#26345-a-JKK

2013 S.D. 87

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                     ****
ROBERT LEE THOMPSON,                        Petitioner and Appellant,

      v.

DOUGLAS WEBER, WARDEN
OF THE SOUTH DAKOTA
STATE PENITENTIARY, OR
HIS SUCCESSOR IN OFFICE,                    Respondent and Appellee.


                                     ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE FIRST JUDICIAL CIRCUIT
                    UNION COUNTY, SOUTH DAKOTA

                                     ****

                   THE HONORABLE STEVEN R. JENSEN
                               Judge

                                     ****

MARGARET V. GILLESPIE of
Gubbrud, Haugland & Gillespie, LLC
Alcester, South Dakota                      Attorneys for petitioner
                                            and appellant.

MARTY J. JACKLEY
Attorney General

ANN C. MEYER
Assistant Attorney General
Pierre, South Dakota                        Attorneys for respondent
                                            and appellee.

                                     ****
                                            CONSIDERED ON BRIEFS
                                            ON AUGUST 27, 2013
                                            OPINION FILED 12/04/13
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KONENKAMP, Justice

[¶1.]        Petitioner, Robert Lee Thompson, was convicted by a jury in 1995 of

child rape, sexual contact, disseminating harmful material to minors, and indecent

exposure. In the same trial, he was acquitted of raping two other children. Ten

years later, in his second habeas corpus proceeding, the counseling records for the

child he was convicted of raping were first disclosed. Thompson argued that he was

prejudiced by the State’s suppression of these records, because, had they been

disclosed in 1995 when they were requested and ordered to be turned over, the jury

would have acquitted him of all rape charges. Although the habeas court agreed

that the evidence could have impeached the child’s testimony and was suppressed

by the State, it denied relief, ruling that Thompson had not established prejudice.

                                    Background

[¶2.]        In March 1994, after learning about “good” touch and “bad” touch in

church classes, C.B., then age seven, told her father that two years earlier “Uncle

Bob” (Thompson) made her watch dirty movies. She shared this with her father

after he came home with movies for his children to watch that evening. He relayed

the information to C.B.’s mother, Penny, and his sister-in-law, Kim B. Penny told

C.B.’s school counselor, who reported the abuse to Carol Madsen of Child Protection

Services in Nebraska. Madsen arranged for C.B. to be interviewed by Kathy

O’Brien, a licensed social worker experienced in interviewing sexually abused

children.

[¶3.]        C.B. told O’Brien that when Uncle Bob lived in South Dakota, he used

to babysit her and her sister, A.B. C.B. disclosed that Uncle Bob made her watch a


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dirty movie she called the “cowboy” movie, which began with men and women

wearing cowboy outfits. She said that Uncle Bob’s pants were down and his hand

was moving on his penis and “white” and “yellowish” “stuff would splatter out” of

his penis. She said that Uncle Bob told her he would kick her in the face if she

would not watch the movie. C.B. also claimed that Uncle Bob said he would kill her

mom and dad if she told. She made no claim that Uncle Bob touched her.

[¶4.]        Uncle Bob (Thompson) was married to Mary, the sister of C.B.’s father.

Mary and Thompson did not have children of their own, but cared regularly for the

many children in the B. extended family, including the daughters of Kim B. When

Thompson would babysit these children, Mary was not always at home. She worked

varying hours as a nurse, and Thompson was unemployed. During these times,

Thompson cared for C.B. regularly because C.B.’s mother was on bed rest with her

pregnancy and C.B.’s father worked during the day.

[¶5.]        After O’Brien interviewed C.B., Chief of Police Avery “Skip” Ensley of

North Sioux City, South Dakota, began a formal investigation. On March 28, 1994,

he completed a warrant application for Thompson’s arrest. The application was

based on allegations that Thompson disseminated harmful material to minors,

engaged in sexual contact with a child under sixteen years old, and indecently

exposed himself. Thompson lived in Nebraska at the time.

[¶6.]        On April 4, 1994, Chief Ensley interviewed Thompson in Nebraska.

Thompson came to the interview voluntarily and was informed by Chief Ensley that

he was not under arrest. In a closed-door interview that lasted about an hour and a

half, Thompson admitted that he exposed C.B. to a pornographic movie and


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masturbated in front of her. He also admitted that C.B. touched his penis. The

interview was videotaped. Thompson then wrote a confession, but mentioned

nothing about the touching. Thompson was indicted on charges of sexual contact

with a child under sixteen, indecent exposure, and disseminating harmful material

to minors.

[¶7.]        Dr. John Shelso performed a medical examination of C.B. He

documented his examination with colposcopic photographs, which were later

transferred to slides. Based on his physical examination, he found signs that C.B.

was vaginally penetrated. The slides confirmed his observations. The results of

this examination were shared with Penny and Chief Ensley.

