Bockting v. Bayer

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARVIN HOWARD BOCKTING,  No. 02-15866

Petitioner-Appellant,

v.  D.C. No.

CV-98-00764-ECR

ROBERT BAYER,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the District of Nevada

Edward C. Reed, District Judge, Presiding

Argued and Submitted

June 13, 2007—San Francisco, California

Filed September 27, 2007

Before: J. Clifford Wallace, John T. Noonan, and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge Wallace;

Dissent by Judge Noonan

13303

13306 BOCKTING v. BAYER

COUNSEL

Franny A. Forsman, Federal Public Defender, Las Vegas,

Nevada, for petitioner Marvin Howard Bockting.

Victor-Hugo Schulze, II and Rene L. Hulse, Nevada State

Attorney General’s Office, for respondent Robert Bayer.

OPINION

WALLACE, Senior Circuit Judge:

Bockting appeals from the district court’s order denying his

petition for a writ of habeas corpus. Bockting challenges his

state convictions on charges associated with the alleged sex-

ual abuse of his then-six-year-old step daughter. We have

jurisdiction under 28 U.S.C. § 2253(a). Bockting has not dem-

onstrated the state court’s adjudication on the merits:

“(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceedings,” 28 U.S.C. § 2254(d). There-

fore, we affirm the district court’s order denying his petition

for writ of habeas corpus.

I.

Prior to his arrest, Bockting lived with his wife, Laura

Bockting (Laura), his six-year-old step daughter, Autumn

BOCKTING v. BAYER 13307

Bockting (Autumn), and a three-year-old daughter, Honesty

Bockting (Honesty), at the Paradise Motel in Las Vegas,

Nevada. On Monday, January 11, 1988, Laura began attend-

ing evening classes at a local business college, leaving

Autumn and Honesty at home under Bockting’s exclusive

care and supervision. The following Saturday evening, when

Bockting was away, Autumn approached Laura, crying and

“quite upset,” and told Laura that Bockting “put his pee-pee

in her pee-pee, and that daddy put his pee-pee in her butt and

daddy made her suck on his pee-pee like it was a sucker. . . .

and he put his chin in her pee-pee.” Autumn informed Laura

that all this had happened in the bathroom, and described the

positions that Bockting used to accomplish the assault. She

further stated that Bockting threatened to “beat [her] butt” if

she revealed the assault to her mother.

Laura awoke the next morning to find that Bockting had

returned to the motel room. She obtained rent money from

him and dropped by the motel office to pay the past week’s

rent and have Bockting’s name removed from the couple’s

rental papers. Returning to the motel room, she found Autumn

in tears. Autumn explained that she had just told Bockting

about their conversation from the previous evening and

reported that “Daddy told me to tell you that I was lying. . . .

I can’t do that, mommy.” Laura immediately confronted

Bockting with Autumn’s abuse allegations and ordered him to

pack his things and leave. Bockting accused Autumn of lying,

but nevertheless complied with Laura’s request. Autumn

wanted to give Bockting a hug and a kiss, but Bockting

refused.

The following Tuesday, Laura called a rape hotline and

agreed to take Autumn to a local hospital where they met

Detective Charles Zinovitch, a member of the Las Vegas Met-

ropolitan Police Department’s sexual assault unit. Detective

Zinovitch ordered an emergency room doctor to conduct a

rape examination. The examining gynecologist-obstetrician,

Dr. Stacy Rivers, discovered a fissure on Autumn’s rectum.

13308 BOCKTING v. BAYER

Dr. Rivers estimated that the fissure, which was fresh but not

actively bleeding, had occurred within the last week.

Autumn’s hymenal ring—the thin film of skin covering her

vaginal orifice—was gaping wide open, which was unusual

for a girl Autumn’s age. Although Dr. Rivers testified that she

could not be certain what kind of “instrument or foreign

body” had caused the tear in Autumn’s rectum and the laxness

of her hymen, she concluded that these injuries had been

caused by a “blunt type of trauma” applied to the rectum and

vagina.

Two days later, Detective Zinovitch interviewed Autumn

concerning the alleged sexual abuse. Although Autumn had

been hysterical and uncommunicative at the hospital, she was

now calm and cooperative. She described Bockting’s alleged

assault, and stated once again that Bockting “put his pee-pee

into her pee-pee . . . butt and . . . mouth” and put “his chin

on her pee-pee.” She described the acts in vivid detail and

reenacted the positions Bockting assumed during the assault

with the aid of anatomically correct dolls, using age-

appropriate terminology. Detective Zinovitch testified that the

positions Autumn described were consistent with the relative

body sizes of Autumn and Bockting.

At Bockting’s March 30, 1988, preliminary hearing,

Autumn was called to the stand. Autumn testified that she

knew the difference between a truth and a lie and answered

preliminary questions about the alleged assault and subse-

quent rape examination. Autumn was initially cooperative,

and answered in the affirmative when asked whether Bockting

had touched her inappropriately. She stated that the incident

had occurred in the bathroom, when her mother was not

home, and that Honesty was in the living room at the time.

