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Vance v. State

United States District Court, D. Nebraska

March 11, 2019

JERIMIAH L. VANCE, Petitioner,
v.
STATE OF NEBRASKA, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge.

         Mr. Vance (Vance or Petitioner) has filed a petition for a writ of habeas corpus attacking his state conviction and sentence for sexually assaulting a very young girl. Finding and concluding that most of his claims have been procedurally defaulted without excuse, and as for a portion of one claim that was not defaulted, the deference due the state courts compels rejection of those claims, I now deny and dismiss the petition with prejudice.

         The Offenses and the Trial

         In a highly condensed fashion, I first describe the offenses of conviction. In October 2009, Vance and Amanda S. began a dating relationship. Their relationship progressed to the point that Vance began living on occasion with Amanda and her four children. On February 17, 2012, Amanda's 4-year-old daughter A.S. complained to her mother of pain in her “butt.” H.S., Amanda's son and A.S.'s twin brother, made a statement which led Amanda to question A.S. as to whether “someone had put a pee pee in her butt.” A.S. denied this had occurred approximately 8 to 10 times before she admitted that it had occurred and began crying. The hospital found no evidence of trauma.

         On February 22, 2012, investigators visited Amanda's apartment to collect evidence. The investigators took pictures as they entered the apartment, focusing on A.S.'s bedroom and the path through the apartment leading to the bedroom. A.S. and H.S. shared a bedroom in the apartment, and their beds were bunked. H.S. slept in the top bunk, and A.S. slept on the bottom. In addition to taking pictures, they collected A.S.'s bedding for DNA and serology testing. The bedding consisted of a cotton-like mattress pad, a brown fitted sheet, a brown flat sheet, a cream-colored comforter, and a pink heart-patterned quilt.

         The State Patrol crime laboratory received the bedding on March 1, 2012. Testing was not completed until August 2012. On January 2, 2013, an investigator collected a buccal swab from Vance. Heidi Young, a forensic scientist in the biology unit at the State Patrol crime laboratory, completed the DNA and serology tests on A.S.'s bedding. Young discovered three stains on the bedding that contained sperm: two from the heart- patterned quilt and one from the cream-colored comforter. These stains were in the bottom corners of each piece of bedding. Each of these stains tested as containing sperm, and Young's analysis revealed that the odds of Vance not having been the source of these stains were astronomically remote.

         A.S. testified[1] that Vance used to stay at their house and that she was in court because Vance had done something bad to her. At the outset of her testimony, A.S. was presented with basic diagrams of a young girl and an adult male. Upon questioning, A.S. was able to identify the various body parts on each diagram. A.S. testified that Vance put his finger in her “toki [vagina]” and put his “pee pee in her butt.” A.S. described feeling pain when Vance put his finger in her “toki, ” but testified that she felt nothing when he put his “pee pee in her butt.” She also stated that she and H.S. shared a room when Vance did these things to her, but that she believed H.S. did not observe anything because he was asleep.

         A.S. testified that Vance would come into her room at night, lay in her bed, and pull her pants down. Vance's clothes would also be partly off. When Vance did these things to her, A.S. noticed that the bed would get all wet. A.S. could not remember how old she was when Vance did these things to her.

         Following a jury trial that began on October 7, 2013, where many additional facts and witnesses were presented[2], Vance was convicted of aggravated first and third degree sexual assault. He was sentenced to concurrent prison sentences of 40 to 70 years and 4 to 5 years.

         The Direct Appeal

         Vance appealed his convictions and sentences. At trial, Petitioner was represented by a local public defender. The local public defenders' office handled the appeal too.

         Vance raised eight reasons for reversal. He argued the trial court erred as follows: (1) in permitting the State to designate the lead investigator as a representative throughout the trial, despite a sequestration order; (2) in overruling his motion for mistrial after a potential juror had disclosed for the first time that she had been the victim of a sexual assault; (3) in allowing the victim to testify when she was not competent; (4) in failing to strike the testimony of the victim when she became unavailable for cross-examination (because of her incompetency as evidenced by her failure to remember certain details); (5) in permitting the State to introduce the hearsay statement of the victim; (6) in failing to declare a mistrial after the prosecutor misstated evidence during closing arguments; (7) in finding sufficient evidence to sustain the jury's verdicts; and (8) in imposing excessive sentences. State v. Vance, No. A-14-009, 2015 WL 240854 (Neb. Ct. App., January 20, 2015); filing no. 10-11 at CM/ECF 5.