[¶8.]        C.B. began counseling with Nancy Hines from Associates for Mental

Health in Sioux City. In her notes about a telephone call from Penny on April 26,

1994, Hines wrote that Penny told her that the medical exam indicated evidence

that C.B. was vaginally penetrated. Penny told Hines that law enforcement

investigators would like C.B. to talk about what happened so rape charges could be

filed. But nothing in the April counseling records reveals any claim from C.B. that

Thompson touched her. These counseling records were not given to Thompson’s

lawyers until 2011.

[¶9.]        On April 28, 1994, C.B. testified at a preliminary hearing. She said

Thompson did not touch her. On that same day, O’Brien conducted a forensic

interview of Ch.B. (age twelve) and V.B. (age eleven). These girls are Kim B.’s

daughters. (Kim B. was on the phone with Penny when C.B.’s father told Penny

that Uncle Bob made C.B. watch dirty movies.) O’Brien later testified that she


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interviewed Ch.B. and V.B. for “exploratory” purposes, because C.B. had claimed

that her cousins in the B. extended family were at Thompson’s home when

Thompson made her watch the pornographic movies. Over the course of the

investigation, O’Brien interviewed at least 21 children in the B. extended family.

During her “exploratory” interview of Ch.B. and V.B., additional allegations against

Thompson arose. Ch.B. and V.B., like C.B., said that Thompson made them watch

dirty movies and, like C.B., said Thompson did not touch them.

[¶10.]       Dr. Gary Carlton examined Ch.B. and V.B. in May 1994 and

documented the examination with colposcopic photographs. Based on the

photographic evidence, Dr. Carlton noted evidence suggesting that V.B. was

vaginally and rectally penetrated and Ch.B. was rectally penetrated. The girls’

mother, Kim B., later testified that she shared the results of this medical

examination with Ch.B. and V.B.

[¶11.]       On May 13, 1994, Thompson posted bond and was released. Upset by

his release, the B. family convened what has later been called the “family meeting.”

During this meeting, which occurred mid-May 1994, Ch.B., V.B., C.B., and Kim B.,

gathered in a room and talked. Ch.B., V.B., and C.B. later testified at trial that

they had talked together about what Thompson did to them. The family members

had also met with Chief Ensley when he hosted a barbeque for them at his home.

[¶12.]       On May 17, 1994, after the family meeting, Kim B. and her husband

took their daughters, Ch.B. and V.B., to see Chief Ensley. The girls told him that

they had been sexually penetrated by Thompson. Chief Ensley began to ask the

girls about the details, but they were reluctant to talk. The girls said that they


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would feel more comfortable talking to O’Brien, which they did that same day.

During O’Brien’s separate interviews of Ch.B. and V.B., the girls each said that

Thompson had raped them in 1992. They explained to O’Brien that they did not

know they had been raped until their mother told them they had.

[¶13.]        On May 25, 1994, C.B. reported to her counselor that Thompson had

digitally penetrated her. In that same counseling session, C.B. talked about the fact

that she had recently visited with her cousins who had also been abused by

Thompson. Because the counseling records were not given to defense counsel until

2011, Thompson’s counsel was unaware of C.B.’s May 1994 disclosure during the

1995 trial.

[¶14.]        In June 1994, Thompson was indicted on charges of first degree rape of

V.B. and second degree rape of Ch.B. At that time, no charges were brought against

him for the rape of C.B., even though C.B. had disclosed in her May counseling

session with Nancy Hines that Thompson digitally penetrated her vagina, because

C.B. had not yet disclosed the rape to her parents or Chief Ensley.

[¶15.]        On September 28, 1994, C.B. participated for the first time in group

therapy, during which she wrote “My Abuse Story.” V.B. had begun group therapy

earlier in the month, but on November 15, 1994, she joined a different group. It is

likely that V.B.’s new group was the same as C.B.’s because in C.B.’s individual

counseling notes, there is a reference to C.B. being in the same group as one of her

cousins. C.B.’s group therapy notes and her “My Abuse Story” were not disclosed to

Thompson’s attorneys until the second habeas proceeding in 2011.




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[¶16.]         On December 12, 1994, C.B. and her mother met with Chief Ensley.

C.B. told him that Thompson digitally penetrated her vagina, while he was lying on

the couch and she was standing upright, during one of the times Thompson babysat

her and her sister. 1 To discuss the abuse with C.B., Chief Ensley used a body

diagram never made available to Thompson’s defense counsel. Because C.B.’s

counseling records were not disclosed, Thompson’s counsel was under the

impression that this December meeting was the first time C.B. claimed rape.

