U.S. v. Cree, 84-2081

• Decision Date: 05 March 1986
• Docket Number: No. 84-2081,84-2081
• Parties: , 19 Fed. R. Evid. Serv. 415 UNITED STATES of America, Appellee, v. Patricia "Patty" CREE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 474

778 F.2d 474 54 USLW 2379, 19 Fed. R. Evid. Serv. 415 UNITED STATES of America, Appellee,
v.
Patricia "Patty" CREE, Appellant. No. 84-2081. United States Court of Appeals,
Eighth Circuit. Submitted Feb. 11, 1985.
Decided Dec. 4, 1985.
Rehearing and Rehearing En Banc Denied March 5, 1986.

Maureen White Eagle, Devils Lake, N.D., for appellant.

Rodney S. Webb, U.S. Atty., Fargo, N.D., for appellee.

Before ROSS and BOWMAN, Circuit Judges, and OLIVER, ^* Senior District Judge.

BOWMAN, Circuit Judge.

This disturbing case involves the physical abuse of two young boys, Maurice Alberts,

Page 475

age four, and Phillip Alberts, age two. The defendant, Patricia Cree, appeals from a judgment of the District Court ¹ entered upon her conviction by a jury of assault resulting in serious bodily injury. See 18 U.S.C. Secs. 113(f), 1153. ² We affirm.

In May 1983, Cree agreed at the request of Lavonne Alberts to care indefinitely for Alberts's sons. Cree previously had been a babysitter for the boys and knew them well. Maurice and Phillip moved into the home that Cree shared with Andrew Shaw. In June 1983, Cree was given custody of the boys.

On February 22, 1984, officials at the Fort Totten Early Childhood School, which Maurice attended, noticed a large, swollen bruise covering one of Maurice's hands. Two officials testified that when asked about the bruise, Maurice told them that Patty had done it. Upon examination, school officials also discovered marks on Maurice's legs. A note telling Cree that Maurice was complaining about his hand and that it may need to be examined was prepared by a school official and was delivered to Cree by the school's bus driver. Maurice did not attend school on February 23, 1984, but when he returned to school the next day, he had not been to a doctor.

On February 28, 1984, Cree took Phillip to a clinic in Devils Lake, North Dakota for treatment of a leg injury. Cree explained that although she really did not know how Phillip had been injured, she suspected that he had jumped or fallen while he was playing in his bedroom. ³ Dr. McBane, who initially examined Phillip on February 28, found that Phillip had a freshly fractured right femur. Dr. McBane also discovered that Phillip suffered from an untreated fractured clavicle, which he estimated to be two to four weeks old. Dr. McBane concluded that the two fractures could not have occurred at the same time. Dr. McBane additionally observed swollen bruises on Phillip's brow and face, as well as lesions or linear bruises on Phillip's back. Phillip was admitted to the hospital for treatment on February 28 and, at the request of Dr. McBane, was examined that day by a surgeon, Dr. Montaniel.

Dr. Montaniel agreed with Dr. McBane's conclusions regarding the fractures of Phillip's femur and clavicle and treated those fractures. Upon examining Phillip, Dr. Montaniel also observed further injuries to Phillip: abrasions and bruises on both ears; a puncture wound in one ear; and welts or swelling on the back. Dr. Montaniel described many of these additional injuries as being ecchymotic, i.e., swollen with blood. Based on the existence of multiple injuries and the appearance of the injuries, Dr. Montaniel testified that he was highly suspicious that Phillip was a battered child.

On February 29, 1984, a social worker took Maurice to the clinic. Dr. Jackson examined Maurice and found a very prominent bruise on the left side of his face; multiple healed scars, some linear and some circular, on his chest; extreme bruising, swelling, and tenderness of his left hand; multiple small scars that were healed on his arms; and multiple small scars, as well as scabs that were in different stages of healing, on his legs. Dr. Jackson noted that marks on Maurice's legs and buttocks were linear in nature. Dr. Jackson believed that the injuries to Maurice's legs were consistent with Maurice's statement during the examination that he had been hit with a belt. Dr. Jackson explained that the linear markings could have been caused by blows with a belt, while the sores with scabs could have been caused by the belt buckle taking out

Page 476

small pieces of flesh. Following this examination, Dr. Jackson filed a child protection form with the social services department to alert the department that Maurice might be a battered child. Dr. Jackson testified that in his opinion, Maurice was the victim of child abuse.

