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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

ALAN SCOTT ANDRE,

Petitioner,

v.

DOUG WADDINGTON,

Respondent.

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CASE NO.: C06-0503-JCC

REPORT AND RECOMMENDATION

Petitioner Alan Scott Andre proceeds pro se in this 28 U.S.C. § 2254 habeas action. (Dkt.

5.) He is in custody pursuant to a 2002 conviction by jury verdict of three counts of Child

Molestation in the First Degree. (Dkt. 19, Ex. 1.) Petitioner raises eight grounds for relief in his

habeas petition. (Dkt. 5.) Respondent filed an answer to the petition with relevant portions of the

state court record. (Dkts. 17 & 19.) Respondent argues that petitioner failed to properly exhaust

five of his grounds for relief and that the three exhausted claims lack merit. (Dkts. 17 & 25.)

Petitioner concedes that he failed to exhaust two of his claims, but maintains the exhaustion and

merit of his remaining claims. (Dkt. 24.) The Court has considered the record relevant to the

grounds raised in the petition, including all hearing transcripts. For the reasons discussed herein,

it is recommended that petitioner’s habeas petition be denied and this action dismissed.

/ / /

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I

The Washington Court of Appeals summarized the facts surrounding petitioner’s

conviction as follows:

Gina and Greg Levinson have two young daughters, H.L. and C.L. Gina and

Greg separated in 1995 and their divorce became final in 1998. After they separated,

Greg began dating and eventually married Lori Levinson. H.L. and C.L. lived with

their mother but spent every other weekend and two months in the summer with their

father.

Alan Andre and Gina met and began dating in 1997. They lived together in

Renton and soon thereafter had a son. Between 1997 and 1999, Andre, Gina, and the

three children moved to Oregon, Chicago, and Indiana because of Andre’s

employment. In the summer of 1999, Andre and Gina separated and Gina and the

children moved back to Washington. About a year later, the couple reconciled and

Andre moved in with Gina and the children on Mercer Island.

On a Sunday afternoon in April 2001, when H.L. was eleven years old, she

told her stepsister, and then her father and Lori, that Andre had inappropriately

touched her.

A couple of days later, H.L. disclosed what had happened to her school

counselor. She told the counselor that Andre would rub her back and snuggle with

her at night and then he would touch her “private.” The counselor called Gina and

Child Protective Services (CPS).

Mercer Island Police Detective Meta Barden investigated H.L.’s allegations.

Detective Barden, together with a CPS caseworker, interviewed H.L. at school.

A few days later, Andre agreed to meet with Detective Barden and discuss

H.L.’s allegations. During the two-hour taped interview, Andre denied molesting

H.L. but acknowledged that he had probably inadvertently touched her breasts and

buttocks when he was with her at bedtime. He said that H.L. had Attention Deficit

Disorder (ADD) and the medication she took caused her to have trouble falling

asleep. Because of this, she often asked him to rub her back at night. He also said

that at one point H.L. asked that he not lay so close to her. He was not sure why she

made this request and said he tried from then on to stay further away from her body

when he was with her at bedtime.

The State charged Andre with three counts of first degree child molestation

alleging that Andre molested H.L. three times during the six month period between

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September 2000 and February 2001 when Andre lived with Gina and the children on

Mercer Island.

At trial, H.L. testified that Andre repeatedly touched her on her breasts,

buttocks and vaginal area during a three-year period. She said that on one occasion

she asked him to stop and he complied for awhile. H.L. also acknowledged that when

she was six-years old and her father and Lori were first dating, she reported that Lori

had inappropriately touched her. She later admitted that she made up these

allegations because at the time she did not like Lori and did not want her father and

Lori to be together.

At trial, Andre argued H.L. made up the allegations against him with the same

motive as when she made up allegations against Lori in 1997. His defense also

focused on the inconsistencies between H.L.’s testimony at trial and the statements

she previously gave to the school counselor and Detective Barden.

The jury convicted Andre of first degree child molestation on all three counts.

Andre requested a sex offender alternative sentence. The court denied his request and

imposed a high end standard range sentence of 130 months on each count to run

concurrently.

Andre filed a motion for a new trial based on juror misconduct alleging the

jury had improperly considered extrinsic information about H.L.’s ADD. The court

held a hearing on Andre’s motion and several jurors testified. The trial court decided

the jury did not impermissibly rely on extrinsic evidence and entered written findings

of fact and conclusions of law denying the motion for a new trial. . . .

(Dkt. 19, Ex. 2 at 1-4 (footnotes omitted.))

Petitioner appealed his conviction to the Washington Court of Appeals. (Id., Ex. 3.) His

counsel raised the following grounds for review:

1. Prior to trial, appellant was interviewed by a police detective. During

the interview, appellant made numerous inculpatory and exculpatory statements. The

state sought to, and did, introduce at trial numerous sections of the interview

transcript. Due to the amount of the transcript admitted by the state, appellant sought

to introduce the entire transcript of the interview. After being refused the entire

transcript by the court, appellant sought to admit additional transcript sections to

explain those introduced by the state. While the court admitted some of these

additional portions, it refused many others. Significant refused portions contained

exculpatory statements.

