Donald Cookson v. Gregory Schwartz ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1181
D ONALD C OOKSON,
Petitioner-Appellant,
v.
G REGORY S CHWARTZ,
Acting Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 1:06-cv-03255-RM—Richard Mills, Judge.
A RGUED N OVEMBER 5, 2008—D ECIDED F EBRUARY 23, 2009
Before E ASTERBROOK, Chief Judge, and R IPPLE and
R OVNER, Circuit Judges.
R IPPLE, Circuit Judge. Donald Cookson was convicted
in Illinois state court of predatory criminal sexual
assault of a child. His conviction was affirmed by the
Illinois Appellate Court and the Supreme Court of Illinois.
He filed a petition for a writ of certiorari in the Supreme
Court of the United States. That petition was denied.
Mr. Cookson then filed a petition for a writ of habeas
2 No. 08-1181
corpus with the United States District Court for the Central
District of Illinois. The district court denied the petition.
We granted Mr. Cookson a certificate of appealability,
and we now affirm the district court’s denial of his peti-
tion.
I
BACKGROUND
A.C., the alleged victim in this case, was born in
October 1992. For the first seven years of her life, she lived
with her mother, Judith Cookson, and her mother’s
husband, Donald Cookson. Everyone involved thought
that A.C. was Mr. Cookson’s biological daughter, until a
DNA test in mid-2000 revealed that A.C.’s actual father
was a man named Rick Aston.
A.C. lived with her mother and Mr. Cookson until
August 1999, when Judith Cookson left Mr. Cookson’s
home. She took A.C. with her and moved in with Aston.
One day, Aston and A.C. disappeared. Judith and
Mr. Cookson filed a police report stating that Aston had
abducted A.C. Aston soon returned with A.C. and turned
her over to authorities, who returned her to Judith and
Mr. Cookson.
Soon thereafter, A.C. began alleging that Judith and
Mr. Cookson had abused her sexually. In January 2000,
she told Dorothy Rice, an investigator with the Illinois
Department of Children and Family Services (“DCFS”),
that Mr. Cookson gave her marijuana, “r[a]n bath water
in the tub, put her in the tub and he hump[ed] on her.”
No. 08-1181 3
Supp. Vol. V, 9-10. A.C. also told Rice that Mr. Cookson
“takes his little thingy when she is in the tub and he put
it in her butt.” Id. at 10. A.C. further claimed that
Mr. Cookson “humped” on her “all the time.” Id. She
also told Rice that she wanted to live in a “clean place” and
no longer wanted to live with Judith and Mr. Cookson,
because they fed her “nasty food like dogs or cats would
eat.” Id. at 19.
The next day, A.C. was placed in a foster home. She told
Laverne Landers, her foster mother, that she never
was going home to Judith and Mr. Cookson because
both Mr. Cookson and Judith had engaged in sexual acts
with her. A.C. said that she would stay with Landers
forever and that Mr. Cookson and Judith were “going to
jail.” Supp. Vol. III, 60-61. The next day, she repeated
these allegations to police detective Richard Wiese and
DCFS investigator Timothy Gonzalez. A.C. told Gonzalez
and Detective Wiese that the abuse had taken place
when she was six years old. She also told Gonzalez that
she did not want to live with Judith and Mr. Cookson
because of what they had done to her.
On February 3, 2000, A.C. was examined by Dr. Victoria
Nichols-Johnson, an obstetrician-gynecologist at the
Southern Illinois University Medical Center. The exam-
ination revealed no signs of physical trauma, but A.C.
told Dr. Nichols-Johnson that her mother had had oral
sex with her. A.C. also claimed that Mr. Cookson had
“assaulted [her] vaginally,” but she denied any contact
between Mr. Cookson’s penis and her anus. Supp. Vol. VI,
110-111. This denial conflicted somewhat with her earlier
4 No. 08-1181
statements. Based on A.C.’s allegations, Mr. Cookson
was charged with predatory criminal sexual assault of a
child and aggravated criminal sexual abuse.
