U.S. v. Turning Bear

• Decision Date: 02 February 2004
• Docket Number: No. 03-2280.,03-2280.
• Citation: 357 F.3d 730
• Parties: UNITED STATES of America, Appellee, v. Nicholas TURNING BEAR, III, also known as Nicholas Turning Bear, Jr., III, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

357 F.3d 730

UNITED STATES of America, Appellee, v. Nicholas TURNING BEAR, III, also known as Nicholas Turning Bear, Jr., III, Appellant.

No. 03-2280.

United States Court of Appeals, Eighth Circuit.

Submitted: December 16, 2003.

Filed: February 2, 2004.

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Counsel who presented argument on behalf of the appellant was Timothy J. Langley, Sioux Falls, SD.

Counsel who presented argument on behalf of the appellee was Randolph J. Seiler, Pierre, SD.

Before MORRIS SHEPPARD ARNOLD, HEANEY, and FAGG, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Nicholas Turning Bear, III, was convicted by a jury of five counts of aggravated sexual abuse of his son and daughter, in violation of 18 U.S.C. §§ 1153, 2241(c), and 2246(2). Mr. Turning Bear's son, N.T.B., was between the ages of four and six during the period over which the offenses were alleged to have occurred, and his daughter, M.T.B., was between the ages of one and three during this time. The government's case rested largely on statements that the two children made during the course of the investigation and at trial. Mr. Turning Bear made no incriminating admissions, and there was no eyewitness testimony from third parties. A physical examination of M.T.B. revealed some evidence that was consistent with, but did not necessarily indicate, sexual abuse. Much of the government's case thus hinged on the credibility of the two alleged victims.

Mr. Turning Bear appeals, contending that three separate constitutional errors were made during his trial. He first asserts that the district court erred in ruling inadmissible the opinion testimony of a witness regarding the untruthfulness of N.T.B., thereby violating his fifth and sixth amendment rights to present witnesses in his defense. He also maintains that the district court violated his sixth amendment right of confrontation by ruling that M.T.B. could testify by closed-circuit television. Finally, he urges us to hold that the court again denied him his right of confrontation by admitting a videotape of M.T.B.'s out-of-court statements to a forensic interviewer. In addition to his constitutional arguments, he argues that the district court committed two sentencing errors. After reviewing the district court's conclusions of law de novo and its findings of fact for clear error, see United States v. Yousif, 308 F.3d 820, 827 (8th Cir.2002), we reverse and remand this case to the district court for further proceedings.

I.

Mr. Turning Bear subpoenaed Gloria Odens, the foster care parent with whom both children had lived following the initial report and investigation of abuse. Ms. Odens testified that she saw N.T.B. on a daily basis during the four to six months that he resided with her, and that she believed that she was in a position to give an opinion as to his truthfulness or untruthfulness. She offered to testify that, based on her daily contact with N.T.B. over these several months, she had formed an opinion that he "was untruthful" and "didn't always tell the truth." The district court ruled the proffered opinion testimony inadmissible because it was "strictly her personal opinion and that would be a slippery slope." The district court also agreed with the government's argument that the opinion testimony would be "illegal vouchering" and concluded that the testimony would be "outside the rules of evidence."

Criminal defendants have a fundamental right to present the testimony of witnesses in their defense, a right grounded in the fifth and sixth amendments. See Taylor v. Illinois, 484 U.S. 400, 408-09, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988); Washington v. Texas, 388 U.S. 14, 18-19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). A defendant cannot establish a violation of this right to offer testimony merely by showing that the court deprived him of that testimony; rather, he must "at least make some plausible showing of how [the] testimony would have been both material and favorable to his defense." United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). Arbitrarily excluding proffered testimony can violate the right to present a defense where there is no claim of a discovery violation against a defendant proffering a witness's testimony and that testimony is otherwise admissible under the rules of evidence. While "state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials," United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998); see also Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), Mr. Turning Bear contends here that the district court did not properly rely on any cognizable evidentiary rule in excluding his proffered evidence.