Her initial statements were consistent with what she told

Laura and Detective Zinovitch, except in that she stated that

Bockting left her pants on. Upon further questioning, how-

ever, Autumn began to cry and averred that she could not

remember basic facts as to what had occurred in the bathroom

BOCKTING v. BAYER 13309

or the statements that she had told Laura and Detective

Zinovitch. Laura encouraged Autumn to “be honest” and “tell

the truth,” but Autumn refused to answer any further ques-

tions, responding instead, “[y]ou already told them.”

Bockting’s jury trial commenced on August 15, 1988. The

government, represented by Deputy District Attorney Lukens,

called Autumn as its first witness. Autumn was uncoopera-

tive, however, and found unavailable.

After hearing testimony from Laura and Detective

Zinovitch outside the presence of the jury, the judge con-

cluded that Autumn’s hearsay statements to Laura and the

detective were credible and admissible. The court observed

that there appeared no motive to fabricate, as there appeared

to be no conflict between Autumn and Bockting. Further, the

statements were neither irrational or implausible, they fol-

lowed a chronological order, and they conveyed what

appeared to be Autumn’s perception of the events. While the

court conceded that Autumn’s statements at the preliminary

hearing were not entirely consistent with the statements made

to Detective Zinovitch and Laura, it noted that it was not

uncommon for children to refuse to testify in similar circum-

stances. The court thus concluded that it had “no difficulty”

concerning the reliability of the statements.

The court determined that Autumn’s hearsay statements

were admissible under Nevada Revised Statute 51.385

because Autumn was effectively unavailable for questioning:

The very purpose of this statute was to avoid the

problem we have here today where a little girl either

is not willing to testify or for some reason is unable

to or testifies in such an inconsistent manner that it

means, in essence, that their testimony is worthless;

and because of the fact that she is testifying in open

court in front of strangers with all the things that sur-

rounds that kind of a setting.

13310 BOCKTING v. BAYER

. . . . The little girl is obviously unavailable. And as

far as these two statements, I am meaning the one to

the mother and the one to Detective Zinovitch, I

think they are allowed—they are credible enough to

be allowed to be related to the jury.

Bockting was convicted of three sexual assault counts:

Counts I-II, forcing vaginal and anal intercourse on a child;

and Count III, compelling a victim to perform fellatio on him.

The Nevada Supreme Court dismissed Bockting’s appeal on

June 22, 1989, but the United States Supreme Court later

vacated the state supreme court’s order and remanded for fur-

ther consideration in light of Idaho v. Wright, 497 U.S. 805

(1990). On March 8, 1993, the Nevada Supreme Court

affirmed Bockting’s conviction. See Bockting v. State, 847

P.2d 1364 (Nev. 1993) (per curiam) (Bockting).

While his application for a writ of certiorari was pending

before the United States Supreme Court, Bockting filed a peti-

tion for post-conviction relief with Nevada’s Eighth Judicial

District Court. The state district court denied Bockting’s peti-

tion, and Bockting appealed to the Nevada Supreme Court.

On December 24, 1997, the state supreme court dismissed the

appeal, effectively putting an end to Bockting’s state court

proceedings.

Bockting next sought relief in federal court, filing a petition

for habeas corpus on December 30, 1998, followed by a sec-

ond amended petition on May 17, 2000. The district court,

exercising jurisdiction pursuant to 28 U.S.C. § 2254, denied

the petition on March 22, 2002, and issued a certificate of

appealability on April 26, 2002. While the appeal was pend-

ing, the Supreme Court issued its opinion in Crawford v.

Washington, 541 U.S. 36 (2004), overruling Ohio v. Roberts,

448 U.S. 56 (1980), which was then the governing precedent.

See Whorton v. Bockting, 127 S.Ct. 1173, 1181 (2007) (Whor-

ton). Crawford held that “[t]estimonial statements of wit-

nesses absent from trial” are admissible “only where the

BOCKTING v. BAYER 13311

declarant is unavailable, and only where the defendant has

had a prior opportunity to cross-examine” the witness. 541

U.S. at 59. We broadened the certificate of appealability, and

Bockting timely appealed.

Bockting’s original petition for relief rested primarily on

his constitutional rights under the Confrontation Clause, pre-

senting a question of first impression in our circuit: whether

Crawford applies retroactively to state convictions on habeas

review. A divided panel concluded that the procedural rule

under Crawford applies retroactively to cases on collateral

review, and granted relief. See Bockting v. Bayer, 399 F.3d

1010, 1021-22 (9th Cir. 2005).

The Supreme Court granted certiorari. It held that Craw-

ford had no retroactive application to cases on collateral

review, and reversed and remanded for further proceedings.

Whorton, 127 S.Ct. at 1177, 1184. We now consider Bock-

ting’s remaining arguments on remand.

II.