In July 2000, after she had been in foster care for six
months, A.C. alleged that Rick Aston had inserted his
finger into her vagina. DCFS investigated and found A.C.’s
report to be “indicated,” meaning that there was credible
evidence that it was true. Aston appealed this finding.
DCFS reviewed the allegation and reclassified it as “un-
founded.”
The case against Mr. Cookson went to trial in 2001.
Mr. Cookson filed a motion in limine asking the court to
exclude the use of A.C.’s out-of-court statements at trial
on the ground that they were unreliable hearsay. The
court denied the motion. The prosecution filed a motion
in limine asking the court to preclude the use of testi-
mony about A.C.’s allegation against Aston. The court
granted this motion.
At trial, the prosecution called Rice, Landers, Wiese,
Gonzalez and Dr. Nichols-Johnson as witnesses. These
witnesses testified about A.C.’s statements accusing
Mr. Cookson of sexual abuse. A.C. also appeared as a
prosecution witness and described several incidents
during which, she claimed, Mr. Cookson performed
sexual acts on her. On cross-examination, Mr. Cookson’s
counsel asked about her statements to Wiese and Gonzalez.
A.C. testified that she did not remember making the
statements or speaking to Wiese and Gonzalez.
At the close of the prosecution’s case, Mr. Cookson
made an offer of proof regarding A.C.’s sexual abuse
No. 08-1181 5
allegation against Aston. He stated that, if allowed, he
would have called Aston as a witness and that Aston
would have testified that the allegation was false.
The jury found Mr. Cookson guilty of predatory
criminal sexual assault, and the court sentenced him to
twenty-five years in prison. Mr. Cookson appealed to
the Illinois Appellate Court, which affirmed the con-
viction over one dissent. People v. Cookson, 780 N.E.2d
807 (Ill. App. Ct. 2002). He then appealed to the Supreme
Court of Illinois, which granted review and affirmed
the Appellate Court’s decision. People v. Cookson, 830
N.E.2d 484 (Ill. 2005).
Mr. Cookson filed a petition for a writ of habeas corpus
in the United States District Court for the Central District
of Illinois, alleging that the trial court’s admission of
A.C.’s out-of-court statements, and its exclusion of evi-
dence about her accusation of Aston, violated his rights
under the Confrontation Clause of the Sixth Amendment.
The district court denied the petition. Mr. Cookson then
petitioned this court for a certificate of appealability.
We granted the certificate and now affirm the district
court’s denial of habeas relief.
II
DISCUSSION
We review de novo the district court’s denial of habeas
corpus relief. In reviewing a state court’s decision, we
may grant habeas relief only if the state’s adjudication of
an issue:
6 No. 08-1181
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). The relevant state-court decision is that
of the last state court to review the issue—here, the Su-
preme Court of Illinois. Williams v. Bartow, 481 F.3d 492,
497-98 (7th Cir. 2007) (“[W]e, like the district court, must
evaluate the decision of the last state court to have ad-
judicated the petitioner’s claim on the merits.”).
A. A.C.’s Hearsay Statements
The Sixth Amendment provides that a criminal defen-
dant shall have the right “to be confronted with the
witnesses against him.” Mr. Cookson submits that the
admission of A.C.’s statements to Wiese and Gonzalez
violated the Confrontation Clause because A.C. could not
remember making the statements—or, indeed, ever
speaking to Wiese and Gonzalez at all—and therefore
he could not cross-examine her about them. He relies
upon Crawford v. Washington, 541 U.S. 36 (2004), in which
the Supreme Court held that the Confrontation Clause
bars, in criminal cases, the admission of testimonial
hearsay statements made by witnesses who are unavail-
able at trial. Mr. Cookson submits that, although A.C.
testified at trial, she was not “available,” for Confrontation
No. 08-1181 7
Clause purposes, because she did not remember making
the statements and therefore could not be cross-examined
about them.
