U.S. v. Dorian, 85-5435
| Decision Date | 02 December 1986 |
| Docket Number | No. 85-5435,85-5435 |
| Citation | 803 F.2d 1439 |
| Parties | 21 Fed. R. Evid. Serv. 1147 UNITED STATES of America, Appellee, v. Ferlin K. DORIAN, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Joseph E. Ellingson, Winner, S.D., for appellant.
Mikal Hanson, Asst. U.S. Atty., Pierre, S.D., for appellee.
Before ROSS, Circuit Judge, BRIGHT, Senior Circuit Judge, and MAGILL, Circuit Judge.
Ferlin Dorian appeals from a jury verdict finding him guilty of assault with intent to commit rape. The victim was Dorian's five-year-old daughter, Roxanne. For reversal, Dorian argues (1) that the district court 1 erred in admitting the hearsay testimony of Roxanne's foster mother regarding statements Roxanne made about the sexual abuse; and (2) that admission of the hearsay statements violated his sixth amendment right of confrontation. For the reasons discussed below, we affirm.
In June of 1985, Ferlin Dorian was living in Rosebud, South Dakota, on the Rosebud Indian Reservation with his wife, Norma, and their three children: Roxanne (age 5), Ferlin, Jr. (age 4), and Buck (age 2). On the night of June 14, after they had been drinking for several hours, Ferlin and Norma began to quarrel. According to Norma, Ferlin eventually told her to get out of the house and leave Roxanne there. 2 Norma left, taking Roxanne with her, and sought refuge at a friend's house. The friend later testified that Norma arrived drunk and crying, and said that Ferlin was going to get her and that he was trying to rape her daughter. Apparently frightened that Ferlin would follow them, Norma soon left the friend's house and walked with Roxanne to the Rosebud Police Department.
The police officer who met with Norma at the police station that night observed that she was very frightened and agitated, and that she appeared to be intoxicated. He testified that Norma grabbed him and said, "He is after us, he is after us." When he took Norma and Roxanne into a secure area of the police station, Norma calmed down somewhat, and said, The police officer tried without success to locate a relative with whom Norma and Roxanne could stay, and then contacted Penny Virchow, the on-call child protection worker for the State Department of Social Services, to make arrangements for Roxanne. Norma agreed to stay in protective custody at the police station for the night.
Penny Virchow took custody of Roxanne, and, at approximately 2:00 a.m. on June 15 placed her in emergency foster care at the home of Roger and Monica Whiting. Ms. Virchow testified that Roxanne was extremely upset and frightened at the time. When the social worker returned to the Whiting's home later that morning to reassure Roxanne that her mother was all right and to try to find out what had happened to frighten the child, Roxanne was still frightened and spoke very little, communicating mostly by nodding her head.
According to Roxanne's foster mother, Monica Whiting, Roxanne continued to act frightened for several days, and after a chance encounter with her parents at a local drive-in, refused to go outside to play. When Monica asked why, Roxanne explained that she was afraid that her parents might have followed them to the Whitings' home. Monica also testified that Roxanne was initially very fearful of men, and that she was especially intimidated by a male guest in their home who was drinking beer.
On June 17, 1985, Monica took Roxanne for a routine physical exam at the Mission Medical Clinic. Monica testified that the examination proceeded without incident until the physician's assistant reached for a speculum to do a vaginal exam. At that point, Roxanne, who had been lying down, sat bolt upright, put her hands between her legs, and looked terrified.
In an effort to find out what was behind Roxanne's abnormal behavior and to determine whether the Department of Social Services needed to file a petition for a minor in need of care, Penny Virchow, Priscilla Hornby (the Supervisor of Child Protection Services in Mission), and Monica Whiting conducted several interviews with Roxanne. The first interview took place between Roxanne and Penny Virchow on June 17, 1985, in a bedroom of the Whiting's home. Anatomically correct dolls were used to facilitate the interview, because Roxanne was still uncommunicative. Ms. Virchow asked Roxanne if her mother touched her anywhere on her body to hurt or scare her, and Roxanne nodded no. When asked the same question about her father, Roxanne nodded yes. Ms. Virchow then repeated the question as she pointed to various parts of the girl doll's body. Roxanne gave negative responses except when Ms. Virchow pointed to the doll's chest. She then indicated that she felt scared when her father touched her there, and that although she was fully clothed when he did so, her father was not wearing a shirt.
