Opinion
Case No. 02-3277-JWL
May 12, 2003.
MEMORANDUM AND ORDER
Doyle B. Washington brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Mr. Washington alleges that his trial and appellate counsel violated his Sixth Amendment right to effective assistance by failing to investigate adequately the events charged in the complaint before trial and failing to challenge or raise on appeal the sufficiency of the evidence supporting his aggravated criminal sodomy conviction. Additionally, Mr. Washington alleges that the trial court violated his right to a fair trial and due process by admitting uncharged bad act evidence and excluding evidence concerning the victim's prior sex acts.
After thoroughly reviewing the parties' motions, briefs and the underlying record, the court finds that the evidence clearly establishes that Mr. Washington is entitled to no relief. The state court adjudicated Mr. Washington's ineffective assistance claims on the merits and he fails to demonstrate that the decision was contrary to Federal law or that the court unreasonably applied such law. Moreover, the trial court's evidentiary rulings fail to rise to the level of a constitutional violation. As such, this court denies Mr. Washington's petition in its entirety.
BACKGROUND
In 1997, Mr. Washington worked in the kitchen of River Park Health Care ("River Park"), a skilled nursing facility in Wichita, Kansas. On April 11, 1997, Dorothy Ross, a certified nurse aide at River Park, observed Mr. Washington and the victim, K.O. (a resident of the facility), in the activity room engaging in oral sex. At the time of the incident, K.O. was 49 years old and confined to a wheelchair. She had been diagnosed with multiple sclerosis, organic brain syndrome and had suffered a stroke that caused weakness on her left side. While she retained some ability to express herself with verbal utterances, she had an extremely limited ability to communicate.
The Kansas Court of Appeals set forth a thorough description of the facts surrounding this incident in Mr. Washington's direct appeal and on the appeal of his state habeas corpus petition. State v. Washington, No. 80,300 (Kan.Ct.App. May 14, 1999); Washington v. State, No. 86, 257 (Kan.Ct.App. March 15, 2002). The court has relied on and borrowed from this recitation throughout this section.
Ms. Ross described this event to co-workers Jerome Douglas and Arlene Mitchell. Ms. Mitchell reported the incident to the adult and child care abuse hotline. In response, the Kansas Department of Health and Environment investigated the report. During the course of that investigation, the investigator learned that a similar incident involving Mr. Washington and K.O. had been reported to River Park's director of nursing earlier that year. In May of 1997, the State charged Mr. Washington with aggravated criminal sodomy, alleging in the alternative; either he engaged in oral sodomy with the victim, K.O., without consent because K.O. was incapable of giving consent due to her mental or physical condition, or K.O. did not give consent because she was physically powerless.
Before trial, the State filed a motion to introduce evidence concerning the prior sexual incident to prove opportunity, plan and identity, pursuant to K.S.A. § 60-455. The court granted the motion and allowed Teresita Gardenhire to testify that in late February or early March, she found the victim in the activity room with her hand under Mr. Washington's apron. Mr. Washington, through counsel, conducted an extensive cross-examination of Ms. Gardenhire and presented evidence contradicting her testimony. The court instructed the jury that it could consider this evidence only for purposes of proving opportunity, plan and identity.
Before trial, the State also filed a motion in limine to exclude evidence concerning the victim's prior sexual activity and Mr. Washington filed a motion to admit evidence of the victim's prior sexual conduct pursuant to K.S.A. § 21-3525. The trial court granted the State's motion under Kansas' rape shield law, finding that the prior instances of the victim's sexual activity did not indicate she had provided valid consent for the charged incident. The trial court also clarified that Mr. Washington was not to cross-examine Dr. Bryant about his notes, which indicated the victim had previously engaged in sexual activities and his belief that her doing so was a patient's rights issue. The trial court did not prevent Mr. Washington from cross-examining Dr. Bryant about the victim's capacity to give consent. In fact, trial counsel specifically questioned Dr. Bryant regarding the victim's capacity to consent and argued to the jury that the State failed to carry its burden of proof on this element of the offense.
