Earls, Fairly W. v. McCaughtry, Gary

In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-2364

FAIRLY W. EARLS,

Petitioner-Appellant,

v.

GARY R. MCCAUGHTRY, WARDEN,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 02 C 46—J.P. Stadtmueller, Judge.

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ARGUED MAY 21, 2004—DECIDED AUGUST 16, 2004

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Before BAUER, KANNE, and DIANE P. WOOD, Circuit

Judges.

BAUER, Circuit Judge. This habeas corpus appeal arises

from Fairly W. Earls’ 1999 convictions for first-degree sex-

ual assault of a child pursuant to Wisconsin Statute § 948.02.

Earls appeals, claiming he was denied effective assistance

of counsel in violation of his Sixth Amendment rights. We

agree and remand this case to the District Court to issue

Earls’ writ, unless the State elects to retry him within 120

days.

2 No. 03-2364

Background

The facts of this case arise out of a camping trip that took

place over Labor Day weekend in 1997. Among those on the

trip were Earls, his wife, and the family of J.M.O., the six-

year-old child Earls was accused of having assaulted. There

were also other friends present at various times—about 15-

20 people all together. Over the course of the weekend, the

State claimed there were four incidents in which Earls

touched J.M.O. inappropriately. We will briefly summarize

the incidents.

On August 30 the families had a party at the campsite to

celebrate Earls’ birthday. J.M.O. testified that Earls touched

her vaginal area over her clothing while she sat on Earls’

lap during the birthday party. There were several people sit-

ting near Earls, but no one witnessed the touching; Earls car-

ried on conversations with other people while J.M.O. was on

his lap. J.M.O. stated that the second incident1 also occurred

during the party when she and Earls went to Earls’ shed to-

gether; again, J.M.O. testified that Earls rubbed her vaginal

area over her clothing. No one witnessed the incident, and

no one saw the two go to the shed together. The last incident

occurred the following evening after the group returned to the

campground after spending the day in nearby Dundee,

Wisconsin. About nine people were sitting in a gazebo at the

campsite in a well-lit area, J.M.O. was sitting on Earls’ lap.

No one who was present witnessed any improper touching.

Nine days after the camping trip, J.M.O. told her mother

that Earls had touched her inappropriately over Labor Day

weekend. J.M.O.’s mother waited several days before con-

1

Earls was charged with four counts of assault but convicted of

only three. The difference between the charges and the convictions

may be explained by the fact that, in her testimony, J.M.O.

considered inappropriate touching on the way to the shed and at

the shed as a single incident whereas the State counted these as

two separate incidents.

No. 03-2364 3

tacting authorities. On September 23, 1997, J.M.O. was

interviewed by a social worker at the Child Protection

Center at Children’s Hospital in Milwaukee, Wisconsin.

That interview was videotaped. J.M.O. asserted that Earls

touched her inappropriately three times. The subsequent

medical exam found no evidence of sexual abuse.

At his trial, Earls’ defense was that he never touched J.M.O.

in an inappropriate manner and that she was mistaken or con-

fused as to the events of Labor Day weekend. J.M.O. testified

at trial to three incidents of touching. Elizabeth Ghilardi,

the social worker who had initially interviewed J.M.O., also

testified at trial; in part of her testimony she stated that she

believed J.M.O. was telling the truth. Additionally, J.M.O’s

mother and father testified, as well as J.M.O’s aunt and uncle.

All testified to J.M.O.’s truthfulness regarding the accusation.

Earls’ counsel never objected. No witnesses testified to corrob-

orate J.M.O.’s story regarding the events of Labor Day week-

end; all witnesses stated that they did not see any inappro-

priate behavior. In addition to the witnesses, the jury also

viewed the videotaped interview between Ghilardi and J.M.O.;

at the conclusion of the interview Ghilardi tells J.M.O.: “I’m

very sorry that Fairly did that to you. He should not have

been touching you down there . . . [t]hat was not okay . . . .”

and “we don’t want him to do this to you anymore.” Earls’

counsel was instructed to redact that portion of the tape

prior to showing it to the jury; he failed to do so. The jury

took a transcript of the video with them into their delibera-

tions. Earls did not testify at trial. The government’s closing

argument was largely based on J.M.O.’s truthfulness.

Earls was found guilty of three counts of first-degree

sexual assault of a child and sentenced to 45 years’ impris-

onment and 20 years’ probation. Earls now files this habeas

appeal claiming he received ineffective assistance of coun-

sel; specifically, that counsel failed to object to the live tes-

timony regarding J.M.O.’s truthfulness, and that counsel

failed to redact the portions of the videotape that contained

4 No. 03-2364

Ghilardi’s judgment concerning the events of Labor Day

weekend. Earls also argues that the admission of such im-

proper testimony prevented him from receiving due process.

