Johnny Sittner v. Michael Bowersox

United States Court of Appeals
For the Eighth Circuit
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No. 19-1742
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Johnny Sittner
lllllllllllllllllllllPetitioner - Appellant
v.
Michael Bowersox
lllllllllllllllllllllRespondent - Appellee
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: January 17, 2020
Filed: August 11, 2020
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Before KELLY, MELLOY, and KOBES, Circuit Judges.
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MELLOY, Circuit Judge.
Petitioner Johnny Sittner appeals from a judgment dismissing his petition for
a writ of habeas corpus brought under 28 U.S.C. § 2254. Sittner raises two grounds
for relief, both under the Sixth Amendment. We affirm.

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I.
In April 2009, Sittner was tried by a jury on charges of first-degree statutory
rape, first-degree sodomy, and two counts of incest based on allegations that Sittner
sexually abused his stepdaughter (S.S.) starting when she was nine years old. At trial,
S.S., who was then fifteen, testified for the State. The State also offered the testimony
of Dina Vitoux, a licensed clinical social worker at the Children’s Advocacy Center
of East Central Missouri. Vitoux’s testimony was based on her “extended evaluation”
of S.S. when the abuse was first discovered. The trial court recognized Vitoux as an
expert witness in the field of child sexual abuse. Vitoux testified as to her evaluation
of S.S. and the process of evaluating child victims more generally. Vitoux explained
that several factors are used to determine the potential accuracy of a child’s
statements, including: content (e.g., sensory details and “unusual sexual knowledge”
for age), context, consistency, emotion, and motive. Vitoux testified generally about
how the factors applied to S.S.’s statements. Over objection from defense counsel,
Vitoux testified that S.S. had “unusual sexual knowledge” for her age.
In a bench conference prior to cross-examination, defense counsel requested
permission to ask Vitoux about information Vitoux had referenced pre-trial but did
not address in her direct-examination testimony: statements S.S. had made during the
extended evaluation that disclosed previous sexual abuse by men other than Sittner.
Sittner wanted the evidence of other abuse admitted in order to show a potential
source, other than Sittner, for S.S.’s unusual sexual knowledge. Defense counsel
argued the admission of such testimony was a matter of Sittner’s due process rights.
The State argued the testimony was not allowed under Missouri’s rape shield statute,
Mo. Rev. Stat. § 491.015, and was also not necessary given the limited nature of
Vitoux’s testimony as to “unusual sexual knowledge” on direct examination. The
trial court denied Sittner’s request, reasoning that by not putting excessive emphasis
on the subject of S.S.’s unusual sexual knowledge, the State did not “open the door”
for defense counsel to ask questions about additional sources of abuse. The trial
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court also instructed counsel to abstain from asking any further questions on this
topic. All parties complied.
The jury convicted Sittner on all charges. After unsuccessfully pursuing relief
in state court,1 Sittner filed a petition for habeas corpus in the United States District
Court for the Eastern District of Missouri, raising nine grounds for relief. The district
court2 denied Sittner’s petition on all grounds and issued a certificate of appealability
on two grounds. On appeal, Sittner argues the district court should have found that,
under the Sixth Amendment to the United States Constitution, (1) his right to
confront witnesses against him was violated by the trial court’s exclusion of evidence,
and (2) his right to effective assistance of counsel was violated by his trial counsel’s
failure to adequately object to Vitoux’s testimony as impermissible opinion testimony
concerning the credibility of S.S.
II.
On a district court’s denial of habeas relief, we review findings of fact for clear
error and conclusions of law de novo. Ervin v. Bowersox, 892 F.3d 979, 983 (8th
Cir. 2018). Under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Sittner must show the state court’s decision was either contrary to, or an
unreasonable application of, clearly established federal law as determined by the
United States Supreme Court, or was based on an unreasonable determination of the
facts in light of the evidence adduced in state court. 28 U.S.C. § 2254(d)(1)–(2); see
also Shelton v. Mapes, 821 F.3d 941, 946 (8th Cir. 2016) (stating that the standard
of review under § 2254 “creates a substantially higher threshold for obtaining relief
1See State v. Sittner, 294 S.W.3d 90 (Mo. Ct. App. 2009) (direct appeal);
Sittner v. State, 326 S.W.3d 551 (Mo. Ct. App. 2010) (post-conviction relief).
2The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
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than de novo review” (quoting Renico v. Lett, 559 U.S. 766, 773 (2010) (internal
quotation marks omitted))).