The jury convicted Mr. Washington of aggravated sodomy under the first alternative theory that K.O. could not consent due to mental deficiency or disease. The trial court sentenced him to a 172-month term of imprisonment. On May 14, 1999, the Kansas Court of Appeals affirmed his conviction after finding no error in admitting the uncharged bad acts evidence or excluding the prior sex acts evidence under the rape shield statute. The Kansas Supreme Court denied his petition for review on July 8, 1999.
Subsequently, Mr. Washington filed a state petition for habeas corpus pursuant to K.S.A. § 60-1507. Therein, he alleged that his trial and appellate counsel were ineffective. Specifically, he argued that his right to confrontation was violated because K.O. did not testify, the trial court erroneously admitted the bad acts evidence, trial counsel failed to properly cross-examine witnesses, trial counsel failed to argue motions for acquittal or mistrial, appellate counsel failed to raise relevant issues or proffer evidence, and that appellate counsel failed to inform him when his petition for review to the Kansas Supreme Court was denied. The trial court denied his requested relief on September 15, 2000 and the Kansas Court of Appeals affirmed that order in an unpublished opinion on March 15, 2002. The Kansas Supreme Court denied his petition for review on June 13, 2002.
Mr. Washington filed his petition for federal habeas corpus on August 28, 2002, alleging multiple grounds for relief. The State filed its answer on March 5, 2003.
STANDARD
The Kansas Court of Appeals previously adjudicated the merits of Mr. Washington's ineffective assistance of counsel claim. In 1996, Congress adopted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), placing new constraints on this court's authority to grant a state prisoner's application for writ of habeas corpus with respect to claims the state court adjudicated on the merits. As amended, the habeas corpus statute provides that:
[A] petitioner in the custody of a state court shall not be granted habeas relief with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. . . .28 U.S.C. § 2254(d)(1) (emphasis added).
"[A]n unreasonable application of federal law is different from an incorrect or erroneous application of federal law. Williams v. Taylor, 529 U.S. 362, 412 (2000) (O'Connor, J., writing for the Court in Part II). "Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Id. at 412-13. "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. These and other limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 "increase the deference to be paid by the federal courts to the state court's factual findings and legal determinations." Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997).
The Kansas Court of Appeals also addressed Mr. Washington's evidentiary challenges on direct appeal. However, the state court resolved those challenges based on controlling state law. In appealing the denial of his state habeas petition, Mr. Washington alleged, among other issues, that the evidentiary rulings violated his rights under the United States Constitution. While the Kansas Court of Appeals, on the appeal of Mr. Washington's state habeas petition, addressed his ineffective assistance claims, it did not expressly address his constitutional challenges based on the state trial court's evidentiary rulings. Moreover, while the standard governing the admission of prior sex act evidence under Kansas' rape shield law and the standard for admitting uncharged bad act evidence under state law is similar, it is not identical to the standard for analyzing fair trial and due process claims under federal law. As such, the court will not apply the deference afforded to state court adjudications under the AEDPA. 28 U.S.C. § 2254(d)(1); Romano v. Gibson, 239 F.3d 1156, 1166 (10th Cir. 2001) (reviewing § 2254 claims de novo where state appellate court reviewed the state trial court's evidentiary rulings, but addressed and resolved the challenges under state law).
Mr. Washington's brief on appeal of his state habeas claims did not address all the grounds for relief listed in his § 60-1507 petition. Thus, the Kansas Court of Appeals found that Mr. Washington abandoned those issues he did not specifically brief on appeal (including his evidentiary challenges). Mr. Washington, however, did raise the evidentiary issues on direct appeal and on petition for review to the Kansas Supreme Court. As such, the court finds that he is not procedurally barred from raising the claims in his federal habeas petition. See, e.g., Butler v. State of Kansas, 57 Fed. Appx. 781, 782-83, 2002 WL 31888316 (10th Cir. Dec. 30, 2002) (explaining that to satisfy the exhaustion requirement under 28 U.S.C. § 2254(b)(1)(A) petitioners must present the issues raised in the federal petition to the highest Kansas court, either by direct appeal or by the state post-conviction process).
