United States District Court, E.D. Arkansas, Pine Bluff Division
RECOMMENDED DISPOSITION
I.
Procedure for Filing Objections:
This
Recommended Disposition (Recommendation) has been sent to
Judge James M. Moody Jr. Any party to this suit may file
written objections. To be considered, objections must be
filed with the Clerk of Court within 14 days. Objections
should be specific and should include the factual or legal
basis for the objection.
If
parties do not object, they may lose the right to appeal
questions of fact. And, if no objections are filed, Judge
Moody can adopt this Recommendation without independently
reviewing the record.
II.
Procedural Background:
Petitioner
Jonathan Trotter was twenty-eight years old when a jury
convicted him of two counts of rape and two counts of
second-degree sexual assault committed against a
thirteen-year-old girl. Trotter v. State, 2018
Ark.App. 326, at 1. The jury sentenced Mr. Trotter to spend
thirty years in the Arkansas Department of Correction (ADC).
Id.
Mr.
Trotter raised two issues on direct appeal of his conviction.
He first claimed that there was insufficient evidence to
support his convictions; and second, he claimed that the
trial court erred in denying his motion to declare Arkansas
Code Annotated section 5-14-102, which bars a
“mistake-of-age” defense unconstitutional.
Id.
The
Arkansas Court of Appeals affirmed Mr. Trotter's
conviction. Id. at 6. It found that there was
sufficient evidence at trial to support his convictions. And,
it held that it was without authority to overrule the
Arkansas Supreme Court's decision that the statute in
question did not violate the United States or Arkansas
Constitutions. Id. at 5-6 (citing Gaines v.
State, 354 Ark. 89 (2003)). The mandate issued on June
12, 2018.
Mr.
Trotter filed a petition under Rule 37 of the Arkansas Rules
of Criminal Procedure on September 10, 2018 in the Hempstead
County Circuit Court. (#10-7) In the unverified petition, Mr.
Trotter asserted that Arkansas Rule of Criminal Procedure
37.2, which requires that a petition seeking post-conviction
relief be filed within 60 days of the mandate, did not apply
to his case. He went on to claim that his trial counsel was
unconstitutionally ineffective for failing to call a witness;
for not arguing that the victim falsely represented herself
as an adult; for not arguing that the victim exhibited a
pattern of untruthfulness with other adult males “for
the purpose of sex”; and that the prosecutor abused her
discretion in her charging decision. (#10-7)
Mr.
Trotter also filed a verified addendum to his Rule 37
petition. (#10-8) In the addendum, Mr. Trotter claimed that:
(1) the prosecuting attorney purposely withheld information;
(2) the court's denial of the mistake-of-age defense
violated his due process rights under the Arkansas
Constitution; (3) the court erred by not allowing him to
argue that he was ignorant of the victim's age so that he
could have been tried for a lesser-included offense; (4) the
prosecutor purposely withheld information that would have
mitigated the charges and punishment; (5) he was denied due
process when the court failed to instruct the jury on
lesser-included offenses; (6) the trial court improperly
suppressed relevant evidence; and (7) the prosecutor erred by
not reducing the charges based on the victim's prior
sexual conduct. (#10-8) The circuit court denied the petition
as untimely. (#10-10) Mr. Trotter did not appeal.
III.
Mr. Trotter's Claims:
Mr.
Trotter raises the following claims in his pending federal
petition: (1) he was denied due process because there was
insufficient evidence to support his conviction; (2)
Arkansas's prohibition against a mistake-of-age defense
is unconstitutional; (3) trial and appellate counsel were
constitutionally ineffective: for failing to properly
cross-examine the victim at trial to impeach her credibility;
for failing to call a particular witness; for failing to
argue lack of criminal intent; for failing to file a
pre-trial motion to amend the information to charge him with
the lesser charge of indecency-with-a-child; for failing to
quash the information on grounds of double jeopardy; for
failing to seek a change of venue; and, for failure of
appellate counsel to raise “meritorious”
arguments on appeal that had been denied by the trial court
(i.e. motion to suppress, motion for disclosure of
exculpatory evidence, motion to preclude undisclosed
evidence, etc.). (#2)
Director
Payne has responded to the petition, arguing that Mr.
Trotter's claims either lack merit or are procedurally
defaulted. (#10 at 7-20)
IV.
Facts:
At
trial, the Arkansas Supreme Court summarized the evidence
produced at trial as follows:
The State presented two witnesses at the jury trial. The
first was Officer Jesus Coronado, and the second was the
victim, R.S.
Officer Coronado investigated the case after receiving a
report that Mr. Trotter had engaged in sexual intercourse
with R.S. Officer Coronado interviewed R.S., and during the
interview R.S. stated that she had sexual intercourse with
Mr. Trotter in July 2016 and again in August 2016. On the
following day, after administering Miranda warnings,
Officer Coronado interviewed Mr. ...