Mr. Cookson does not cite any cases holding that the
Confrontation Clause bars admission of hearsay state-
ments in circumstances such as these. He contends,
however, that dicta in two federal court of appeals opin-
ions support his position. In United States v. DiCaro, 772
F.2d 1314, 1323 (7th Cir. 1985), we wrote that “a witness’s
total amnesia concerning a prior statement will often
make him not subject to cross-examination” for Con-
frontation Clause purposes. In United States v. Spotted War
Bonnet, 933 F.2d 1471, 1474 (8th Cir. 1991), the Eighth
Circuit opined that if a child witness “is so young that she
cannot be cross-examined at all, or if she is simply too
young and too frightened to be subject to a thorough
direct or cross-examination,” the child’s mere physical
presence on the witness stand will not satisfy the Con-
frontation Clause’s availability requirement.
The State responds that there is no Confrontation Clause
problem with admission of the statements because
Mr. Cookson was able to cross-examine A.C. at trial. The
State points to language in Crawford stating that “when the
declarant appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on the
use of his prior testimonial statements.” Crawford, 541
U.S. at 59 n.9. That language is not dispositive, however,
because the Supreme Court elaborated on this state-
ment two sentences later: “[T]he Clause does not bar
admission of a statement so long as the declarant is present
8 No. 08-1181
at trial to defend or explain it.” Id. (emphasis added). Mr.
Cookson’s contention, of course, is that A.C.’s lack of
memory made her unable to defend or explain her state-
ments.
The State also submits that Mr. Cookson’s argument is
foreclosed by the Supreme Court’s decision in United
States v. Owens, 484 U.S. 554 (1988), and by our decision
in United States v. Keeter, 130 F.3d 297 (7th Cir. 1997).
In Owens, the Supreme Court approved the admission
of an out-of-court statement by a victim-witness who
remembered making the statement but did not remember
its substance. In Keeter, a witness signed an affidavit
before trial that implicated the defendant in a scheme to
sell amphetamine in prison. At trial, however, the
witness feigned amnesia and claimed to have no
memory of making the statement or of the events
described in the statement. The trial court allowed the
prosecution to enter the affidavit into evidence. On
appeal, we held that admission of the affidavit did not
violate the Confrontation Clause even though the defen-
dant was unable to question the witness about his state-
ment. We read Owens as holding that “the confrontation
clause . . . is satisfied when the witness must look the
accused in the eye in court,” and we also noted that
shortcomings in the witness’ memory can be pointed out
to the jury. Keeter, 130 F.3d at 302.
Finally, the State submits that Mr. Cookson’s reliance
on DiCaro and Spotted War Bonnet is misplaced. It con-
tends that DiCaro does not help Mr. Cookson, for three
reasons. First, the court in DiCaro actually held that the
No. 08-1181 9
Confrontation Clause was not violated in that case; it
merely speculated about what might happen in some
future case. Second, the witness in DiCaro could not
recall either the content of the statement or the under-
lying facts the statement described. Here, A.C. did not
remember making the statements but did remember—and
was available to be cross-examined on—the instances
of alleged abuse that she described in the statements.
Finally, DiCaro was decided prior to Owens and Keeter,
and the dictum on which Mr. Cookson relies appears to
be inconsistent with the holdings of those cases.
The State contends that Mr. Cookson’s reliance on
Spotted War Bonnet is unavailing as well. The discussion
in that case refers to child witnesses who are “too young”
or “too frightened” to be cross-examined—not witnesses
who, like A.C., are fully capable of being cross-examined
but whose memories are incomplete. In fact, in Spotted
War Bonnet, the court specifically differentiated the
former from the latter. The court stated: “The children’s
recollection of their previous statements and the circum-
stances under which they were given was imperfect. But
the opportunity to cross-examine them, in our judgment,
was sufficient to bring this case within the rule of Owens.”