An argument could be made that the state court adjudication is owed deference under the AEDPA. In Cook v. McKune, 323 F.3d 825 (10th Cir. 2003), the Tenth Circuit analyzed the meaning of "adjudicated" under § 2254(d)(1). The Cook court recognized that some Tenth Circuit decisions suggest "that when a state court fails to discuss the federal law applicable to a claim, the state court has failed to consider the claim on its merits." Id. at 831. Based on recent Supreme Court precedent, however, the court explained that "failure to discuss or even to be aware of federal precedent does not in itself render a state court's decision contrary to federal law." Id. (citing Early v. Packer, 123 S.Ct. 1012 (2003). Because the state court addressed the petitioner's hearsay objection (forming the basis of his confrontation clause claim under § 2254) on its merits, the Tenth Circuit applied the AEDPA standard. Id. In Cook, the state law standard for admitting out of court statements under the unavailability exception to the hearsay rule was identical to controlling Federal law. Here, however, the due process and fair trial standards are not identical to the standard for admitting the challenged evidence under Kansas law. As such, the court, out of an abundance of caution, will not examine Mr. Washington's evidentiary claims under the deferential standard imposed by the AEDPA.
ANALYSIS
Mr. Washington alleges that he received ineffective assistance from his trial and appellate counsel and that the trial court violated his right to a fair trial and due process rights. The court addresses these claims in turn.I. Ineffective Assistance of Trial and Appellate Counsel
Mr. Washington claims that his trial counsel was ineffective because he failed to investigate a sufficient number of witnesses before trial and his case load was too large to devote sufficient time to trial preparation. Additionally, Mr. Washington claims that his trial counsel was ineffective because he failed to adequately challenge the evidence supporting the victim's mental or physical inability to consent to sexual conduct. Similarly, Mr. Washington claims his appellate counsel was ineffective because she failed to challenge the sufficiency of the State's evidence on the element of consent.
Because the state court reviewed Mr. Washington's ineffective assistance claims on their merits, he is entitled to relief under § 2254 only if the adjudication resulted in a decision contrary to or involved an unreasonable application of controlling Federal law. 28 U.S.C. § 2254(d)(1). The Kansas Court of Appeals review of Mr. Washington's Sixth Amendment claims was consistent with established Federal law. In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court established a two-prong inquiry for evaluating claims of ineffective assistance of counsel. Under Strickland, Mr. Washington must show that his counsel's performance "fell below an objective standard of reasonableness." Id. at 688. "In applying this test, we give considerable deference to an attorney's strategic decisions and `recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" Bullock v. Carver, 297 F.3d 1036, 1044 (10th Cir. 2002) (quoting Strickland, 466 U.S. at 690). Second, Mr. Washington "must show that counsel's deficient performance prejudiced the defense, depriving the petitioner of a fair trial with a reliable result." Le v. Mullin, 311 F.3d 1002, 1024-25 (10th Cir. 2002). Under this prong, Mr. Washington must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 1025 (quoting Strickland, 466 U.S. at 694). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Bullock, 297 F.3d at 1044. The court "may address the performance and prejudice components in any order, but need not address both if [Mr. Washington] fails to make a sufficient showing of one." Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir. 1998). The Kansas Court of Appeals was aware of this controlling Supreme Court precedent and analyzed Mr. Washington's claims under Strickland. Thus, its adjudication was consistent with established federal law.
Second, the state court reasonably applied Strickland to the facts of Mr. Washington's state habeas petition. As to Mr. Washington's claim that trial counsel failed to adequately interview potential witnesses in preparation for trial, the state court properly noted that Mr. Washington failed "to provide any indication of what additional witnesses should have been called or what evidence these witnesses would have offered." Moreover, the state court recognized that "the record discloses trial counsel appropriately cross-examined the State's witnesses." This court's review of Mr. Washington's state petition and supporting memorandum confirms the accuracy of such findings. Thus, the Kansas Court of Appeals correctly found that Mr. Washington failed to show surprise or prejudice sufficient to warrant relief under Strickland and he has failed to demonstrate why this conclusion constitutes an unreasonable application of established Supreme Court precedent.
