Olesen v. Class

• Decision Date: 04 January 1999
• Docket Number: No. 97-1892,97-1892
• Citation: 164 F.3d 1096
• Parties: Jerry Lee OLESEN, Appellant, v. Joe CLASS, Warden, South Dakota State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1096

164 F.3d 1096

Jerry Lee OLESEN, Appellant, v. Joe CLASS, Warden, South Dakota State Penitentiary, Appellee.

No. 97-1892.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 23, 1998.

Decided Jan. 4, 1999.

Timothy M. Engel, Pierre, South Dakota, argued, for Appellant.

Grant Gormly, Pierre, South Dakota, argued (Mark Barnett and Ann C. Meyer, on the brief), for Appellee.

Before RICHARD S. ARNOLD, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Jerry Lee Olesen was convicted in a South Dakota court on two counts of unlawful sexual contact with a child under sixteen, two counts of second-degree rape, and one count of third-degree rape, based on alleged sexual contact with his daughters, three-year-old A.T., five-year-old L.Z., and nineteen-year-old L.S. After his convictions were affirmed, see State v. Olesen, 443 N.W.2d 8 (S.D.1989), and his state habeas corpus petition was denied, see Olesen v. Lee, 524 N.W.2d 616 (S.D.1994), Mr. Olesen filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254. The district court denied the petition, see Olesen v. Class, 962 F.Supp. 1556 (D.S.D.1997), and Mr. Olesen appeals. We affirm in part and reverse in part.

I.

L.Z. did not testify at Mr. Olesen's trial. Dr. Willis Sutliff, a pediatrician, testified, however, that during his examination of L.Z., she identified Mr. Olesen as the individual who had sexually abused her. Mr. Olesen maintains that the admission of L.Z.'s out-of- court statement identifying him as the perpetrator violated his right under the Sixth Amendment to confront the witnesses against him. See U.S. Const. amend. VI.

A hearsay statement is admissible in a criminal trial, despite the admonitions of the Confrontation Clause, "if it bears adequate 'indicia of reliability.' " Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), quoting Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) (plurality opinion). The reliability requirement is satisfied if the relevant statement falls within a "firmly rooted hearsay exception" or if it is supported by "a showing of particularized guarantees of trustworthiness." Roberts, 448 U.S. at 66, 100 S.Ct. 2531.

South Dakota maintains that L.Z.'s statement identifying Mr. Olesen falls within the firmly rooted hearsay exception for statements made for purposes of medical diagnosis or treatment. See S.D. Codified Laws § 19-16-8, the equivalent of Fed.R.Evid. 803(4) in all pertinent respects. See White v. Illinois, 502 U.S. 346, 355-56, 355-56 n. 8, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (medical diagnosis/treatment exception is firmly rooted hearsay exception). For this proposition, South Dakota relies on our decision in United States v. Renville, 779 F.2d 430, 436 (8th Cir.1985), in which we held that statements by a child abuse victim to a physician that the abuser was a member of the victim's immediate family may properly be admitted under this hearsay exception. See also State v. Olesen, 443 N.W.2d at 9, and State v. Garza, 337 N.W.2d 823, 824-25 (S.D.1983) (per curiam ), both relying on Eighth Circuit case law in holding identifications by child abuse victims admissible under S.D. Codified Laws § 19-16-8. We recognized in Renville and in later decisions, however, that such statements are admissible only when the prosecution is able to demonstrate that the victim's motive in making the statement was consistent with the purpose of promoting treatment--that is, "where the physician makes clear to the victim that the inquiry into the identity of the abuser is important to diagnosis and treatment, and the victim manifests such an understanding." Renville, 779 F.2d at 438. Such a rule is consistent with the rationale underlying the hearsay exception for medical treatment and diagnosis, because the exception "is based on the belief that a person seeking medical treatment is unlikely to lie to a doctor she wants to treat her, since it is in her best interest to tell the truth." Ring v. Erickson, 983 F.2d 818, 820 (8th Cir.1993). In other words, the rule is bottomed upon the premise that a patient's "selfish motive," id., in receiving proper treatment guarantees the trustworthiness of the statements made to her physician. Id.; see also United States v. White, 11 F.3d 1446, 1449-50 (8th Cir.1993).

We believe that the prosecution in this case failed to establish that L.Z.'s frame of mind at the time of Dr. Sutliff's examination was that of a patient seeking medical treatment. Dr. Sutliff testified only that he explained to L.Z. "what was going to happen," presumably an explanation of the physical examination itself. There is no evidence in the record that he explained to L.Z. that his questions regarding the identity of her abuser were important to diagnosis or treatment, or that L.Z., who was only five years old at the time, understood the medical significance of being truthful in identifying her abuser to her doctor. Because the prosecution failed to establish L.Z.'s strong motive to tell the truth to Dr. Sutliff in order to promote treatment, under our case law L.Z.'s statement to Dr. Sutliff was not properly admitted.

