U.S. v. DeNoyer, 86-5098

• Decision Date: 09 February 1987
• Docket Number: No. 86-5098,86-5098
• Citation: 811 F.2d 436
• Parties: 22 Fed. R. Evid. Serv. 691 UNITED STATES of America, Appellee, v. Everett DeNOYER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 436

811 F.2d 436

22 Fed. R. Evid. Serv. 691

UNITED STATES of America, Appellee, v. Everett DeNOYER, Appellant.

No. 86-5098.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 13, 1986.

Decided Feb. 9, 1987.

Terry L. Pechota, Rapid City, S.D., for appellant.

David L. Zuercher, Asst. U.S. Atty., Pierre, S.D., for appellee.

Before HEANEY and ROSS, Circuit Judges, and DUMBAULD, ^* Senior District Judge.

DUMBAULD, Senior District Judge.

Defendant, Everett DeNoyer, was convicted, under 18 U.S.C. Sec. 1153 ¹ of involuntary sodomy as defined and punished under South Dakota Law ² (the parties being residents of the Rosebud Indian Reservation in that state). After being sentenced for study under 18 U.S.C. Sec. 4205(d), he was given a dispositive sentence of eighteen years on February 14, 1986. Defendant raises on appeal a number of issues. After careful consideration, for the reasons hereafter elaborated, we affirm the judgment of the district court.

The events giving rise to this prosecution began to unfold when on February 22, 1985, defendant's son, Tim, aged five, was taken by his mother to a hospital in Winner, South Dakota, and doctors there, and later at Yankton, found his anus abnormal and bloody. They concluded that it had been stretched or dilated by insertion of a foreign body for a distance of at least four inches. The diagnosis of the three doctors who had examined the boy was that his injury was consistent with penetration of Tim's anus by a penis. ³

Upon release from the hospital, Tim was placed in a foster home. While there, he was interviewed by social workers. It was necessary for them to determine whether it would be appropriate to return him to his home and, accordingly, to attempt to ascertain whether his father was the party causing his injury. Apparently, the first to discuss the incident with Tim was Carol Kay Horstman on February 23, 1985; the second was Angela Keierleber on February 27, 1985; the third, Michelle Tapken on March 15 and April 18, 1985; and lastly, Mary Carole Curran, Ph.D., O.S.B., an experienced clinical psychologist, on April 4, 1985, and subsequently. Dr. Curran testified at the trial, as did Tim DeNoyer himself. He testified that his father, the defendant, was the perpetrator of the offense.

The social workers describe the five-year-old boy as a nonverbalizer; he would not discuss the incident in words. But when held in the lap of the workers, he would, by shaking his head, respond in the affirmative or negative to their questions. None of the workers appear to have proceeded by means of improperly suggestive leading questions. On the contrary, they used a "multiple choice" method of discussing the incident, and the boy was apparently discerning in his ability to answer negatively or affirmatively in accordance with his recollection in a trustworthy manner.

We shall review seriatim the issues raised by defendant.

It is first contended that the out-of-court statements of Tim made to the social workers should have been excluded. The trial judge held them admissible under Fed.R.Evid. 803(4) and 803(24).

On such evidentiary issues, the standard of review is whether there is a clear abuse of discretion. United States v. Renville, 779 F.2d 430, 439 (8th Cir.1985), a case quite similar to the case at bar. In Renville, the child's out-of-court statements were found admissible under both subsections (4) and (24) of Fed.R.Evid. 803. Defendant's contention that Tim's statements were not sought for medical treatment purposes is refuted by the explanation in Renville, 779 F.2d at 436-37, that

Statements by a child abuse victim * * * that the abuser is a member of the victim's immediate household are reasonably pertinent to treatment. * * * The exact nature and extent of the psychological problems which ensue from child abuse often depend on the identity of the abuser. [Emphasis in original.]

We emphasize that we agree with United States v. Cree, 778 F.2d 474, 478 (8th Cir.1985), that this Circuit follows the modern rule that in cases involving young child witnesses, the administration of justice is served by the admission of statements made in a more relaxed environment without the possible harm of traumatic courtroom encounter.