As to Mr. Washington's claim that trial counsel was ineffective in challenging K.O's capacity to consent to sexual conduct, the Kansas Court of Appeals recognized that trial counsel questioned K.O.'s treating physician about her capacity to consent and argued to the jury that the State had not proven K.O. was incapable of giving consent. Mr. Washington continues to allege that counsel should not have permitted Dr. Bryant to testify as to K.O.'s mental and/or physical capacity and that he should have conducted a better cross-examination of the physician. The state appellate court, however, recognized that Dr. Bryant was properly qualified to render an opinion on the issue and that trial counsel did in fact make the arguments and asked the questions Mr. Washington claims should have been made. This court's independent review of the transcript confirms that trial counsel conducted an extensive cross-examination of Dr. Bryant concerning K.O.'s mental and physical capacity and that during closing argument he took the position that the State's evidence was insufficient to prove the victim's inability to consent. As such, the state court correctly found that trial counsel's performance was not objectively unreasonable and Mr. Washington has not attempted to show that this finding constitutes an unreasonable application of Strickland.
In fact, in support of his argument that appellate counsel should have challenged the sufficiency of the State's evidence on consent, Mr. Washington notes that there was evidence, such as the victim's decision to smoke and her violent reactions to unwanted stimuli, that suggested she had the mental and physical capacity to consent. This evidence, however, was elicited by trial counsel during the cross examination of Dr. Bryant. As such, some of Mr. Washington's arguments in support of his claim of ineffective assistance of appellate counsel conflicts with his claim that trial counsel was ineffective for failing to adequately challenge the State's evidence at trial.
Finally, as to Mr. Washington's claim that appellate counsel was ineffective in failing to challenge the sufficiency of the evidence as to the victim's ability to consent, the state appellate court noted that on direct appeal, the Kansas Court of Appeals found that a videotaped interview between K.O. and the police established that she "has been rendered mentally impaired by her infirmities." This evidence, combined with the testimony of Dr. Bryant, demonstrates that appellate counsel's decision not to challenge the State's evidence did not constitute ineffective assistance. Again, Mr. Washington fails to explain why this finding constitutes an unreasonable application of Strickland.
Mr. Washington also contends appellate counsel was ineffective because she failed to inform him of the Kansas Supreme Court's denial of his petition for review in a timely fashion. Again, the state appellate court addressed this claim in Mr. Washington's appeal of the denial of his § 60-1507 motion and found he suffered no prejudice. In his federal petition, Mr. Washington does not attempt to explain why this finding constitutes an unreasonable application of Strickland and the court concludes that it does not.
In short, Mr. Washington has failed to show he is entitled to relief under § 2254 because the Kansas Court of Appeals neither reached a decision contrary to Federal law nor misapplied controlling Supreme Court precedent. As such, his petition is denied on these grounds.
II. Due Process Violation Based on Trial Court's Admission of Uncharged Bad Acts Evidence
Under Kansas law, evidence that a person committed a crime or civil wrong on a specific occasion is inadmissible to prove his or her tendency to commit crime or civil wrong on another occasion, but such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. K.S.A. § 60-455. In the end, "[t]hree requirements must be satisfied for evidence to be admitted under K.S.A. 60-455: (1) The evidence must be relevant to prove one of the facts specified in the statute; (2) the fact must be a disputed, material fact; and (3) the probative value of the evidence must outweigh its potential prejudice." State v. Davidson, ___ Kan. App. ___, 65 P.3d 1078, 1085 (Kan.Ct.App. 2003) (citing State v. Moore, ___ Kan. ___, 55 P.3d 903, 909 (Kan. 2002).
At Mr. Washington's trial, the court permitted Ms. Teresita Gardenhire to testify that Mr. Washington had engaged in a similar, uncharged sex act with the victim in order to prove opportunity, plan and identity. Specifically, Ms. Gardenhire testified that in late February or early March, she found the victim in the activity room with her hand under Mr. Washington's apron. Mr. Washington argues that the admission of this evidence violated his due process rights and prevented him from receiving a fair trial. Essentially, Mr. Washington argues that the state district court misapplied its own evidentiary rules by admitting this evidence and as a result, he did not receive a fair trial.
