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Lowe v. Pollard

United States District Court, E.D. Wisconsin

June 11, 2018

DAMEN R. LOWE, Petitioner,
v.
WILLIAM POLLARD, [1] Respondent.

          RECOMMENDATION

          WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE

         Background

         Damen Lowe, then both a Racine police officer and school security officer, physically and sexually assaulted his adopted daughter, V.A.L. Lowe was very strict with V.A.L. State v. Lowe, 2013 WI.App. 128, ¶ 3, 351 Wis.2d 224, 838 N.W.2d 865. He restricted her cell phone and social media usage and allowed her to socialize with only certain boys. Id. Lowe was able to keep close tabs on V.A.L. because he worked as a security guard at his daughter's high school. Id.

         In April of 2009 Lowe learned his daughter was failing history and that she had been using a classmate's cell phone to send text messages. Id., ¶ 4. Lowe took his daughter out of class, brought her to the teachers' lounge, forced her to the ground, handcuffed her, and demanded to know who she had been texting. Id. (ECF No. 10-10 at 219.) She refused to tell him. (ECF No. 10-10 at 218.) Lowe then escorted V.A.L. out of the teacher's lounge, through the school, and out to his car in order to take her home, keeping her handcuffed the whole time and threatening to punch her in the face if she continued to ask that he loosen the handcuffs. (ECF No. 10-10 at 224, 229.) Later that evening, at home, V.A.L. reported that Lowe struck her twice on her leg with an open hand and hit her with a belt on her arm and thigh. Lowe, 2013 WI.App. 128, ¶ 3.

         V.A.L. made plans to run away, and the following day told a friend that Lowe had been sexually abusing her. Id., ¶ 5. V.A.L. called Child Protective Services (CPS) and reported physical, but not sexual, abuse. Id. That same day she also spoke with detectives and again did not report sexual abuse. Id. It was not until days later that V.A.L. reported to CPS that Lowe had been sexually assaulting her. Id., ¶ 6.

         According to V.A.L., the sexual abuse began with Lowe showing her pornography when she was in fifth grade. (ECF No. 10-11 at 46-51.) Lowe began having sexual contact with V.A.L. when she was in sixth grade. (ECF No. 10-11 at 51.) Lowe would require her to engage in sexual acts in exchange for privileges. (ECF No. 10-11 at 65-66.) This included, for example, instances where she wanted to go out with friends (ECF No. 10-11 at 66), permission to get her tongue pierced (ECF No. 10-11 at 67), and one instance where Lowe had V.A.L. masturbate him in exchange for letting her listen to a CD in the car (ECF No. 10-11 at 86).

         Lowe was arrested on May 4, 2009 and charged with repeated sexual assault of a child, incest, four counts of exposing a child to harmful material, and one count of child abuse. (ECF Nos. 10-1; 10-13 at 199.) Shortly after V.A.L. first made her allegations against Lowe, her mother informed her that Lowe was not actually her biological father; Lowe had adopted V.A.L. (ECF No. 10-10 at 210-12.) Lowe proceeded to trial, where his defense was that V.A.L. fabricated the sexual abuse as a means to escape Lowe's strict supervision and discipline. Following a six-day jury trial, Lowe was found guilty. He was acquitted of three additional charges of child abuse.

         After unsuccessfully appealing his conviction, Lowe turned to federal court with a petition for a writ of habeas corpus. (ECF No. 1.) The matter is fully briefed, and the Honorable Pamela Pepper recently referred the matter to this court for a recommendation as to the resolution of the petition. (ECF No. 17.)

         Standard of Review

         A federal court may consider habeas relief for a petitioner in state custody “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §2254(a). Following the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court generally may grant habeas relief only if the state court decision was “either (1) ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ' or (2) ‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Miller v. Smith, 765 F.3d 754, 759-60 (7th Cir. 2014) (quoting 28 U.S.C. § 2254(d)(1), (2)).

