U.S. v. Spotted War Bonnet, 88-5040

• Decision Date: 28 May 1991
• Docket Number: No. 88-5040,88-5040
• Citation: 933 F.2d 1471
• Parties: 33 Fed. R. Evid. Serv. 268 UNITED STATES of America, Appellee, v. Roy SPOTTED WAR BONNET, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1471

933 F.2d 1471

33 Fed. R. Evid. Serv. 268

UNITED STATES of America, Appellee, v. Roy SPOTTED WAR BONNET, Appellant.

No. 88-5040.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 14, 1990.

Decided May 28, 1991.

Rehearing and Rehearing En Banc Denied

Aug. 8 and 12, 1991.

Jerry L. Wattier, Pierre, S.D., for appellant.

Mikal Hanson, Pierre, S.D., for appellee.

Before LAY, Chief Judge, and ARNOLD and WOLLMAN, Circuit Judges.

ARNOLD, Circuit Judge.

This case is before us again on remand from the Supreme Court of the United States. In United States v. Spotted War Bonnet, 882 F.2d 1360 (8th Cir.1989), we affirmed defendant's convictions on two counts of carnal knowledge in violation of 18 U.S.C. Secs. 1153 and 2032, and two counts of incest in violation of 18 U.S.C. Sec. 1153 and S.D.Codified Laws Ann. Secs. 22-22-1(6), 25-1-6. The defendant filed a petition for certiorari. On June 28, 1990, the Supreme Court granted the petition, vacated our judgment, and remanded the case to us for further consideration in light of Idaho v. Wright, --- U.S. ----, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). Having fully reconsidered our previous decision in accordance with the Supreme Court's directions, --- U.S. ----, 110 S.Ct. 3267, 111 L.Ed.2d 777 (1990) we again affirm the judgments of conviction.

I.

The principal questions presented concern the use of certain hearsay statements against defendant. These statements were made by his two children, the victims of the alleged crimes, to Priscilla Hornby, a social worker, and Dr. Mary Curran, a clinical psychologist. Both Ms. Hornby and Dr. Curran were allowed to testify at trial as to what the children had told them. On the previous appeal, we held that there had been no abuse of discretion on the part of the trial court ¹ in admitting this testimony under the residual hearsay exception, Fed.R.Evid. 803(24). 882 F.2d at 1363-64. We also cited Rule 803(4), having to do with statements made to medical professionals for purposes of diagnosis or treatment, as a justification for the admission of Dr. Curran's testimony. Id. at 1364 n. 2. Our opinion did not expressly address the Confrontation Clause objections urged by defendant, but our affirmance of the judgments of conviction rejected these arguments by necessary implication.

In Idaho v. Wright, supra, the Supreme Court comprehensively explained how the Confrontation Clause applies in child-abuse cases. There, the issue was the admissibility of testimony of Dr. John Jambura, a pediatrician with extensive experience in child-abuse cases. Dr. Jambura was allowed, under Idaho R.Evid. 803(24), to testify to statements made to him by the alleged child victim. The Supreme Court held that this testimony violated the Confrontation Clause of the Sixth Amendment.

The Court first assumed for purposes of the case before it that the Confrontation Clause requires the prosecution to show that the child witness is unavailable at trial. It then turned to the real question before it: whether the incriminating statements made to the physician "bore sufficient indicia of reliability to withstand scrutiny under the Clause." 110 S.Ct. at 3147. Citing Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980), the Court held that the reliability requirement can be met in either of two ways: "[W]here the hearsay statement 'falls within a firmly rooted hearsay exception,' or where it is supported by 'a showing of particularized guarantees of trustworthiness.' " 110 S.Ct. at 3147, quoting Roberts, 448 U.S. at 66, 100 S.Ct. at 2539. The Court noted that the residual hearsay exception, Idaho R.Evid. 803(24), which is identical to Fed.R.Evid. 803(24), "is not a firmly rooted hearsay exception for Confrontation Clause purposes." 110 S.Ct. at 3147. Accordingly, the statements in question were presumptively unreliable and had to be excluded absent a showing of particularized guarantees of trustworthiness. Id. at 3148. This showing had to be made "from the totality of the circumstances," but, the Court explained, "the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief." Ibid. Examining the record before it, the Court concluded that this showing had not been made. Accordingly, it affirmed the judgment of the Supreme Court of Idaho, which had reversed the conviction and remanded for a new trial.

II.