"A habeas petitioner is only entitled to relief, however, for alleged violations of federal rights, not for errors of state law." Bullock v. Carver, 297 F.3d 1036, 1055 (10th Cir. 2002), cert. denied, 123 S.Ct. 703 (2002). Thus, in reviewing a federal petition for habeas corpus, the court will "not disturb evidentiary findings regarding the admission of . . . bad acts evidence unless the prejudice flowing from such evidence is so great as to constitute a denial of federal constitutional rights by rendering the trial fundamentally unfair. Smallwood v. Gibson 191 F.3d 1257, 1277 (10th Cir. 1999). That is, "[u]nder Tenth Circuit precedent, Mr. [Washington] may only obtain habeas relief for an improper state evidentiary ruling `if the alleged error was `so grossly prejudicial [that it] fatally infected the trial and denied the fundamental fairness that is the essence of due process.'" Id. (quoting Revilla v. Gibson, 283 F.3d 1203, 1212 (10th Cir. 2002) (bracket in original)).
The pivotal question is whether the admission of this evidence rendered the trial fundamentally unfair. Mr. Washington cannot satisfy this stringent standard. First, the similarity of the prior similar sexual act was highly probative of Mr. Washington's plan and opportunity to commit the crime. Whether Mr. Washington had an opportunity to commit the crime in the activity room at River Park while residents were receiving afternoon snacks was a disputed material fact at trial. Thus, the prior incident, which Ms. Gardenhire testified occurred in the same activity room during snack time, was highly probative of Mr. Washington's opportunity to commit the charged crime. At the same time, the prejudicial effect of this evidence was minimized by trial counsel's cross-examination of Ms. Gardenhire. During cross-examination, Ms. Gardenhire admitted that she told a detective that her account of the incident was "overexaggerated." Additionally, the court instructed the jury that it could consider this evidence only for purposes of proving opportunity, plan and identity, further minimizing the prejudicial effect of Ms. Gardenhire's testimony. Smallwood, 191 F.3d at 1277 (noting that a proper instruction by the court may cure the error in wrongfully admitted bad acts evidence). In light of these facts, we conclude that the admission of the prior bad acts evidence did not rise to the level of a constitutional violation.
III. Due Process Violation Based on Trial Court's Exclusion of Evidence Pertaining to the Victims Prior Sexual Activity
The Kansas legislature has provided that evidence of a complaining witness' previous sexual conduct with any person including the defendant is not generally admissible at trial. K.S.A. § 21-3525. Prior to Mr. Washington's trial, the State filed a motion in limine to exclude evidence concerning the victim's prior sexual activity and Mr. Washington filed a motion to admit such evidence pursuant to the notice provisions of K.S.A. § 21-3525. The trial court granted the State's motion in limine under Kansas' rape shield law, finding that the prior instances of the victim's sexual activity was not relevant to her consent to the charged conduct. The trial court also ordered Mr. Washington's trial counsel not to cross-examine Dr. Bryant about notes indicating that the victim had previously engaged in sexual activities. Mr. Washington contends that the exclusion of this evidence unconstitutionally denied him the right to a fair trial and due process.
As stated in the prior section, state evidentiary determinations do not typically create federal claims actionable under § 2254. "However, the Supreme Court . . . has provided an exception, under some circumstances, if a state court applies the State's evidentiary rules unfairly to prevent a defendant from presenting evidence that is critical to his defense." Ellis v. Mullin, ___ F.3d ___, 2002 WL 32073049 (10th Cir. Dec. 10, 2002) (internal citations omitted). The Tenth Circuit has aptly described the balance between a defendant's right to due process and compulsory process and a state's interest in applying rules of evidence that facilitate a just criminal trial:
A defendant's right to due process and compulsory process includes the right to present witnesses in his or her own defense. The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense. This right is a fundamental element of due process of law. By necessity, the right of a defendant to present witnesses in his or her defense includes the right to have the jury hear the testimony those witnesses are called to give. In presenting such testimony, the defendant must comply with established rules of evidence and procedure as required by the state to assure both fairness and reliability in the ascertainment of guilt and innocence. However, the state may not arbitrarily deny a defendant the ability to present testimony that is relevant and material, and vital to the defense. While a state may not apply a rule of evidence mechanistically to defeat the ends of justice, in appropriate circumstances, the defendant's right to present relevant testimony may bow to accommodate other legitimate interests in the criminal trial process.