Our review of Bockting’s state convictions is governed by

the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). See Bell v. Cone, 535 U.S. 685, 693 (2002). Under

AEDPA, habeas relief is warranted only where the state

court’s adjudication of the merits: “(1) resulted in a decision

that was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the

Supreme Court of the United States; or (2) resulted in a deci-

sion that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court pro-

ceedings.” 28 U.S.C. § 2254(d)(1)-(2). A state court convic-

tion “can involve an ‘unreasonable application’ of federal law

if it either 1) correctly identifies the governing rule but then

applies it to a new set of facts in a way that is objectively

unreasonable, or 2) extends or fails to extend a clearly estab-

lished legal principle to a new context in a way that is objec-

13312 BOCKTING v. BAYER

tively unreasonable.” Van Tran v. Lindsey, 212 F.3d 1143,

1150 (9th Cir. 2000), overruled on other grounds by Lockyer

v. Andrade, 538 U.S. 63 (2003). State court findings of fact

are presumed correct unless the presumption is rebutted with

clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

[1] Since the Supreme Court has concluded that Crawford

has no retroactive application to cases on collateral review,

we apply the law as it stood before that case. Prior to Craw-

ford, an out-of-court statement against a criminal defendant

was admissible at trial if two conditions were met. See Rob-

erts, 448 U.S. at 65-66. First, “in order to introduce relevant

statements at trial, state prosecutors [must] either produce the

declarants of those statements as witnesses at trial or demon-

strate their unavailability.” Bains v. Cambra, 204 F.3d 964,

973 (9th Cir. 2000), citing Roberts, 448 U.S. at 65-66. Sec-

ond, even if prosecutors succeed in demonstrating unavaila-

bility, the statements are only admissible if they bear

“adequate indicia of reliability.” Roberts, 448 U.S. at 66

(internal quotation marks omitted). The “indicia of reliability”

requirement is met if the statements fall within a “firmly

rooted hearsay exception” or contain “particularized guaran-

tees of trustworthiness.” Id.

In Bockting’s state proceedings, the Nevada Supreme Court

determined that the government satisfied these two require-

ments. See Bockting, 847 P.2d at 1366-70. Bockting chal-

lenges these determinations on federal habeas review.

Mindful of our duty to defer to the state supreme court’s fac-

tual determinations and reasonable applications of Supreme

Court precedent, 28 U.S.C. § 2254(d)(1)-(2), we consider

Bockting’s arguments.

III.

Bockting contends that relief is warranted because the

Nevada Supreme Court decision conflicts with Idaho v.

Wright, 497 U.S. 805 (1990), and applies the wrong standards

BOCKTING v. BAYER 13313

in determining the admissibility of Autumn’s hearsay state-

ments. He argues that the state court decision involved an

unreasonable application of clearly established federal law

and was based on an unreasonable determination of the facts.

[2] Whether Autumn’s hearsay statements “were suffi-

ciently reliable to be admitted without violating [Roberts] is

a mixed question” of law and fact. Swan v. Peterson, 6 F.3d

1373, 1379 (9th Cir. 1993). We review the Nevada Supreme

Court’s reliability determination to ascertain whether it “was

contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1); see also

Davis v. Woodford, 333 F.3d 982, 990 (9th Cir. 2003) (stating

that subsection 2254(d)(1) applies “to mixed questions of law

and fact” (citing Williams v. Taylor, 529 U.S. 362, 407-09

(2001))). To the extent the Nevada Supreme Court’s determi-

nation of “particularized guarantees of trustworthiness” rests

on findings of fact, we must consider whether it “was based

on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(2). We presume that the state court’s findings are

correct unless the presumption is rebutted with clear and con-

vincing evidence. See id. § 2254(e)(1).

In Wright, the Supreme Court examined whether the admis-

sion at trial of certain hearsay statements made by a child

declarant to an examining doctor violated the defendant’s

rights under the Confrontation Clause. 497 U.S. at 808.

Wright reiterated the Roberts test, confirming that hearsay

statements made by an unavailable witness are admissible

only where the statements bear “adequate indica of reliabili-

ty.” Id. at 815 (internal quotation marks omitted), quoting

Roberts, 448 U.S. at 65. Reliability may be “inferred without

more” where the statements fall within a firmly rooted hear-

say exception. Id. at 815. Where no hearsay exception applies,

however, the statements are “presumptively unreliable” and

meet Confrontation Clause reliability standards only if “sup-

13314 BOCKTING v. BAYER

ported by a showing of particularized guarantees of trustwor-

thiness.” Id. at 817, quoting Lee v. Illinois, 476 U.S. 530, 543

(1986) (internal quotation marks omitted).

[3] Wright held that the “ ‘particularized guarantees of

trustworthiness’ required for admission [of hearsay state-

ments] under the Confrontation Clause must . . . be drawn

from the totality of circumstances that surround the making of

the statement and that render the declarant particularly worthy

of belief.” Id. at 820. Relevant factors in child sexual abuse

cases include: (1) spontaneity and consistent repetition, (2)

the mental state of declarant, (3) use of terminology unex-

pected of a child of similar age, and (4) lack of motive to fab-

ricate. Id. at 821-22. The Court observed, however, that these

factors were “not exclusive, and courts have considerable lee-

way in their consideration of appropriate factors.” Id. at 822.

