U.S. v. Tome, 92-2104

• Decision Date: 26 August 1993
• Docket Number: No. 92-2104,92-2104
• Citation: 3 F.3d 342
• Parties: 38 Fed. R. Evid. Serv. 611 UNITED STATES of America, Plaintiff-Appellee, v. Matthew Wayne TOME, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 342

3 F.3d 342

38 Fed. R. Evid. Serv. 611

UNITED STATES of America, Plaintiff-Appellee, v. Matthew Wayne TOME, Defendant-Appellant.

No. 92-2104.

United States Court of Appeals, Tenth Circuit.

Aug. 26, 1993.

Joseph W. Gandert, Asst. Federal Public Defender, of Albuquerque, NM, for defendant-appellant.

Louis M. Fischer (Don J. Svet, U.S. Atty., D.N.M., and Tara C. Neda, Asst. U.S. Atty., D.N.M., with him on the brief), Atty., Dept. of Justice, Washington, DC, for plaintiff-appellee.

Before ANDERSON, HOLLOWAY, and TACHA, Circuit Judges.

TACHA, Circuit Judge.

Matthew Wayne Tome ("Tome"), a Native American residing on the Navajo Indian Reservation in New Mexico, was convicted of aggravated sexual abuse in violation of 18 U.S.C. Secs. 1153, 2241(c), and 2245(2)(A), (B). Mr. Tome appeals his conviction, challenging the admission of certain hearsay testimony and the government's use of leading questions. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and affirm.

I. Background

A.T. is the daughter of the defendant and his ex-wife, Beverly Padilla. A.T. was born on June 18, 1985. Tome and Padilla divorced in September 1988. The Navajo Tribal Court awarded Tome and Padilla joint custody of A.T. but granted Tome primary physical custody. From September 1988 until May 1989, Tome had custody of A.T. on weekdays while Padilla had custody on weekends. Tome and Padilla alternated custody of A.T. every two weeks during the summer of 1989, with Padilla having custody from June 16 to June 30, 1989.

In August 1989, Padilla petitioned the Navajo Tribal Court for primary custody of A.T. The Tribal Court denied the petition but awarded Padilla custody during the summer of 1990. At this time, Padilla had remarried and was living in Colorado. A follow-up custody hearing was scheduled for August 24, 1990. Padilla and A.T., however, did not attend that hearing. Rather, on August 27, 1990, Padilla contacted Colorado authorities with allegations that A.T. had been sexually abused by her father, Tome. On August 22, 1991, a superseding indictment charged Tome with knowingly engaging in sexual acts with his daughter, an Indian child under the age of twelve, in violation of 18 U.S.C. Sec. 1153, 2241(c) and 2245(2)(A), (B). In a Bill of Particulars filed September 10, 1991, the government alleged that the conduct in question occurred on or about June 18, 1989, when A.T. was four years old. Tome's trial began on February 24, 1992.

The government called A.T. as its first witness. She was six and one-half years old at the time of trial. After the court extensively questioned A.T. concerning her ability to distinguish the truth from a lie, she testified before the jury. On direct examination, her testimony consisted mostly of one and two-word answers. In addition, the trial judge permitted the prosecutor to use leading questions to develop A.T.'s testimony pertaining to the alleged sexual abuse. The prosecutor asked mainly "yes or no" questions and also had A.T. demonstrate details of the abuse by using dolls and having A.T. point to parts of the prosecutor's body. Through these means, A.T. testified that Tome removed her clothes, got on top of her, and put his private place where she goes potty and in her mouth. She further testified that after this happened she went to the bathroom and wiped blood off herself with a tissue.

A.T.'s cross-examination occurred over two days, beginning on a Monday afternoon and resuming the following Wednesday morning. On the first day, defense counsel covered numerous topics all unrelated to the alleged abuse. She first established that A.T. knew the prosecutor on a first-name basis but did not know the judge or any of the defense counsel. She then questioned A.T. about the difference between living with her father in New Mexico and her mother in Colorado, focusing on the reasons she might have for wanting to live with her mother. A.T.'s responses to these question on the first day were immediate and ranged from single word responses to complete and relatively detailed sentences.

When A.T.'s cross-examination resumed two days later, it was strained. Almost from the start, when defense counsel asked A.T. about any conversations she had had with the prosecutor on Tuesday, A.T. often provided no audible response. Defense counsel then asked A.T. if she missed her mother when staying in New Mexico and asked her what she thought might happen to her or her mother when they went to court. A.T. testified that she did miss her mother and that she thought that she would be returned to her father while her mother went to jail. After a recess, defense counsel asked A.T. whether she had discussed the alleged abuse with anyone besides the prosecutor and, if so, whether she knew the occupations of those persons. A.T. testified to discussing the matter with several physicians and social workers and stated that their jobs were "to help kids." On recross-examination, when A.T. was asked to describe her testimony on direct examination, she answered that it was "the truth." Defense counsel chose not to ask A.T. about the details of the alleged sexual abuse.