Richmond v. Embry, 122 F.3d 866, 871-72 (10th Cir. 1997), cert. denied, 522 U.S. 1122 (1998) (internal citations and quotes omitted).
As to rape shield statutes, "[t]he Supreme Court has held legitimate state interests behind a rape shield statute such as giving rape victims heightened protection against `surprise, harassment, and unnecessary invasions of privacy may allow the exclusion of relevant evidence if the state's interests in excluding the evidence outweigh the defendant's interests in having the evidence admitted.'" Id. at 872 (quoting Michigan v. Lucas, 500 U.S. 145, 150-52 (1991)). "These considerations are in addition to the more traditional concerns of prejudice, issue and jury confusion, which usually guide a trial court's evidentiary rulings." Id. "Consequently, to determine whether a defendant was unconstitutionally denied his or her right to present relevant evidence, we must balance the importance of the evidence to the defense against the interests the state has in excluding the evidence." Id. In short, the Tenth Circuit has developed a two-step process for analyzing Mr. Washington's constitutional claim:
[T]o determine whether the trial court's exclusion of the proffered evidence violated Mr. [Washington's] right to present witness testimony, we first examine whether that testimony was relevant, and if so, whether the state's interests in excluding the evidence outweighed Mr. Washington's interests in its admittance. This inquiry includes an examination as to whether more traditional factors such as prejudice, issue and jury confusion weigh in favor of excluding the testimony. Second, we examine whether the excluded testimony was material — whether it was of such an exculpatory nature that its exclusion affected the trial's outcome.
Id.
A. Relevance of the Evidence v. State's Interests
Mr. Washington contends that evidence pertaining to the victim's prior sexual conduct was relevant to the issue of consent. Mr. Washington did not proffer any direct evidence of the victim's consent on those prior occasions. Instead, Mr. Washington wanted to present evidence that K.O. had previously engaged in sexual conduct with others in order to create an inference that she had the mental and physical capability to engage in such activity. In restricting the admissibility of this type of evidence, however, the Kansas legislature "sent a clear message to the courts that a rape victim's prior sexual activity is generally inadmissible since prior sexual activity, even with the accused, does not of itself imply consent to the act complained of." State v. Stellwagen, 232 Kan. 744, 747, 659 P.2d 167 (1983). Here, as in other sodomy cases, evidence of K.O.'s prior sexual activity does not suggest that she consented to the act in question. Additionally, because the issue in this case was whether K.O. even had the capacity to consent, evidence of prior sexual activity is even less relevant than in the case of a legally competent victim. That is, even if K.O. verbally consented to the act, that does not suggest that the consent was valid, given her physical and mental condition. Thus, the evidence Mr. Washington wished to introduce was at best marginally relevant. Moreover, in excluding this evidence, the trial court did not foreclose any challenge to the victim's capacity to consent. As explained above, trial counsel vigorously challenged Dr. Bryant's testimony pertaining to this issue and argued in his closing argument highlighted evidence that suggested she did have the capacity to consent.
On the other hand, the State had a legitimate interest in excluding this type of evidence. "As the Supreme Court has said, rape shield statutes `represent a valid legislative determination that rape victims deserve heightened protection.'" Embry, 122 F.3d at 873 (quoting Lucas, 500 U.S. at 150). Indeed, the purpose of Kansas' statute is twofold: "first, to protect a victim of rape or other specified forms of sexual abuse from the trauma and unnecessary embarrassment resulting from irrelevant evidence of a victim's prior sexual activity and, second, to encourage victims to report and prosecute sexual crimes." State v. Arrington, 251 Kan. 747, 749-50, 840 P.2d 477, 479 (1992). The evidence Mr. Washington sought to introduce would have undermined both of these objectives. Had the court allowed the defense to introduce evidence of K.O.'s prior sexual activities it would have exposed her to unnecessary embarrassment or trauma and it would have tended to deter future victims from reporting such abuse. As such, the court finds that the state's interest in furthering the objectives behind the rape shield statute outweighed heavily Mr. Washington's interest in introducing the irrelevant evidence of K.O.'s past sexual conduct.