         Analysis

         Right to Present a Defense

         As stated above, Lowe's theory of defense was that V.A.L. lied about the sexual abuse to escape Lowe's strict discipline and parenting. To support this defense, Lowe sought to admit two types of evidence. First, Lowe sought to admit printouts from V.A.L.'s MySpace page on various dates between May 31, 2009 and December 14, 2009-after she made the sexual assault allegations against Lowe. The MySpace pages showed V.A.L. engaging in behavior that Lowe had prohibited. Second, Lowe sought to admit reports from the Racine Police Department indicating that V.A.L.'s mother called police about V.A.L. from May 18, 2009 through January 2, 2010-again, after V.A.L. made the sexual assault allegations against Lowe. Lowe claimed that the police reports showed V.A.L.'s mother's disapproval of V.A.L.'s behavior.

         The trial court allowed the defense to offer evidence of V.A.L.'s misbehavior and conflict between V.A.L. and Lowe that predated V.A.L.'s allegations of sexual assault. In addition, the trial court permitted defense counsel to ask V.A.L. generally about her MySpace account and activities she engaged in after Lowe's arrest of which he had previously disapproved. However, the trial court precluded Lowe from introducing V.A.L.'s MySpace posts that Lowe's trial counsel characterized as “a summer goal list, ” which included her desire to “[g]et my lounge [sic] and lip pierced, freak in the back seat of a car … spend the night at a boy's house, get hella' mushhhed and/or wasted.” (ECF No. 10-11 at 118.) Lowe sought to introduce MySpace posts “which would indicate alcohol and drug consumption, ” (ECF No. 10-11 at 123), specifically a photograph of “[h]er laying on a bed with a guy holding a bottle of alcohol …” and “two photographs of her purporting to smoke out of a bottle.” (ECF No. 10-11 at 125.) Finally, Lowe was precluded from introducing the post, “This summer is going to be one I'll never forget.” (ECF No. 10-11 at 117.) Additionally, the trial court excluded evidence of calls V.A.L.'s mother made to the police following Lowe's arrest about problems she was having with V.A.L. (ECF No. 10-2 at 108-22.)

         The Wisconsin Court of Appeals found that Lowe “was able to fully explore V.A.L.'s pre-allegation behavior, including intense conflict with Lowe.” Lowe, 2013 WI.App. 128, ¶ 18. The trial court limited inquiries only into V.A.L.'s behavior after she accused Lowe because of concerns “the content was irrelevant and that trial counsel was trying to ‘trash the victim.'” Lowe, 2013 WI.App. 128, ¶ 15. But even in this regard,

the trial court did not make a blanket preclusion of evidence of V.A.L.'s post-allegation behavior. Trial counsel was permitted to support the defense theory by asking V.A.L. whether she resumed using MySpace in a manner that her father prohibited, whether she was behaving in ways of which her father would not approve, and whether she was contacting people he would have forbidden her to contact. Trial counsel elicited V.A.L.'s testimony that she was able to resume use of her cell phone.

Id., ¶ 19.

         Lowe argues that his constitutional right to cross-examine witnesses and present a complete defense was violated when he was not allowed to present V.A.L's MySpace posts or the reports of the Racine Police Department at trial. Lowe contends this “resulted in both V.A.L. and her mother testifying falsely under the protections of the court's ruling.” (ECF No. 3 at 10.) Lowe wanted to be able to ask V.A.L. why she “was able to run away, break curfew, cause disturbances, and drink without being arrested or cited, why the police were called five times for this behavior and yet never referred her to juvenile authorities, some of which occurred while the Lowe's case was pending.” (ECF No. 3 at 11.)

         Lowe argues that the evidence was important because, without it, V.A.L.'s assertion that she was not “seeing boys her father disapproved, or acting in ways that her father disapproved, and that she was simply a typical teenager went unchallenged before the jury due to the court's ruling.” (ECF No. 3 at 11.) V.A.L.'s mother likewise testified, untruthfully according to Lowe, that “V.A.L. is a ‘typical' and ‘decent normal teenager, ' not ‘defiant' or ‘disgruntled.'” (ECF No. 3 at 11.) Lowe ...


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