It “therefore decline[d] to endorse a mechanical test for deter-

mining ‘particularized guarantees of trustworthiness’ under

the Clause,” stating instead that the “unifying principle is that

these factors relate to whether the child declarant was particu-

larly likely to be telling the truth when the statement was

made.” Id.

A.

We first consider whether the Nevada court’s decision was

based on an unreasonable determination of the facts. See 28

U.S.C. § 2254(d)(2).

[4] In Bockting’s underlying state case, the Nevada

Supreme Court determined that while Autumn’s statements

did not fall within any “firmly rooted hearsay exception,” they

were nevertheless admissible because the statements bore the

“particularized guarantees of trustworthiness” required under

Roberts. Bockting, 847 P.2d at 1367-70. Applying the test

outlined in Wright, 497 U.S. at 821-22, the court identified

several facts supporting the trustworthiness of Autumn’s

statements, including (1) the “spontaneity and consistent repe-

BOCKTING v. BAYER 13315

tition” of her statements, (2) Autumn’s “agitation and fear,”

reflected by “the fact that she was visibly shaken and crying,”

(3) her “knowledge of sexual conduct not present in most

children six years of age,” (4) her “child-like terminology”

which “was reflective of candor rather than coaching,” and (5)

her “display of affection for Bockting,” which was “indicative

of love rather than hate.” Bockting, 847 P.2d at 1369.

These findings are not unreasonable based on the record.

On two different occasions, Autumn made spontaneous state-

ments to her mother concerning the alleged assault: on July

16, 1988, when Autumn first complained of the assault; and

again on the morning of July 17, 1988, when she cried and

told her mother that “Daddy told me to tell you that I was

lying . . . I can’t do that, mommy.” Second, when taken as a

whole, Autumn’s statements of abuse are consistent.

Autumn’s initial allegations of abuse, on July 16, 1988, are in

accord with the abuse that she described to Detective

Zinovitch. Her demonstration with the dolls, in front of

Detective Zinovitch, further supported her statements. Her

outburst to her mother on July 17, 1988, that Bockting told

her to say that she was lying, also corroborated her allegations

of abuse. Finally, Autumn’s testimony at the preliminary

hearing is more consistent than not: (1) Autumn answered

“yes” when asked whether Bockting had touched her inappro-

priately, and (2) she testified that her mother had not been

home, that Honesty was in the living room, and that the inci-

dent occurred in the bathroom. Although Autumn’s statement

that her pants were on at the time of the assault is inconsistent

with her prior statements, her preliminary hearing testimony

as a whole corroborates her previous description of the

alleged assault.

The other Wright factors similarly cut in favor of the rea-

sonableness of the Nevada Supreme Court’s determination on

trustworthiness. When Autumn initially described the alleged

assault to Laura, she was “quite upset” and crying. She cried

again when she told Laura that Bockting told her to deny the

13316 BOCKTING v. BAYER

story the next day. The vivid descriptions that Autumn gave

to both Laura and Detective Zinovitch also reflect an unusual

knowledge of sex for a child her age, even given the fact that

Autumn had on occasion walked in on intercourse between

Bockting and Laura. Further, the terminology used by

Autumn in her statements both to Laura and Detective

Zinovitch was consistent with what may be expected from a

child her age: she described the alleged assault to Laura and

Detective Zinovitch with reference to her own “butt” and

“pee-pee” and Bockting’s “pee-pee,” and stated that “white

bubbly stuff” came out of Bockting’s penis. Finally,

Autumn’s affection for Bockting evidenced a lack of motive

to fabricate.

Bockting contends that the Nevada court created facts not

present in the record in determining that the “veteran detec-

tive conducted the recorded interview with the child in a man-

ner that was not suggestive, leading, or indicative of a

predetermined resolve to produce evidence of child abuse,”

Bockting, 847 P.2d at 1368-69. Not so. Detective Zinovitch

testified that he was employed by the Las Vegas Metropolitan

Police Department for sixteen years, and had been assigned to

the sexual assault unit for four years. He stated that he was

“very careful” when interviewing a child, and that he would

try to “have the child describe what had happened in her own

words.” He further testified that after Autumn stated that

Bockting had hurt her, he asked her “What do you mean he

hurt you? How did he hurt you?” Detective Zinovitch’s testi-

mony reflects that he was experienced at interviewing chil-

dren and that he used open-ended questions during his

interview with Autumn. This record supports the Nevada

Supreme Court’s finding that the detective did not use sugges-

tive or leading questions during his interview with Autumn,

and we thus disagree that the court created facts not present

in the record.

