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Hinesley v. Knight

United States Court of Appeals, Seventh Circuit

September 13, 2016

William Hinesley, III, Petitioner-Appellant,
Wendy Knight, Superintendent, Correctional Industrial Facility, Respondent-Appellee.

          Argued April 13, 2016

         Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. l:14-cv-1097-JMS-TAB - Jane E. Magnus-Stinson, Judge.

          Before Easterbrook, Manion, and Rovner, Circuit Judges.

          ROVNER, Circuit Judge.

         Following a bench trial in Indiana state court, William Hinesley, III, was convicted of molesting his 13 year-old former foster daughter, V.V. After exhausting his state court remedies, Hinesley petitioned for a writ of habeas corpus, contending that his trial counsel deprived him of effective representation when he allowed the inculpatory out-of-court statements of the two principal witnesses against him into evidence without objection and likewise posed no objection to the admission of two statements in which witnesses vouched for V.V.'s credibility. Hinesley also raised an argument of cumulative ineffectiveness based on these and other purported errors on the part of his lawyer. The district court denied his petition. Hinesley v. Knight, No. 1:14-cv-1097-JMS-TAB, 2015 WL 1969643 (S.D. Ind. Apr. 29, 2015). We affirm.


         Because there was no physical evidence of Hinesley's guilt, the State's case rested almost entirely on the testimony of the victim, V.V., and, to a lesser extent, her (former) foster brother, William Hinesley, IV, who was known as Billy. Prior to trial, both witnesses had made statements that conflicted with the initial accounts they had given to the investigating detective. It had also become known that V.V. and Billy were in a sexual relationship with one another at the time of the charged offense and, because that relationship was unlawful (given their respective ages), they wanted to keep the relationship hidden. When the case came to trial, it was defense counsel's strategy to allow all of the prior statements V.V. and Billy had made into evidence without objection or limitation in order to lay bare the inconsistencies in those statements and to argue that neither witness was credible in view of the conflicts. The State understood that this was the defense strategy and at trial elicited the initial, inculpatory out-of-court statements of V.V. and Billy at some length, with no objection by the defense. Defense counsel also made no objection to the admission of statements by the investigating detective and by Billy that they believed V. V.'s account. The defense took every opportunity to highlight the ways in which V.V. and Billy subsequently had changed their stories and to suggest that the investigation of V. V.'s allegations was inadequate. The trial judge nonetheless convicted Hinesley finding that V V.'s testimony was credible. His counsel's strategy having failed, Hinesley now contends that his attorney was ineffective for permitting the State to elicit the out-of-court statements of V.V. and Billy as substantive evidence, rather than eliciting the statements himself on cross-examination as impeachment, and in allowing the two instances of vouching by the State's witnesses. These and certain other omissions form the basis for a separate assertion of cumulative ineffectiveness.

         We begin with a summary of the facts relevant to Hinesley's conviction. V.V. had been taken into the Hinesley family as a foster child. V.V. was happy in the Hinesley home, but Hinesley's wife Sharon eventually concluded that the placement was not a good one, as there was some tension between herself and V.V. In the autumn of 2008, V.V. was removed from the Hinesley household and placed with Hinesley's parents. But V.V. continued to periodically visit Hinesley and his family. (She is thus frequently described in the record as Hinesley's foster daughter notwithstanding the change in placement.) V.V. was present for such a visit in the Hinesley home on the evening of Friday, January 16, 2009, when the assault underlying Hinesley's conviction occurred. The facts forming the basis for Hinesley's conviction were summarized by the Indiana Court of Appeals in affirming the conviction on direct appeal:

On the night of January 16, 2009, the Hinesley family was at home in Paragon, Indiana. Hinesley, his son, William J. Hinesley, IV ("Billy"), who was twenty years old at the time, a foster daughter, V.V., who was thirteen years old at the time, and others were present. Eventually, Hinesley and V.V. were the only ones awake. They sat on a couch in the living room and talked as they watched a movie. Next, Hinesley got up and went into the kitchen. When he returned, he approached V.V. and pulled down her pants and underwear. Hinesley got on top of V.V. and put his penis in her vagina. After a short period of time, V.V. tried to push Hinesley away, and he got up and left the room. V.V. got up and pulled up her pants.
Meanwhile, Billy was going to the kitchen to get a glass of water. He encountered V.V, who told him that she had just had sex with Hinesley. Billy sent V.V. to the master bedroom while he woke his sister, S.H., and had her go into the master bedroom with him and V.V. In the morning, Billy contacted his uncle, who was a police officer in Mooresville, Indiana, and the local police were contacted.

Hinesley v. State, 957 N.E.2d 217 (table), 2011 WL 5117056, at *1 (Ind.Ct.App. Oct. 27, 2011) (unpublished).

         V.V. and Billy both gave videotaped statements the following morning to Morgan County Sheriff's Detective Dan Downing. V.V. described the events as recounted above. Billy indicated in his statement that he had approached the living room just as V.V. was pulling her pants up. He asked V.V, "[D]id I see what I thought I saw?" and V.V. nodded and told him that he had. State Ex. 2 at 12:04. It was then that V.V. informed him that Hinesley had sexually assaulted her.

         What neither V.V. nor Billy disclosed to Downing was that they were engaged in a sexual relationship with one another. In fact, although she did not yet know it, V.V. was pregnant with Billy's child (she gave birth in August 2009) at the time of the assault by Hinesley. The relationship between V.V. and Billy is described as consensual, but given their respective ages, it constituted child molestation as a legal matter. Billy would eventually plead guilty to that offense once the relationship came to light.

