Swan v. Peterson

• Decision Date: 06 October 1993
• Docket Number: No. 92-35493,92-35493
• Citation: 6 F.3d 1373
• Parties: 38 Fed. R. Evid. Serv. 404 William Orr SWAN; Kathleen Roland Swan, Petitioners-Appellants, v. Kurt S. PETERSON, Warden of Washington Correctional Center; Eldon Vail, Warden of Washington Correctional Center for Women; Chase Riveland, Secretary of Department of Corrections, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1373

6 F.3d 1373

38 Fed. R. Evid. Serv. 404

William Orr SWAN; Kathleen Roland Swan, Petitioners-Appellants, v. Kurt S. PETERSON, Warden of Washington Correctional Center Eldon Vail, Warden of Washington Correctional Center for Women; Chase Riveland, Secretary of Department of Corrections, Respondents-Appellees.

No. 92-35493.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 2, 1993.

Decided Oct. 6, 1993.

David Allen, Allen & Hansen, Seattle, WA, for petitioners-appellants.

Charles R. Nesson, Cambridge, MA, amicus curiae, in support of petitioners-appellants.

Paul D. Weisser, Asst. Atty. Gen., Olympia, WA, for respondents-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before: WRIGHT, BEEZER and HALL, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

When the crime is child sexual abuse, one of the more difficult to detect and prosecute, a conviction hinges often on the words of children. What makes this case troubling is that the children did not testify at trial. On the basis of hearsay statements, supported by minimal corroborating evidence at best, a state jury convicted William and Kathleen Swan of sexually abusing their three-year-old daughter and her friend. The Swans have exhausted their state court remedies and appeal the district court's denial of their habeas corpus petition.

Our main issue is whether admission of the children's hearsay statements violated the Swan's Sixth Amendment Confrontation Clause rights. The Swans also argue that the state withheld information that a key reporting witness had once been sexually abused, that newly discovered medical evidence indicated that their daughter was not molested and that they received ineffective assistance of counsel. We affirm the dismissal of the habeas petition.

I. BACKGROUND

The sexual abuse charges stemmed from statements made by the Swans' daughter, B.A., and her three-year-old friend, R.T., to day-care center workers. The two children attended a day-care facility managed by Cindy Bratvold. She had hired Lisa Conradi as the center's new part-time assistant. The disturbing allegations arose on Conradi's second day of work. She told B.A. to keep her dress covered over her tights, reminding her that no one should look at or touch her "private parts." Conradi said that B.A. responded "Uh-huh, Mommy and Daddy do." After further questioning, the child allegedly told Conradi about games with her parents involving sexual acts.

Conradi alerted Bratvold, who called Child Protective Services, a state agency. Bratvold then spoke with B.A., who allegedly told her that the games sometimes included her friend, R.T. Two CPS caseworkers arrived and talked with B.A., but the interview was inconclusive. They ended it when Kathleen Swan arrived to take her daughter home.

R.T. came to the center the next day, but B.A. did not. Bratvold asked R.T. about the Swans and what types of games they played together. R.T. allegedly described activities similar to what B.A. had disclosed, including genital touching and oral sex.

These initial statements to the day-care workers were the most damaging. The Washington Supreme Court reviewed in detail the trial testimony about these events. State v. Swan, 114 Wash.2d 613, 790 P.2d 610, 616-18 (1990), cert. denied, 498 U.S. 1046, 111 S.Ct. 752, 112 L.Ed.2d 772 (1991). We need not repeat those findings, except to After interviews with a CPS caseworker, the police were called and the children placed in protective custody. The state charged both Swans with two counts of statutory rape. Superior Court Judge Ellington conducted pretrial hearings to determine whether the young girls were competent to testify. After observing them, the judge concluded that, because of their youth and inability to answer questions in court, they could not satisfy the competency requirements. The Swans do not contest this ruling.

say that the implications are grave and alarming. The children demonstrated precocious sexual knowledge, describing multiple episodes of abuse by the Swans, which, if believed by a jury, would warrant conviction.

The state introduced the children's statements to the day-care workers under Washington's statutory child sexual abuse hearsay exception, RCW Sec. 9A.44.120. ¹ Under the same exception, the state introduced other disputed hearsay evidence, including the children's disclosures to the caseworker, B.A.'s statements to her foster mother and R.T.'s statements to her father and a police detective.

Before the admission of each statement, Judge Ellington, assisted by counsel, conducted extensive preliminary examinations of the reporting witnesses outside the presence of the jury. Once satisfied that a statement met the reliability and corroboration requirements of the statutory exception, the court allowed it into evidence. The jury returned guilty verdicts.