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Did the trial court err by not admitting the entire interview transcript where

the remainder of the transcript would have explained or clarified the parts admitted

by the state, and where the transcript contained exculpatory statements which were

not introduced? In the alternative, did the trial court err by refusing to admit sections

of the transcript specifically requested by appellant to explain or clarify sections

already admitted by the state?

2. The state called Diana Low, who had been the alleged victim’s fifthgrade teacher for only four months. She was unaware of the alleged victim’s

reputation in the school and, based on the fact that no one had complained to her

about the alleged victim lying, testified that she believed the alleged victim had a good

reputation for honesty. Did the trial court err when it allowed Low to testify to the

alleged victim’s reputation when she admitted she was unaware of that reputation?

3. The alleged victim had made a prior allegation of the same nature

against a different person, Lori Levinson, which the alleged victim admitted was false.

The prosecutor’s opening statement told the jury Levinson now believed that the

alleged victim was telling the truth in this instance and was going to testify on her

behalf. Additionally, during rebuttal closing argument, the prosecutor implied that

defense counsel was bullying a child witness. Did the trial court err by not granting

appellant a new trial based on prosecutorial misconduct?

4. The alleged victim suffered from Attention Deficit/Hyperactivity

Disorder (ADD). While on the witness stand, the alleged victim was confronted with

several inconsistent statements she had made, which she had difficulty explaining.

After the verdict, several jurors testified that they considered the alleged victim’s

ADD when analyzing her difficulty answering questions and when determining her

credibility. In addition, several jurors informed the other jurors of extrinsic evidence

pertaining to ADD, which the defense had no chance to hear or rebut. Did the trial

court err by denying appellant’s new trial motion based on juror misconduct?

(Id. at 2-3.) He also argued that cumulative error in the trial required reversal. (Id. at 48-50.)

The Washington Court of Appeals affirmed the conviction. ( Id., Ex. 2.) Petitioner

petitioned for review pro se, raising the following issues:

1. Interview Transcript

In Brady v. Maryland, 373 U.S. 83, 87, 83, S. Ct. 1194, 10 L.Ed.2d 215, the

court held that suppression of evidence favorable to the accused upon request violates

due process where the evidence is material to guilt or punishment.

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In this case only about 11 pages of a 72-page transcript were admitted into

evidence. The trial court abused its discretion in not admitting enough of the

transcript that included exculpatory statements. Andre attempted to admit the tape

itself, because the context of any statements construed to be inculpatory would be

explained and Andre’s truthfulness would have been determined based upon his tone

of voice and inflections. This refusal violates the “rule of completeness” and gives a

distorted meaning of the statements made, causing prejudice.

The United States Supreme Court recently ruled that police cannot extract

information from suspects and only then inform them of their rights. Andre was not

read his rights prior to questioning and therefore the transcript may not be admitted

at all.

2. Reputation Testimony

State v. Lord, 117 Wn. 2d 829, 873, 822, P.2d 177 (1991) (Quoting 5A Karl

B. Tegland, Wash. Prac. Evidence , §231 at 201-04 (3d ed. 1989)) outlined the

requirements for reputation testimony to be admitted.

Andre contends that the trial court erred in its allowing reputation testimony

based on its definition of a community and the Court of Appeals erred in its decision

upholding the trial court.

3. Prosecutorial Misconduct

In State v. Case, 49 Wn. 2d 66, 70-71, 298 P.2d 500 (1956), the court held

that a prosecutor must seek “no conviction through the aid of passion, sympathy or

resentment.”

Andre contends that the prosecutor’s remarks in opening and closing

arguments constituted prosecutorial misconduct, the trial court should have declared

a mistrial, and the Court of Appeals erred in its ruling upholding the trial court.

4. Juror Misconduct

In State v. Briggs, 55 Wn. App. 44, 59, 776 P.2d 1347 (1989) the Court held

that a jury is expected to bring opinions, insight, common sense and everyday

experience to deliberations, but evidence outside a typical juror’s general experience

should not be introduced. Accordingly, the interjection of extrinsic evidence into

deliberations violates this principle as well as violates the accused’s right to due

process. U.S. Const. Amend. 14, Const. Article 1, §3. Thus, a juror introducing

extrinsic evidence constitutes misconduct.

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Andre contends that juror comments made regarding [H.L.’s] attention deficit

disorder (ADD) were extrinsic evidence and not personal life experience and the trial

court erred in not declaring a mistrial when the evidence was discovered.

5. Cumulative Error

The combined effects of errors may require a new trial even where no single

error warrants reversal. State v. Coe, 101 Wn. 2d 772, 789, 684 P.2d 699 (1984) and

State v. Perrett, 86 Wn. App. 312, 322, 936 P.2d 426, rev. denied, 133 Wn. 2d 1019.

Andre contends that the cumulative errors of (1) the court’s refusal to admit

the entire transcript of Andre’s interview with Mercer Island Detective Metta Barden

(Barden); (2) improper reputation testimony; (3) the prosecutorial misconduct; and,

(4) juror misconduct warrant a new trial.

