United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LARRY M. BOYLE, Magistrate Judge.
Pending before the Court in this habeas corpus action are various motions filed by the parties that are ripe for adjudication, including Respondent Warden Terema Carlin's Amended Motion for Partial Summary Judgment. (Dkt. 38-2.) All parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 36.) See 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. Having reviewed the record and considered the arguments of the parties, the Court finds that oral argument is unnecessary, and enters the following Order.
Petitioner challenges his conviction for aggravated battery in the Fifth Judicial District Court in Twin Falls County, Idaho. The events giving rise to his conviction are as follows. On August 4, 1998, Petitioner was charged with striking his girlfriend, C.B., repeatedly in the face, based on allegations that the repeated blows broke her jaw. "Great bodily harm" is a required element of felony aggravated assault, distinguishing it from misdemeanor assault. (State's Lodging A-1, p. 5.) The charges were based, in part, on Detective Lewin's investigative report of July 28, 1998, containing the following summary of the victim's and witnesses' statements:
C.B. said that she was getting in a car to leave when Steven Anderson reached in through the open car window and grabbed C.B.'s glasses from her face. C.B. stated that she cannot see without her glasses. C.B. said that she got out of the car and ran after Anderson. C.B. said that she was physically struggling with Anderson to get her glasses back. C.B. said that Anderson hit her repeatedly and would not return her glasses. Dan Winkler [C.B.'s ex-husband] stated that he had witnessed this event.
C.B. said that he went into the residence and sat in a chair in the kitchen. C.B. then said someone came into the kitchen and struck her across the face. C.B. said that she could not see who it was that hit her because she didn't have her glasses on. Dan Winkler stated that Anderson was the one who had hit C.B in the kitchen. Winkler said Brenda Owens and Pam Olson also witnesses this event.
Owens admitted to seeing the incident outside but was not in the kitchen when C.B. was hit. Pam Olson said that he witnessed Steven Anderson walk into the kitchen and hit [C.B.] with great force across the face, knocking [C.B.] out of the chair onto the floor. Olson said that Anderson had hit [C.B.] with an open hand. On August 28, 1998, the prosecution amended the criminal complaint to allege that Petitioner broke C.B.'s jaw by striking her in the face with an open hand.
(State's Lodging C-1, p. 109.)
Petitioner argues that the actual videotape of Detective Lewin's interview of C.B. and Winkler contained several different statements, when compared to the written report. In the videotape, C.B. said Petitioner hit her in the face when she was trying to get her glasses back, and Winkler said he honestly did not think that Petitioner broke her jaw at that point. Winkler also reported, that, after C.B. was struck and fell on the floor, either Ms. Olsen or Ms. Owens "hollered, He hit her right at the table.'" Winkler said he thought this was the point when Petitioner broke C.B.'s jaw. In the videotape, C.B. said that she did not remember Petitioner hitting her in the house. (Dkt. 22, pp. 16-17.)
C.B., Brenda Owens, and Danny Winkler testified at trial. Petitioner, Pam Olsen, and Detective Lewis did not testify. The videotape and written interviews were not admitted into evidence. In Petitioner's direct appeal briefing, presented through counsel, Petitioner explained the strength of the State's case regarding whether Mr. Anderson struck C.B.:
First, C.B. testified that Mr. Anderson was yelling at her in the kitchen. She was sitting at the kitchen table and Pam Olsen, the only other person in the kitchen, was standing over by the refrigerator. C.B. then saw someone lean over the table and the "next thing she knew" was that she was screaming because her face hurt.
Additionally, Danny Winkler and Brenda Owens testified that they saw C.B. and Mr. Anderson in a verbal argument outside the house. They stayed outside when C.B. and Mr. Anderson went into the kitchen. They then heard C.B. yelling in pain and immediately went into the kitchen. There they saw C.B. on the floor, crying and holding her face in obvious pain. When they entered the kitchen, they heard C.B. cry out: "He hit me." As Mr. Winkler and Mr. Anderson were the only men present, C.B. was obviously referring to Mr. Anderson.
Finally, Mr. Anderson was not in the kitchen when they arrived, but Ms. Owen and Mr. Winkler saw Ms. Olsen still standing by the refrigerator. The three of them, Mr. Winkler, Ms. Owen, and Ms. Olsen, helped C.B. get up off the floor. It was impossible to argue that Ms. Owen was the one who hit C.B. as defense counsel acknowledged on the record. Therefore, it must have been Mr. Anderson as he was the only other person in the kitchen.
In light of that evidence it was not possible to argue that Mr. Anderson did not strike C.B.
(State's Lodging D-3, pp. 12-13.)
Dr. Mark Allen Plant, C.B.'s treating physician, testified at trial for the prosecution. He opined that C.B. was hit with a fist or an object, because an open-handed slap could not have caused the injuries. (State's Lodging A-2, pp. 17-62.) While the investigator's written statement reported that Ms. Olsen stated both that Petitioner hit C.B. with great force (knocking C.B. from the chair onto the floor) and that he hit her with an open hand, Dr. Plant's opinion on the type and amount of force it would take to break a person's jaw suggests that both of the descriptions offered by Ms. Olsen could not be true. Ms. Olsen did not respond to her subpoena and the trial court would not continue the trial to permit the prosecutor to locate and compel her to come to trial, and thus the jury did not hear her testimony.
C.B. testified that she had first reported to Dr. Plant that she broke her jaw when she wrecked her bicycle into Winkler's porch. However, she reported the crime two weeks later when she also reported that Petitioner raped her, at which time she said that Petitioner had hit her and broken her jaw two weeks earlier. (State's Lodging A-2, pp. 202-12.) The prosecution argued at trial that Petitioner must have hit C.B. with a closed fist because of the severity of the injury. Based on the evidence presented at trial, the jury convicted Petitioner of felony aggravated battery, rather than the lesser-included offense of misdemeanor battery.
On direct appeal, the Idaho Court of Appeals concluded: "The evidence of Anderson's guilt was overwhelming and was not based merely upon C.B.'s [the victim's] testimony." (State's Lodging B-7, p. 5.) In upholding the sentence of seven years fixed with eight years indeterminate, the Court of Appeals observed:
The evidence showed that Anderson struck a defenseless woman in the face with enough force to fracture her jaw. In fact, his victim was unable to defend herself or even attempt to avoid the blow because Anderson had taken her glasses, rendering her nearly blind.
(State's Lodging B-7, p. 6.)
On post-conviction review, the Idaho Court of Appeals concluded, in the context of Petitioner's ineffective assistance of counsel claim:
Even if counsel had presented evidence that Anderson had slapped but not punched C.B., had shown that C.B. had fallen from a bicycle, had refrained from referencing a defense that could not be supported, and had demonstrated that witnesses may have had some motive to lie, it is highly unlikely that the jury would have concluded that Anderson did not cause C.B.'s injury. In our view, any reasonable jury would have concluded that Anderson inflicted C.B.'s injuries because there was no question that he hit her in the face, that shortly thereafter it was discovered that she had a broken jaw where he had struck her, and that the injury was not consistent with an accidental fall but was consistent with a penetrating blow.
Further, calling Pam Olsen as a witness likely would have been more helpful to the prosecution than the defense. She was the only witness who could confirm C.B.'s testimony that she was struck in the kitchen by Anderson. There is no reason to believe that the jury would have doubted that Anderson inflicted the blow that broke C.B.'s jaw upon hearing Pam Olsen's testimony. Given all of the other evidence of his guilt, the jury more ...