It seems likely that Wright is at odds with a number of our cases. In general, we have broadly upheld the discretion of trial courts to admit hearsay statements of juvenile victims in child-abuse cases. See, e.g., United States v. DeNoyer, 811 F.2d 436 (8th Cir.1987); United States v. Dorian, 803 F.2d 1439 (8th Cir.1986); United States v. Renville, 779 F.2d 430 (8th Cir.1985); United States v. Cree, 778 F.2d 474 (8th Cir.1985). These cases did not subject the statements in question to the rigorous and carefully structured Confrontation Clause analysis that is now required under Wright. Nor did the trial court in the present case do so--understandably, in view of the state of our own precedents at the time the case was tried. No finding was made that the statements in question had particularized guarantees of trustworthiness, nor did the District Court hold, at least as to the statements made to the social worker, Ms. Hornby, that they came within a firmly rooted hearsay exception.

After carefully re-reading the entire transcript of the trial, however, and considering the applicability of the Supreme Court's opinion in Wright, we conclude that the Confrontation Clause was not violated here. The Clause is satisfied when the hearsay declarants, here the alleged child victims, actually appear in court and testify in person. The law is ably summarized as follows in an article cited in the Supreme Court's opinion in Wright, 110 S.Ct. at 3149:

The confrontation clause presents an obstacle to admitting hearsay statements only when the child does not testify in the state's case either because of unavailability or by choice of the prosecution. Under California v. Green, [399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970),] when the witness is available to be cross-examined at trial concerning her prior statements, the confrontation clause is not violated by use of such prior statements. And under the recent decision in United States v. Owens, [484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988),] even the failure of the witness to remember the details of the statement would not violate the right.

Mosteller, Child Sexual Abuse and Statements for the Purpose of Medical Diagnosis or Treatment, 67 N.C.L.Rev. 257, 286-87 (1989) (footnotes omitted).

Here, both children testified in open court and were cross-examined by defense counsel. To be sure, simply putting a child on the stand, regardless of her mental maturity, is not sufficient to eliminate all Confrontation Clause concerns. If, for example, a child is so young that she cannot be cross-examined at all, or if she is "simply too young and too frightened to be subjected to a thorough direct or cross-examination[,]" United States v. Dorian, supra, 803 F.2d at 1446, the fact that she is physically present in the courtroom should not, in and of itself, satisfy the demands of the Clause. Under Owens, however, a perfectly satisfactory cross-examination is not required by the Clause, and a witness who cannot remember the details of statements she has made in the past can still be sufficiently available for cross-examination to satisfy the constitutional requirement.

The key holding for present purposes, we think, is contained in United States v. Owens, supra, 484 U.S. at 558, 108 S.Ct. at 842. There, the Court agreed with the following proposition advanced by Justice Harlan in his concurring opinion in California v. Green, supra: "[A] witness'[s] inability to 'recall either the underlying events that are the subject of an extra-judicial statement or previous testimony or recollect the circumstances under which [an out-of-court] statement was given, does not have Sixth Amendment consequence.' " Owens, 484 U.S. at 558, 108 S.Ct. at 842, quoting Green, 399 U.S. at 188, 90 S.Ct. at 1951. See also Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam), holding "that there was no Confrontation Clause violation when an expert witness testified as to what opinion he had formed, but could not recollect the basis on which he had formed it." Owens, 484 U.S. at 558, 108 S.Ct. at 842.

Accordingly, when the contention is made that the live testimony of a given witness satisfies Confrontation Clause concerns as to the admissibility of out-of-court statements made by the same witness, the question is whether there is "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Fensterer, supra, 474 U.S. at 20, 106 S.Ct. at 294, quoted with approval in Owens, 484 U.S. at 559, 108 S.Ct. at 842.

We have examined the cross-examination of the two child witnesses in the present case with these standards in mind. In his questioning of the older child, defense counsel was able to establish, among other things, that she had talked with Dr. Curran several times, that she had been told to stick with her story, that she had spoken with Ms. Hornby, and that she remembered, as she testified in the courtroom, not what her father had actually done, but only what she had told Dr. Curran. She also remembered talking to Dr. Curran about her previous visit with Ms. Hornby, and being asked by Dr. Curran to recount what she had earlier told her mother. This testimony fit in well with counsel's attempt to show that the witness was essentially doing nothing more than repeating statements that had been previously gotten out of her by persistent and suggestive interrogation. The witness was seven years old at...