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Edward Oberwise v. Secretary

February 17, 2012



Edward Oberwise, an inmate in the Florida penal system proceeding pro se, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. #1). The Court has considered the petition, Respondents' response (Dkt. #12) and Petitioner's reply (Dkt. #18). Upon review, the Court concludes that the petition should Be Denied.

Factual Background

The factual background is taken from the facts as described in Oberwise's initial brief on direct appeal. Oberwise was charged with five counts of lewd and lascivious battery. There were two victims, 12-year-old Olivia (three counts) and 14-year-old Caitie (two counts). Oberwise waived his right to a jury trial in exchange for a sentencing cap of 20 years imprisonment, followed by a possible term of probation of up to 15 years.

At the bench trial, the two victims and three detectives (Hollis, Bashner, and Raschke) testified for the State. Oberwise, a Child Protective Services employee (Sandra Shulman) who examined Olivia, and a DNA expert (Benjamin Brooks) testified for the defense. The defense was that no sexual activity occurred and the accusations were a fabrication, possibly orchestrated by Olivia's mother.

Oberwise contacted Olivia over the internet and the two began chatting, eventually arranging a meeting. Olivia admitted her online profile said she was 19, but said she told Oberwise she was 12 when they started chatting.

Olivia convinced her friend Caitie to come with her to the meeting. Caitie slept over at Olivia's house and, about 11:30 p.m., the two slipped out through the bedroom window.

The girls walked to a playground, met Oberwise in his car, and got in the back seat. Oberwise drove to a parking lot, parked, and asked "who wants to go first." Olivia got in the front seat, Caitie stayed in the back, and Oberwise climbed into the back seat.

Oberwise performed oral sex on Caitie. The two girls switched places and Olivia performed oral sex on Oberwise. The girls switched places again and Oberwise performed oral sex on Caitie again. They switched again and Oberwise performed oral sex on Olivia and tried to have intercourse with her. He then drove them home.

The next morning, Olivia's mother noticed the screen was off the window, which prompted her to ask her daughter about it. The full story eventually came out and the police were called. The police arranged four controlled and recorded phone calls between Olivia and Oberwise. When CDs of the calls were introduced in evidence, defense counsel said:

There have been transcripts made of the phone calls. I have listened to them with [Mr. Oberwise] present. They accurately depict the conversations of the phone calls. Rather than the [court] listening to the phone calls I have no objection to the Court having the transcripts.

The transcripts were not introduced into evidence and are not part of the record. The CDs were not played at this time; as discussed below, they were played later, after Oberwise testified.

Detective Raschke testified that, during these calls, Olivia asked Oberwise "if she was still a virgin based on what happened to her," to which he replied "I don't know. I couldn't get it in you ...." Olivia also asked if she "did a good job giving him ... head" and Oberwise said "[i]t was good, yes."

During these calls, Olivia arranged a second meeting. Oberwise was arrested when he arrived at the meeting place. Written directions to the meeting place were found in his car and condoms were found in the center console. He admitted to Detective Raschke that he talked to the girls and met them but he denied any sexual activity. He said he came to the second meeting because he "had loaned them money to buy beer and he wanted to get his money back."

In the defense case, Child Protective Services employee Shulman testified that she examined Olivia but found no evidence of sexual activity; however, she would not necessarily expect to find any, given the nature of the allegations and the time that had passed. Olivia's statements to Shulman about what had occurred were consistent with her trial testimony.

DNA expert Brooks checked Olivia's jacket to see if he could find any DNA evidence. Olivia told the police Oberwise ejaculated in her mouth and she wiped her mouth on her sleeve. Brooks found nothing on the jacket but said that would not be unusual in these circumstances.

In his testimony, Oberwise admitted he chatted with the girls and met them in his car. They were in his car for about five minutes; he denied any sexual contact. The girls wanted him to buy them beer but he refused. Immediately after the girls got out of his car, he noticed $15 in cash he had in the car was missing. He got mad and "called them back right away after leaving." He "got cussed at" by someone with "a heavy accent," apparently Olivia's mother.