[¶17.]         In May 1995, Thompson’s jury trial commenced on the charges of

disseminating harmful material to minors, sexual contact (C.B.), first degree rape

(V.B.), second degree rape (Ch.B.), and indecent exposure. During a break in the

proceedings, a juror told one of the B. family members that Thompson would be

found guilty, which information was relayed to the court. The court declared a

mistrial.

[¶18.]         After the mistrial, Thompson was indicted on an additional charge of

first degree rape of C.B. In August 1995, C.B. testified at a preliminary hearing

that Thompson digitally penetrated her. Penny testified that since April 1994, C.B.



1.       This incident was further described in Nancy Hines’s April 26, 1995 letter to
         Carol Madsen of Iowa DSS Child Protection Services, a letter not disclosed
         until April 2011:
               C.B. and A.B. “took a bath together and her Uncle Bob sat out
               on the couch in the living room continuing to watch movies.
               After they, the girls, both got their pajamas on, her Uncle Bob
               asked [C.B.] to come over to him. She said at that point she did
               not have any panties on. She went over to him and he touched
               her clitoris and put his finger in her vagina. She told me that it
               hurt very bad and that she started crying at that time. He then
               asked [A.B.], her little sister, to come over and [C.B.] reported to
               me that he did the same thing to her.”

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had been in counseling with Nancy Hines and in group therapy. Following the

preliminary hearing, all charges related to Ch.B., V.B., and C.B. were joined, over

Thompson’s objection, and on October 30, 1995, the matter proceeded to a jury trial.

[¶19.]       At trial, Thompson was represented by Michael J. McGill and Robert

B. Freiberg. John P. Slattery was the State’s Attorney. In support of its case

against Thompson, the State offered the testimony of the doctors who examined the

girls, the girls’ mothers, C.B.’s father, Chief Ensley, Kathy O’Brien, and an aunt.

The defense called Mary Thompson and offered deposition testimony of an expert

qualified to evaluate investigations of sexual abuse victims.

[¶20.]       Dr. Carlton testified about his examination of Ch.B. and V.B. He

described the McCann Classification System, later explained by Dr. Shelso to be “a

five-tiered category system,” which is a “useful tool to be able to categorize findings

done at one center by one examiner and compare them to another center.” Dr.

Carlton displayed for the jury the colposcopic slides taken of Ch.B.’s and V.B.’s

vaginas and rectums. From these slides, he explained the evidence that supported

his opinion that V.B. “had findings highly suggestive of both vaginal and rectal

penetration.” As to Ch.B., he found her vaginal exam normal, but in her rectal

exam, there were “striking findings” that she had been “penetrated rectally.”

[¶21.]       Dr. Shelso explained the different levels in the McCann Classification

System. Level one is normal, level two is nonspecific, level three is suspicious, level

four is suggestive, and level five is clear evidence of a penetrating injury. He

concluded that based on his physical examination, before looking at the slides he

prepared, he found evidence suggesting that C.B. had been vaginally penetrated,


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which to him, placed C.B. at level four. He stated, “It’s something [that] truly did

occur, and these types of findings were present with [C.B.]”

[¶22.]       Kathy O’Brien testified about the specific protocol she follows and her

experience in using it when interviewing children. She described the Child Sexual

Abuse Accommodation Syndrome, delineating the common characteristics of

children who have been sexually abused. She outlined the interview techniques she

used with C.B., Ch.B., and V.B. During the interviews, O’Brien made video

recordings, which were not played for the jury. She explained that all three girls

identified the same perpetrator, and although they did not disclose rape in the first

interview, a subsequent disclosure “falls in so characteristically with the disclosure

process[.]” In regard to Ch.B. and V.B., she indicated that her first interviews were

“exploratory,” because C.B. had said that Thompson had exposed other children to

pornographic material, and Chief Ensley had arranged for Ch.B. and V.B. to be

interviewed. On cross-examination, O’Brien confirmed that it would be important

to the process that there be one interviewer, saying that the disclosure could be

interfered with if more than one person conducted interviews. Specifically related

to Ch.B. and V.B., she agreed with defense counsel that “there’s a risk of

contamination,” but she “found [the children’s] statements credible[.]”

[¶23.]       The girls also testified. C.B. was nine at the time. She told the jury

that when she was “four or five” Uncle Bob made her watch the “cowboy” movie that

“showed people having sex” and that he “was rubbing his penis.” She confirmed

that Thompson never asked her to touch his penis. When asked if she saw anything

come out of his penis, she said she saw “foam,” which was “[w]hite.” She then


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described the rape: after she took a bath at his trailer house, Thompson “stuck his

finger up [her] vagina.” She agreed it hurt and said that she “started to cry.” She

said that no cousins were at Thompson’s home when the rape occurred. She was

afraid of Uncle Bob: “he told me not to tell my family or - - not to tell anybody,

otherwise he’ll kill my family.” On another occasion, when Ch.B. and V.B. were at

the trailer, C.B. heard screaming and crying from one of her cousins who was with

Thompson.

