United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, CHIEF JUDGE
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.
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.
Initial Report of Sexual Abuse to Creek County
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).
Underwood spoke with John Davis, who at the time was a
detective in investigations for the CCSO, about performing a
forensic interview. 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.
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.
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.
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). 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.
by the Jennings Police Department and Pawnee
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).
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]).
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).
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 Pretrial Proceedings
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]).
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).
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).
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
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