As to the taped phone calls, Oberwise admitted telling Olivia she gave "great head." When asked about Olivia's asking "whether she can get pregnant and you said no," Oberwise replied "I said I was thorough [sic]." Counsel asked "why did you say that if the contact never took place"; Oberwise replied:

A: Well, number one we thought the mom was behind it.

THE COURT: Who is we? [Oberwise]: I was at a friend's house staying for a week. They started talking about all this stuff that supposedly happens so I was agreeing yeah okay, okay....

And the only reason I was making those statements to Olivia is because I thought her mom was behind this whole thing of meet these guys and take their wallet or take whatever because the profile said ... It was somebody with a heavy accent that was there every night....

Q: So your explanation for those statements --A: I was pissed.

On cross-examination, Oberwise said he met the girls because "they said they were 19 ... and they asked me ... when I wanted to meet them and I said ... I got to go to a friend's house ... between like 11 or 11:30 so we made plans that night." When the girls got in his car he realized they were underage. He asked them "who is the other girl ... with the heavy accent" and they told him "that's ... my friend at first and then I was like what's going on." The girls asked him for beer money, he told them no and, after 3-4 minutes, he told them he had to leave and they got out of his car.

As he started to drive away, "a car hit the brake lights and somebody yelled out the window ... and gave me the arm." He did not know if this person was "affiliated with these two girls" but the "only person I knew had a white jeep was them two." He "called [the girls] right away" and asked "who is this girl that just screamed something out of the window" and the girls "started laughing and stuff" and said they did not know. "[T]hen some girl took the phone and talked with a heavy accent" and said "you know who this is and they are like I am her mom ha, ha, ha."

He told this heavy-accent female "they took some money from me and she was like ... just think of it as borrowed." He said "[y]ou just sent your daughters out to rob me ... and then the argument started." He did not call the police about the $15 because "[h]ow am I going to explain to the police it is late at night [and] I got robbed by two 12-year-olds."

The State then asked him about the statements in the recorded phone calls. Oberwise admitted: 1) Olivia asked him "did we have sex" and he said no; and 2) Olivia said "it felt like a little weird" and asked if she was "still a virgin" and he replied "I don't know." He explained this as "[w]e thought her mom was putting her up to asking these questions and we were pissed off at the time." He admitted: 1) he said he could not "get [his] penis in her"; and 2) Olivia asked him if she gave "good head" and he told her she was "great." He said he "wasn't happy what I said but I said it." He admitted telling Olivia she could not get pregnant because he had a vasectomy; he said that because prior to that they were laughing at my friend for having a vasectomy and I said "What's the big deal?" And they said "It's like having a gun with no bullets." And I said "I got snipped too, but I am not sterile." He also told Olivia "if I would have come ... I just have a habit of pulling out anyway."

Oberwise admitted they arranged a second meeting at the park. He explained this conversation as follows:

A: Well, she was like let me meet you at the park. So I was at my friend's house and I had it on speaker phone and I said "You know, what's going on?" They're like "Meet me at the park." And I said "Where are we going?" She was like "I don't know." ... I said "Where is your house at?" And she wouldn't tell me. She's like "Just pick me up" .... She hung up. Well, ... half an hour went by and she is like "Where you at?" I said "I'm here." She's like "Well hurry up" [and] she hung up again.... I was at a friend's house and we didn't know if we were going to get set up for a fight or whatever. I had issues with this woman with a heavy accent. I said at the end of the phone call "I am bringing a friend." And I didn't hear anything in the background like fuck you .... That's what I was trying to get out of the phone call.

She acted like she didn't care. So I actually had ... some friends of mine ... that was going to come by like two minutes after I got in the park just in case there was trouble.

Q: So you thought she was having you come over there to fight somebody?

A: Like the first night all of a sudden the threats started.

When he got to the park he was arrested; condoms were found in his car. After his arrest he lied to Detective Raschke "about the whole beer money thing" because "I didn't want ...

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