         The Nebraska Court of Appeals issued a detailed opinion. (Id.) It affirmed Vance's conviction and sentences finding no merit to the eight assignments of error. Regarding the assignments of error about the child-allowing the victim to testify when she was not competent, failing to strike the testimony of the victim when she became unavailable for cross-examination (because of her incompetency as evidenced by her failure to remember certain details) and in permitting the State to introduce the hearsay statement of the victim-the Court of Appeals very carefully examined those issues and concluded that they were without permit.

         As for the competency issue, the Court of Appeals ruled that:

Vance also argues that the district court erred when it determined that A.S. was competent to testify. Vance takes issue with this determination because he believes an objective review of her testimony reveals that A.S. had very little ability to recollect her experiences and then testify to those experiences. Vance claims that A.S.'s incompetence requires this court to vacate his convictions.
While no certain age has been deemed to be the age at which a child becomes competent to testify in a court of law, the court generally takes into consideration whether he or she is able to receive correct impressions by the senses, to recollect and narrate accurately, and to appreciate the moral duty to tell the truth. State v. Earl, 252 Neb. 127, 560 N.W.2d 491 (1997). In Earl, the Nebraska Supreme Court upheld the district court's determination that a 6-year-old witness was competent to testify. The witness was able to report his name, his age, the street and city where he lived, his sister's name and age, his school and grade, the names of his teacher and principal, the name of his father's workplace, and his mother's occupation. He was also able to demonstrate that he understood the difference between telling the truth and lying.
In this case, A.S. was able to report much of the same information. A.S. accurately answered the court's questions regarding her age, her school, and her grade in school, and she was able to state that she lived with her mother and brothers. However, she was not able to recall exactly where she lived. A.S. also reported that she knew what it meant to tell the truth and that she could get a timeout if she told a lie. At the court's direction, A.S. also raised her hand and promised to tell the truth. In front of the jury, A.S. also answered the judge that his robe was black and that his statement that his robe was pink would be a lie.
Vance does not take issue with any of the above facts, but focuses on A.S.'s inability to remember all of the details of her experiences with Vance. However, A.S.'s inability to accurately remember and narrate certain events does not go to her competency. Rather, these are credibility issues for the jury to consider. Based on this record, we agree with the district court's determination that A.S. was competent to testify.

State v. Vance, 2015 WL 240854 at *6-7; filing no. 10-11 at CM/ECF pp. 7-8.

         As for the “unavailability for cross-examination” issue, the Court of Appeals wrote:

After Amanda's [the mother] testimony, Vance moved to strike A.S.'s testimony because he argued that she was unavailable for cross-examination. Vance emphasizes that A.S.'s frequent responses of “I can't remember” or “I don't know” to his questions on cross-examination demonstrate her unavailability. A.S. was unable to recall what she had stated during her interviews at the Child Advocacy Center and, due to her age, was not able to read the transcripts from those interviews. On appeal, Vance contends that the district court abused its discretion when it overruled his motion to strike.
Vance and the State both agree that this issue is properly analyzed under the U.S. Supreme Court's decision in United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988). Neither party cites a Nebraska case applying that decision, and we have not found any such case in our research. In Owens, the government charged a federal prisoner with assault of a prison counselor. The prisoner beat the counselor with a metal pipe, fracturing the counselor's skull. The counselor was hospitalized for over a month, and his memory was impaired as a result of the beating. Four weeks after the assault, the counselor was able to describe what occurred and identified the prisoner as his attacker from an array of photographs.
At trial, the counselor testified that he remembered identifying the prisoner as the attacker. However, he was not able to recall many other details. On cross-examination, the prisoner's attorney attempted to refresh the counselor's recollection with hospital records, including a record in which the counselor had identified a different attacker. These attempts were unsuccessful, and the prisoner was convicted.
The U.S. Supreme Court reversed the federal court of appeals decision overturning the conviction. The Supreme Court held that the Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. When the defense has the opportunity to bring out such matters as the witness' bias, lack of care and attentiveness, poor eyesight, or bad memory, the Confrontation Clause is satisfied.
Vance argues that he did not have the opportunity to cross-examine A.S. because she had no true recollection of the abuse. He focuses on the fact that A.S. testified that she was talking about things that had been told to her. However, our review of the record shows that A.S. testified to her actual memory of Vance's putting his “pee pee in her butt” while she was living in the old house. A.S. also testified that it hurt when Vance put his fingers in her “toki.”
The record also shows that Vance had the opportunity to cross-examine A.S. and highlight before the jury her lack of memory of many details. Vance then argued in his closing that A.S.'s inability to recall many details should make her testimony unbelievable. Although he was not able to achieve his desired result, he was able to cross-examine A.S. The district court correctly overruled Vance's motion to strike A.S.'s testimony.

Id. at *7-8; filing no. 10-11 at CM/ECF pp. 8-9.

         As for the alleged hearsay statements of the child, the Court ...


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