6. The Verdict is Contrary to the Law and Evidence

A charge of child molestation can only be proved if sexual gratification is

proved. State v. Jones, 71 Wn. App. 798, 825-26, 863 P.2d 85 (1993). The state

offered no evidence even suggesting sexual gratification.

(Id., Ex. 5 at 1-4.) The Washington Supreme Court denied the petition for review without

discussion. (Id., Ex. 6.) The Washington Court of Appeals issued its mandate on April 8, 2005.

(Id., Ex. 7.)

Again proceeding pro se, petitioner filed a personal restraint petition in the Washington

Court of Appeals, raising three claims: (1) failure to give Miranda warnings during custodial

questioning; (2) insufficient evidence to convict; and (3) prosecutorial misconduct through

overcharging during trial and before jury deliberation. (Id., Ex. 8.) The Washington Court of

Appeals dismissed the petition. (Id., Ex. 11.) Raising the same issues, petitioner filed a motion

for discretionary review with the Washington Supreme Court. (Id., Ex. 12.) The Commissioner

of the Supreme Court denied review and the Washington Court of Appeals issued its certificate

of finality on April 25, 2006. (Id., Exs. 13 & 14.)

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II

Petitioner now raises the following grounds for relief:

1. Mercer Island police violated my right of self incrimination. (Failure to give

Miranda warning).

2. The evidence presented at trial does not meet the criteria of the law. (Insufficient

evidence to convict).

3. Prosecution abused discretion by adding multiple charges. (Overcharging).

4. The trial court erred by not allowing the entire transcript of my interview with

Detective Barden.

5. The trial court erred in allowing Diana Law to testify to H.L.’s reputation at the

school.

6. Prosecutorial misconduct deprived me of a fair trial. (Opening and closing

statements).

7. Juror misconduct deprived me of a fair trial. (Discussion of extrinsic evidence of

ADD by the jury).

8. Cumulative error.

(Dkt. 5 at 6-12.)

Respondent asserts that petitioner failed to properly exhaust his third, fourth, fifth, sixth,

and eighth claims, and that these claims are now procedurally barred. Respondent further argues

that petitioner’s first, second, and seventh claims fail on the merits. Petitioner concedes that he

failed to exhaust his third and fifth claims, but maintains he properly exhausted his remaining

claims. The Court addresses respondent’s exhaustion argument first.

III

“An application for a writ of habeas corpus on behalf of a person in custody pursuant to

the judgment of a State court shall not be granted unless it appears that . . . the applicant has

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exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). The

exhaustion requirement “is designed to give the state courts a full and fair opportunity to resolve

federal constitutional claims before those claims are presented to the federal courts,” and,

therefore, requires “state prisoners [to] give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established appellate review

process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

A complete round of the state’s established review process includes presentation of a

petitioner’s claims to the state’s highest court. James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994).

However, “[s]ubmitting a new claim to the state’s highest court in a procedural context in which

its merits will not be considered absent special circumstances does not constitute fair

presentation.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (citing Castille v. Peoples,

489 U.S. 346, 351 (1989)). Consequently, presentation of a federal claim for the first time to a

state’s highest court on discretionary review does not satisfy the exhaustion requirement. Castille,

489 U.S. at 351; Casey v. Moore, 386 F.3d 896, 915-18 (9th Cir. 2004), cert. denied 125 S.Ct.

2975 (2005). But see Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (“If the last state court to

be presented with a particular federal claim reaches the merits, it removes any bar to federal-court

review that might otherwise have been available.”)

Additionally, a petitioner must “alert the state courts to the fact that he was asserting a

claim under the United States Constitution.” Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.

1999) (citing Duncan v. Henry, 513 U.S. 364, 365-66 (1995)). “The mere similarity between a

claim of state and federal error is insufficient to establish exhaustion.” Id. (citing Duncan, 513

U.S. at 366). “Moreover, general appeals to broad constitutional principles, such as due process,

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equal protection, and the right to a fair trial, are insufficient to establish exhaustion.” Id. (citing

Gray v. Netherland, 518 U.S. 152, 162-63 (1996)).

Pursuant to RCW 10.73.090, no petition or motion for collateral attack on a judgment and

sentence in a criminal case may be filed more than a year after the judgment becomes final.

Additionally, if the state court expressly declined to consider the merits of a claim based on an

independent and adequate state procedural rule, or if an unexhausted claim would now be barred

from consideration by the state court based on such a rule, a petitioner must demonstrate a

fundamental miscarriage of justice, or cause, i.e. some external objective factor that prevented

compliance with the procedural rule, and prejudice, i.e. that the claim has merit. See Coleman v.

Thompson, 501 U.S. 722, 735 n.1, 749-50 (1991); Harris v. Reed, 489 U.S. 255, 263 (1989).

In this case, because petitioner concedes his failure to exhaust his third and fifth grounds

for relief, the Court need only address whether petitioner properly exhausted his fourth, sixth, and

eighth grounds for relief. For the reasons described below, the Court agrees with respondent that

petitioner failed to properly exhaust these claims.