Spotted War Bonnet, 933 F.2d at 1475.
Mr. Cookson attempts to distinguish his case from
Owens by pointing out that the defendant in that case was
able to question the witness about the circumstances
surrounding the statement—for example, whether the
witness recalled that he was lying at the time or was
uncertain when he made the statement. In this case,
10 No. 08-1181
however, Mr. Cookson submits that he had no such
opportunity because A.C. recalled neither making the
statements nor meeting with Wiese and Gonzalez. There-
fore, Mr. Cookson argues, the admission of A.C.’s state-
ments violated the Confrontation Clause even though
the admission of the statement in Owens did not.
We agree with the State that Owens and Keeter are
dispositive here. Indeed, Mr. Cookson actually had a
much better chance to conduct an effective cross-exam-
ination than did the defendants in those cases. A.C.,
unlike the witnesses in Owens and Keeter, could remem-
ber the underlying events described in the hearsay state-
ments. To the extent that A.C.’s testimony at trial was
consistent with her testimony in her statements to Wiese
and Gonzalez, cross-examination on the trial testi-
mony—which Mr. Cookson had a full opportunity to
conduct—was effectively cross-examination on the
hearsay statements as well. And to the extent that her
testimony was inconsistent with her earlier statements,
Mr. Cookson was free to point out the inconsistencies to
the jury. In sum, Mr. Cookson had ample opportunity
to confront his accuser at trial. If the defendants in Owens
and Keeter had a constitutionally adequate opportunity
to cross-examine the witnesses against them, then
Mr. Cookson certainly did as well. Accordingly, we
cannot accept his argument that the state court acted
contrary to clearly established federal law as determined
by the Supreme Court of the United States when it af-
firmed the admission of A.C.’s statements at trial.
No. 08-1181 11
B. A.C.’s Prior Allegation against Aston
Mr. Cookson also submits that the Confrontation
Clause guaranteed him the right to cross-examine A.C.
about her allegation that Aston sexually abused her. In
his view, DCFS’ ultimate classification of the allegation
as “unfounded” establishes that it was false. He submits
that “in compelling cases such as his, the constitutional
right to confront an accuser encompasses the right to
introduce extrinsic evidence that a sexual assault or
abuse complainant made a prior unfounded allegation of
sexual assault or abuse against another person.” Appel-
lant’s Br. 25. In support of this contention, Mr. Cookson
relies upon two cases: Redmond v. Kingston, 240 F.3d 590(7th Cir. 2001), and White v. Coplan, 399 F.3d 18 (1st Cir.
2005).
In Redmond, we granted habeas relief to a defendant
who had sought unsuccessfully to question the alleged
victim about a prior false allegation of statutory rape.
The defendant in that case was a counselor at a center
for drug-addicted teens; his accuser was one of the
center’s residents. Eleven months before the alleged
rape by the defendant, the alleged victim had accused
another man of raping her. Shortly after making that
allegation, she admitted that she had fabricated the
allegation “in order to get her mother’s attention.”
Redmond, 240 F.3d at 591. The trial court barred the defen-
dant from cross-examining the alleged victim on the
prior accusation. On habeas review, we held that the
denial violated the Confrontation Clause:
12 No. 08-1181
The fact that the girl had led her mother, a nurse, and
the police on a wild goose chase for a rapist merely
to get her mother’s attention supplied a powerful
reason for disbelieving her testimony eleven months
later about having sex with another man, by showing
that she had a motive for what would otherwise be
an unusual fabrication.
Id. at 591-92.