We also disagree with the assertion that the Nevada court’s

reliance on Autumn’s use of the dolls in her interview with

BOCKTING v. BAYER 13317

Detective Zinovitch somehow rendered the decision an “un-

reasonable determination of the facts.” Bockting cites one

study in support of his argument that “considerable disagree-

ment” exists regarding the propriety of using the dolls. Bock-

ting’s reference to a single study on doll evidence, without

more, is not enough to suggest that the Nevada court’s opin-

ion was “based on an unreasonable determination of the facts

in light of the evidence presented,” see 28 U.S.C.

§ 2254(d)(2).

[5] Our review of the record evidence satisfies us that the

Nevada Supreme Court’s opinion was not “based on an unrea-

sonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(2). We presume that the state court findings of fact

are correct unless rebutted by clear and convincing evidence,

id. § 2254(e)(1), and Bockting has failed to overcome that

presumption.

B.

We turn to Bockting’s contention that the Nevada opinion

was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States,” see 28 U.S.C. § 2254(d)(1).

Bockting asserts that the state courts misapplied Roberts in

two ways. First, he argues that the trial court misapplied Rob-

erts by applying a presumption in favor of admissibility.

However, no such burden is evident from the trial record.

Somewhat more interesting is Bockting’s second argument,

that the Nevada Supreme Court’s failure to state that the “pre-

sumptive[ ] unreliab[ility]” of Autumn’s hearsay statements is

contrary to Wright.

[6] The Nevada Supreme Court considered Bockting’s

appeal on remand, with the express instruction from the

United States Supreme Court to consider the case under

13318 BOCKTING v. BAYER

Wright. In the resulting opinion, the Nevada court recited the

proper test under Roberts, that hearsay statements made by an

unavailable witness are admissible only in two circumstances:

(1) where the statement fits a “firmly rooted” hearsay excep-

tion, or (2) the statement “reflects particularized guarantees of

trustworthiness.” 847 P.2d at 1367 (internal quotation marks

and citation omitted). In evaluating the admissibility of

Autumn’s hearsay statements, the Nevada Supreme Court

made a “careful comparison of the factors accorded signifi-

cance in Idaho v. Wright with those present in the instant

case.” Bockting, 847 P.2d at 1369. The court raised and dis-

cussed the relevant Wright factors (spontaneity, repetition,

mental state, terminology, and motive to fabricate) before

determining that, “[i]n viewing the totality of the circum-

stances surrounding the child’s out-of-court statements, as

defined in Wright, we conclude that the [trial] court did not

err in finding sufficient ‘particularized guarantees of trust-

worthiness’ to admit the proffered statements.” Id. at 1369-70.

In light of the Nevada court’s extensive discussion and reli-

ance on Wright, we do not agree with Bockting that the

Nevada Supreme Court’s failure to mention that Autumn’s

hearsay statements were “presumptively unreliable” renders it

contrary to Wright.

[7] Wright did refer to a statement from Lee v. Illinois that

hearsay evidence not within a firmly rooted exception is “pre-

sumptively unreliable,” but then states that such hearsay

meets the Confrontation Clause if it is supported by a “show-

ing of particularized guarantees of trustworthiness.” Lee, 476

U.S. 530, 543 (1986) (quotation marks and citation omitted).

But it is this guarantee of trustworthiness that overcomes the

presumption. As the Nevada Supreme Court’s analysis of

these factors was not an unreasonable application of Wright,

it was unnecessary to mention the word “presumption.”

Bockting also mistakenly argues that the Nevada Supreme

Court’s decision involved an unreasonable application of

clearly established federal law because evidence confirming

BOCKTING v. BAYER 13319

the unreliability of Autumn’s statements was rejected or

ignored. In its opinion, the Nevada Supreme Court recognized

some inconsistencies in Autumn’s statements. It observed that

during the preliminary hearing, Autumn stated that her pants

were not removed during the alleged assault, that she was

unable to remember how Bockting touched her, and that she

could not remember what she had told her mother or Detec-

tive Zinovitch. Bockting, 847 P.2d at 1366-67. It concluded,

however, after considering the “totality of the circumstances

surrounding the child’s out-of-court statements, as defined in

Wright” that the trial court properly admitted the statements.

Id. at 1369-70. After evaluating the court’s discussion of the

Wright factors, we do not agree that the Nevada Supreme

Court’s opinion was defective merely because it failed to

mention every fact that Bockting believes supports his case.

[8] Finally, Bockting argues that Crawford did not change

the rule with respect to testimonial statements, and suggests

that confrontation would be required in this case under either

Roberts or Crawford. This argument is foreclosed by Whorton

v. Bockting, which stated that Crawford “overruled Roberts”

and “announced a new rule.” 127 S.Ct. 1181 (“The Crawford

rule is flatly inconsistent with the prior governing precedent,

Roberts, which Crawford overruled”).

AFFIRMED.

NOONAN, Circuit Judge, dissenting:

This appeal, as Judge Wallace accurately puts it, turns on

whether the Supreme Court of Nevada unreasonably applied

Idaho v. Wright, 497 U.S. 805 (1990) to the facts of this case.