We address these claims below.

Discussion

We review the majority of this habeas corpus appeal

under the standards set out in the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA

applies where the state court has made an application of

Federal law. In those cases, a writ may not be granted

unless the state court proceedings resulted in a decision

that was contrary to, or involved an unreasonable applica-

tion of, clearly established Federal law. 28 U.S.C. § 2254(d)(1).

Earls argues that the State court made an unreasonable

application of Federal law. An “unreasonable application”

occurs if the state court correctly identifies the governing

legal rule but unreasonably applies it to the facts in the

petitioner’s case. Anderson v. Cowan, 227 F.3d 893, 896 (7th

Cir. 2000). While there is no exact definition of “unreason-

able,” we have noted that in reaching such a conclusion, we

must find something more than that the state court made

an incorrect application of the law. Washington v. Smith,

219 F.3d 620, 628 (7th Cir. 2000).

For one portion of the analysis below, we apply the pre-

AEDPA standard of review because the State court did not

adjudicate an aspect of a Federal claim on its merits.

Walton v. Briley, 361 F.3d 431, 432 (7th Cir. 2004). That

portion of the opinion deals with the prong of the Strickland

test that considers whether an attorney’s performance was

deficient. Under the pre-AEDPA standards we review ques-

tions of law and mixed questions of law and fact de novo.

Dye v. Frank, 355 F.3d 1102, 1107 (7th Cir. 2004).

No. 03-2364 5

I. Ineffective Assistance of Counsel Claims

Earls contends that his Sixth Amendment right to effec-

tive assistance of counsel was violated. We review these

claims under the framework established in Strickland v.

Washington, 466 U.S. 668 (1984). In so doing, we use a two-

pronged analysis, asking whether counsel’s performance was

deficient and whether that error resulted in prejudice to the

defendant’s case such that there is a reasonable probability

that, absent the error, the outcome of the case would have

been different. Id. at 687, 694.

A. Deficient Performance

Earls alleges two errors on the part of his trial counsel in-

volving failure to object to the testimony of an expert

witness. Earls also alleges error by his attorney for failure

to object to lay testimony. We will briefly discuss each

omission on the part of Earls’ attorney and the applicable

Wisconsin law.

1. Expert Testimony

The admission of expert testimony is governed by Wiscon-

sin Statute § 907.02, which states: “If scientific, technical,

or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experi-

ence, training, or education, may testify thereto in the form

of an opinion or otherwise.” Wisconsin case law directs that

an expert witness may not give testimony regarding the

truthfulness of another witness. State v. Haseltine, 352

N.W.2d 673, 676 (Wis. Ct. App. 1984). The facts in Haseltine

illustrate the problem with such testimony. In that case,

the defendant was accused of having sexual contact with his

sixteen-year-old daughter. A psychiatrist testified that in

his opinion, there “was no doubt whatsoever” that the

6 No. 03-2364

accuser was a victim of incest. Id. at 675-76. In reversing

the lower court, the Wisconsin Court of Appeals stated that

it was a violation of Wisconsin Statute § 907.02 to have an

expert witness opine as to the truthfulness of the victim’s

testimony. Id. at 676; see also State v. Romero, 432 N.W.2d

899, 904-05 (Wis. 1988) (police officer and social worker may

not offer opinions as to whether seven-year-old was telling the

truth when she said her step-father sexually assaulted her).

But see State v. Jackson, 523 N.W.2d 126, 129 (Wis. Ct. App.

1994) (finding permissible questions to defendant regarding

the veracity of witnesses testifying against him when the

purpose of the inquiries is to impeach defendant).

Wisconsin has noted that it is a duty left solely to the jury

to assess the credibility of witnesses. Such testimony is

harmful at trial because it impermissibly interferes with

the jury’s role. Romero, 432 N.W.2d at 904-05 (“The testi-

mony in this case was not helpful to the jury. Rather, it

tended to usurp the jury’s role. The credibility of a witness

is left to the jury’s judgment.”).

Earls believes his attorney committed two errors regard-

ing this provision of the law. The first was in failing to ob-

ject to portions of Ghilardi’s expert testimony when she

commented on J.M.O.’s truthfulness. Ghilardi is a social

worker who specializes in working with children who are

victims of physical or sexual abuse. The text of the relevant

testimony is as follows:

Q: In this interview with [J.M.O.] throughout the course

were you looking for those things which you already de-

scribed to see if it appears if the person is being truthful

with you?

A: Yes.

Q: And did you notice anything like that?

A: Again, she resisted suggestibility. And she appeared

to be able to let me know when she didn’t know the an-

swer to something as we were talking.

No. 03-2364 7

Q: Was there anything that you look for that you saw in

[J.M.O.] that would indicate that she was not being

truthful?