Sittner first argues he should have been allowed to question Vitoux regarding
S.S.’s out-of-court statements indicating she had previously been sexually abused by
individuals other than Sittner. Sittner argues the denial of his opportunity to cross-
examine Vitoux on this subject violated his Sixth Amendment right to confront
witnesses against him. Generally, in the habeas context, “[q]uestions regarding
admissibility of evidence are matters of state law.” Rousan v. Roper, 436 F.3d 951,
958 (8th Cir. 2006) (quoting Logan v. Lockhart, 994 F.2d 1324, 1330 (8th Cir.
1993)). “A federal issue is raised only where trial errors infringe on a specific
constitutional protection or are so prejudicial as to amount to a denial of due process.”
Bucklew v. Luebbers, 436 F.3d 1010, 1018 (8th Cir. 2006). Therefore, to succeed,
Sittner “must show ‘that the alleged improprieties were so egregious that they fatally
infected the proceedings and rendered his entire trial fundamentally unfair.’” Rousan,
436 F.3d at 958–59 (quoting Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995)).
The Sixth Amendment guarantees a criminal defendant the “right to be
confronted with the witnesses against him,” including “the right to conduct
reasonable cross-examination.” Olden v. Kentucky, 488 U.S. 227, 231 (1988) (per
curiam). Pursuant to this right, a criminal defendant must be given “an opportunity
for effective cross-examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.” United States v. Jasso, 701
F.3d 314, 316 (8th Cir. 2012) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)
(per curiam)). Accordingly, the right to cross-examination “may, in appropriate
cases, bow to accommodate other legitimate interests in the criminal trial process.”
Michigan v. Lucas, 500 U.S. 145, 149 (1991) (quoting Rock v. Arkansas, 483 U.S.
44, 55 (1987)). Any “[r]estrictions on a criminal defendant’s rights to confront
adverse witnesses and to present evidence ‘may not be arbitrary or disproportionate
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to the purposes they are designed to serve.’” Id. at 151 (quoting Rock, 483 U.S. at
56).
On direct review, the Missouri Court of Appeals ruled the trial court did not
abuse its discretion in excluding the evidence because “the State did not use evidence
of S.S.’s unusual sexual knowledge to establish Sittner’s guilt,” and because S.S’s
“knowledge merely arose as one [factor] Vitoux used to determine the accuracy of
S.S.’s statements.” Sittner, 294 S.W.3d at 91. It further concluded that “[a]ll relevant
evidence was available to the jury, no rights of the defendant were violated, and the
privacy of the victim was preserved.” Id. at 92.
Missouri’s rape shield statute precludes the admission of all “opinion and
reputation evidence of the complaining witness’[s] prior sexual conduct” and, subject
to four exceptions, “specific instances of the complaining witness’[s] prior sexual
conduct.” Mo. Rev. Stat. § 491.015; see also id. § 491.015.1(2) (listing as an
exception, “[e]vidence of specific instances of sexual activity showing alternative
source or origin of semen, pregnancy or disease”). If evidence falls within a statutory
exception, the evidence is admissible only to the extent the trial court finds it relevant
to a material fact or issue. Id. § 491.015.2. Here, Sittner’s trial counsel did not argue
the proffered evidence fell into an exception. Instead, defense counsel relied upon
arguments related to fundamental fairness and Sittner’s right to due process.
In State v. Douglas, 797 S.W.2d 532, 535 (Mo. Ct. App. 1990), the Missouri
Court of Appeals explained that Missouri’s “rape shield statute may not be applied
so strictly as to deprive the defendant of the fair trial comprehended by the concept
of due process.” To that end, Missouri courts have allowed a criminal defendant to
present evidence about the victim’s prior other abuse if the State highlights the
victim’s unusual sexual knowledge during trial. As explained in State v. Samuels, 88
S.W.3d 71, 82 (Mo. Ct. App. 2002):
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Typically, in a case of this nature, young victims will describe
inappropriate experiences in words they should not know. The State has
no choice but to present the victim’s description of the events.
However, we find that for purposes of considering a defendant’s due
process rights in a case such as the one at bar, there is an important
distinction between evidence that is offered as part of presenting the
facts of the case, i.e., an essential part of the State’s case in chief, and
evidence or comments by the State that go the extra step to highlight the
testimony to suggest that the defendant is . . . the sole source of the
precocious sexual knowledge. If the latter category of evidence is
presented, basic principles of fairness entitle the defendant to counter
with evidence that there are other potential sources of the . . .
knowledge.