Petitioner’s fourth ground for relief asserts error in the trial court’s refusal to admit the

entire transcript of his interview with Detective Barden. In the Washington Court of Appeals,

petitioner argued that this refusal violated the evidentiary “rule of completeness” and referenced

the effect of the admission of an incomplete statement on the Fifth Amendment right not to testify.

(Dkt. 19, Ex. 3 at 17-30.) In the Washington Supreme Court, petitioner again asserted a violation

of the rule of completeness and asserted arguments as to Brady and Miranda violations. (Id., Ex.

5 at 6-7) (referring to Brady v. Maryland, 373 U.S. 83 (1963) and Miranda v. Arizona, 384 U.S.

436 (1966)). Here, petitioner asserts a violation of the rule of completeness – an evidentiary rule,

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not a federal constitutional claim – and the resulting denial of a fair trial – a Fourteenth

Amendment due process claim. Because petitioner failed to present this due process claim in

either the Washington Court of Appeals or the Washington Supreme Court, and because he failed

to exhaust any of the constitutional claims raised in the state courts by failing to complete one

round of the state’s appellate review process with respect to each of those claims, petitioner’s

fourth ground for relief is unexhausted and now procedurally barred.

In his sixth ground for relief, petitioner asserts prosecutorial misconduct in opening and

closing statements. Although petitioner presented this argument as a federal constitutional

violation in the Washington Court of Appeals, he failed to do so in the Washington Supreme

Court. (See Dkt. 19, Ex. 3 at 35-41 & Ex. 5 at 9-10.) It is not enough to state, as asserted by

petitioner here, that this claim was implied in his petition for review in the Washington Supreme

Court. See generally Hiivala, 195 F.3d at 1106 (petitioner must “alert the state courts to the fact

that he was asserting a claim under the United States Constitution.”) Nor do the cases cited by

petitioner in support of this proposition apply in this case. See, e.g., Beam v. Paskett, 3 F.3d

1301, 1305-1307 (9th Cir. 1993) (discussing state mandatory review provisions for death penalty

cases which require states to review for specific types of errors and where a finding of no error

therefore constitutes state consideration and implied exhaustion), overruled in part on other

grounds by Lambright v. Stewart, 191 F.3d 1181, 1186 -87 (9th Cir.1999). As such, petitioner’s

sixth ground for relief is unexhausted and now procedurally barred.

Petitioner’s eighth ground for relief asserts cumulative error. However, petitioner failed

to raise this claim as a federal constitutional violation in either the Washington Court of Appeals

or the Washington Supreme Court. (See Dkt. 19, Ex. 3 at 48-50 & Ex. 5 at 13-14.) Petitioner’s

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general assertion in his state court briefing that the cumulative error deprived him of his right to

a fair trial does not suffice to establish exhaustion. See Hiivala, 195 F.3d at 1106 (“Moreover,

general appeals to broad constitutional principles, such as due process, equal protection, and the

right to a fair trial, are insufficient to establish exhaustion.”) Nor, for the reasons described above,

can petitioner assert implied exhaustion of this claim. Accordingly, petitioner’s eighth ground for

relief is unexhausted and now procedurally barred.

In sum, petitioner failed to exhaust his third, fourth, fifth, sixth, and eighth grounds for

relief, and fails to demonstrate either cause or prejudice excusing his procedural default. Having

considered the issue of exhaustion, the Court directs its attention to the merits of petitioner’s

exhausted claims.

IV

This Court’s review of the merits of petitioner’s claims is governed by 28 U.S.C. §

2254(d)(1). Under that standard, the Court cannot grant a writ of habeas corpus unless a

petitioner demonstrates that he is in custody in violation of federal law and that the highest state

court decision rejecting his grounds was either “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(a) and (d)(1). The Supreme Court holdings at the time of the state

court decision will provide the “definitive source of clearly established federal law[.]” Van Tran

v. Lindsey, 212 F.3d 1143, 1154 (9th Cir. 2000), overruled in part on other grounds by Lockyer

v. Andrade, 538 U.S. 63 (2003). A state-court decision is contrary to clearly established

precedent if it “‘applies a rule that contradicts the governing law set forth in’” a Supreme Court

decision, or “‘confronts a set of facts that are materially indistinguishable’” from such a decision

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and nevertheless arrives at a different result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting

Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).

Ground One

In his first ground for relief, petitioner argues that the Mercer Island police violated his

right against self-incrimination by failing to give him Miranda warnings. See Miranda, 384 U.S.

at 479 (requiring police to advise suspects that they have the right to remain silent, that anything

they say may be used against them in court, and that they are entitled to the presence of an

attorney during questioning.) “Miranda warnings are due only when a suspect interrogated by the

police is ‘in custody.’” Thompson v. Keohane, 516 U.S. 99, 101 (1995). Petitioner argues that

he was in custody at the time of his statements to Detective Barden.

The trial court held a hearing on the admissibility of petitioner’s statements to the police.