[¶24.]       V.B. testified next. She was twelve at the time. She was asked if

Uncle Bob made her watch a dirty movie, to which she replied, “Yeah.” She did not

remember what it was called, but said, “It was just kids naked.” She said he made

her watch the movie in his bedroom and that Ch.B. and C.B. were in the room too.

V.B. said that during the movie Thompson was “touching me in my vagina and

butt.” Thompson put his finger in her butt, she said, and it hurt and she cried. She

also said he put his finger in her vagina. He had his pants off and his penis “was

ugly and hairy.” She said she told her Aunt Mary about it, but Aunt Mary “just

ignored” her. V.B. never saw anything come out of Thompson’s penis. She did not

tell anyone what happened right away because Thompson “said he would kill my

mom and dad. . . . If I told.”

[¶25.]       Lastly, Ch.B. testified. She was thirteen at the time. Ch.B. is

developmentally disabled and suffers from a seizure disorder. She said that she

remembered watching a cowboy movie at Uncle Bob’s, during which people were

“kissing.” In addition to V.B. and C.B., she said that A.B. was also present. She

said that she, V.B., and C.B. were having a pillow fight and got in trouble with


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Uncle Bob. After that, Uncle Bob had her come to the living room. He told her to

get on her back, and he cut a rope in half and tied her right arm and right leg down.

He pulled her underwear down and put his penis in her vagina. He then turned her

over and “touched” her butt, and it hurt, but she denied that he did anything to her

butt. On cross-examination, however, she said Thompson stuck “his finger” in her

butt. Thompson told her he “would kill her family” if she told anyone.

[¶26.]       Following the girls’ testimony, Chief Ensley testified. He explained

that he first became involved when Children’s Services in Woodbury County

referred the case to him based on the allegations made by C.B. He reviewed C.B.’s

video from her interview with O’Brien and began his investigation. On cross-

examination, defense counsel questioned Chief Ensley extensively about his

relationship with the B. extended family. He confirmed that he invited the B.

extended family to a barbeque at his home. In regard to Ch.B. and V.B., Chief

Ensley could not remember if he talked to Kim B. or whether he talked to O’Brien

about having the girls medically examined. Nonetheless, he testified that he talked

with Ch.B. and V.B. multiple times and talked to the B. family in many phone and

in-person discussions.

[¶27.]       The defense theory was that the girls’ disclosures were tainted by the

B. family’s involvement and the overzealous and out-of-protocol actions of Chief

Ensley. As Mr. Freiberg argued in his closing statement, “there’s a potential that

these kids have been instilled with a false memory.” Defense counsel blamed Chief

Ensley, who “didn’t have the evidence to go on,” but conducted “dozens of

interviews” without preserving any notes or recordings, and repeatedly interrogated


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the girls, possibly “telling them what happened.” “They trusted Skip [Ensley],”

counsel argued: “[i]f he told them, they probably believed it.”

[¶28.]       Defense counsel focused cross-examination of the State’s witnesses on

the timing of and inconsistencies in the girls’ disclosures. When C.B. testified, she

was questioned about not having mentioned being touched by Thompson when she

testified at the preliminary hearing and when she spoke with Kathy O’Brien. Each

time C.B. responded, “I don’t remember.” She acknowledged the meeting in May of

the previous year when Thompson’s abuse was discussed with Aunt Kim, V.B., and

Ch.B. After this meeting, V.B., Ch.B., and C.B. all changed their previous

renditions to indicate that they had been sexually abused.

[¶29.]       Defense counsel called an expert, Karen Ham, who testified by

deposition on children’s memories and suggestibility. She explained that proper

protocol suggests the use of an integrated team approach to child abuse

investigations. Ham criticized Chief Ensley’s conduct in the case, faulting his

communications with and repeated interviews of Ch.B. and V.B. in May 1994. Ham

thought Chief Ensley had contaminated the children’s disclosures. As to C.B.,

however, Ham, through defense counsel, was under the impression that C.B. did not

claim until December 1994 that Thompson raped her, which was much later than

Ch.B.’s and V.B.’s disclosures. Therefore, defense counsel felt that Ham could not

impeach C.B.’s disclosure as forcefully as she was able to with the cousins’

disclosures. Defense counsel considered C.B. a more credible witness, testifying to

this belief during the second habeas hearing.




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[¶30.]       The jury found Thompson guilty of first degree rape of C.B., sexual

contact with her, indecent exposure, and disseminating harmful materials to

minors. He was acquitted on the two counts of rape against Ch.B. and V.B. He was

sentenced to life in prison on the first degree rape conviction, twenty years for

sexual contact to be served concurrent to the life sentence, and consecutive

sentences of one year in jail and a $1,000 fine for disseminating harmful material to

minors and indecent exposure. On his direct appeal to this Court, we reversed the

sexual contact conviction, but affirmed the other convictions. See State v.

