded the evidence on several grounds including hearsay. The trial court ruled that the defense had failed to comply with SDCL 19-16-38 (now SDCL 19-19-806(1)) (a South Dakota rule of evidence allowing the admissibility of child hearsay statements regarding sexual abuse under certain circumstances), by failing to give notice so that a hearing could be conducted at which the statement must be shown to be reliable and the child must testify or be shown to be unavailable. The trial court also excluded the proffered evidence based upon lack of relevance, and under Rule 403, finding that any relevance was substantially outweighed by confusion of the jury and the resulting trial within a trial.

         The pediatrician who examined the victim following the forensic interview testified that there were no physical findings consistent with abuse and that physical findings were rare in sexually abused children who claim only touching occurred.

         One of the investigating officers testified that, upon questioning Craig about the victim's claims, Craig admitted that there had been an instance of accidental contact when he thought he was touching his wife. During the testimony of the investigating officers, counsel for Craig was able to elicit testimony that Craig denied sexually abusing the victim, that Craig claimed that the sexual abuse allegations were made in retaliation after Craig allegedly caught the victim's mother stealing from Craig, and that the victim had been living with many different men during the time she lived with her mother. Counsel elicited testimony that the victim's mother told law enforcement that she was afraid Craig was trying to get custody of her children, that she first contacted social services with a claim that Craig had spanked or otherwise physically abused the children, and that a day or two later she made a report to social services of suspected sexual abuse. Counsel's questions also elicited testimony that no investigation was ever made into Craig's claims that the charges were retaliatory or that some other person may have been the source of the victim's sexual knowledge.

         Craig did not testify at trial.' Following the presentation of the prosecution's case, the defense rested without putting on any evidence. Outside the presence of the jury, the trial judge asked Craig whether he had discussed his right to testify with counsel and Craig stated that he had. The Court asked Craig whether he understood that it was his decision whether or not to testify and Craig stated it was his own decision and that it was his choice not to testify. Trial counsel thereafter made a record with the court reporter wherein Craig stated that he understood he had a right to testify or not and that he understood the risks of both testifying and not testifying. Counsel stated "And the decision that we made is that you would not be testifying in this case?' to which Craig responded "That is right, I believe our case is made."

         During deliberations, the jury requested an opportunity to again view portions of the video recording of the victim's interview at Child's Voice. The trial court overruled defense counsel's Confrontation Clause objection and allowed the jury to come into the . courtroom and view the video. Only the judge, court reporter, and jury were present. After resuming deliberations the jury sent a second request to view a portion of the video. Without further consulting with counsel, the trial court again brought the jury into the courtroom to view the requested portion. The parties were advised about the second viewing prior to the jury returning to court with their verdicts.

         Following conviction, Craig requested the court allow him to fire his court appointed attorney and proceed pro se during the sentencing phase. He was allowed to do so after a hearing at which he was given the warning suggested by the United States Supreme Court in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 4 L.Ed.2d 562 (1975). Craig thereafter refused to cooperate with the presentence interview .or with the state law mandated psycho-sexual evaluation. An additional hearing was held at which Craig was further warned of the perils of proceeding pro se at sentencing.

         Based in part upon Craig's failure to accept responsibility for his actions, the trial court sentenced him in July 2013, to three consecutive terms of 50 years on each of three counts of rape and ten years each on three counts of sexual contact with a child and one count of incest, those sentences to run concurrently with the 150 year total sentence on the rape counts. The trial court held that the crimes were "severe" and that the psychological effects on the victim would likely last for her lifetime. The trial court placed emphasis on the fact that the child had been placed in petitioner's care "and instead of protecting the victim, he took advantage of that fact and victimized her." The trial court compared petitioner's case with the sentences imposed in other state cases.

         Craig appealed to the South Dakota Supreme Court with the assistance of new counsel. He contended on appeal that the trial court abused its discretion in restricting his questioning of Brazil, that the trial court abused its discretion in allowing him to proceed pro se at sentencing because he did not knowingly, intelligently, and voluntarily waive his right to counsel, ' that his sentence constitutes cruel and unusual punishment, and that he ...