United States District Court, D. South Dakota, Northern Division
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 ...