(See Dkt. 19, Ex. 15 at 42-95.) Detective Barden testified that petitioner was not in custody at

the time of the interview, that she told petitioner he did not have to talk to her and was free to

leave, and that, until the conclusion of the interview, no decision had been made to place petitioner

under arrest. ( Id. at 50, 54-55, 82.) The court rejected petitioner’s motion to suppress his

statements, concluding he was not in custody, was free to leave, and knowingly and intelligently

spoke to Detective Barden. (Dkt. 19, Ex. 9 at Appx. C.)

In considering petitioner’s Miranda argument, the Washington Court of Appeals held as

follows:

Andre first argues that the trial court should have suppressed the statement he

gave to Detective Barden because she did not warn him of his rights under Miranda

v. Arizona before she questioned him.

A Miranda warning is intended to protect a defendant’s right not to make

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incriminating statements while in the coercive environment of police custody. State

v. Harris, 106 Wn.2d 784, 789, 725 P.2d 975 (1986). The safeguards apply in

circumstances where there is a possibility of coercion. See State v. Short, 113 Wn.2d

35, 41, 775 P.2d 458 (1989) (focus is on the possibility of coercion, not whether an

officer had probable cause to arrest). A suspect’s freedom of action must be so

limited to a degree associated with formal arrest. Harris, 106 Wn.2d at 789.

Whether a Miranda warning was warranted is determined from the perspective

of a reasonable man in the suspect’s position. Short, 113 Wn.2d at 41. The sole

inquiry is whether the suspect reasonably supposed his freedom of action was

curtailed. If a defendant not yet charged with a crime voluntarily cooperates with

questioning as part of a routine, general investigation, a Miranda warning is not

required. Id.

The situation here did not warrant a Miranda warning. The following facts

were undisputed and are verities. See State v. Lopez, 152 Wn.2d 22, 30, 93 P.2d 133

(2004) (unchallenged findings of fact entered after a suppression hearing are treated

as verities on appeal). Andre went to the Mercer Island Police Department

voluntarily. He knew he was there to discuss H.L.’s allegations and agreed to allow

his statement to be recorded. The door to the room where he was interviewed was

closed but not locked. Andre was free to leave during the interview.1

A reasonable person in Andre’s position would not suppose that his freedom

of action was curtailed to the same degree as a formal arrest. The omission of a

Miranda warning does not entitle Andre to relief.

(Dkt. 19, Ex. 11 at 4-5 (one footnoted citation omitted.))

Petitioner here maintains he was never told he was allowed to leave his interview with

Detective Barden, which took place in a closed room with two detectives present. He notes that

she failed to include this information in the tape of the interview. Petitioner argues that, given the

circumstances of the interview, a reasonable person would not have believed himself free to leave.

He adds that, during arguments on this issue prior to trial, the prosecuting attorney admitted

petitioner was in custody in stating “. . . it was clear that we are not talking about an interrogation

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in the custodial sense, we are talking about a custodial interview.” (Dkt. 19, Ex. 15, Vol. I, Jan.

9, 2002 transcript at 89-90.) However, for the reasons described below, petitioner’s arguments

fail.

Under the Antiterrorism and Effective Death Penalty Act of 1996, state court findings of

fact are presumptively correct in federal habeas proceedings, and the petitioner bears the burden

of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. §

2254(e)(1). Here, the state court’s finding that petitioner was free to leave the interview is

presumed correct and petitioner fails to present clear and convincing evidence to rebut that

presumption. Instead, his arguments are no more than conclusory.

Petitioner also otherwise fails to demonstrate that he is in custody in violation of federal

law and that the state court decisions were contrary to, or involved an unreasonable application

of, clearly established federal law. A determination of whether an individual is in custody

“depends on the objective circumstances of the interrogation, not the subjective views harbored

by either the interrogating officers or the person being questioned.” Stansbury v. California, 511

U.S. 318, 323 (1994). “The only relevant inquiry is how a reasonable man in the suspect’s

position would have understood the situation.” Berkemer v. McCarty, 468 U.S. 420, 442 (1984).

In this case, as found by the Washington Court of Appeals, Miranda warnings were not necessary

where petitioner voluntarily came to the station to discuss the allegations against him, agreed to

allow his statement to be recorded, was not in a locked room, and was told he was free to leave.

See, e.g., California v. Beheler, 463 U.S. 1121, 1121-22, 1125 (1983) (Miranda warnings not

required when suspect was not placed under arrest, voluntarily came to station, and was allowed

to leave unhindered after brief interview); United States v. Norris, 428 F.3d 907, 912 (9th Cir.

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2005) (defendant was not in custody for purposes of Miranda where he voluntarily accompanied

officers to the station, was told he was free to terminate the interview at any time and was not

under arrest, was never restrained in any way, and was taken home by the officers at the

completion of the interview).

Finally, petitioner takes out of context and misconstrues the statement made by the

prosecutor. In fact, in making the statement excerpted by petitioner here, the prosecutor was

arguing that petitioner was not in custody at the time of his statements to the police. (See Dkt. 19,

Ex. 15, Vol. I, Jan. 9, 2002 transcript at 89.)

