Bockting v. Bayer

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARVIN HOWARD BOCKTING,  No. 02-15866

Petitioner-Appellant, D.C. No.

v.  CV-98-00764-ECR

ROBERT BAYER, ORDER AND

Respondent-Appellee.

 OPINION

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 October 12, 2007

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

M. Margaret McKeown, Circuit Judges.

Opinion by Judge Wallace;

Dissent by Judge Noonan

13811

13814 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.

ORDER

The opinion and dissent filed on September 27, 2007 are

withdrawn. A new opinion and dissent are filed with this

order.

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-

BOCKTING v. BAYER 13815

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, A Bockting

(A), and a three-year-old daughter, H Bockting (H), at the

Paradise Motel in Las Vegas, Nevada. On Monday, January

11, 1988, Laura began attending evening classes at a local

business college, leaving A and H at home under Bockting’s

exclusive care and supervision. The following Saturday eve-

ning, when Bockting was away, A 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.” A 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 A in

tears. A 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

A’s abuse allegations and ordered him to pack his things and

leave. Bockting accused A of lying, but nevertheless complied

with Laura’s request. A wanted to give Bockting a hug and a

kiss, but Bockting refused.

The following Tuesday, Laura called a rape hotline and

agreed to take A to a local hospital where they met Detective

13816 BOCKTING v. BAYER

Charles Zinovitch, a member of the Las Vegas Metropolitan

Police Department’s sexual assault unit. Detective Zinovitch

ordered an emergency room doctor to conduct a rape exami-

nation. The examining gynecologist-obstetrician, Dr. Stacy

Rivers, discovered a fissure on A’s rectum. Dr. Rivers esti-

mated that the fissure, which was fresh but not actively bleed-

ing, had occurred within the last week. A’s hymenal ring—the

thin film of skin covering her vaginal orifice—was gaping

wide open, which was unusual for a girl A’s age. Although

Dr. Rivers testified that she could not be certain what kind of

“instrument or foreign body” had caused the tear in A’s rec-

tum 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 A con-

cerning the alleged sexual abuse. Although A had been hys-

terical 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 A described were consistent with the relative body

sizes of A and Bockting.

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

called to the stand. A testified that she knew the difference

between a truth and a lie and answered preliminary questions

about the alleged assault and subsequent rape examination. A

was initially cooperative, and answered in the affirmative

when asked whether Bockting had touched her inappropri-

ately. She stated that the incident had occurred in the bath-

room, when her mother was not home, and that H was in the

living room at the time. Her initial statements were consistent

with what she told Laura and Detective Zinovitch, except in

BOCKTING v. BAYER 13817

that she stated that Bockting left her pants on. Upon further

questioning, however, A began to cry and averred that she

could not remember basic facts as to what had occurred in the

bathroom or the statements that she had told Laura and Detec-

tive Zinovitch. Laura encouraged A to “be honest” and “tell

the truth,” but A refused to answer any further questions,

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 A as its first witness. A was uncooperative, however,

and found unavailable.

After hearing testimony from Laura and Detective

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

cluded that A’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 A and Bockting. Further, the statements

were neither irrational or implausible, they followed a chrono-

logical order, and they conveyed what appeared to be A’s per-

ception of the events. While the court conceded that A’s

statements at the preliminary hearing were not entirely consis-

tent with the statements made to Detective Zinovitch and

Laura, it noted that it was not uncommon for children to

refuse to testify in similar circumstances. The court thus con-

cluded that it had “no difficulty” concerning the reliability of

the statements.

The court determined that A’s hearsay statements were

admissible under Nevada Revised Statute 51.385 because A

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;

13818 BOCKTING v. BAYER

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.

. . . . 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,

BOCKTING v. BAYER 13819

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

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

13820 BOCKTING v. BAYER

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-

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.

BOCKTING v. BAYER 13821

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

in determining the admissibility of A’s hearsay statements. 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 A’s hearsay statements “were sufficiently reli-

able 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 estab-

lished 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 sub-

section 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

13822 BOCKTING v. BAYER

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-

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 A’s statements did not

fall within any “firmly rooted hearsay exception,” they were

nevertheless admissible because the statements bore the “par-

BOCKTING v. BAYER 13823

ticularized guarantees of trustworthiness” required under Rob-

erts. 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 A’s statements,

including (1) the “spontaneity and consistent repetition” of

her statements, (2) A’s “agitation and fear,” reflected by “the

fact that she was visibly shaken and crying,” (3) her “knowl-

edge of sexual conduct not present in most children six years

of age,” (4) her “child-like terminology” which “was reflec-

tive 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, A made spontaneous statements

to her mother concerning the alleged assault: on July 16,

1988, when A 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, A’s

statements of abuse are consistent. A’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, A’s testimony at the prelimi-

nary hearing is more consistent than not: (1) A answered

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

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

home, that H was in the living room, and that the incident

occurred in the bathroom. Although A’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

13824 BOCKTING v. BAYER

trustworthiness. When A 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 story

the next day. The vivid descriptions that A gave to both Laura

and Detective Zinovitch also reflect an unusual knowledge of

sex for a child her age, even given the fact that A had on

occasion walked in on intercourse between Bockting and

Laura. Further, the terminology used by A 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 refer-

ence to her own “butt” and “pee-pee” and Bockting’s “pee-

pee,” and stated that “white bubbly stuff” came out of Bock-

ting’s penis. Finally, A’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 A stated that Bockting

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

How did he hurt you?” Detective Zinovitch’s testimony

reflects that he was experienced at interviewing children and

that he used open-ended questions during his interview with

A. This record supports the Nevada Supreme Court’s finding

that the detective did not use suggestive or leading questions

during his interview with A, 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 A’s use of the dolls in her interview with Detec-