In White, a defendant accused of sexually assaulting
two young girls sought to cross-examine them on
several prior allegations of sexual assault that the girls
had made against other people. The defendant presented
information to the court showing that the prior
allegations were false. The trial court did not allow the
defendant to pursue this avenue of cross-examination,
and he was convicted. The state supreme court held that,
although the defendant had established a “reasonable
probability” that the prior accusations had been false,
he had not met the state-law requirement of “demon-
strable falsity.” White, 399 F.3d at 22. The court
therefore affirmed the conviction. The First Circuit
granted habeas relief; it held that the defendant
should have been allowed to use the prior allegations to
impeach the alleged victims as to their motive in
accusing him, even though no motive was apparent:
“In our case the nature of the motive may be unknown;
but if the prior accusations are similar enough to the
present ones and shown to be false, a motive can be
inferred and from it a plausible doubt or disbelief as to
the witness’ present testimony.” Id. at 26.
No. 08-1181 13
Mr. Cookson contends that evidence of A.C.’s (allegedly)
false allegation against Aston was important to his
defense because it “showed a tendency on [A.C.’s] part to
confabulate false accusations of sexual misconduct in
order to punish or manipulate adults in her life.” Appel-
lant’s Br. 28. Mr. Cookson’s theory is that A.C. falsely
accused him of abuse in order to punish him for failing
to protect her and to manipulate authorities into
allowing her to remain in foster care. He argues that the
prior false accusation is relevant because it supports
this motive and establishes that A.C. was willing and
able to lie about sexual abuse by adults who were in a
parental role.
The State acknowledges that a criminal defendant has a
right to cross-examine witnesses in order to show bias
or motive to lie, see Olden v. Kentucky, 488 U.S. 227, 231
(1988), but argues that A.C.’s accusation against Aston,
even if false, does not tend to establish bias against
Mr. Cookson or motive to lie about him. Rather, the
State argues, the prior accusation (if false) merely bears
on A.C.’s credibility, and there is no constitutional right
to impeach a witness’ credibility through the introduc-
tion of specific prior acts. The State points to this
Court’s decision in Hogan v. Hanks, 97 F.3d 189 (7th Cir.
1996). In Hogan, a defendant accused of rape sought to
cross-examine the alleged victim about two unprosecuted
allegations of rape that she had made nine years earlier.
The state trial court excluded mention of those allega-
tions, and this court held on habeas review that the ex-
clusion did not violate clearly established federal law. The
State also relies upon cases in which other circuits have
reached a similar conclusion.
14 No. 08-1181
The State goes on to distinguish this case from our
decision in Redmond by pointing out that, in Redmond, the
false prior accusation clearly demonstrated that the
witness had a motive to lie. The fact that she had ad-
mitted to lying about a sexual assault in order to get her
mother’s attention “supplied a powerful reason for disbe-
lieving her testimony eleven months later about having
sex with another man, by showing that she had a motive
for what would otherwise be an unusual fabrication.”
Redmond, 240 F.3d at 591-92. The State argues that no
such connection is present here, where A.C.’s allegation
“was not demonstrably false, let alone admittedly
false,” and A.C. did not admit to any motive for lying.
Appellee’s Br. 41-42. Here, the State argues, Mr. Cookson
has nothing more than a “speculative notion” that A.C.
lied in order to “punish or manipulate adults in her life.”
Id. at 42.
Finally, the State urges us to reject the First Circuit’s
holding in White that a motive can be inferred from past
false allegations even if that motive cannot be identified.
The State argues that White’s holding is not supported
by clearly established Supreme Court precedent. Even if
White was correctly decided, however, the State contends
that this case is distinguishable. It argues that, unlike
in White, the prior allegation here does not “b[ear] a close
resemblance” to the allegations against the defendant. A.C.
accused Aston of penetrating her vagina with his finger,
but accused Mr. Cookson of touching her anus with his
penis. The State also contends that unlike in White, where
the state court found that the prior allegations showed “a
reasonable possibility of falsity,” Mr. Cookson’s claim
of falsity here is based only on Aston’s self-serving claim
No. 08-1181 15
of innocence and DCFS’ decision not to act. Thus, the
State argues, not even White supports Mr. Cookson’s
argument here.