The Washington Court of Appeals reversed, holding that the statements lacked sufficient corroboration as required by the hearsay statute. The State Supreme Court disagreed and reinstated the convictions.

The Swans petitioned the district court for a writ of habeas corpus, arguing that: (1) the admission of the hearsay statements violated the Confrontation Clause; (2) the state withheld favorable Brady evidence; namely, that day-care worker Conradi had been sexually abused; (3) newly discovered evidence showed that their daughter's hymen is intact; and (4) they received ineffective assistance by retained counsel. The court adopted the Report and Recommendation of the magistrate judge and denied the petition on summary judgment.

II. ANALYSIS

CONFRONTATION CLAUSE

A. Standard of Review and the Presumption of Correctness

We begin our analysis mindful that this is a habeas corpus proceeding, not direct review of a criminal conviction. The Swans have already had the opportunity to litigate their claims in the state courts. Washington's highest court upheld their convictions. Different principles apply on collateral review, constraining the role of a federal appellate court. As the Supreme Court recently reminded us, we may not second-guess the state courts:

Direct review is the principal avenue for challenging a conviction. "When the process of direct review ... comes to an end, a presumption of finality and legality attaches to the conviction and sentence. The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials."

Brecht v. Abrahamson, --- U.S. ----, ----, 113 S.Ct. 1710, 1719, 123 L.Ed.2d 353 (1993) (quoting Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391-92, 77 L.Ed.2d 1090 (1983)).

We review de novo the decision to deny the habeas petition and, to the extent we need to review the district court's factual findings, the clearly erroneous standard applies. Hendricks v. Zenon, 993 F.2d 664, 668 (9th Cir.1993).

Under 28 U.S.C. Sec. 2254(d), we accord a presumption of correctness to the state courts' factual findings. But this presumption does not apply to the state courts' resolution of mixed questions of law and fact. Acosta-Huerta v. Estelle, 954 F.2d 581, 585 (9th Cir.1992). Whether the hearsay statements were sufficiently reliable to be admitted without violating the Confrontation Clause is a mixed question. SeeUnited States v. Owens, 789 F.2d 750, 757-58 (9th Cir.1986) (admission of hearsay statement by assault victim who later suffered memory loss), rev'd on other grounds, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988); see alsoMyatt v. Hannigan, 910 F.2d 680, 685 (10th Cir.1990) (hearsay declarations of child sexual abuse victim).

Consequently, we accord deference to the state courts' factual findings regarding the timing, manner and circumstances of the hearsay statements. We review de novo the ultimate determination that the Swans' Confrontation Clause rights were not violated.

B. Sufficient Indicia of Reliability

The Confrontation Clause and the hearsay rule are not coextensive. Although both protect similar values, each sets independent prohibitions on admissibility. SeeOhio v. Roberts, 448 U.S. 56, 62-65, 100 S.Ct. 2531, 2537-39, 65 L.Ed.2d 597 (1980). The Clause does not necessarily bar the admission of hearsay statements. Most evidence that falls under a recognized hearsay exception may be admitted without confrontation because of its presumed trustworthiness. But the Clause may prohibit introducing some evidence that otherwise would be admissible under a hearsay exception. Idaho v. Wright, 497 U.S. 805, 813-14, 110 S.Ct. 3139, 3145-46, 111 L.Ed.2d 638 (1990).

A statement falling under an exception will also be admissible under the Clause if the prosecution demonstrates the unavailability of the declarant and that the statement bears adequate "indicia of reliability." Roberts, 448 U.S. at 66, 100 S.Ct. at 2539.

The Swans do not contest the trial court's determination that the children were incompetent to testify and "unavailable" for hearsay purposes. ² The crux of this appeal is whether the incriminating statements bore sufficient "indicia of reliability" to withstand scrutiny under the Clause.

The reliability requirement is satisfied if a statement falls within a "firmly rooted hearsay exception" or if it is supported by "a showing of particularized guarantees of trustworthiness." Wright, 497 U.S. at 818, 110 S.Ct. at 3148. The trial court admitted the statements under Washington's child sexual abuse hearsay exception. Enacted in 1982, this exception is relatively new and not firmly rooted.

As the statements were admitted under a nontraditional exception, the state, as proponent of the evidence, had the burden to demonstrate reliability by showing "particularized guarantees of trustworthiness." The proof is based on consideration of the totality of the circumstances but "the relevant circumstances...