Thompson, 1997 S.D. 15, 560 N.W.2d 535. The sexual contact conviction was

reversed because there was “not a single fact in this evidence that corroborates

[Thompson’s] admission that C.B. touched his penis. C.B. testified at trial and at

all times steadfastly denied that such contact ever occurred and there [was] no

physical or circumstantial evidence that establishe[d] otherwise.” Id. ¶ 38.

[¶31.]       Thompson petitioned for a writ of habeas corpus in September 1997.

After a hearing, the habeas court quashed the petition. A certificate of probable

cause was denied by both the habeas court and this Court.

[¶32.]       In October 2003, Thompson again petitioned for a writ of habeas

corpus. Represented by new counsel, Thompson asserted multiple deficiencies,

including his trial counsel’s failure to obtain C.B.’s counseling records. Rejecting all

Thompson’s claims, the second habeas court, in a memorandum decision issued in

June 2007, ruled that the first habeas counsel was not ineffective and denied all

other relief based on res judicata. Specifically related to C.B.’s counseling records,

the second habeas court noted: “the [first] habeas court found trial counsel did


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obtain all the records and did a complete review of these records. This finding is

supported by a reading of the transcript from the first habeas hearing.” Thompson

moved the second habeas court to reconsider its ruling. A hearing was held in May

2011, to reconsider several issues, including whether Thompson’s trial counsel and

first habeas counsel were ineffective for failing to obtain C.B.’s counseling records.

[¶33.]         In June 2011, the second habeas court issued a memorandum decision,

resolving all remaining issues. 2 Because this appeal concerns only C.B.’s counseling

records, we limit our analysis to that question. The habeas court recognized that

while Thompson received C.B.’s medical and school records at trial and in the first

habeas proceeding, “there were additional counseling records for C.B.,” which

neither trial counsel nor Thompson’s first habeas counsel received. Therefore, the

court addressed the substance of Thompson’s claims that counsel was ineffective

and that the State committed a Brady violation. See Brady v. Maryland, 373 U.S.

83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

[¶34.]         In its memorandum decision, the second habeas court noted that a

Brady violation occurs when (1) “[t]he evidence at issue [is] favorable to the

[accused] because it is exculpatory or impeaching,” (2) the “evidence [was]

suppressed by the State either willfully or inadvertently,” and (3) “prejudice [has]



2.       Before the habeas court addressed the substance of Thompson’s petition, it
         assessed whether Thompson’s claims were untimely under SDCL 21-27-3.2
         repealed 2012 S.D. Sess. Laws ch. 118, § 2, and whether it should be
         dismissed based on res judicata under SDCL 21-27-16.1 repealed 2012 S.D.
         Sess. Laws ch. 118, § 2. Neither of those statutes is at issue in this appeal,
         and the habeas court did not dismiss Thompson’s claims as untimely or on
         the basis of res judicata.


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ensued from the suppression.” See Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.

Ct. 1936, 1948, 144 L. Ed. 2d 286 (1999); State v. Leisinger, 2003 S.D. 118, ¶ 14, 670

N.W.2d 371, 375. The court found that “the State failed to comply with direct

discovery orders of the trial court to produce all the counseling records, including a

motion to compel which was granted by the trial court.” The prosecutor certainly

knew of these materials because the record contains letters from C.B.’s counselor,

Nancy Hines, to State’s Attorney Slattery in July and October 1995 detailing C.B.’s

progress in therapy. 3 According to the second habeas court, “[t]he State’s failure to

comply with these orders, along with its obvious receipt of a letter from the

counselor shortly before trial raise questions about the information available to the

State and the State’s failure to communicate this information to defense counsel.”

Yet “the State’s file, which may have contained relevant information was destroyed

or misplaced by the current or former State’s Attorney.” Thus, the court concluded

that “the evidence does suggest that the State may have willfully or inadvertently

suppressed this information.”

[¶35.]         Nonetheless, the court ruled that Thompson “failed to show prejudice

from not having the counseling records at trial.” According to the court, although

defense counsel was unaware of the exact timing of C.B.’s disclosure in May 1994,

“[t]he counseling notes essentially mirror the evidence presented at trial.” In

particular, at trial, defense counsel was able to show that C.B. initially denied



3.       Four days before Thompson’s jury trial, Nancy Hines sent State’s Attorney
         Slattery a letter dated October 26, 1995, detailing the sexual abuse that C.B.
         reported she suffered at Thompson’s hands and outlining her progress in
         therapy. See footnote 1.