Despite the obvious similarities between the situation
facing the First Circuit in White and the case before us
today, we do not believe that its rationale can control
here because we must conclude that the facts presented
by Mr. Cookson to the trial court did not establish that
A.C.’s allegation against Aston was false. To understand
why, it is necessary to understand the process that DCFS
follows when investigating an allegation of abuse:
The [Abused and Neglected Child Reporting] Act
provides that DCFS shall receive and investigate
reports of child abuse or neglect made under the Act
and maintain a State register of all such cases. After
DCFS receives a report of suspected child abuse or
neglect, DCFS forwards the report to the State regis-
ter. Thereafter, DCFS investigates the report to deter-
mine whether the report is “indicated” or “unfounded”
within 60 days and reports the determination to the
State register. If DCFS determines “that credible
evidence of the alleged abuse or neglect exists,” the
report is deemed “indicated.” If DCFS determines “that
no credible evidence of abuse or neglect exists,” the
report is deemed “unfounded.” If DCFS is unable to
“initiate or complete an investigation on the basis of
information provided to the Department,” or is unable
to do so within 60 days, the report is deemed “unde-
termined.” The Illinois Administrative Code (Code)
provides that DCFS must make its determination
within 60 days of the complaint.
16 No. 08-1181
Cavarretta v. Dep’t of Children & Family Servs., 660 N.E.2d
250, 251-52 (Ill. App. Ct. 1996) (citations omitted).
Thus, a conclusion by DCFS that an allegation is “un-
founded” does not establish that it is false; rather, it
simply indicates that the DCFS investigator did not
locate credible evidence establishing the allegation’s
veracity prior to completion of the investigation, which
can last no longer than 60 days. Accordingly, the Illinois
Appellate Court has made it clear that an “unfounded”
determination “is not a final determination that the
accusations . . . were false,” and, in itself, does not
establish a “reasonable probability of falsity.” People v.
Mason, 578 N.E.2d 1351, 1356 (Ill. App. Ct. 1991). Indeed,
an “unfounded” determination does not preclude the
State from bringing criminal charges based on the allega-
tion. See In re Marriage of Divelbiss, 719 N.E.2d 375, 377 (Ill.
App. Ct. 1999) (describing a case in which a defendant
was tried for abuse of his daughter despite a DCFS deter-
mination that the allegation was unfounded). It seems
clear, then, that under Illinois law a DCFS finding that
an allegation was “unfounded” does not, by itself, estab-
lish that the allegation was false.1
This is not to say that DCFS’ conclusions have no proba-
tive value in establishing the truth or falsity of an allega-
tion. In some cases, DCFS’ conclusion that an allegation
1
The probative value of DCFS’ determination is even more
attenuated here than it would be in the usual case because
here the DCFS investigator actually concluded that A.C.’s
allegation was credible, only to be overruled by DCFS on appeal.
No. 08-1181 17
was unfounded, buttressed by other information
available to the trial court, might be sufficient to estab-
lish that the allegation was false. Mr. Cookson submits
that Aston’s denial supports the DCFS’ finding, but we
cannot say that the state court acted unreasonably in
concluding that a self-serving denial by the accused
should be accorded little weight.
We also believe that it is very significant that the trial
court had the opportunity to interview A.C. and to
observe her demeanor. Based on this interaction and
observation, the trial court concluded that A.C. was not
clever enough to concoct false allegations of sexual
abuse. On habeas review, we cannot disregard such a
focused factual determination on a matter so
quintessentially within the province of a trial judge
who had the unique opportunity to observe the witness.
Accordingly, we conclude that the Supreme Court of
Illinois did not act contrary to clearly established federal
law when it affirmed the trial court’s exclusion of question-
ing related to A.C.’s allegation against Aston.
Conclusion
For the reasons set forth above, we affirm the judg-
ment of the district court.
A FFIRMED
2-23-09