II.

South Dakota also maintains that L.Z.'s statement to Dr. Sutliff identifying Mr. Olesen as her abuser possessed sufficient "particularized guarantees of trustworthiness," Roberts, 448 U.S. at 66, 100 S.Ct. 2531, to survive a Confrontation Clause objection. In determining whether L.Z.'s statement was properly admitted on this ground, we examine its trustworthiness in light of the totality of the circumstances that surrounded its making, without regard to other evidence in the record that might corroborate the statement. See Idaho v. Wright, 497 U.S. 805, 822-23, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).

South Dakota directs our attention to certain facts that it believes tend to establish the trustworthiness of L.Z.'s statement. First, it points out that Dr. Sutliff had expertise in the diagnosis of child abuse and that he did not use leading questions in eliciting L.Z.'s statement. Second, it points to Dr. Sutliff's testimony that L.Z. had a better knowledge of human anatomy than the average five-year-old and that she did not waver in her statement identifying Mr. Olesen as her abuser. Third, it contends that L.Z.'s young age suggests that she lacked any reason to accuse Mr. Olesen falsely and therefore provides further evidence of the trustworthiness of her statement identifying him as her abuser.

In support of its position, South Dakota cites several cases in which we have relied on similar facts in holding that hearsay statements by child victims identifying their abusers possessed sufficient guarantees of trustworthiness to overcome a Confrontation Clause objection to their admission. See United States v. N.B., 59 F.3d 771, 775 (8th Cir.1995); United States v. Grooms, 978 F.2d 425, 428 (8th Cir.1992); Dana v. Dep't of Corrections, 958 F.2d 237, 239 (8th Cir.1992), cert. denied, 505 U.S. 1225, 112 S.Ct. 3043, 120 L.Ed.2d 911 (1992); and McCafferty v. Leapley, 944 F.2d 445, 451-52 (8th Cir.1991), cert. denied, 503 U.S. 911, 112 S.Ct. 1277, 117 L.Ed.2d 503 (1992). We believe, however, that the hearsay statements in those cases were significantly more trustworthy and raised fewer Confrontation Clause concerns than L.Z.'s statement identifying Mr. Olesen.

First, the child victims in N.B. and Grooms testified at trial, so the defendants in those cases had the opportunity to confront and cross-examine their accusers. See N.B., 59 F.3d at 775, and Grooms, 978 F.2d at 427-28. We have recognized that the Confrontation Clause is generally satisfied when the child victims whose hearsay statements have been admitted actually appear in court and testify in person. See, e.g., United States v. Spotted War Bonnet, 933 F.2d 1471, 1473 (8th Cir.1991), cert. denied, 502 U.S. 1101, 112 S.Ct. 1187, 117 L.Ed.2d 429 (1992). In Mr. Olesen's case, however, L.Z. did not testify at trial, and the Confrontation Clause of course presents far greater obstacles to admitting hearsay statements in such circumstances. See id.

South Dakota's reliance on Dana and McCafferty is likewise misplaced. In both of those cases, we found the children's statements trustworthy in part because the children provided graphic, detailed descriptions of the alleged abuse, thereby lending credibility to their statements identifying their abusers. See Dana, 958 F.2d at 239, and McCafferty, 944 F.2d at 450-52. By contrast, Dr. Sutliff's testimony at trial indicates that L.Z. said very little during the interview and communicated primarily by nodding her head in response to Dr. Sutliff's questions:

I asked [L.Z.] if she had ever been hurt around her bottom, and she replied that her daddy had hurt her. I then asked her where and she pointed to the vaginal area. I then asked if someone had, if her father had put his fingers in her and she nodded affirmatively. I then asked if it hurt and she again indicated affirmatively that it had hurt.... I asked her if she had, if he had placed [his penis] in her and she indicated affirmatively again.... She did not elaborate in detail, it was just, she did say that she had been hurt and when asked about the area, indicated ... her vaginal area and nodded as I asked the questions.

We believe that this account of Dr. Sutliff's conversation with L.Z. falls far short of the "particularized guarantees of trustworthiness," Roberts, 448 U.S. at 66, 100 S.Ct. 2531, demonstrated in our earlier cases.

South Dakota calls our attention to a number of other cases discussing the admissibility of hearsay statements by child victims identifying their abusers. Those cases are inapposite, however, either because the defendants in those cases did not raise a claim based on the Confrontation Clause, see, e.g., Lovejoy v. United States, 92 F.3d 628, 631-32 (8th Cir.1996), and Renville, 779 F.2d at 435-41, or because we...