Savage v. Bryant
636 F. App'x 437
10th Cir.2015Background
- Kent Savage was convicted in Oklahoma of indecent/lewd acts with a child, first-degree rape by instrumentation, and exhibition of obscene material to a minor based on accusations by three girls (O.S., M.S., A.H.).
- The three girls testified at trial; the state trial court admitted certain out-of-court statements and allowed testimony from interviewers/expert witnesses (Susan Rider and John Minton).
- Savage sought federal habeas relief raising multiple constitutional claims; the federal district court denied relief. He sought a certificate of appealability (COA) to appeal that denial.
- The state appeals court had rejected Savage’s claims on the merits; federal habeas review therefore required showing the state court’s decision was contrary to or an unreasonable application of Supreme Court precedent under 28 U.S.C. § 2254(d)(1).
- The Tenth Circuit panel (Bacharach, Gorsuch, O’Brien) considered whether Savage made a substantial showing of the denial of a constitutional right sufficient for a COA and denied the COA, dismissing the appeal.
Issues
| Issue | Savage's Argument | State's Argument | Held |
|---|---|---|---|
| Confrontation Clause (admission of out-of-court statements) | Girls’ out-of-court statements violated Confrontation Clause because they were unavailable or unable to remember/initially refused to testify | Girls testified at trial and were subject to cross-examination; admission thus consistent with Supreme Court law | COA denied — not reasonably debatable; Confrontation Clause not violated when declarant testifies and is subject to cross-examination (Green) |
| Sufficiency of the evidence without out-of-court statements | Without the girls’ out-of-court statements evidence would be insufficient | The statements were properly before the jury and, with them, evidence supports conviction | COA denied — insufficiency claim not reasonably debatable |
| Exclusion of proffered Florida-history evidence (right to present a defense) | Excluding evidence that O.S. had prior abuse in Florida deprived Savage of his defense | Evidence was irrelevant; exclusion upheld by state court | COA denied — not a debatable constitutional error; state court’s ruling not an unreasonable application of Supreme Court precedent |
| Admission of expert/interviewer testimony (Rider, Minton) | Expert testimony about recantation acted as an evidentiary harpoon and prejudiced defense | Opinions were elicited in cross-exam by defense; appellate court found admissibility or that counsel elicited it | COA denied — admission and appellate ruling not an unreasonable application of federal law |
| Ineffective assistance of trial counsel (failure to object to expert testimony) | Counsel unreasonably failed to object and prejudiced defendant | State appellate court found lack of prejudice; underlying testimony admissible under state law so objections likely futile | COA denied — Strickland standard not satisfied; state court’s determination reasonable |
| Cumulative error / state evidence law application | Errors cumulatively deprived fair trial; federal court misapplied state evidence law on availability | Even if state law misapplied, that does not alone show federal constitutional violation; Confrontation Clause already satisfied | COA denied — no substantial showing of constitutional violation; issues rest on state-law questions or are not debatable federally |
Key Cases Cited
- Miller-El v. Cockrell, 537 U.S. 322 (COA requires substantial showing of denial of constitutional right)
- Laurson v. Leyba, 507 F.3d 1230 (standard for COA application in Tenth Circuit)
- California v. Green, 399 U.S. 149 (Confrontation Clause satisfied when declarant testifies and is subject to cross-examination)
- United States v. Owens, 484 U.S. 554 (witness memory lapse does not deny Confrontation Clause rights)
- United States v. McHorse, 179 F.3d 889 (Tenth Circuit on witness recollection and cross-examination)
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective-assistance claims)
- Wilkens v. Newton-Embry, [citation="288 F. App'x 526"] (OCCA is final arbiter of Oklahoma evidentiary law)
- Lopez v. Trani, 628 F.3d 1228 (state-law error alone does not establish federal constitutional violation)