The second interview took place on June 19, 1985, in the Whiting's living room. In addition to Roxanne and Penny Virchow, Monica Whiting and Priscilla Hornby were present. Anatomical dolls were again used, and this time, Ms. Virchow pointed with the hand of the male doll to parts of the girl doll's body, and asked Roxanne if it scared her when her father touched her there. Again, Roxanne responded that she felt scared when her father touched her on the chest. She became very uneasy and uncommunicative during the course of the interview, and indicated that she wanted Penny Virchow to leave. Thereafter, Monica Whiting and Priscilla Hornby continued the interview, and at some point, asked Roxanne if her father ever put anything between her legs. Roxanne shook her head no.
That day, Roxanne was taken to see a physician for a complete physical examination. The examination revealed that the entrance to Roxanne's vagina was red and inflamed, and that there was a tear in her hymenal ring. Because the edges of the tear were healed, the physician estimated that the injury had occurred at least five or six days prior to the examination, although it could have happened years earlier. The physician testified that she could not state with any degree of medical certainty what had caused the inflammation or the tear in the hymen, but her impression was suspected sexual abuse.
Priscilla Hornby and Monica Whiting interviewed Roxanne again on June 24, 1985. On this occasion, the anatomical dolls were not used. Because Roxanne found it easier to communicate with only Monica present, the two of them went into the Whiting's kitchen to talk, while Ms. Hornby waited in the living room. Roxanne told Monica about a time when her father carried her from the kitchen of the Dorian home into the bedroom, where he took off his pants and undershorts. Roxanne said her mother then came into the room and told her father to get out, and he left. Monica and Roxanne went back into the living room and related the incident to Ms. Hornby. Later, Ms. Hornby asked Roxanne again if her father had ever put anything between her legs, and this time Roxanne responded that he had put his finger there.
The final interview took place on July 10, 1985, with Roxanne, Monica, and Priscilla Hornby present. The interview began in the Whiting's living room, but when Roxanne was reluctant to talk in front of Ms. Hornby, she and Monica went into the kitchen. Monica testified that Roxanne then told her about a time when she was sleeping in a bed, and her father came in and woke her up. Roxanne said that her father was standing at the foot of the bed with his trousers and undershorts off, and that she was scared and ran into the kitchen. She said her father followed her into the kitchen and picked her up under the arms. According to Monica, Roxanne covered her face with her hands at this point, and was very reluctant to continue her story. Monica then suggested that Roxanne use the anatomical dolls to show what happened next.
Monica and Roxanne returned to the living room and, using the dolls Roxanne had previously designated as the "Roxanne doll" and the "daddy doll," recreated for Ms. Hornby what Roxanne had already told Monica. Roxanne said she was wearing a red dress that day, so they put a red dress on the Roxanne doll, and put the doll in a box that was supposed to be a bed. At Roxanne's direction, the pants and underwear were removed from the daddy doll, and it was placed at the foot of the "bed." When Roxanne agreed that they had everything right, they showed the daddy doll waking the Roxanne doll, and showed the Roxanne doll running into the kitchen. They then showed the daddy doll picking up the Roxanne doll under the arms. At this point, Roxanne again became reluctant to continue in front of Ms. Hornby, so she and Monica took the dolls into the kitchen.
Monica testified that Roxanne then showed the Roxanne doll hitting the daddy doll on the chest. According to Monica, Roxanne became very frightened when she showed this, as though she thought she had done something very bad. However, when Monica reassured her that hitting her father was okay, Roxanne relaxed and continued her story. She then showed the daddy doll hitting the Roxanne doll in the stomach, and the Roxanne doll falling to the floor. Roxanne then had the daddy doll pick up the Roxanne doll, carry her back into the bedroom, and lay her on the bed. She showed the daddy doll pulling the Roxanne doll's dress up to her shoulders, and taking the panties off the Roxanne doll. Roxanne had the daddy doll kneel on the bed next to the Roxanne doll, and then moved the daddy doll between the Roxanne doll's legs. Monica testified that when she asked what happened next, Roxanne said, "He put his boy thing in the hole between my legs." Roxanne then showed the daddy doll lying down beside the Roxanne doll on the bed, with his arm over the Roxanne doll's body.
Monica asked Roxanne if she saw her fat...
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