Compare Samuels, 88 S.W.3d at 82 (ruling defendant should have been allowed to
put on evidence showing an alternative source of one victim’s “unusual sexual
knowledge” where the State emphasized the importance of the victim’s “unusual
sexual knowledge” in opening statement, during an expert’s testimony, and in closing
argument), with State v. Sales, 58 S.W.3d 554, 559 (Mo. Ct. App. 2001) (determining
the defendant’s right to put on evidence showing an alternative source was not
violated because the State “never presented evidence . . . claiming or suggesting that
[the victim’s] precocious sexual knowledge was acquired from an encounter with [the
defendant]”). Here, the State mentioned, but did not emphasize, Vitoux’s testimony
as to S.S.’s unusual sexual knowledge.3
To succeed under AEDPA, Sittner must show that the Missouri Court of
Appeals’ application of this nuanced law in his case was contrary to, or an
3In closing argument, the State referenced Vitoux’s description of the factors
pertaining to child disclosure only briefly, saying: “Vitoux testified about [S.S.]’s
disclosures. They were consistent. They were what she expected a child under these
circumstances to go through. They were appropriate disclosures.”
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unreasonable application of, clearly established Supreme Court precedent. He
contends Olden v. Kentucky, 488 U.S. 227 (1988), Delaware v. Van Arsdall, 475 U.S.
673 (1986), and Davis v. Alaska, 415 U.S. 308 (1974), support his claim that his
rights were violated by being unable to elicit testimony about other potential sources
of S.S.’s sexual knowledge. These cases show that the Supreme Court has recognized
constitutional rights can trump evidentiary rules and privileges in some
circumstances. In each, the Court found the trial court violated a defendant’s right
to cross-examination by excluding evidence relatively likely “to show a prototypical
form of bias on the part of” a critical witness. Van Arsdall, 475 U.S. at 680; see also
id. (finding that “[a] reasonable jury might have received a significantly different
impression of [the witness’s] credibility had [defense counsel] been permitted to
pursue his proposed line of cross-examination”); Olden 488 U.S. at 232 (explaining
that speculative concern for racial prejudice against a witness for the prosecution
could not “justify exclusion of cross-examination with such strong potential to
demonstrate the falsity of [the witness’s] testimony”); Davis, 415 U.S. at 318–20
(finding that Alaska’s policy of protecting the anonymity of juvenile-offender records
had to yield to a defendant’s right to cross-examine a “crucial identification witness”
as to the grounds for that witness’s potential bias). While these cases establish the
type of balancing of interests a court must conduct when faced with similar questions,
they do not set forth “clearly established federal law,” 28 U.S.C. § 2254(d)(1),
controlling the outcome of the question presented in Sittner’s case.
Here, Sittner was given a sufficient opportunity to cross-examine and impeach
the witnesses against him at trial. Sittner’s defense strategy was designed to show
S.S. was motivated to falsely accuse him as a form of revenge for his disciplinary
style at home. The strategy did not turn on the admission of the excluded evidence.
Further, Sittner had a full opportunity to cross-examine Vitoux on issues specifically
related to his defense strategy. Defense counsel asked Vitoux about her expertise on
child victims making false accusations and their possible motives for doing so. Nor
is there any indication that the proffered testimony was highly probative evidence of
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S.S.’s motive to falsely accuse Sittner. There was already evidence in the record
showing S.S. had alternative sources for her sexual knowledge other than Sittner’s
physical abuse. That is, S.S. testified that Sittner showed her pornographic images
on his computer. Thus, the trial court’s ruling to exclude extrinsic evidence about
other sources of abuse was directly related, and proportionate, to the State’s interest
in protecting the privacy of child victims of sexual crimes and did not bar Sittner from
establishing his defense strategy. Under the restrictive limits of habeas review, the
state courts’ adjudication of Sittner’s claim was neither contrary to, nor did it involve
an unreasonable application of, clearly established Supreme Court precedent.4
Sittner next argues his trial counsel’s failure to object to Vitoux’s testimony
denied him effective assistance of counsel. Specifically, Sittner argues counsel
should have objected to Vitoux’s testimony about the factors that demonstrate the
accuracy of a child victim’s testimony. He argues the testimony, as offered, was an
impermissible opinion as to the credibility of S.S., the complaining witness. “A
defendant who claims to have been deprived of effective assistance of counsel must
show: (1) that his lawyer’s representation fell below an objective standard of
reasonableness; and (2) that the lawyer’s deficient performance prejudiced the
defendant.” Abernathy v. Hobbs, 748 F.3d 813, 816 (8th Cir. 2014) (citing Strickland
v. Washington, 466 U.S. 668, 688, 694 (1984)).