Mr. Turning Bear's defense focused largely on the lack of believability and reliability of the alleged victims, and he attempted to offer the opinion testimony of Ms. Odens to help establish this defense by attacking the credibility of N.T.B. Federal Rule of Evidence 608(a) provides that the "credibility of a witness may be attacked... by evidence in the form of opinion" subject to the limitation that "the evidence may refer only to character for... untruthfulness." Admissibility of opinion testimony by lay witnesses is further limited by Rule 701, which requires that the testimony be "rationally based on the perception of the witness" and "helpful to a clear understanding of the witness' [sic] testimony or the determination of a fact in issue."

We have stated that opinion testimony about the truthfulness or untruthfulness of a witness may be excluded "`if it amounts to no more than a conclusory observation,'" United States v. Cortez, 935 F.2d 135, 139 (8th Cir.1991), cert. denied, 502 U.S. 1062, 112 S.Ct. 945, 117 L.Ed.2d 114 (1992) (quoting United States v. Dotson, 799 F.2d 189, 193 (5th Cir.1986)), or if the opinions were not "`more than bare assertions,'" United States v. McMurray, 20 F.3d 831, 834 (8th Cir.1994) (quoting Dotson, 799 F.2d at 193). An adequate foundation must be laid in order for opinion testimony concerning another witness's character for untruthfulness to be admissible. Such a foundation is laid by demonstrating that the opinion witness knows the relevant witness well enough to have formed an opinion. See, e.g., McMurray, 20 F.3d at 834; Cortez, 935 F.2d at 139-40; cf. United States v. Oliver, 492 F.2d 943, 946 (8th Cir.1974).

Whether there has been an adequate showing that proffered opinion testimony regarding a witness's truthfulness amounts to "more than bare assertions" is generally a question committed to the trial court's discretion, McMurray, 20 F.3d at 834, but here the district court did not conclude that the foundation was inadequate or that Mr. Turning Bear otherwise failed to meet the requirements of Rules 608 and 701. We think that Mr. Turning Bear laid a sufficient foundation for Ms. Odens's testimony. Because Ms. Odens had had daily contact with N.T.B. over the four-to-six-month period that he lived in her home, she knew him well enough to have formed an opinion about his character for untruthfulness that was more than a "bare assertion" or "conclusory observation." We believe that the proffered testimony quite clearly complied with the requirements of Rules 608 and 701.

The government argues, however, that the district court acted within its discretion under Federal Rule of Evidence 403 in excluding the opinion testimony, even though it was otherwise admissible under Rules 608 and 701. Rule 403 allows the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." And Rule 608(a) does not state that evidence meeting its requirements must be admitted; it states that the "credibility of a witness may be attacked" by opinion evidence that meets certain requirements.

While the Eighth Circuit has not directly addressed the issue, the Fifth Circuit has concluded that evidence admissible under Rule 608(a) may be excluded under Rule 403 "if its probative value is substantially outweighed by its needlessly cumulative nature," subject to the caveat that such an exclusion of testimony sought to be presented by a criminal defendant must not be used in a way that violates the defendant's sixth amendment rights. United States v. Davis, 639 F.2d 239, 244 (5th Cir.1981). We agree, but the proffered opinion testimony here was clearly not needlessly cumulative. The credibility of N.T.B.'s testimony was one of the central issues in the case, and it was thus critical that material evidence relating to its veracity be admitted for the jury's consideration. In this case, the district court did not identify, nor can we independently discern, sufficient harm from unfair prejudice or any other proper Rule 403 consideration that would "substantially outweigh" the probative value of the highly relevant and otherwise admissible opinion testimony proffered by Mr. Turning Bear. The district court's decision to exclude Ms. Odens's testimony because "[t]hat's strictly her personal opinion and that would be a slippery slope" was not an appropriate application of Rule 403.

Because the district court's exclusion of Ms. Odens's testimony was not proper under Rule 403 or any other evidentiary rule or principle that we can identify, and the testimony was clearly relevant to one of the central issues of the case, we hold that the exclusion violated Mr. Turning Bear's constitutional right to put on witnesses in his defense. While a defendant's "right to present relevant testimony... `may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process,'" Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (quoting Chambers, ...