BOCKTING v. BAYER 13825

tive Zinovitch somehow rendered the decision an “unreason-

able determination of the facts.” Bockting cites one study in

support of his argument that “considerable disagreement”

exists regarding the propriety of using the dolls. Bockting’s

reference to a single study on doll evidence, without more, is

not enough to suggest that the Nevada court’s opinion 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 A’s hearsay statements is con-

trary 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

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

13826 BOCKTING v. BAYER

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 A’s

hearsay statements, the Nevada Supreme Court made a “care-

ful comparison of the factors accorded significance in Idaho

v. Wright with those present in the instant case.” Bockting,

847 P.2d at 1369. The court raised and discussed the relevant

Wright factors (spontaneity, repetition, mental state, terminol-

ogy, and motive to fabricate) before determining that, “[i]n

viewing the totality of the circumstances surrounding the

child’s out-of-court statements, as defined in Wright, we con-

clude 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 reliance on Wright, we do

not agree with Bockting that the Nevada Supreme Court’s

failure to mention that A’s hearsay statements were “pre-

sumptively 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

the unreliability of A’s statements was rejected or ignored. In

its opinion, the Nevada Supreme Court recognized some

BOCKTING v. BAYER 13827

inconsistencies in A’s statements. It observed that during the

preliminary hearing, A 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 Detective Zinovitch. Bock-

ting, 847 P.2d at 1366-67. It concluded, however, after con-

sidering 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

ask whether the Nevada Supreme Court has reasonably done

so.

13828 BOCKTING v. BAYER

To apply Wright reasonably, the Nevada Supreme Court

had to decide whether A was not available as a witness and

whether her statements as reported by her mother and by the

detective bore such particularized guarantees of truthworthi-

ness that cross-examination of her would be only marginally

useful.

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

basis for finding that A could not take the stand. There had

to be a factual basis for finding that such particularized guar-

antees of A’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 imag-

ining the facts or by abbreviating the rule to the point of mis-

understanding 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 A 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

admissibility of the declarant’s statements, we are

satisfied on this record that the trial judge correctly

BOCKTING v. BAYER 13829

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 A was not available, first endorses the trial

judge’s conclusion to that effect and secondly accepts the

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

second point establish A’s unavailability. The trial judge did

not make any finding at all as to A’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 iden-

tified 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 A’s case, her testimony is inconsistent so that it becomes

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

mining a witness’s unavailability.

The second leg on which the Nevada Supreme Court stood

begins with the prosecutor’s characterization of what A 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 coun-

sel could make a record; the trial judge simply assumed that

A, inconsistent as she was in her statements, was not avail-

able. What the record reveals as to her unavailability is her

13830 BOCKTING v. BAYER

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 reluc-

tance. A “froze” as the prosecutor said. A momentary freezing

is insufficient ground to find unavailability established espe-

cially when the witness is already present 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 being 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

which may lie underneath the bare untested assertion

of a witness can best be brought to light and

BOCKTING v. BAYER 13831

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:

“the particularized guarantees of trustworthiness”

must be at least as reliable as evidence admitted

under a firmly rooted hearsay exception . . .

13832 BOCKTING v. BAYER

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 A awoke from sleep, distressed and sob-

bing, 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 out-

pouring . . . reflected a natural spontaneity indicative of

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

tion. 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.

A’s second declaration was made to the police officer in the

presence of her mother. The Nevada Supreme Court found

that its guarantee of trustworthiness was that it was “consis-

tent 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

BOCKTING v. BAYER 13833

Supreme Court did not note that two days earlier, A 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 A’s arrangement of the

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

preliminary hearing, Detective Zinovitch gave an account of

A and the dolls: Before he began to question her, he told her

that he had some dolls he might show her. After he had fin-

ished 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 A

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 exact posi-

tions that had occurred.” He added, “She was happy through-

out the interview.”

The question must be asked whether A’s arrangement of

the dolls was a guarantee of the trustworthiness of what she

had told Zinovitch. Five things mark this part of his interview.

13834 BOCKTING v. BAYER

First, he initiated the conversation about the sex organs of the

dolls. Second, he instructed A to take off the dolls’ clothes.

Third, he turned off the tape while he prepared 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 A is reported to have said. The immediate

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

confidence in Zinovitch’s report. Not only did he testify to the

leading question he asked her, but he conceded that he con-

ducted 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 A on the body

parts. And throughout this reliving of what is portrayed by the

prosecution as a fearful trauma, A seemed happy! Her happi-

ness is part of the totality of the circumstances of her state-

ment. Her happiness must undermine confidence 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 A’s availability as a witness and to the value of cross-

examination in testing the trustworthiness of the statements

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

answer: Would cross-examination have materially increased

confidence in A’s reported statements? It is difficult to imag-

ine a lawyer or a judge who would answer the question No.

BOCKTING v. BAYER 13835

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

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

had power to find facts, the trial court.

As to A’s unavailability as a witness, as already noted, the

trial court made no finding of fact. Consequently, there is

13836 BOCKTING v. BAYER

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 A had no motive to fabricate. This

negative conclusion was scarcely a guarantee of trustworthi-

ness. That the trial judge thought the statements reflected A’s

perceptions and that he found the account “credible” merely

presents the trial judge’s view of the evidence. At the end of

his brief analysis, he acknowledges that A spoke differently

at the preliminary hearing. Plausibility, rationality, chronolog-

ical 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 A’s testimony is not consistent, how could any-

one 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.