Cree's custody of the boys was terminated on February 29, 1984. Maurice was taken to the home of a new foster parent, Florentine Peltier. Phillip remained in the hospital.

On March 5, 1984, Dr. Eisenberg took over Phillip's hospital treatment. Dr. Eisenberg described Phillip's injuries in a manner consistent with the descriptions of Drs. McBane and Montaniel. Dr. Eisenberg also was concerned with Phillip's emotional condition; Dr. Eisenberg observed that Phillip seemed frightened of anyone who was dark skinned or native American. Dr. Eisenberg testified that he believed Phillip was suffering from battered child syndrome, a condition Dr. Eisenberg defined as "a collection of symptoms and presentations that indicate [the] child has been abused either on one occasion or several occasions...." Trial Transcript (Tr.) at 230.

At the request of FBI Special Agent Spencer Hellekson and Bureau of Indian Affairs Criminal Investigator Ken Morsette, a clinical social worker, Susan Chaussee, agreed to interview Maurice to see if Maurice could explain how Phillip and he had been injured. Three videotaped interviews were conducted in March 1984. At trial, Chaussee was permitted to testify as to what Maurice told her during these interviews. ⁴

Chaussee testified that Maurice initially was afraid of her and that at one point during the first interview, she asked Morsette to come into the interview room because Maurice appeared to be comfortable around Morsette. Chaussee additionally testified that in the first two interviews, Maurice talked about (1) being hit by Patty with a belt and with a stick; (2) Phillip being hit by Patty; (3) Phillip being hit by Andy (Andrew Shaw was the man with whom Cree and the boys lived) with a rubber overshoe; and (4) Phillip's leg injury having occurred as a result of Phillip being pushed by Patty down a flight of stairs. Chaussee testified that in the third interview, Maurice did not want to talk about anything and that when she asked Maurice if he had been told by someone not to talk, he replied, "Flo." Chaussee also testified that she observed many of the above-described physical injuries to Maurice. Chaussee concluded, based on what Maurice had told her, that Maurice was an abused child.

On April 18, 1984, Agent Hellekson obtained a warrant to search the Cree/Shaw residence for items that Maurice had indicated were used to beat Phillip and him. Agent Hellekson took items seized in this search to the Peltier residence, where Maurice was living. Agent Hellekson testified that Maurice became excited when he was shown some of the items and that with respect to several of the items, Maurice answered affirmatively when asked if Cree or Shaw had hit him with them.

On appeal, Cree argues (1) that the District Court erred in admitting under Rule 803(24) of the Federal Rules of Evidence the testimony of Chaussee and Agent Hellekson concerning hearsay statements made by Maurice Alberts that identify Cree and Shaw as being responsible for the physical injuries to the Alberts boys and (2) that even if such testimony was admissible under Rule 803(24), its admission violated her Sixth Amendment right of confrontation. We reject Cree's claims and affirm her conviction.

I.

A statement not specifically covered by [the exceptions in Fed.R.Evid. 803(1) to

Page 477

(23) ] but having equivalent circumstantial guarantees of trustworthiness [is not excluded by the hearsay rule even if the declarant is available as a witness], if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of [the Federal Rules of Evidence] and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

Fed.R.Evid. 803(24). Thus, "[t]here are five requirements for admission under Rule 803(24): (1) trustworthiness; (2) materiality; (3) probative value; (4) the interests of justice; and (5) notice." Moffett v. McCauley, 724 F.2d 581, 583 (7th Cir.1984); see also J. Weinstein & M. Berger, Weinstein's Evidence, p 803(24), at 803-372 to -381 (1984). The trial court is entitled to a " 'considerable measure of discretion' in deciding whether to admit hearsay evidence under Rule 803(24)," 724 F.2d at 583, and its "determination of admissibility of evidence under Rule 803(24) will not be overturned on appeal except for an abuse of discretion." United States v. Friedman, 593 F.2d 109, 118 (9th Cir.1979).

Cree does not dispute that Maurice's statements, to which Chaussee and Agent Hellekson testified, meet the requirements of materiality and probative value. Nor does Cree claim that the notice requirement of Rule 804(24) was not met. Cree challenges the admission of Chaussee's and Agent Hellekson's testimony concerning these statements on the grounds that the statements do not have the necessary guarantees of trustworthiness and that their admission does not serve the interests of justice. We reject these claims by Cree.

There are substantial guarantees of trustworthiness attending the...