4Sittner briefly argues the state court analysis was also based on an
unreasonable determination of the facts. He argues the Missouri Court of Appeals
was wrong to characterize the State’s case as having “not use[d] evidence of S.S.’s
unusual sexual knowledge to establish Sittner’s guilt.” Sittner, 294 S.W.3d at 91
(emphasis added). Sittner concedes that the evidence of S.S.’s sexual knowledge was
not emphasized. While we agree that the state court’s choice of words could have
been more precise, this does not rise to the level of an unreasonable determination of
the facts.
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Expert testimony may be admissible if it aids the jury in areas that are outside
of common knowledge or experience. State v. Rogers, 529 S.W.3d 906, 911 (Mo. Ct.
App. 2017). In Missouri, expert testimony about how a child behaves when
disclosing abuse is relevant in a sexual-crimes case precisely because that topic is an
area outside an ordinary juror’s experience. State v. Williams, 858 S.W.2d 796, 799
(Mo. Ct. App. 1993) (“Expert testimony in child abuse cases plays a useful role by
disabusing the jury of some widely held misconceptions about rape and rape victims,
so that it may evaluate the evidence free of the constraints of the popular myths.”
(citations omitted)). As such, “general profile evidence has been accepted to explain
victim behavior that might appear unusual to a lay juror, not, however, to prove that
sexual abuse occurred.” Id. But, the expert testimony cannot comment on the
credibility or veracity of the victim—credibility is a matter for the jury alone to
decide. State v. Baker, 422 S.W.3d 508, 513–14 (Mo. Ct. App. 2014).
In a memorandum decision, the Missouri Court of Appeals explained that
Vitoux’s testimony was admissible because it appropriately discussed her expertise
with child victims disclosing and recanting sexual abuse, as well as factors she
considered in determining whether a child was telling the truth. Concededly, this
comes close to opining as to the veracity of the victim. It does not, however, cross
any line as drawn under AEDPA’s limited review. Because Vitoux’s testimony was
admissible, any objection by Sittner’s trial counsel would have been without merit.
Failure to raise a meritless objection cannot support a claim of ineffective assistance.
See Gray v. Bowersox, 281 F.3d 749, 756 n.3 (8th Cir. 2002). The Missouri Court
of Appeals concluded that the jurors were permitted to determine S.S.’s credibility
on their own, aided by, among other things, Vitoux’s observations. This is supported
by the record. The Missouri Court of Appeals properly applied the governing legal
rule from Strickland. See Williams v. Taylor, 529 U.S. 362, 413 (2000). The state
courts’ adjudication of Sittner’s claim was neither contrary to, nor did it involve an
unreasonable application of, clearly established Supreme Court precedent.
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Finally, Sittner argues the district court wrongly denied his request for an
evidentiary hearing. He appears to have sought an evidentiary hearing to explore the
veracity of his own attorney’s claim that it was reasonable trial strategy to not raise
an objection to Vitoux’s admissible testimony. We review a district court’s denial of
a habeas petitioner’s request for an evidentiary hearing for an abuse of discretion.
Johnston v. Luebbers, 288 F.3d 1048, 1059–60 (8th Cir. 2002). A “district court must
hold such a hearing if the petitioner has alleged disputed facts which, if proved,
would entitle him to habeas relief.” Smith v. Bowersox, 311 F.3d 915, 921 (8th Cir.
2002). Here, any fair reading of the trial transcript shows that trial counsel worked
to limit the scope of Vitoux’s testimony, thoroughly cross-examined Vitoux about
S.S.’s motives to lie, and was within reason to not make meritless objections during
direct examination. Counsel objected to the State’s attempts to garner specific
testimony from Vitoux, but allowed Vitoux to answer general questions about the
factors that demonstrate the accuracy of a child victim’s testimony. The district court
did not abuse its discretion in denying Sittner’s request for an evidentiary hearing in
this case. Sittner has not alleged disputed facts that, if proved, would indicate the
Missouri courts acted contrary to, or unreasonably applied, clearly established federal
law when they rejected his claims. The district court did not abuse its discretion by
concluding that the record contained all the facts necessary to resolve Sittner’s
claims, and that no further evidentiary development was required.
We affirm the judgment of the district court.
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