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Carter v. Davis

United States District Court, N.D. Oklahoma

September 24, 2019

BRADLEY RAY CARTER, Plaintiff,
v.
JOHN DAVIS; CHRISSIE UNDERWOOD; MIKE WATERS; AND BRET BOWLING; Defendants.

          OPINION AND ORDER

          JOHN E. DOWDELL, CHIEF JUDGE

         I. Background

         This case arises from the arrest and prosecution of Plaintiff, Bradley Ray Carter (Bradley or Plaintiff), on allegations that he sexually abused C.W., a six-year old girl who at one time was Bradley’s stepdaughter.

         Between the fall of 2009 and December, 2011, Bradley and C.W.’s mother, Amanda, lived with Bradley’s mother and brother (Daniel) in a house in Pawnee County, Oklahoma. From late 2011 until April 2012, Bradley, Amanda, and C.W. lived with Amanda’s mother, Krista, in Creek County, Oklahoma. In April 2012, Bradley and Amanda separated, and Bradley moved to a different home.

         The Initial Report of Sexual Abuse to Creek County

         On June 21, 2012, Amanda, C.W., and Amanda’s mother (Krista) and grandmother (Bonnie) went to the Creek County Sheriff’s Office (CCSO) to report that C.W. had been sexually assaulted. They spoke to Deputy Chrissie Underwood. Amanda informed Underwood that C.W. had reported to Krista that Bradley previously used his finger, his “hoohoo, ” and a pink vibrator, to touch C.W. (Creek County Aff., Doc. 49-3, 49-5). Amanda gave a written statement, reporting that C.W. disclosed on June 20 and 21, 2012 that “Brad” had touched her with his fingers, a pink vibrator, and his “whowho, ” and “it happened a lot.” (Doc. 49-5).[1]

         Deputy Underwood spoke with John Davis, who at the time was a detective in investigations for the CCSO, about performing a forensic interview.[2] Underwood conducted a videotaped forensic interview with C.W. The Court has reviewed Deputy Underwood’s video interview of C.W. (see Doc. 78-3). Underwood was certified by the Council on Law Enforcement Education and Training and had received training on child abuse investigations. She had received specific training on performing forensic interviews and had conducted more than 100, including interviews regarding alleged sexual assaults of children.

         During the interview, C.W. identified on female and male diagrams various anatomical parts, including eyes, lips, belly button, back, arms, legs, nose, knees, head, “boobs, ” “butt, ” and “hoo hoo.” (Doc. 78-3). C.W. disclosed that Bradley used his index finger, his “hoo hoo, ” and a pink vibrator to touch her. She said that he put his “hoo hoo” inside of her. (See id.; see also Doc. 49-3). C.W. stated that one incident occurred at Grandma’s (Krista’s) house “in Ashley’s old room.” (Doc. 78-3). C.W. identified Ashley as her mom’s sister and thus as C.W.’s aunt. (Id.). She further reported that other instances of the sexual contact occurred in her “mom and Brad’s room” at Daniel’s house. (Id.). C.W. indicated that it happened more than three times and “a lot, ” and that Bradley told her not to tell anybody or he would get thrown in jail. (Id.).[3]

         After the forensic interview, Underwood spoke again with Amanda and with Amanda’s mother, Krista. Amanda subsequently brought a pink vibrator to the CCSO. Underwood contacted Bradley via phone, but Bradley refused to speak with Underwood on the advice of Bradley’s father, Gary Carter, who is a police officer.

         On July 6, 2012, Deputy Underwood signed a Probable Cause Affidavit for Arrest Warrant, which described the information that she had received from talking to Amanda and interviewing C.W., including that Bradley had put his “hoo hoo” inside of her and touched her with his finger and a pink vibrator. (Doc. 49-3).[4] On July 19, 2012, based on the probable cause affidavit, a Creek County district judge issued a felony warrant for Bradley’s arrest for the offense of child sexual abuse in violation of Okla. Stat. tit. 21, § 843.5(E). (Doc. 49-13). Bond was set at $100, 000. (Id.). On July 29, 2012, Bradley was taken into custody pursuant to the Creek County warrant. He was incarcerated for five days at the Creek County Detention Center and was released on bond on August 3, 2012.