In sum, petitioner fails to establish that, given the absence of Miranda warnings, he is in

custody in violation of federal law and that the state court decisions were either contrary to, or

involved an unreasonable application of, clearly established federal law. As such, his first ground

for habeas relief should be denied.

Ground Two

In his second ground for relief, petitioner asserts insufficient evidence at trial to prove he

touched the victim in this case for the purpose of sexual gratification. He avers that there was, in

fact, no such evidence presented at trial. However, for the reasons described below, the Court

concludes that this claim lacks merit.

In reviewing an insufficiency of the evidence claim, the Court must “view the record as a

whole in the light most favorable to the prosecution.” Gordon v. Duran, 895 F.2d 610, 612 (9th

Cir. 1990). The question is “whether ‘ any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’” Id. (quoting Jackson v. Virginia, 443 U.S.

307, 319 (1979)). The Court affords significant deference to the trier of fact. Wright v. West, 505

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U.S. 277, 296 (1992).

In considering this issue, the Washington Court of Appeals held as follows:

Andre contends that the evidence was not sufficient to convict him of first

degree child molestation. He claims the State failed to prove that he touched H.L. for

the purpose of gratifying his (or H.L.’s) sexual desire.

The test for determining whether evidence is sufficient to support a conviction

is whether, after viewing the evidence in the light most favorable to the State, any

rational trier of fact could have found guilt beyond a reasonable doubt. State v.

Tilton, 149 Wn.2d 775, 786, 72 P.3d 735 (2003). By claiming the evidence was

insufficient, the defendant admits the truth of the State’s evidence and all inferences

that can reasonably be drawn from it. Tilton, 149 Wn.2d at 786. Circumstantial

evidence is as reliable as direct evidence. State v. Thomas, 150 Wn.2d 821, 874, 83

P.3d 970 (2004).

Andre was found guilty of first degree child molestation, in violation of RCW

9A.44.083:

A person is guilty of child molestation in the first degree when the 

person has, or knowingly causes another person under the age of eighteen to

have, sexual contact with another who is less than twelve years old and not

married to the perpetrator and the perpetrator is at least thirty-six months

older than the victim.

“‘Sexual contact’ means any touching of the sexual or other intimate parts of a person

done for the purpose of gratifying sexual desire of either party or a third party.”

RCW 9A.44.010(2). A jury may infer that touching was for the purpose of sexual

gratification if an adult male is proven to have touched the sexual or intimate parts of

a young girl unrelated to him and for whom he is not performing a caretaking

function.” State v. Ramirez, 46 Wn. App. 223, 226, 730 P.2d 98 (1986).

H.L. testified that Andre sometimes lay down with her when he tucked her in

at night. He rubbed her back to help her fall asleep, which was okay with her, but he

also touched her on her breasts, butt, and between her legs. He touched her in each

place both over and under her clothes. Andre also made H.L. touch his penis. He

rubbed against her with his penis in a movement she described as “humping.” H.L.

said it happened almost every night.

Andre is not related to H.L. and was not performing a caretaking function

when he touched her on her sexual parts. Furthermore, the frequency of the contacts

belies his assertion that he touched her on those parts inadvertently. See State v.

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Whisenhunt, 96 Wn. App. 18, 980 P.2d 232 (1999) (judge could reasonably infer that

defendant acted for the purpose of sexual gratification when he reached his arm over

the seat of a bus and touched her in the vaginal area on three separate occasions).

The evidence was sufficient to support Andre’s convictions.

(Dkt. 19, Ex. 11 at 5-7.)

As described by the Washington Court of Appeals, the “sexual contact” required for a

charge of child molestation in the first degree includes “any touching of the sexual or other

intimate parts of a person done for the purpose of gratifying sexual desires of either party.” RCW

9A.44.010(2) and 9A.44.083. Here, the evidence as described by the state court belies petitioner’s

contention that there was no evidence presented at trial to prove that he touched the victim in this

case for the purpose of sexual gratification. Further, viewing that evidence in the light most

favorable to the prosecution, the Court stands assured that a rational trier of fact could conclude

beyond a reasonable doubt that petitioner’s actions were committed for the purpose of sexual

gratification. Accordingly, petitioner’s second ground for relief should be denied.

Ground Seven

In his seventh ground for relief, petitioner argues that juror misconduct deprived him of

his Fourteenth Amendment due process right to a fair trial. Petitioner asserts that the victim’s

credibility was a key issue in this case, pointing to her previous false allegations against Lori

Levinson and stating that she raised new allegations for the first time at trial and that her testimony

conflicted with her pre-trial statements. Petitioner asserts that, in an effort to minimize these

concerns, several jurors made comments regarding the victim’s ADD. He maintains that these

comments constituted extrinsic evidence jeopardizing his right to a fair trial. However, again, the

Court concludes that this ground for relief lacks merit.

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Jurors have a duty to consider during their deliberations only that evidence presented to

them in open court. United States v. Navarro-Garcia , 926 F.2d 818, 821 (9th Cir. 1991).