A: Nothing that I noted at the time, no.

....

Q: Or anything to indicate that she was just trying to

say what you wanted to hear?

A: No.

Q: Or anything to indicate to you that she was just telling

you what somebody else had told her to tell you?

A: No.

Tr. Vol. 112 at 196-97.

When asked at the post-conviction hearing why he did not

object, Earls’ counsel acknowledged that Ghilardi’s testimony

violated Haseltine, and said that his failure to object was

“an oversight” and that the impermissible testimony “slipped

by” him. Tr. Vol. 118 at 11.

The second error occurred when Earls’ attorney failed to

redact portions of the videotaped interview between Ghilardi

and J.M.O. in which Ghilardi ends the interview with her

assessment that she’s “sorry that Fairly did that to you,”

“[h]e should not have been touching you down there,” and

“we don’t want him to do this to you any more.” Tr. Vol. 118

at 16-17. In the pre-trial hearing, both sides’ attorneys and

the trial court judge agreed that the statement should be

redacted from the tape; the judge instructed Earls’ counsel

to make the redactions before the tape was shown to the

jury. Earl’s attorney failed to do this and did not object

when the jury requested a transcript of the tape to bring

into the jury room. When asked to explain, the attorney

stated that he had “forgotten” to redact the tape and

characterized this failure to act as an “oversight.”

8 No. 03-2364

With regard to the above-listed attorney errors, the

Wisconsin Court of Appeals did not make a finding as to

whether counsel’s failure to object to Ghilardi’s testimony

and failure to redact the videotape constituted deficient per-

formance, it moved instead directly to the issue of prejudice.

We now consider whether Earls’ counsel’s conduct constituted

deficient performance.

We recognize that review of counsel’s performance under

Strickland must be “highly deferential”; the propriety of all

actions should be viewed at the time of counsel’s conduct

rather than with the benefit of hindsight; we also recognize

that there is a wide latitude for behavior stemming from

trial strategies. Strickland, 466 U.S. at 689-90. In reviewing

trial counsel’s actions in the above situations, we find that

the repeated failure to object to the testimony in question

clearly fell below an objective standard of reasonableness.

The nature of the case highlights the central role that

J.M.O.’s credibility played in Earls’ conviction. There were

no witnesses who could corroborate J.M.O.’s story, there

was no physical evidence of the assaults, and no witnesses

testified to any impropriety involving Earls. Whether Earls

was found guilty hinged on whether the jury believed

J.M.O. We can think of no strategic reason why Earls’

counsel would not have objected to the pieces of question-

able testimony going to this issue; indeed, counsel admits

such failures to object and redact were unintentional “over-

sights.” Similarly, we can think of no reason that the impor-

tance of that testimony would not have been apparent at the

time of the trial. The areas of Wisconsin evidentiary law in

play here are sufficiently clear; indeed the cases in which

these evidentiary questions are examined are almost

factually identical to Earls’ case. See Haseltine, 352 N.W.2d at

674-76 (involving psychiatrist testimony going to veracity

of 16-year-old accuser where there was no other evidence of

incest); Romero, 432 N.W.2d at 900-05 (involving testimony

of seven-year-old’s mother, school guidance counselor and

No. 03-2364 9

a police officer going to her veracity when there was no

other evidence of sexual assault).

2. Lay Testimony

Earls also objects to testimony given by J.M.O.’s mother,

father, aunt, and uncle. The questioning of each of these

witnesses followed a similar pattern in which the prosecu-

tor would ask the witness whether, from their experience,

they believed J.M.O. to be truthful, and whether he or she

thought there was any reason J.M.O. would have made up

her story regarding the weekend. Each witness testified

that they believed J.M.O. was truthful and did not make up

her story about Earls.2 Earls’ counsel did not object to this

testimony.

Wisconsin Statute § 906.08(1) allows the introduction of

reputation evidence after a witness’s character for truthful-

ness has been attacked, but cautions that, “[t]he [reputation]

evidence may refer only to character for truthfulness or

untruthfulness.” The case, State v. Romero, makes clear that

2

For example, J.M.O.’s aunt’s testimony was as follows:

Q: Do you know any reason that [J.M.O.] would be making up

stories or making up this sort of allegation against Mr. Earls?

A: No.

Q: And I guess as [J.M.O.’s] aunt you’ve know her since she was

little, obviously?

....

A: Yes.

Q: And do you think you know her well enough to be able to tell

us whether you have an opinion as to whether she is generally

a truthful child?

A: I believe she is.

Tr. Vol. 113 at 153-54.

