Brown v. Farwell

525 F.3d 787 (9th Cir. 2008)

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Nature of the Case

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Facts

Jane Doe, a nine-year-old girl, was sexually assaulted in the bedroom of her trailer home. Her mother, Pam, was drinking at a bar and their step-father, Wayne Henle, was working the night shift. Brown (D) was arrested, tried, and convicted for this crime. D was at the bar with Pam. It was clear he was drunk but was not causing any trouble. One bartender stated that D left the bar no later than 12:20 a.m. and another bartender stated that she believed she saw D at the bar at 1:30 a.m. Between midnight and 12:30 a.m. Jane called Pam at the bar and explained that some man was at the trailer looking for Pam and had hurt her. She found Jane covered in blood from the waist down and called 911. A police officer and the paramedics responded. Jane stated to the paramedic that she felt pain in her vaginal area, and Pam responded that her ex-husband had done this because he threatened to 'f--- [Pam's] daughter in order to get back at [Pam].' Later at the hospital, vaginal and anal penetration were confirmed. Jane had bruises on her neck and scratches on her face. A vaginal smear was taken because sperm was present. Debris was collected from her teeth because she stated she had bitten the assailant's hands. Two witnesses testified that at 1:05 a.m. that morning, they saw near Jane's trailer a man wearing a cowboy hat, dark jeans, and a black satin jacket with a bright green emblem on the back that looked like a skull or bandit. Troy had been drinking steadily that night and, while walking home to his trailer located ten trailers away from Jane's, had vomited several times, soiling his pants and shirt. Troy's brother, Travis, awoke from sleeping on the couch. Travis stated that it was 1:32 a.m. when he awoke and that he did not see any traces of blood in the house. Troy washed his clothes as soon as he returned home. When a police officer arrived at 5 a.m. to question Troy, he saw no blood on Troy or his boots; he also checked Troy's hands, which did not have any evidence of bite marks. Troy's fingerprints were not found anywhere in Jane's trailer, and the one fingerprint found on the night light did not match Troy's. When the police pressed Jane to tell them who the assailant reminded her of, Jane stated 'Troy,' and when the police responded 'Who? ' Jane stated 'Trent. Yes, Trent.' Jane explained that Trent was Raquel's husband. A number of days after the assault, Jane witnessed a television report of Troy's arrest and stated that 'she knew that the man on television was her assailant.' Jane also told the police officers that the man she had seen on television had sent her flowers. The card that came with the flowers was signed by Raquel and Trent, not Troy. When the police showed Jane pictures that included Troy's picture and other people that she did not know, Jane was unable to identify Troy as her attacker. Knowing that he was under suspicion, Troy requested a full-body examination to be conducted by a nurse in order to record his physical condition. On or about February 7, 1994, Troy voluntarily surrendered to the police and was arrested. During the interrogation and throughout all proceedings, Troy has repeatedly denied involvement in the crime. DNA expert Renee Romero of the Washoe County Sheriff's Office Crime Lab testified that, among other things, there was a 99.99967 percent chance that Troy was the assailant. The jury found Troy guilty of two counts of sexual assault on a child. Troy appealed to the Nevada Supreme Court, claiming the district court abused its discretion when sentencing him, the bar against double jeopardy was violated by the duplicative convictions for sexual assault and abuse or neglect of a child, the DNA evidence was improperly admitted, and the evidence was insufficient to sustain his conviction. The Nevada Supreme Court vacated the third charge and remanded for resentencing on the second sexual assault count. The trial court resentenced Troy to life with the possibility of parole after ten years on both sexual assault counts, to run consecutively. Troy again appealed to the Nevada Supreme Court, which rejected his appeal. Troy next filed a state petition for post-conviction relief, and, after holding an evidentiary hearing, the state courts denied relief. Troy filed his federal petition for writ of habeas corpus pursuant to 28U.S.C. § 2254, arguing, inter alia, violations of due process and ineffective assistance of counsel. Judge Pro permitted Troy to expand the record, admitting, among other things, an uncontested report discrediting Romero's testimony by Dr. Laurence Mueller a professor of Ecology and Evolutionary Biology at the University of California, Irvine. Romero's testimony was unreliable. Absent that testimony, no rational trier of fact could conclude beyond a reasonable doubt that Troy was guilty of each and every element of the offenses with which he was charged. Respondents timely appealed.