“Evidence not presented at trial, acquired through out-of-court experiments or otherwise, is

deemed ‘extrinsic.’” Id. “‘The jury’s consideration of extraneous information deprives defendants

of the opportunity to conduct cross-examination, offer evidence in rebuttal, argue the significance

of the information to the jury, or request a curative instruction.’” Id. at 823 (quoting United States

v. Bagnariol, 665 F.2d 877, 884 n.3 (9th Cir. 1981)). However, a petitioner is entitled to a new

trial only where there existed a reasonable possibility that the extrinsic material contributed to the

verdict. See United States v. Mills, 280 F.3d 915, 921 (9th Cir. 2002). “[T]he presence of a

single improperly influenced juror” supports the existence of such a possibility. Rodriguez v.

Marshall, 125 F.3d 739, 745 (9th Cir. 1997), overruled in part on other grounds by Payton v.

Woodford, 346 F.3d 1204 (2003). “[G]reat weight [is placed] on the nature of the extraneous

information. . . . Juror misconduct which warrants relief generally relates ‘directly to a material

aspect of the case.’” Id. at 744 (quoted and cited cases omitted).

In this case, petitioner moved for a new trial based on jury misconduct after an investigator

he hired gathered information regarding the jury’s consideration of evidence related to ADD. The

trial court held a hearing, taking the testimony of several jurors. (Dkt. 19, Ex. 15 Vol. VI, March

8, 2002 transcript at 752-81, and April 5, 2002 transcript at 790-818.) As described by the

Washington Court of Appeals, three out of the five jurors from whom testimony was taken

testified as follows:

Juror Reinhart Schaefer testified that he worked with someone for about 17

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2

 [State court footnote] He and his coworker had about a dozen conversations about his

son’s condition over the years.

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years whose son had ADD.2 During deliberations, he told the jury that his co-worker

described his son as “literal-minded” and said he “needed to have exact questions put

to him.” Schaefer said this came up in the context of talking about a “difficult

question by the defense attorney to the girl.” He also said that during deliberations

there was “not a lot of concentration on ADD.”

Juror Kimberly Thomas, a school teacher, said the issue of ADD came up in

the context of discussing H.L.’s “credibility.” She said ADD was an “element” of that

credibility, in addition to H.L.’s age and the pressure of testifying. Thomas said she

had no expertise in ADD, it was her first year of teaching, and she had no experience

teaching children with ADD. Thomas told the jury that another teacher who suffered

from ADD told her “how seemingly innocuous things to us could be a distraction such

that a person with ADD could not focus on anything but that distraction.”

Juror Phillip McBeth testified that during deliberations some jurors related

their experiences with ADD including the fact that children with ADD may need to

have “repeated” and “specific” instructions.

(Id., Ex. 3 at 14-16 (footnotes with citations to record omitted.)) A fourth juror testified that three

out of her twelve grandchildren have ADD, that she did not share any of her experiences with

these grandchildren with the jury or participate in any jury discussions concerning ADD, and that

she only remembered one juror mentioning having some experience with ADD, but not saying

anything particularly significant. (Dkt. 19, Ex. 15, Vol VI, March 8, 2002 transcript at 764-72.)

The fifth juror testified that ADD was discussed as one of several factors relevant to a

determination of the victim’s credibility, particularly as it related to the victim’s difficulty in

answering questions posed by the attorneys in this case. (Id. at 773-81.) She added that, while

she has a daughter with a learning disability, she did not believe she brought that fact up in the

discussion, and that she did not recall any other jurors making any pivotal contributions to the

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 [State court footnote] Counsel did not question the jurors about their knowledge of or

experience with ADD in this case.

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discussion as to their knowledge of or personal experiences with ADD. (Id.)

The trial court heard oral argument from the parties and denied petitioner’s motion for

a new trial upon concluding that the jurors had not impermissibly relied on extrinsic evidence as

to ADD. (See Dkt. 19, Ex. 15, Supp. Rep’t of Proceedings, April 19, 2002 transcript at 61-91.)

As described by the Washington Court of Appeals, the trial court reasoned as follows:

In denying Andre’s motion for a mistrial, the court found that the jurors’

comments did not represent specialized knowledge, but rather were the type of

“comments and information that we expect them to bring to jury service.” The court

pointed out that ADD is a “common diagnosis” and therefore any jury is likely to

contain jurors with direct or indirect experience with it. The court also concluded that

even if the information considered by the jury was extrinsic evidence, it did not affect

the verdict. The court noted that the crux of the case was whether the jury believed

H.L., not ADD.

(Id. at 16.) The Washington Court of Appeals upheld the trial court’s ruling on appeal:

Andre relies on and analogizes to Halverson v. Anderson, 82 Wn.2d 746, 752,

513 P.2d 827 (1973), and State v. Briggs, 55 Wn. App. 44, 59, 776 P.2d 1347

(1989). In Halverson, a minor who was injured in a car accident brought an action

claiming future wage loss. At trial, the minor testified that he wanted to be an airline

pilot, but because of his injuries, decided to pursue a career as a surveyor. The jury

did not have evidence of wages for pilots or surveyors. During deliberations, a juror

told the others what the salaries were for airline pilots and surveyors. The Supreme

Court affirmed the trial court’s order for a new trial because the wage information

introduced into deliberations was akin to expert testimony and should have been

subject to objection, cross examination, explanation and rebuttal. Halverson, 82

Wn.2d at 747.