         Investigation by the Jennings Police Department and Pawnee County

         Sometime after she met with Amanda, Krista, and C.W. on June 21, 2012, Deputy Underwood contacted the Jennings Police Department to report her belief that some of the alleged abuse may have occurred in the City of Jennings. On June 28, 2012, Amanda provided a voluntary written statement to the Jennings Police Department, reporting C.W.’s statements about being touched by Bradley with his fingers, vibrator, and “ho ho, ” and that at least one incident happened at their “old house” in Jennings. (Doc. 49-9). Krista also provided a written statement to the Jennings Police Department, describing C.W.’s June 20 and 21, 2012 allegations of prior sexual abuse by Bradley. (Doc. 49-10).

         On July 2, 2012, the Jennings Police Department referred its investigation to the Pawnee County Sheriff’s Office (PCSO) after determining that Daniel’s house, where CW stated that some of the sexual abuse had occurred, was outside Jennings city limits, in Pawnee County. Nick Mahoney, a PCSO Deputy, spoke with CCSO Deputy Underwood on July 2, 2012 and received Underwood’s files on the case. Deputy Mahoney also reviewed a video of Underwood’s forensic interview of C.W. On July 9, 2012, Mahoney interviewed Amanda and Krista, who again described C.W.’s report that Bradley had sexually abused her. Amanda also told Mahoney that no other men had been in a position to abuse C.W. (Doc. 49-11 at 12 [Dep. p. 39:15-22]).

         On July 20, 2012, Amanda signed a statement affirming the accuracy and truth of the information she had provided to Deputy Mahoney at the PCSO. (Doc. 49-14). On July 23, 2012, Mahoney submitted an Arrest Warrant Affidavit in Pawnee County, for first degree rape and rape by instrumentation (Doc. 49-12). That affidavit referenced statements by Underwood, Amanda, and Krista in support of probable cause. (Id.). Mahoney’s probable cause narrative also stated that he “attempted contact with Bradley Carter but he stated he did not want to speak with me with or without an attorney.” (Id.). In his deposition, Mahoney indicated that Bradley’s father Gary told Mahoney that Bradley did not want to speak with him. (Doc. 67-2 at 2-3).

         On August 14, 2012, based on Deputy Mahoney’s Affidavit, Pawnee County District Judge Matthew Henry issued a felony warrant for Bradley’s arrest for the offenses of lewd molestation, rape by instrumentation, first degree rape, and intimidation of a witness. (Doc. 49-16). On August 20, 2012, Bradley turned himself in and posted bail at the Pawnee County Jail.

         Creek County Pretrial Proceedings

         On December 13, 2012, Creek County Judge Richard A. Woolery held a preliminary hearing in Bradley’s Creek County case. Judge Woolery heard testimony from Underwood and viewed a DVD of the forensic interview. C.W. also testified during the preliminary hearing. C.W. identified Bradley and Deputy Underwood in the courtroom, and C.W. testified that Underwood had asked her some questions in a room and that C.W. had told Underwood the truth. C.W. testified that she did not remember what she told Underwood and that she did not “remember today Brad doing anything not nice” to her. (Doc. 49-17 at 35 [emphasis added]).[5]

         While C.W. did not or would not repeat her specific allegations in a courtroom, the balance of her testimony indicated that (1) she remembered reporting to her grandmother that Bradley did something “not nice” to her, (2) she repeated that information to her mother, and (3) she also recalled telling Deputy Underwood the same information. (Doc. 49-17 at 32-36). As noted, she also testified that she told Underwood the truth during the interview. (Id. at 28).

         Judge Woolery found that C.W. was qualified to testify and determined that Bradley should be bound over for trial:

At the preliminary hearing level, the Court is required to take the evidence presented in the light most favorable to the State, and further I’m required to presume that the State will strength[en] its case at trial. And based on that, this Court will find that the State has met its burden of proof and shown probable cause to believe that the crime alleged has been committed and further shown probable cause to believe that this defendant committed said crime. He therefore will be bound over for trial in the District Court.

(Doc. 49-17 at 40-41).

         On February 25, 2013, at a suppression hearing before Judge Sam Vassar in Creek County, during cross-examination by Bradley’s counsel, Deputy Underwood testified as follows regarding her conversations with Amanda during her investigation:

Q: Okay. Did mother ever tell you that she thought that it could have been someone else?
A: Yes. . . .
Q: Okay. Did you investigate the person that mother told you that it could have been?
A: She didn’t give me a name.
Q: Okay. Did you ask her for a name?
A: All she told me was that she thought maybe it could have been somebody else. That was it. She didn’t give me any ...

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