Another evidentiary ruling attacked by defendant is the admission of statements made by defendant DeNoyer to Paul Schueth, chief of police at Winner, South Dakota. Tim had been taken to a hospital there on February 22, 1985, and four days later, the boy's parents went to Winner to discuss his condition with Dr. Webb, who had treated him. When they arrived, Dr. Webb called the chief of police. Upon arrival, he identified himself to the DeNoyers and stood by the door while the doctor talked to the DeNoyers about their son. After this conversation, Mrs. DeNoyer was asked to leave the room; and Schueth talked with the defendant, and later drove him to the police station for further interrogation. Miranda warnings ⁴ were not given. However, Schueth testified (but defendant denied) that DeNoyer was told that he did not have to talk to Schueth. In any event, it must be remembered that defendant himself was a policeman, and doubtless could recite the Miranda warnings in his sleep. Moreover, it is doubtful whether he was really in a custodial setting or the type of situation where the Miranda warnings are useful in preventing unsophisticated suspects from being overreached by police misconduct. DeNoyer was never under arrest during the discussions with Schueth.

There were only two items the admission of which is assailed on appeal. Schueth testified that, without there having been any previous mention of the subject, DeNoyer, out of the blue, asked whether his son had been sexually abused. Schueth responded by asking why DeNoyer had brought up the subject. At another time, Schueth asked defendant whether he "did it." DeNoyer answered, "I don't know."

These remarks would seem to qualify as admissible under the general rule permitting admissions against penal interest by a party, although they appear to have little probative value. Their admission does not appear to be harmful to defendant.

The dialogue reminds one of the detective story ploy where the sleuth is asked, "What time was it when the victim was shot?" and replies, "How did you know he was shot? The announcement in the media said only that his body was discovered on the railroad track. Only the murderer would know that he was shot."

However, in the case at bar, the detrimental impact of the remark made by defendant would be very slight. The doctors' diagnosis of a condition "consistent" with sexual abuse had doubtless been made known to defendant, and possibly mentioned during the DeNoyers' discussion with Dr. Webb while the chief of police stood by the door.

Under all the circumstances, it seems impossible to view the trial judge's admission of these items as abuse of discretion.

The same is true of defendant's contention that a psychological examination of Tim to determine his mental state should have been ordered by the Court. Under Eighth Circuit jurisprudence, such an examination is discretionary with the court. United States v. Riley, 657 F.2d 1377, 1387 (8th Cir.1981). Such a "drastic measure" was not called for in the case at bar since the data with respect to Tim's condition had been fully described in the testimony of Dr. Curran and other witnesses, and could be adequately evaluated by the jury in the light of such points as defense counsel could properly emphasize in cross-examination and argument.

Perhaps appellant's most meritorious contention on appeal is that the trial judge should not have excluded the testimony which would have been given by defendant's expert in school psychology, Sharon White Hawk.

The proffered witness had never examined Tim and her testimony would have been based on her listening to the boy's testimony and Dr. Curran's testimony in court. As stated in Riley, 657 F.2d at 1387, "We find no error in the district court's refusal to admit this kind of expert testimony." Very seldom will such expertise serve a useful purpose and amount to more than cumulative surplusage. Sharon White Hawk's proposed testimony was largely speculative and consisted chiefly in comments that she would have examined Tim in a somewhat different manner than Dr. Curran employed. The criticisms she would have voiced were patent from Dr. Curran's full and detailed disclosure of her procedures and were adequately presented to the evaluation of the jury without additional cumulative testimony. The rule in this Circuit is that it is discretionary with the trial court whether or not to admit such expert testimony. United States v. Purham, 725 F.2d 450, 454 (8th Cir.1984). (Cf. United States Downing, 753 F.2d 1224, 1244 (3d Cir.1985)). We find no abuse of discretion in excluding this testimony. At worst, it is harmless error. Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967).

As the trial judge noted, defendant's expert was basically a school psychologist and not a clinical psychologist, as Dr. Curran was, with extensive experience in dealing with sexual abuse cases. Essentially, then, Sharon White Hawk's testimony would simply have been comment by one witness on the testimony of another witness. Usually, and particularly in view of the state of the record in the case at bar, the jury is capable of evaluating a witness's testimony in the light of the comments of able counsel in their closing summations, without additional comment offered by other witnesses.

We have carefully considered defendant's points and are convinced that the jury could reasonably have accepted Tim's testimony and Dr. Curran's as sufficiently trustworthy, and sufficiently convincing to establish defendant DeNoyer's guilt beyond a reasonable doubt.

Defendant also alleges error in the exclusion of his offers to prove that his wife's brother undressed a five-year-old...