In Briggs, the central issue at trial was whether the defendant, who had a

profound stutter, could control or refrain from stuttering. In voir dire, a juror

intentionally withheld information about his speech disorder.3

 During deliberations,

the juror discussed his own history and knowledge of speech disorders. This court

held that the information imparted by the juror was outside the realm of common life

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 [State court footnote] We also conclude the jurors’ statements Andre relied on inhere in

the verdict. Statements reflecting the thought processes that led the jury to reach its verdict inhere

in the verdict and may not be used to impeach it. Breckenridge v. Valley General Hospital, 150

Wn.2d 197, 204-05, 75 P.3d 944 (2003).

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experience and the juror’s misconduct required a new trial. Briggs, 55 Wn. App. at

59.

Unlike Halverson and Briggs, the information imparted by jurors Schaefer,

Thomas and McBeth was not highly specialized, technical or specific. None of the

jurors had ADD or particular knowledge about ADD. The information they had was

based on their common life experience. In addition, the jurors’ information was very

similar to the evidence about ADD presented at trial. A Special Education teaching

assistant testified that H.L.’s medication helped her to “focus” and “understand

directions.” She also said that young students with ADD are “easily distracted” by

“sound” and “visual things.” Both H.L.’s father and mother testified that her

medication for ADD helped her to concentrate. And in contrast to Briggs, ADD was

not the central issue in the case. As indicated by the trial court, the central issue was

whether H.L. was telling the truth about her allegations against Andre. H.L.’s age,

her testimony, her demeanor, her prior false allegation, and her ADD were all part of

the jury’s assessment of her credibility. The court did not abuse its discretion in

concluding that the information shared by the jurors was not extrinsic evidence, but

rather common life experience, and that there was no prejudice to Andre.4

(Id. at 16-18 (footnotes with citations to record omitted.))

As noted by the state courts and argued here by respondent, jurors are expected to rely on

their personal experience and common sense in reaching a verdict. See, e.g., Smith v. Phillips, 455

U.S. 209, 217 (1982) (“[I]t is virtually impossible to shield jurors from every contact or influence

that might theoretically affect their vote.”); Grotemeyer v. Hickman, 393 F.3d 871, 878-81 (9th

Cir. 2004) (“The mere fact that the jury foreman brought her outside experience to bear on the

case is not sufficient to make her alleged statements violate Grotemeyer’s constitutional right to

confrontation.”; noting boilerplate jury instruction language directing jurors to draw reasonable

inferences in light of their experience and common sense; “Varied juror experience is a virtue that

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assists juries in ascertaining the truth.”), cert. denied, 126 S.Ct. 177 (2005); Navarro-Garcia, 926

F.2d at 821-22 (“Inevitably, ‘jurors must rely on their past personal experiences when hearing a

trial and deliberating on a verdict.’”) (quoting Hard v. Burlington No. RR, 812 F.2d 482, 486 (9th

Cir. 1987)). Here, petitioner fails to demonstrate that the state courts erred in determining that

the ADD information discussed by the jurors derived from common life experience and did not

constitute impermissible extrinsic evidence. Moreover, as noted by the Washington Court of

Appeals, the information discussed by the jurors did not substantially differ from the ADD

evidence discussed at trial. (See Dkt. 19, Ex. 15, Vol. II, Jan. 15, 2002 transcript at 172-73, Vol.

III, Jan. 16, 2002 transcript at 260-63, and Vol. V, Jan. 22, 2002 transcript at 637-39.) Cf .

Navarro-Garcia, 926 F.2d at 821-22 (describing instances wherein a juror’s personal experiences

may constitute extrinsic evidence to include where a juror has personal knowledge regarding the

parties or the issue involved in the litigation that might affect the verdict or where the jury

considers the juror’s past personal experiences without any record evidence on a given fact, “as

personal experiences are relevant only for purposes of interpreting the record evidence.”)

(emphasis added). Finally, as found by both the trial and appellate courts, even if this information

could be deemed extrinsic evidence, this Court finds significant the fact that ADD was merely one

aspect of the credibility decision, rather than the central issue of the victim’s credibility. See

Rodriguez, 125 F.3d at 744.

For the reasons described above, petitioner fails to show that he is custody in violation of

federal law and that state court decisions were either contrary to, or involved an unreasonable

application of, clearly established federal law. Accordingly, the Court should also deny

petitioner’s seventh ground for relief.

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V

Petitioner’s habeas petition should be denied, and this action dismissed. A proposed Order

of Dismissal accompanies this Report and Recommendation. No evidentiary hearing is required

as the record conclusively shows that petitioner is not entitled to relief.

DATED this 6th day of March, 2007.

A

Mary Alice Theiler

United States Magistrate Judge 

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