Richard James Kellogg, Plaintiff-Appellant, v. Erik Skon, Warden, Defendant-Appellee.
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: December 17, 1998 Filed: May 10, 1999
JOHN R. GIBSON, Circuit Judge.
Richard Kellogg petitioned the district court1 for a writ of habeas corpus pursuant to
The arguments presented on appeal require only a general statement of the facts without going into the explicit detail contained in the trial testimony. Kellogg had an on again off again relationship with Laura Fiscus. Between bouts of living with Kellogg in various states, Fiscus would reunite with her husband. At a time when Fiscus was living with Kellogg, he sexually abused L.A.M., Fiscus‘s six year old daughter.
L.A.M. testified to the abuse. A detective, a social worker, L.A.M.‘s father, a psychologist, a child protection worker, and a child psychologist all testified that L.A.M. related to them, in varying degrees, the details of Kellogg‘s abuse. The psychologist and child psychologist gave their expert opinions that L.A.M. had been sexually abused.
M.J.M., L.A.M.‘s eight-year-old sister, testified that Kellogg had sexually abused her when she was four years old. Several witnesses testified that M.J.M. had told them of the abuse, and the psychologists gave their expert opinions that she had been abused.
Kellogg testified that he did not sexually abuse L.A.M. He argued that Fiscus and L.A.M.‘s father had told L.A.M. to fabricate the story of Kellogg‘s abuse. Christine Childs, who babysat for L.A.M., corroborated Kellogg‘s contention. She testified that L.A.M.‘s father had visited L.A.M. just before L.A.M. accused Kellogg of sexual abuse, that Fiscus tried to convince her to lie about whether she was babysitting on the day of the abuse, and that Fiscus “rehearsed” L.A.M. regarding that part of L.A.M.‘s story.
During closing argument, the prosecutor commented on the credibility of several witnesses. She implied that physical evidence of semen existed, but admitted she could not produce it. The prosecutor stated that everyone was entitled to the presumption of innocence and that when the trial started Kellogg had it. However, she then stated, “[T]he testimony has removed it, the facts have removed it and the defendant now stands naked before you and you can see him for what he really is: a sexual deviant, a liar and an abuser of little children . . . . [T]he presumption of innocence is no longer protecting and shielding this defendant because it has crumpled and fallen into dust.” The prosecutor also stated, “Do you think that . . . [L.A.M.] is a lying monster . . . . Or do you think, as the State does, that . . . the monster is someone else.” Kellogg‘s attorney objected to none of these tactics, nor was the jury instructed to disregard.
When Kellogg‘s attorney closed, he stated that Kellogg was entitled to the presumption of innocence. The court instructed the jury that the defendant‘s arrest and being brought to trial “should not be considered by you as in any way suggesting his guilt. The defendant is presumed to be innocent . . . and that presumption abides with him unless or until he has been proved guilty of the charge beyond a reasonable doubt.” The court also instructed the jurors that counsel‘s arguments were not evidence and that the jurors were the sole judges of credibility.
Kellogg contends that the prosecutor‘s comments during closing argument were improper, violating his constitutional rights, and that he did not receive effective assistance of counsel.
The prosecutor stated that the presumption of innocence had been “removed,” and it was no longer “protecting and shielding” the defendant. This statement was improper, a misstatement of law. The presumption remains with the defendant through every stage of the trial, most importantly, the jury‘s deliberations. It is extinguished only upon the jury‘s determination of guilt beyond a reasonable doubt. See Mahorney v. Wallman, 917 F.2d 469, 471 n.2 (10th Cir. 1990). However, we are not convinced the trial was fundamentally unfair. The defense attorney stressed the presumption of innocence in his closing argument, and the trial judge instructed the jury to presume Kellogg was innocent. The trial judge did not place his imprimatur on the prosecutor‘s argument by overruling the defendant‘s objection, as in Mahorney, 917 F.2d at 473, a case Kellogg heavily relies on. We also are not persuaded that there was a reasonable probability that the verdict would have been different absent the prosecutor‘s misstatement. The misstatement was remedied and the evidence in the case was substantial. L.A.M. testified to the abuse and two experts gave their opinion that L.A.M. had been abused. M.J.M. testified that Kellogg had abused her in a similar fashion. Against a claim of forced fabrication, the prosecution produced numerous witnesses who testified that L.A.M. had told each of them a similar story.
In addition to improperly commenting on the presumption of innocence, the prosecutor also referred to Kellogg as a “monster,” a “sexual deviant,” and a “liar.”3 Not only are these comments an improper “personal expression of [the] defendant‘s culpability,” United States v. Singer, 660 F.2d 1295, 1303 (8th Cir. 1981), cert. denied, 454 U.S. 1156 (1982), but the “monster” and “sexual deviant” comments also create inflammatory prejudice. They compel the jury to focus on the grossness of the alleged conduct, rather than whether the defendant engaged in the conduct. They have no place in a courtroom. However, the question is not whether the prosecutor‘s remarks are “undesirable or even universally condemned.” Darden v. Wainwright, 477 U.S. 168,181 (1986) (prosecutor‘s reference to defendant as an “animal” held not a due process violation). The remarks must make the entire trial fundamentally unfair. See id. The court instructed the jury that they were to make their decisions based on the evidence and that counsel‘s arguments were not evidence. These comments did not “manipulate or misstate the evidence,” nor did they “implicate other specific rights of the accused.” Id. at 180-81. The weight of the evidence was heavy, and there is no reasonable probability that the verdict would have changed absent the comments, even considering the cumulative effect of the prosecutor‘s remarks.
Kellogg next contends that he received ineffective assistance of counsel. His primary claims4 are that counsel should have objected to the prosecutor‘s belittling of the presumption of innocence, name calling, implying that physical evidence of semen existed, and vouching for witnesses.
An ineffective assistance of counsel claim presents a mixed question of law and fact. See Frey v. Schuetzle, 151 F.3d 893, 899 (8th Cir. 1998). We review the district court‘s legal conclusions de novo and its factual findings for clear error. See id. “The benchmark for judging any claim of ineffectiveness must be whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” McGurk v. Stenberg, 163 F.3d 470, 473 (8th Cir. 1998) (quotations omitted). Kellogg must show that counsel‘s performance was deficient and prejudiced his defense. See id. In showing the deficiency, Kellogg “must overcome ‘a strong presumption that counsel‘s conduct falls within a wide range of reasonable professional assistance.‘” Id. (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). Once deficient performance has been established, petitioner must demonstrate “a reasonable probability that but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id.
We reject Kellogg‘s claims that counsel‘s failure to object to the prosecutor‘s belittling of the presumption of innocence and name-calling denied him effective assistance of counsel. We have already discussed how the verdict would not have changed even if the prosecutor had not engaged in the behavior. Thus, even if counsel had objected and an instruction to disregard were given, Kellogg has failed to demonstrate that “but for” counsel‘s professional errors, the result would have been different. As for the implication that physical evidence of semen existed, the prosecutor admitted that she did not have the evidence; thus, failing to object was not unreasonable. The vouching was merely argument that the evidence supported the witnesses’ credibility and, in some instances, was consistent with Kellogg‘s own testimony that he did not question certain witnesses’ credibility. It was reasonable for counsel not to object. Even if it were not, the court instructed
Affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.