10 No. 03-2364

there is a line between admissible testimony that goes to a

witness’s general reputation for truthfulness and inad-

missible testimony that goes to whether a witness is being

truthful in a specific instance. In Romero the Wisconsin

Supreme Court found that certain testimony from a police

officer and a social worker regarding their interviews with

a seven-year-old who accused her stepfather of molesting

her was inadmissible. The Court noted, “[t]he statements

were not simply opinions as to [the child’s] character for

truthfulness under sec. 906.08(1), Stats. Rather, they were

impermissible opinions that [the child’s] accusations were

true.” Romero, 432 N.W.2d at 904.

We believe this is the correct framework in which to eval-

uate the testimony of J.M.O.’s family members. On appeal,

the Wisconsin Court of Appeals held that the testimony was

admissible under Wisconsin Statute § 906.08(1), reasoning

that because J.M.O.’s character for truthfulness had been

attacked, the testimony was admissible. We view askance

this holding by the State court. However, because it is not

our place to second-guess state courts in interpreting state

law we must find that the State court did not make an

unreasonable application of Strickland when it found

counsel’s failure to object to testimony given by J.M.O.’s

mother, father, aunt and uncle did not constitute deficient

performance.

B. Prejudice

Having found that Earls’ representation fell below an ob-

jective standard of reasonableness with regard to the social

worker’s testimony and videotape, we turn to the issue of

whether that deficient performance prejudiced Earls’ trial.

As noted above, prejudice occurs when we can determine

that there is a reasonable probability that, but for the er-

rors, the outcome of the trial would have been different.

Strickland, 466 U.S. at 694. The Wisconsin Court of

No. 03-2364 11

Appeals found that the attorney’s errors did not prejudice

the trial; we find this determination to be unreasonable.

As discussed above, the sole issue before the jury was

whether J.M.O. was telling the truth. There was no physi-

cal evidence of abuse and no witnesses who could corrobo-

rate J.M.O.’s version of the events of Labor Day weekend.

The lack of witnesses is especially disturbing given the fact

that two of the incidents were said to have occurred when

there were numerous others present. For the most part, the

witnesses that the government called were family members of

J.M.O., who could not verify her story—the only support they

could lend was asserting that, in their experience, they had

not known J.M.O. to lie. Ghilardi was the only non-biased

witness who appeared before the jury; she appeared as an

expert who specialized in working with children who were

likely victims of sexual abuse.

We have previously held that when a trial comes down to a

single issue such as the credibility of a witness, deficient per-

formance by defense counsel regarding that credibility issue

may cause prejudice. Montgomery v. Petersen, 846 F.2d 407,

412-13 (7th Cir. 1988) (finding that counsel’s failure to

introduce a witness to corroborate defendant’s alibi was

prejudicial where government based its case on the testi-

mony of defendant’s purported accomplice). Similarly, we

have noted that where, like here, the defense attorney made

multiple errors as opposed to a single error, the cumulative

effect of those errors should be considered together to

determine the possibility of prejudice. Washington v. Smith,

219 F.3d 620, 634-35 (7th Cir. 2000). In this case, Ghilardi’s

testimony was pivotal—indeed, the jury asked for a tran-

script of her videotaped interview to consider while they

deliberated. Unfortunately, that testimony twice wandered

into assessing the credibility of J.M.O.’s accusation—an issue

that should have been left solely for the jury to determine.

Given the facts and circumstances of this trial, we find that

the State court was unreasonable in finding that there was

12 No. 03-2364

not a reasonable probability that, absent counsel’s errors,

the outcome of the trial would have been different.

C. Procedural Default

We briefly address an issue of procedural default raised

by the government regarding Earls’ counsel’s failure to

redact the videotape. The government argues that Earls

failed to raise his claim in his brief for the State appellate

court and that omission “deprived the Wisconsin Court of

Appeals the opportunity to address this claim separately.”

Br. of Respondent-Appellee at 26; see also Ellsworth v.

Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001) (stating a

petitioner must fairly present a claim so that the state court

has a “meaningful opportunity” to address it). This argu-

ment is baseless. Earls brief before that court explicitly

states, in its argument labeled “Earls’ Counsel was Ineffec-

tive,” that: “Mr. Earls was denied the effective assistance of

counsel at trial guaranteed by the Sixth Amendment to the

United States Constitution . . . by his counsel’s failure to . . .

redact the videotape to exclude Ghilardi’s comments about

Earls.” Docket 10: Exhibit B at 28. The brief goes on to

discuss and apply the Strickland test. Id. The Wisconsin

Court of Appeals then addressed the claim in paragraphs 3-

7 of its resulting opinion. We find Earls’ claim was not

procedurally defaulted.

II. Due Process Claim

Because we find for Earls on his first claim, we decline to

address his Due Process claim.

Conclusion

Accordingly, this case is REVERSED and REMANDED to the

district court to grant Earls’ writ of habeas corpus, unless

the State elects to retry him within 120 days.

No. 03-2364 13

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-16-04