The government also produced several witnesses who testified about statements A.T. made to them. The first witness was Lisa Rocha, A.T.'s baby-sitter and a close friend of A.T.'s mother. Rocha testified that, while she was baby-sitting A.T. on August 22, 1990, A.T. spontaneously told her, "Please don't let my mom take me back to my father." Rocha testified that, when asked why, A.T. remarked that her "father gets drunk and he thinks I'm his wife." Rocha told Padilla about this incident five days later, on August 27, 1990, at which time she and Padilla attempted to question A.T. further about her accusations. When A.T. would not speak with her mother, Padilla left the room. Rocha testified that A.T. said that her father "does nasties to me," which consisted of taking her clothes off, forcing her legs open, and causing a sharp pain in her stomach when he laid on top of her. Finally, Rocha testified that A.T. related going to the bathroom and wiping blood off herself with a tissue.

Next to testify for the prosecution was Dr. Karen Kuper, a pediatrician in Colorado Springs. Kuper testified that Kae Ecklebarger, a Child Protection Service's caseworker, referred A.T. to her office. Kuper examined A.T. on two occasions in September and October 1990. As part of A.T.'s examination, Kuper interviewed her using anatomically correct dolls. Kuper testified that A.T. told her that her father hurt and scared her by putting his fingers and his "thing" in her vagina. When asked what his "thing" was, A.T. pointed to the doll's genital area. Kuper also testified that A.T. had an enlarged vaginal opening and an abnormally thin rim of hymenal tissue, and that these physical characteristics were consistent with vaginal penetration.

The testimony of Dr. Laura Reich, Chief of Pediatrics at the El Pomar Community Health Center in Colorado Springs, followed. Reich examined and interviewed A.T. on September 21, 1990. Reich testified that A.T. said that "her father had put his thing in her." Reich further testified that A.T.'s hymen was not intact, that her vaginal opening was larger than normal, and that she had an extensive vaginal rash. Reich also testified that A.T.'s physical characteristics were consistent with vaginal penetration.

The government's next witness was Kae Ecklebarger, who was a caseworker in the Colorado Springs Child Protection Services office at the time she interviewed A.T. on August 29, 1990. Ecklebarger testified that A.T. said that her father removed her panties, put her down on the floor, and "put his balls" in her. Ecklebarger stated that A.T. demonstrated intercourse with anatomically correct dolls, attempting to insert the male doll's penis into the female doll and moving the male doll up and down on top of the female doll. Ecklebarger further testified that A.T. stated that her father kissed her on her vaginal area and asked her to touch his penis. Finally, Ecklebarger testified that A.T. said that she wiped blood from herself with a tissue, kept the tissue, and later showed it to her grandmother, saying, "Look what Matthew did to me."

A.T.'s mother, Beverly Padilla, also testified for the government. She stated that she was in the next room when Rocha was talking to A.T. on August 27, 1990. Padilla testified that she heard A.T. tell Rocha about her father pulling her legs apart.

The final witness to relate A.T.'s out-of-court statements was Dr. Jean Spiegel, a pediatrician at the University of New Mexico. Spiegel examined A.T. on September 3, 1991, when A.T. was six years old and almost two years after the abuse allegedly occurred. Spiegel testified that A.T.'s vaginal opening was abnormally large and that she had very little hymen left. She stated that these physical characteristics were consistent with chronic vaginal penetration. On redirect examination, Spiegel testified that A.T. stated that her father touched her breasts, her "front privates," and "her bottom where her poop comes out."

On March 3, 1992, after Tome testified and presented his own evidence and witnesses, the jury convicted him on all counts. On appeal, Tome alleges the following errors: (1) the admission of alleged hearsay testimony in violation of the Federal Rules of Evidence and the Sixth Amendment's Confrontation Clause; (2) the improper use of leading questions to elicit A.T.'s testimony on direct examination; and (3) cumulative error and a fundamentally unfair trial.

II. A.T.'s Out-of-Court Statements

Tome challenges the testimony of six witnesses concerning A.T.'s out-of-court statements to them: Rocha, Ecklebarger, Padilla, Kuper, Reich, and Spiegel. In our analysis, we address whether the trial court properly admitted the testimony under the Federal Rules of Evidence and, if so, whether that testimony nevertheless violated Tome's rights under the Confrontation...