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under oath that Thompson touched her and that she talked to her school counselor,

parents, a child forensic interviewer, and others and did not disclose that Thompson

touched her. Defense counsel highlighted, through C.B.’s testimony, that it was not

until after C.B. spoke with her family and had law enforcement contact that she

disclosed that Thompson raped her. The habeas court further referred to trial

counsel’s testimony at the second habeas hearing that C.B.’s “claims of rape were

much more credible than her cousins for which verdicts of not guilty were obtained.”

Thus, except for the exact timing of the rape disclosure, the counseling notes were

cumulative of what already was known to the defense at trial.

[¶36.]       Accordingly, the court held that Thompson had “not shown a

reasonable probability that the specific timing of the disclosure would have created

reasonable doubt in the jurors’ minds considering the entire record” and that “the

April 21 note and the hypnotism information provide nothing of significance to the

evidence presented by the defense at trial.” The court issued findings of fact and

conclusions of law and an order denying Thompson’s amended petition for a writ of

habeas corpus. The court also denied Thompson’s amended motion for a certificate

of probable cause.

[¶37.]       We issued a certificate of probable cause, resulting in this appeal.

Thompson raises two issues: (1) he was denied due process because of the State’s

failure to produce C.B.’s counseling records in violation of Brady, 373 U.S. 83, 83 S.

Ct. 1194 and Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490




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(1995), and (2) his trial counsel and first habeas counsel were ineffective for failing

to obtain C.B.’s counseling records. 4

                                Analysis and Decision

[¶38.]         Thompson contends that he was denied due process in his 1995 trial

when the State withheld C.B.’s counseling records in violation of Brady, 373 U.S. at

87, 83 S. Ct. at 1196-97. In Brady, the United States Supreme Court held “that the

suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” Id.; see Leisinger,

2003 S.D. 118, ¶ 14, 670 N.W.2d at 374. Undisclosed evidence is “material” when

“there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.” Strickler, 527 U.S.

at 280, 119 S. Ct. at 1948 (citation omitted). A Brady violation occurs when (1)

“[t]he evidence at issue [is] favorable to the accused, either because it is

exculpatory, or because it is impeaching;” (2) the “evidence [has] been suppressed by

the State, either willfully or inadvertently;” and (3) “prejudice [has] ensued.” Id. at

281-82, 119 S. Ct. at 1948.




4.       Since habeas corpus is a collateral attack on a final judgment, our standard
         of review is limited. Lodermeier v. Class, 1996 S.D. 134, ¶ 3, 555 N.W.2d 618,
         621. Habeas petitioners bear the initial burden to establish a colorable claim
         for relief. Jenner v. Dooley, 1999 S.D. 20, ¶ 11, 590 N.W.2d 463, 468.
         Correspondingly, the State has only the burden of meeting the petitioner’s
         evidence. Davi v. Class, 2000 S.D. 30, ¶ 26, 609 N.W.2d 107, 114. We review
         factual findings for clear error and legal conclusions de novo. Meinders v.
         Weber, 2000 S.D. 2, ¶ 5, 604 N.W.2d 248, 252 (citations omitted); Rodriguez v.
         Weber, 2000 S.D. 128, ¶ 12, 617 N.W.2d 132, 138.

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[¶39.]       Here, it is undisputed that C.B.’s counseling records were favorable to

Thompson as impeachment evidence. During the 1995 trial, the defense theory was

that Chief Ensley and C.B.’s extended family had tainted the girls’ disclosures.

Defense counsel was able to present evidence to challenge the disclosures by Ch.B.

and V.B. based on the fact that they disclosed to Chief Ensley after a family

meeting in May 1994. Yet, although defense counsel knew that C.B. had

participated in the same family meeting, counsel did not have quite the same

evidence with which to attack C.B.’s disclosure. Indeed, at trial, counsel believed

that C.B. disclosed the rape to Chief Ensley in December 1994. Had they possessed

C.B.’s counseling records, defense counsel could have challenged C.B.’s disclosure

with the fact that she told her counselor in May 1994, just after the family meeting,

that Thompson digitally penetrated her vagina. Moreover, the counseling records

showed that C.B. and her cousin, V.B., were in group therapy together and that

C.B. was apparently hypnotized. Certainly, Thompson could have impeached C.B.’s

testimony with these parts of the undisclosed counseling evidence.

[¶40.]       Does the record support that this evidence was suppressed by the

State, either willfully or inadvertently? It is undisputed that Thompson’s trial

counsel sought discovery of C.B.’s counseling records on multiple occasions. After a

preliminary hearing in which C.B.’s mother testified about the fact that C.B. was in

counseling and group therapy, Attorney McGill twice wrote State’s Attorney

Slattery seeking C.B.’s counseling records. These requests went unanswered. What

followed were court orders mandating disclosure. But as the second habeas court

concluded, “[i]n light of the court orders requiring the State to produce all the


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counseling records; the State’s receipt of the letter [from the counselor]; and law

enforcement’s direct contact with the counselor, the evidence does suggest that the

State may have willfully or inadvertently suppressed this information.”