         Subsequently, both V.V. and Billy made statements that were either wholly or partially inconsistent with what they had told Downing. One week after the incident, V.V. told Hinesley's mother that she had made the whole thing up. When later deposed by defense counsel in advance of trial, V.V. acknowledged the recantation but then testified that Hinesley had, in fact, assaulted her. But she also professed uncertainty as to certain key details of the assault, including whether Hinesley had actually placed his penis into her vagina. Billy was also deposed prior to trial, and during his deposition he said that he could no longer remember whether he had seen V.V. pulling up her pants in the immediate aftermath of the incident.

         As we have said, there was no physical evidence confirming V.V.'s account of the assault. Both V.V. and Hinesley were examined on the morning after the assault, but in neither case was the presence of DNA from the other individual detected.[1] On the other hand, Hinesley had shaved the pubic hair from his body at some point prior to his examination (he would later testify that he and his wife both did this as a matter of routine). Also, during a search of the Hinesley home on the morning after the incident, police discovered a pair of still-wet pajama pants and underwear in the dryer by themselves, despite there being dirty clothing piled in the hallway nearby and throughout the house. Hinesley had been wearing pajama pants and underwear the previous evening, although police were unable to determine whether the pajamas and underwear in the dryer were the ones Hinesley had been wearing.

         On the morning of trial, the State offered to drop the multiple child molestation charges against Hinesley if he agreed to plead guilty to a misdemeanor charge of battery, with credit for the time Hinesley had already served in jail prior to trial along with a period of probation, and with no requirement that he register as a sex offender. Hinesley rejected the offer against his attorney's advice.

         The case proceeded to trial on three child molestation charges: (1) that Hinesley had engaged in sexual intercourse with a child less than 14 years of age, in violation of Indiana Code § 35-42-4-3(a)(1), then a Class A felony[2]; (2) that he had engaged in deviate sexual conduct with a child under 14 years of age, in violation of the same statute, again a Class A felony; and (3) that he had touched or fondled a child under 14 years of age with intent to arouse or satisfy the sexual desires of either himself or the child, in violation of § 35-42-4-3(b), a Class C felony. The State previously had dismissed a fourth charge- that Hinesley had touched or fondled his biological daughter, S.H. The parties agreed that the case would be tried to the bench.

         As we have mentioned, it was defense counsel's strategy to elicit all of the various pre-trial, out-of-court statements that both V.V. and Billy had made so as to establish the changing nature of their accounts and to suggest that they were not credible as to the alleged assault by Hinesley. Defense counsel thus posed no objection when, during the State's case, the prosecution asked both Downing and Billy to recount certain out-of-court statements that both V.V. and Billy had made. We shall return to these statements after we first summarize the trial testimony of witnesses Downing, V.V, and Billy.

         Downing was the first of these witnesses to testify for the State. He described his interviews of both V.V. and Billy, and recounted in full what they had told him about the assault. During his testimony, the video recording of Billy's 30-minute interview was played for the court in its entirety.

         V.V. was the second of these witnesses to take the stand. She testified, consistently with her original statement to Downing, that after she and Hinesley were left alone in the living room of the Hinesley residence on the evening of January 16, 2009, the two of them watched a movie, with V.V. resting her head in Hinesley's lap. At some point, Hinesley had gotten up and gone into the kitchen. When he returned to the living room, he pulled down her pajama pants and underwear, placed himself on top of her, pinned down her shoulders, penetrated her vagina with his penis, and began to have intercourse with her. Stunned and not knowing at first what to do, V.V. after a moment "got a hold of [her]self, " told Hinesley she wanted to go to bed, shoved him off of her, and then pulled up her pants. Tr. 117. As V.V. prepared to leave the room, she saw Billy in the nearby hallway, and he beckoned her over to him with a gesture. V.V. testified that Billy was "freaking out kind of, like he was upset and mad, " Tr. 118, and he asked her if he had just seen what he thought he saw. She told him yes. At that point, he directed her to the master bedroom, where she informed Billy, using slang terminology, that Hinesley had sexually assaulted her.

         On cross-examination, V.V. was confronted with the multiple statements she had made prior to trial that were inconsistent with her testimony (and her original interview with Downing). She acknowledged the recantation she had made to her foster grandmother one week after the incident; that recantation, she said, was a lie. She acknowledged that at her deposition, she had expressed an inability to recall whether Hinesley had placed his penis into her vagina. At first, she confirmed that she was uncertain about this point at the time of her deposition. Ultimately, however, she conceded that her professed inability to recall was a lie. She acknowledged having lied about various other points during her deposition. She also admitted that she was engaged in a sexual relationship with Billy at the time of the assault and that she knew it was wrong.

         Billy reiterated at trial that V.V. told him his father had sexually assaulted her, but he professed uncertainty as to whether he had seen V.V. pulling up her pants as he had told Downing he had on the day after the incident. Although he recalled what he had told Downing, Billy testified that "[a]t this point in time I do not remember what I saw." Tr. 170. When pressed on that point by defense counsel, he allowed that he "could have" lied about that to Downing, Tr. 179, and agreed with Hinesley's attorney that "there's a good chance that [he] didn't see anything at all, " Tr. 178. He acknowledged that when he was interviewed by the police, he knew that he himself could be charged criminally for his conduct with V.V, was afraid of being exposed, and that he had lied to the police ...

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