Gregory v. State of N.C., 89-7514

• Citation: 900 F.2d 705
• Decision Date: 04 April 1990
• Docket Number: No. 89-7514,89-7514
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Parties: , 29 Fed. R. Evid. Serv. 1306 St. Luke GREGORY, Jr., Petitioner-Appellee, v. STATE OF NORTH CAROLINA; Attorney General of North Carolina, Respondents-Appellants.

Page 705

900 F.2d 705

58 USLW 2641, 29 Fed. R. Evid. Serv. 1306

St. Luke GREGORY, Jr., Petitioner-Appellee, v. STATE OF NORTH CAROLINA; Attorney General of North Carolina, Respondents-Appellants.

No. 89-7514.

United States Court of Appeals Fourth Circuit.

Argued July 12, 1989.

Decided April 4, 1990.

Richard Norwood League, Sp. Deputy Atty. Gen. (argued), Lacy H. Thornburg, Atty. Gen., on brief, Raleigh, N.C., for appellants.

James Riley Parish, Parish, Cooke & Russ, Fayetteville, N.C., for appellee.

Before ERVIN, Chief Judge, and PHILLIPS and WILKINSON, Circuit Judges.

ERVIN, Chief Judge:

St. Luke Gregory, imprisoned by North Carolina for taking sexual advantage of his young daughter, brought this Section 2254 case challenging the admission of two hearsay statements identifying him as the assailant. Gregory argues that the statements were so untrustworthy as to have violated his Sixth Amendment right to confront his accuser. The district court agreed that statements the child made several months before the crimes occurred were too unreliable to support the conviction, and ordered relief in the form of a new trial. We affirm.

I.

A jury concluded that Gregory had sexually assaulted his daughter LaTonya, then three-and-a-half years old, in September, 1984. Some of the most damning evidence against Gregory came in testimony from LaTonya's maternal grandmother, Doris Griffin, who often babysat the child while Gregory and his wife, LaTonya's mother, worked. ¹

In June, 1984, and again on September 7, 1984, Gregory dropped LaTonya off at Griffin's home and proceeded to work. During both visits, LaTonya exclaimed something like "Daddy put it in my butt", a remark the parties agree connotes a sexual contact between father and daughter. ²

The September remark finds corroboration in Griffin's discovery of a substance, apparently pus, on LaTonya's panties and testimony that LaTonya would not allow her to touch her crotch because it hurt. Dr. Phillip Greene, who examined LaTonya later that day, testified that "[LaTonya] said that her daddy unzipped his pants and "told me do my legs apart," and she showed me by the spreading of her legs, and he--those are my words. These are her words: "Wanted to get close to me," and the fourth part of this continuous sentence was that "that he hurt me here," and she pointed to between her legs." ³

No contemporaneous evidence corroborates LaTonya's June statement. Griffin noticed nothing in LaTonya's appearance or conduct that triggered suspicion, and seems to have dismissed the remark as a naive impertinence.

A Dr. Beals testified that on September 13, 1982, he had diagnosed gonorrhea in the seventeen-month-old LaTonya. Beals observed that sexual congress is the means of transmitting gonorrhea "almost in every case known", and that the probability of infection by other means is very slight. Other evidence indicated that Gregory had been treated for gonorrhea at about the same time. ⁴

The district court accepted the magistrate's recommendation that it rule the June hearsay inadmissible, finding "absolutely no objective corroborative evidence of the abuse reported at that time." The court viewed LaTonya's September statements to Griffin and Greene in a different light, rejecting the magistrate's counsel that it hold these two inadmissible also. Identifying a dozen factors corroborating the September statements, the district court concluded that while it "is on the cutting edge of the issue of relaxation of confrontation clause requirements", the indicia of reliability associated with the statements warranted admission. ⁵

II.

The issue for our review is one arising with depressing frequency in our nation's courts, one that, as a sister Circuit has observed, "place[s] a strain on traditional notions of procedural justice." Nelson v. Farrey, 874 F.2d 1222, 1224 (7th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 835, 107 L.Ed.2d 831 (1990) (citations omitted). The victim and principal witness to the crime charged is, by virtue of the youth that made her so vulnerable, unable to give reliable testimony. Her absence deprives the accused of the opportunity to cross-examine his accuser, an opportunity that, though some aver it a poor way to elicit truth from a very young child, our system holds dear. Id. at 1230; The Supreme Court, 1987 Term: Leading Cases, 102 Harv.L.Rev. 143, 157 (1988).