[¶41.]       Further obscuring the situation, the State’s Attorney’s file on

Thompson’s case went missing. The State’s Attorney from the first habeas

proceeding said that he had the file at that time. He insisted he would not have

removed or destroyed it. He left office in 2004. The State’s Attorney for the second

habeas proceeding said that Thompson’s file was gone and that there was a gap in

the office files from the mid-80s to the mid-90s. Because the file remains missing,

there is no way to know if the State possessed the counseling records in 1995. But a

letter in the record from C.B.’s counselor to State’s Attorney Slattery regarding

C.B., along with the other evidence, supports the second habeas court’s conclusion

that the State knew of and suppressed the undisclosed evidence willfully or

inadvertently.

[¶42.]       Was Thompson prejudiced by the suppression of this evidence?

Prejudice ensues when “‘there is a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding would have been

different.’” See Erickson v. Weber, 2008 S.D. 30, ¶ 18, 748 N.W.2d 739, 745

(emphasis omitted) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct.

3375, 3383, 87 L. Ed. 2d 481 (1985)). A “reasonable probability” exists when

evidence reasonably could “be taken to put the whole case in such a different light

[so] as to undermine confidence in the verdict.” Kyles, 514 U.S. at 434-35, 115 S. Ct.

at 1566. The test is not for sufficiency of the evidence, but instead, an examination


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of the cumulative effect of the suppression, viewing the error in the context of the

entire record. Id. We must ask ourselves if we are confident the verdict would be

the same. See id. at 453.

[¶43.]       Thompson insists that he was prejudiced because the counseling

records show that C.B.’s disclosure was “in the same way” as Ch.B. and V.B., and

because the jury acquitted Thompson on the charges related to Ch.B. and V.B.,

there is a reasonable probability that the jury would have acquitted Thompson on

the rape charge related to C.B. Thompson points to “My Abuse Story,” written by

C.B., in which she wrote that Thompson raped her until she was eight years old.

Emphasizing the impossibility of C.B.’s claim — Thompson was arrested four

months before C.B. turned eight — he argues that he could have further impeached

C.B.’s claims. He also contends that he could have confronted Penny (C.B.’s mother)

about her call to Nancy Hines on April 26, 1994, during which Penny told Hines

that the medical evidence showed abuse and that law enforcement wanted C.B. to

talk about it so rape charges could be filed. Lastly, Thompson contends that had

defense counsel known that C.B. was placed under hypnosis, their expert could have

testified about the use of memory-enhancing techniques on sexually abused

children.

[¶44.]       After examining all the record evidence, which includes transcripts

from O’Brien’s interviews of the children, the notes related to C.B.’s counseling

sessions, C.B.’s “My Abuse Story,” the group therapy notes, the testimony from the

1995 trial, 1994 and 1995 preliminary hearings, and the evidence and transcripts

from the first and second habeas proceedings, we cannot say that the second habeas


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court erred in concluding that the suppressed evidence, as a whole, did not put the

case in such a different light so as to undermine confidence in the jury’s verdict. In

fact, even with the counseling records and defense counsel’s impeachment of C.B.,

the jury could have reasonably believed C.B.’s claims and found her more credible

than Ch.B. and V.B.

[¶45.]       Contrary to Thompson’s insistence, C.B.’s disclosure to her counselor

in May 1994, although at the same time as Ch.B.’s and V.B.’s, was not “in the same

way.” The jury heard that Ch.B. and V.B. were interviewed only for exploratory

purposes on Chief Ensley’s suggestion. Kim B., their mother, told Ch.B. and V.B.

the results of Dr. Carlton’s medical examination — that they had been sexually

penetrated. Then Ch.B. and V.B. talked at the family meeting with C.B. about

what Thompson had done to them. After being told by their mother that the doctor

found evidence that they had been abused and after talking at a family meeting,

Ch.B. and V.B. were taken by their parents to tell Chief Ensley that they had been

raped, during which they claimed they did not know they were raped until their

mother told them they were. C.B., on the other hand, was interviewed by O’Brien

because she made a specific claim that Thompson made her watch dirty movies.

And, although she disclosed the rape right after the family meeting in May, she

made that disclosure to her counselor and did not tell Chief Ensley until December

1994. Moreover, she never claimed that she did not know she was raped until her

mother told her she was. Unlike Ch.B. and V.B., C.B. was not told by her mother or

anyone else the results of Dr. Shelso’s medical examination.