In its first remand of the case, the United States Supreme

Court had asked the Nevada Supreme Court to consider its

affirmance of Bockting’s conviction in the light of Wright.

Bockting v. Nevada, 497 U.S. 1021 (1990). Our court must

13320 BOCKTING v. BAYER

ask whether the Nevada Supreme Court has reasonably done

so.

To apply Wright reasonably, the Nevada Supreme Court

had to decide whether Autumn was not available as a witness

and whether her statements as reported by her mother and by

the detective bore such particularized guarantees of truth-

worthiness that cross-examination of her would be only mar-

ginally useful.

Both issues mixed fact and law. There had to be a factual

basis for finding that Autumn could not take the stand. There

had to be a factual basis for finding that such particularized

guarantees of Autumn’s truthworthiness existed that cross-

examination would be of marginal utility. Instructed by

Wright, the Nevada Supreme Court knew the rule that it must

apply in each instance. It could not make the rule applicable

by imagining the facts or by abbreviating the rule to the point

of misunderstanding it.

The position in which the Nevada Supreme Court was put

by the remand may be illustrated by an analogy from baseball.

The home plate umpire decides if a runner is out when there

is a close call at the plate. The umpire’s melding of what he

sees with the rule he knows cannot reasonably be challenged.

But when the runner is stealing second, and the third base

umpire calls him out because he did not reach third, the third

base umpire is subject to reversal. He has either not under-

stood the facts or not understood the rule he purports to apply,

or he has understood neither. Is the Nevada Supreme Court in

the position of the supposed home plate umpire or in that of

the imagined third base umpire?

Was Autumn not available as a witness? The Nevada

Supreme Court devoted footnote four of its opinion to this

question and stated:

Although NRS 51.385 does not require the unavaila-

bility of the hearsay declarant as a prerequisite to the

BOCKTING v. BAYER 13321

admissibility of the declarant’s statements, we are

satisfied on this record that the trial judge correctly

determined that the child was unavailable as a wit-

ness. The record reveals, as described by the prose-

cutor, that the child “froze” and would not even

stand or communicate to take the oath. Moreover,

defense counsel did not contest the district court’s

ruling concerning the child’s unavailability as a wit-

ness.

This single paragraph, central to the Nevada Supreme Court’s

finding that Autumn was not available, first endorses the trial

judge’s conclusion to that effect and secondly accepts the

prosecutor’s claim that Autumn “froze.” Neither the first nor

the second point establish Autumn’s unavailability. The trial

judge did not make any finding at all as to Autumn’s

unavailability. To rely on what the trial court did is to rely on

nothing except his decision to let in her hearsay statements.

The trial judge identified no basis for this result.

What the trial judge did say was something that showed

him to be confused about the relevant rule. He said, “The very

purpose of this statute [governing the testimony of a child

under ten] was to avoid the problem we have here today

where a little girl either is not willing to testify or for some

reason is unable to or testifies in such an inconsistent manner

that it means, in essence, that [her] testimony is worthless.”

In the trial judge’s mind, the child witness is unavailable, if,

as in Autumn’s case, her testimony is inconsistent so that it

becomes “worthless.” That is surely a misstatement of the rule

determining a witness’s unavailability.

The second leg on which the Nevada Supreme Court stood

begins with the prosecutor’s characterization of what Autumn

did; supplements this reference by a reference to what the

record shows; and adds that defense counsel did not object.

To take the last point first, there was no ruling to which

defense counsel could make a record; the trial judge simply

13322 BOCKTING v. BAYER

assumed that Autumn, inconsistent as she was in her state-

ments, was not available. What the record reveals as to her

unavailability is her nonresponsiveness to a colloquy between

her and the judge that could not have consumed more than a

minute. The record reveals no effort by the judge to make her

more at home or to consider measures that could be taken to

lessen her reluctance. Autumn “froze” as the prosecutor said.

A momentary freezing is insufficient ground to find unavaila-

bility established especially when the witness is already pres-

ent and the conclusion is reached by a judge confused as to

the relevant rule.

The “Sixth Amendment establishes a rule of necessity.”

Ohio v. Roberts, 448 U.S. 56, 65 (1980). “In the usual case

. . . the prosecution must either produce, or demonstrate the

unavailability of, the declarant . . .” Id. No necessity was

proved to justify the introduction of the hearsay. Neither the

trial judge nor the Nevada Supreme Court in cursory fashion

referencing the record have taken seriously the first require-

ment of Wright. The witness whose words will be reported by

someone else must actually be not available. We owe defer-

ence to the state court’s findings of fact. We do not owe def-

erence to the Nevada Supreme Court’s endorsement of a

ruling never made and of a statement by the prosecutor.

Did the judicial umpire, the Nevada Supreme Court, do any

better in its fusing of facts with law to find particularized

guarantees of trustworthiness making cross-examination, if

not unnecessary, at least of little use?