B. Materiality of the Evidence
Under the Tenth Circuit's second prong, "in determining whether the exclusion of testimony violated a defendant's Sixth Amendment rights to compulsory process and a fair trial and the Fourteenth Amendment right to due process, we must determine whether the defendant was denied a `fundamentally fair' trial." Embry, 122 F.3d at 874. Thus, "looking at the record as a whole, we inquire as to whether the evidence was of such an exculpatory nature that its exclusion affected the trial's outcome." Id.
Several factors preclude the court from making such a finding. First, as explained above, the evidence was, at best, marginally relevant to the issue of consent. This is particularly true because the issue was whether K.O. had the capacity to validly consent, given her physical and mental condition. Thus, even if the jury would have believed the evidence that K.O. had previously engaged in sex, that evidence would not have exculpated Mr. Washington because it does not prove that she consented to the act in question or whether she had the physical/mental capacity to legally consent to the act.
Second, had the trial court admitted the marginally relevant evidence, it would not have caused the jury to find reasonable doubt as to Mr. Washington's guilt. To prove Mr. Washington committed aggravated criminal sodomy as set forth in K.S.A. § 21-3506(a)(3)(C), the State had to prove beyond a reasonable doubt that Mr. Washington engaged in sodomy when the victim was incapable of giving consent because of mental deficiency or disease. The legislature has defined sodomy to include oral contact of the male genitalia. K.S.A. § 21-3501(2). At trial, an eyewitness, Dorothy Ross, testified that she observed Mr. Washington in the activity room, engaged in oral sex with K.O. Moreover, the State presented compelling evidence on the issue of consent. For example, the State established that K.O.'s mother was granted a guardian conservatorship over her daughter in 1987 and that K.O. lived in River Park because her physical and mental condition precluded her from taking care of herself. The direct testimony of Dr. Bryant established that K.O. had been diagnosed with multiple sclerosis, organic brain syndrome, and personality disorder. Moreover, he testified that she had previously suffered a stroke and fractured her hip. As a result of these ailments, Dr. Bryant testified that she was cognitively impaired, had limited physical mobility (confined to a wheelchair), and had extremely limited expressive language skills. Dr. Bryant further explained that K.O. takes Risperdal, an anti-psychotic medication, to treat her lack of impulse control behavior. Finally, the state played a videotape recording that depicted K.O.'s social interaction. On direct appeal, the Kansas court noted that the evidence revealed that K.O. clearly "has been rendered mentally impaired by her infirmities." In light of this evidence, the court cannot conclude that the exclusion of the evidence pertaining to the victim's prior sexual encounters affected the outcome of the trial. As such, the trial court's evidentiary rulings did not "render the trial so fundamentally unfair as to deprive Mr. [Washington] of his rights to compulsory process, a fair trial, and due process under the Sixth and Fourteenth amendments." Embry, 122 F.3d at 875.
Without elaborating upon her testimony, it is sufficient to say that Ms. Ross's testimony clearly demonstrated that the conduct between Mr. Washington and K.O. satisfied the state definition of sodomy.
CONCLUSION
The Kansas Court of Appeals adjudicated Mr. Washington's ineffective assistance of counsel claim on the merits. In reviewing that opinion along with the record in this proceeding, the court finds that the state court neither reached a decision contrary to Federal law nor misapplied controlling Supreme Court precedent. As such, his petition is denied on these grounds. While the state court did not adjudicate Mr. Washington's evidentiary challenges on the merit, the court finds that he is not entitled to relief under § 2254. First, any prejudice flowing from the state trial court's admission of bad acts evidence was not so great as to constitute a denial of federal constitutional rights by rendering the trial fundamentally unfair. Second, the state trial court's exclusion of the victim's prior sexual conduct did not deprive Mr. Washington of his constitutional protections in light of its marginal relevance, the state's interest in excluding such evidence, and the fact that such evidence would not have affected the outcome of the trial.
IT IS THEREFORE ORDERED BY THE COURT that Mr. Washington's petition for a writ of habeas corpus pursuant to § 2254 (Doc. 1) is denied.
IT IS SO ORDERED.