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[¶46.]       Not only was C.B.’s rape disclosure in May 1994 not “in the same way”

as her cousins’ disclosures, the evidence at trial related to C.B. was different from

that presented on Ch.B.’s and V.B.’s claims. To summarize: (1) The jury heard that

C.B. told her dad that “Uncle Bob” made her watch dirty movies, which later led to

O’Brien’s forensic interview. The cousins, on the other hand, were referred by Chief

Ensley for an “exploratory” interview. (2) Dr. Shelso examined C.B. and concluded

that based on his physical examination, C.B. had been vaginally penetrated. The

cousins were examined by Dr. Carlton, and although he found signs of penetration,

it was only after he viewed the colposcopic slides of their vaginas and rectums. (3)

C.B. consistently described the scene of the pornographic movie, which Thompson

made her watch in the living room while he rubbed his penis. She also consistently

described the circumstances surrounding the rape. The cousins, on the other hand,

varied in their descriptions of the movie and the rape. V.B. said that kids were in

the movie and that she, C.B., and Ch.B. watched it in Thompson’s bedroom. She

said at one point that the rape happened in the afternoon, but at trial, she said it

happened at night. She said she screamed. She also claimed that Thompson

penetrated her while they watched the pornographic movie with the cousins in the

bedroom. Ch.B. said the cousins watched the movie together, but in the living

room. She said she was the second one to get abused and that C.B. was the first.

Ch.B. claimed, at one point, that Thompson tied her up and penetrated her vagina

with his penis in the living room after Thompson yelled at the cousins in the

bedroom for having a pillow fight. Dr. Carlton found no evidence of vaginal

penetration of Ch.B. In direct examination, Ch.B. said that other than touching her


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butt, Thompson did not do anything to her butt, but on cross-examination, she said

she was anally penetrated. (4) Although the jury heard how the B. extended family

was greatly involved in the investigation, the jury heard more evidence about Kim

B.’s involvement. In particular, Kim B. told Ch.B. and V.B. the results of Dr.

Carlton’s medical examination. Then Kim B. and her husband took Ch.B. and V.B.

to Chief Ensley to report the rape, but the girls said they did not know they were

raped until their mother told them they were. The jury heard no evidence that

Penny was connected to C.B.’s disclosure. (5) Finally, both O’Brien and the defense

expert, Ham, testified that delayed disclosure — child revelation of additional abuse

at a later date — is not uncommon, thereby buttressing C.B.’s late disclosure.

Although the counseling records reveal that C.B.’s disclosure was at the same time

as Ch.B.’s and V.B.’s, the similarities end there, and therefore, there is not a

reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different. As the second habeas court

concluded: “Nearly all the information disclosed by C.B. in the counseling notes was

known to the defense at trial.”

[¶47.]       Nonetheless, Thompson argues that there is a reasonable probability

that the cumulative effect of C.B.’s counseling records, “My Abuse Story,” and the

circumstances surrounding her hypnotism would have resulted in his acquittal for

the rape charge related to C.B. Indeed, C.B.’s claim in her abuse story that

Thompson raped her until she was eight is an impossibility, because she turned

eight four months after Thompson was arrested. But, considering the entire

evidence, this child-witness’s testimony with a four-month discrepancy in memory


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does not substantially impeach her credibility. Moreover, although the hypnosis

tape no longer exists and C.B.’s counselor told Penny not to show anyone the tape,

there is no evidence that C.B. disclosed a perpetrator other than Thompson during

hypnosis, or that as a result of the hypnosis, C.B. alleged additional acts of abuse or

denied any abuse.

[¶48.]         In the end, the habeas court did not err when it ruled that Thompson

failed to establish the requisite prejudice. To prevail on his claim that a Brady

violation occurred or that his due process rights were violated because his counsel

was ineffective, Thompson must establish that there is a reasonable probability that

the results of the proceeding would have been different if the suppressed evidence

had been disclosed. 5 On the evidence presented, we cannot say that the production

of C.B.’s counseling records would have made a markedly stronger case for the

defense or a markedly weaker case for the State. See Kyles, 514 U.S. at 441, 115 S.

Ct. at 1569. More importantly, we think there is no reasonable probability that,

had this evidence been timely disclosed to the defense, the result of his trial would

have been different.

[¶49.]         Affirmed.

[¶50.]         GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and

WILBUR, Justices, concur.



5.       We need not determine the sufficiency of defense and habeas counsels’
         performances, because, “[i]f it is easier to dispose of an ineffectiveness claim
         on the ground of lack of sufficient prejudice, . . . that course should be
         followed.” Rodriguez, 2000 S.D. 128, ¶ 29, 617 N.W.2d at 143 (quoting
         Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069, 80 L. Ed.
         2d 674, 699 (1984)).

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