To begin with, the Nevada Supreme Court missed the prin-

ciple overarching any admission of this sort of hearsay: cross-

examination of the child, the declarant herself, would not

materially increase a jury’s confidence that she had said what

the retailers of the hearsay said she said. The overarching

principle is put with great clarity by Wright quoting Wigmore:

“The theory of the hearsay rule . . . is that the many

possible sources of inaccuracy and untrustworthiness

BOCKTING v. BAYER 13323

which may lie underneath the bare untested assertion

of a witness can best be brought to light and

exposed, if they exist, by the test of cross-

examination. But this test or security may in a given

instance be superfluous; it may be sufficiently clear,

in that instance, that the statement offered is free

enough from the risk of inaccuracy and untrust-

worthiness, so that the test of cross-examination

would be a work of supererogation.” 5 J. Wigmore,

Evidence § 1420, p. 251 (J. Chadborn rev. 1974).

Wright, 497 U.S. at 819.

The Supreme Court of the United States, embracing this

“theory of the hearsay rule” went on to restate the rule’s ratio-

nale in its own terms and to illustrate it in application:

In other words, if the declarant’s truthfulness is so

clear from the surrounding circumstances that the

test of cross-examination would be of marginal util-

ity, then the hearsay rule does not bar admission of

the statement at trial. The basis for the “excited utter-

ance” exception, for example, is that such statements

are given under circumstances that eliminate the pos-

sibility of fabrication, coaching, or confabulation,

and that therefore the circumstances surrounding the

making of the statement provide sufficient assurance

that the statement is trustworthy and that cross-

examination would be superfluous.

Id. at 820.

As the Court declared: “Our precedents have recognized

that statements admitted under a ‘firmly rooted’ hearsay

exception are so trustworthy that adversarial testing would

add little to their reliability.” Id. at 820-21. The Court went on

to say that:

13324 BOCKTING v. BAYER

“the particularized guarantees of trustworthiness”

must be at least as reliable as evidence admitted

under a firmly rooted hearsay exception . . .

Id. at 821.

The Nevada Supreme Court handicapped itself severely by

not stating, or apparently grasping, the rationale that would let

into a trial the nontestimonial statements of a child. The

Nevada Supreme Court noted that the Supreme Court had not

endorsed any mechanical test. The Nevada Supreme Court

then proceeded in mechanical fashion to find three particular-

ized guarantees. Let us look at them.

The first is that Autumn awoke from sleep, distressed and

sobbing, and after being reassured by her mother, gave details

of Bockting’s alleged acts. This statement did not qualify as

an “excited utterance” under the firmly-rooted exception to

the hearsay rule. The Nevada Supreme Court made a half-

effort to bring the statement within this exception (“the

child’s outpouring . . . reflected a natural spontaneity indica-

tive of truth”); but the court did not invoke the firmly-rooted

exception. Instead, the court expressed incredulity that a child

“would conjure up the parade of horribles she related about

her stepfather.” What the hearsay reported was a “parade of

horribles” — does that make the story more or less credible?

Are you more trustworthy when you let your imagination go?

The court overlooked the totality of the circumstances in

which the horribles were paraded. In her mother’s words,

“She looked like she had just woke up from a bad dream and

she was quite upset.” It is a commonplace phenomenon for

people of all ages to have nightmares and to awake in distress.

What they then say was bothering them carries no guarantee

of trustworthiness; they are coming out of sleep, still respond-

ing to their sleeping-state impressions.

Autumn’s second declaration was made to the police offi-

cer in the presence of her mother. The Nevada Supreme Court

BOCKTING v. BAYER 13325

found that its guarantee of trustworthiness was that it was

“consistent with the details she had previously told to her

mother.” That consistency carries little weight unless her

nighttime declaration to her mother was trustworthy. The

Nevada Supreme Court did not note that two days earlier,

Autumn had refused to speak to the detective. Neither did the

court note the psychological compulsion not to let down her

mother who was counting on her to confirm what the mother

had reported.

The Nevada Supreme Court treated Autumn’s arrangement

of the dolls as her “third consistent description of the events.”

At the preliminary hearing, Detective Zinovitch gave an

account of Autumn and the dolls: Before he began to question

her, he told her that he had some dolls he might show her.

After he had finished his questions, she asked, “Can I see the

dolls now?” Zinovitch showed her the dolls. As he testified:

First I had her look at the dolls, take the clothing off

the dolls, so we could identify what she feels would

be the adult dolls, what would be the juvenile dolls,

male, female, to be sure she knew what she was talk-

ing about when she talks about the suspect’s penis or

pee-pee, what the vagina is or what she calls her pee-

pee. And, you know, we went through that type of

questioning.

After I was sure that she was aware of the specific

body parts, then I asked her to show me — I asked

her if she could show me what positions had actually

taken place in the different acts.

Zinovitch’s tape recorder, which he had turned off when he

was identifying body parts, was turned on to record what

Autumn then said. According to his testimony, she described

what had happened, illustrating it by reference to the dolls,

using a male adult doll and a young female doll to show “the

13326 BOCKTING v. BAYER

exact positions that had occurred.” He added, “She was happy

throughout the interview.”