In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Court promulgated a rule mediating between the accused's interest in confrontation, [and broadly in the best exposition of the truth,] and the victim's and society's interest in the effective prosecution of child abuse. The rule allows the admission of hearsay evidence from an unavailable declarant if, though not within any well-recognized exception to hearsay exclusion, the evidence bears "particularized guarantees of trustworthiness." ⁶ Id. at 66, 100 S.Ct. at 2539. It is the district court's Roberts analysis that we review today.

In this case, the issue is whether we may look a considerable distance backward and forward from June of 1984--principally to the 1982 diagnosis of gonorrhea and the events of September of 1984--for corroborating factors. This issue is novel to us. The district court, referring to a portion of the magistrate's decision citing cases from two other courts of appeals, stated that it would address the statements' reliability in light of contemporaneous circumstances. See United States v. Renville, 779 F.2d 430, 440 (8th Cir.1985) ("[T]he reliability of the declaration is assessed in light of the circumstances at the time of the declaration and the credibility of the declarant.") (citing Huff v. White Motor Corp., 609 F.2d 286, 292 (7th Cir.1979)); see also United States v. Dorian, 803 F.2d 1439, 1444 (8th Cir.1986) (quoting the Renville contemporaneity requirement); United States v. Love, 592 F.2d 1022, 1027 (8th Cir.1979). As we shall explain, even if we disagreed with the well-reasoned requirement of contemporaneous corroboration, a requirement implicit in the Roberts insistence on "particularized" guarantees of reliability, we nonetheless would hold the chronologically distant evidence presented in this case to be a logically insufficient index of the reliability of the June hearsay.

No doubt because of the relative novelty of the Roberts exception and the fact-specific examination each Roberts inquiry demands, the cases, rather than publishing a comprehensive list of possible corroborating factors, tend to consider what, in the declarant's condition or otherwise, suggests truthfulness or a lack thereof. For example, in Ellison, the district court referred to the many discrepancies among the five-year-old sexual assault victim's descriptions of her assailant and the place of her assault in concluding that admission of the descriptions as hearsay violated the accused's Sixth Amendment rights. Ellison v. Sachs, 583 F.Supp. 1241, 1249 (D.Md.1984), aff'd, 769 F.2d 955, 957 (4th Cir.1985) ("[A]s the district court documented in careful detail, there are serious discrepancies which indicate that the victim's out-of-court statements and identification of Ellison were not at all reliable.")

In Morgan v. Foretich, 846 F.2d 941 (4th Cir.1988), one issue before the panel was whether the district court had abused its discretion in ruling five statements made by a young girl to her mother, all suggesting sexual abuse by the girl's father, inadmissible under the excited utterance exception to the hearsay exclusion. ⁷ Fed.R.Evid. 803(2). We noted "substantial physical evidence and doctors' testimony" corroborating the girl's tales of sexual assaults, which she described in childish terms but with an "extensive knowledge of sexual activities," both characteristics belying an attempt at fabrication. 846 F.2d at 948. The girl's near-hysterical condition left "little doubt ... that she was acting under the stress of the situation." Id.

We find it impossible to weave the factors influential in Ellison and Morgan, or the principles informing the factors, into a justification for the admission of the June hearsay. As we have said, there is no corroborating evidence peculiar to the June statement. The September developments alone cannot bootstrap the earlier statement into a category of reliable hearsay. It is a considerable leap from the varied evidence that Gregory sexually abused LaTonya in September to the conclusion that LaTonya's tantalizing hint of an earlier assault must also be true. In this case, at least, where the trial court ruled the declarant incompetent because of her proclivity to "make up things," including things about her father, and inability to appreciate the need for truthfulness, we are unable to see how the corroborated September statement relates favorably enough to the truthfulness of the June statement to overcome the complete absence of contemporaneous corroboration for the latter. See Dorian, 803 F.2d at 1444 (emphasizing the declarant's credibility as a factor in evaluating reliability); Renville, 779 F.2d at 440 (same).

We consider first the substance of the statement itself, then consider whether evidence extrinsic to the statement reflects favorably on its truth. ⁸ Without making light of what certainly happened to LaTonya in September, we can imagine a very young child, particularly one so bright, blithely making a sexually charged reference based on something she encountered on television or elsewhere. ⁹ The reference might improperly describe an innocent contact by the father. Not a detailed account of an event ordinarily beyond a child's experience, LaTonya's remark is less credible per se than the tales of abuse recounted in Ellison and Morgan. Cf. Ellison, 769 F.2d at 957 ("[S]everal courts and commentators have observed that a young child's description of a sexual assault may, in particular circumstances, contain its own inherent verity.") (citations omitted)....