The question must be asked whether Autumn’s arrange-

ment of the dolls was a guarantee of the trustworthiness of

what she had told Zinovitch. Five things mark this part of his

interview. First, he initiated the conversation about the sex

organs of the dolls. Second, he instructed Autumn to take off

the dolls’ clothes. Third, he turned off the tape while he pre-

pared her. He asked her a leading question: “When he put his

pee-pee in your vagina, show me how you were laying.”

Fifth, she was happy as she reenacted the events.

The dolls would be an unconventional way of guaranteeing

the truth of what Autumn is reported to have said. The imme-

diate circumstances of what she said at this time are far from

giving confidence in Zinovitch’s report. Not only did he tes-

tify to the leading question he asked her, but he conceded that

he conducted the preliminary conversation about the sex

organs of the dolls, and he directed the removal of the dolls’

clothes. Although he had been taping the interview, he chose

not to tape his preliminary conversation that primed Autumn

on the body parts. And throughout this reliving of what is por-

trayed by the prosecution as a fearful trauma, Autumn seemed

happy! Her happiness is part of the totality of the circum-

stances of her statement. Her happiness must undermine con-

fidence in the credibility of what she is said to have said.

We own no deference to the Nevada Supreme Court as to

its understanding of governing constitutional principle. Like

the third base umpire of the analogy, the Nevada Supreme

Court has misunderstood the relevant rule. That court has not

understood why a statement can qualify as an exception to the

requirements of the Confrontation Clause. That court has not

grasped that the governing principle is: would cross-

examination be of significant value.

The Nevada Supreme Court failed to apply Wright reason-

ably to Autumn’s availability as a witness and to the value of

BOCKTING v. BAYER 13327

cross-examination in testing the trustworthiness of the state-

ments attributed to her, and so has not asked the question it

had to answer: Would cross-examination have materially

increased confidence in Autumn’s reported statements? It is

difficult to imagine a lawyer or a judge who would answer the

question No. Bockting’s right to confront the only percipient

witness against him was grievously violated.

AEDPA and the Nevada Supreme Court

AEDPA directs us to determine whether the state decision

“was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d)(2). So far this analysis has proceeded as

though the highest state court to rule on the case had the

power to determine the facts. But this is not so.

The constitution of the State of Nevada prohibits the

Nevada Supreme Court from finding facts in the course of a

criminal appeal. Nev. Const. art. 6, § 4; Lane v. Second Judi-

cial Dist. Court, 760 P.2d 1245, 1261 (Nev. 1988) (Steffen,

J., concurring). It must be assumed the Nevada Supreme

Court obeyed or, that if it did not, its findings were unlawful

and may be disregarded.

In terms of the analogy with baseball, this split between the

ability to determine the facts and the ability to state the law

constitute a distinct problem. It is as though the home plate

umpire could only find the facts — the catcher touched the

runner; the runner had not crossed home plate; while a super-

umpire would have the power to review the application of the

rules and pronounce the runner to be out. Certainly, the super-

umpire could not invent facts and say, “The runner crossed

the plate. He’s not out.”

Out of an abundance of caution, it has been assumed that

some facts could be determined by the Nevada Supreme

Court. Now, however, as an alternative approach, the analysis

13328 BOCKTING v. BAYER

is founded on what was found by the only Nevada court that

had power to find facts, the trial court.

As to Autumn’s unavailability as a witness, as already

noted, the trial court made no finding of fact. Consequently,

there is nothing for us to review or to treat with deference and

no guarantee of the statement’s trustworthiness shown. Nor is

anything shown by the statement’s plausibility. The prosecu-

tor wouldn’t be trying to introduce it if it were implausible.

Chronological order seems to be characteristic of any narra-

tive. The judge found that Autumn had no motive to fabricate.

This negative conclusion was scarcely a guarantee of trust-

worthiness. That the trial judge thought the statements

reflected Autumn’s perceptions and that he found the account

“credible” merely presents the trial judge’s view of the evi-

dence. At the end of his brief analysis, he acknowledges that

Autumn spoke differently at the preliminary hearing. Plausi-

bility, rationality, chronological order, absence of motive to

lie, and credibility create no exception to the constitutional

requirement set by the Sixth Amendment. The writ of habeas

corpus must be issued.

As to the other requirements of Wright, the trial court found

the hearsay statements “not irrational or not plausible. They

follow chronologically the events. They tell what the little

girl’s perception of it was and it seems to be credible,

although I grant that at the preliminary hearing there is a dif-

ferent version.” That a statement does not appear irrational

and that it appears plausible and credible to the judge — none

of these are particularized guarantees. And when the judge

concedes that Autumn’s testimony is not consistent, how

could anyone conclude that cross-examination of her would

be of little utility? No findings as to the necessary guarantees

have been made. For this reason, too, the writ should issue.