# Bockting v. Bayer > Court of Appeals for the Ninth Circuit · October 12, 2007 · 505 F.3d 973 URL: https://www.frixlaw.com/law-library/cases/9612176 ## Case - **Full name:** Marvin Howard BOCKTING, Petitioner-Appellant, v. Robert BAYER, Respondent-Appellee - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** October 12, 2007 - **Citations:** 505 F.3d 973; 2007 U.S. App. LEXIS 23929; 2007 WL 2964332 - **Precedential status:** Published - **Opinion:** Dissent by Noonan - **Judges:** Wallace, Noonan, McKeown - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9612176 ## Opinion text 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 , 110 S.Ct. 3139 , 111 L.Ed.2d 638 (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 , 110 S.Ct. 3266 , 111 L.Ed.2d 777 (1990). Our court must ask whether the Nevada Supreme Court has reasonably done so. 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 trustworthiness 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 guarantees of A’s trustworthiness 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 understood 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 unavailability of the hearsay declar-ant as a prerequisite to the admissibility of the declarant’s statements, we are satisfied on this record that the trial *983 judge correctly determined that the child was unavailable as a witness. The record reveals, as described by the prosecutor, 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 witness. 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 establishes 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 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 A’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 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 counsel could make a record; the trial judge simply assumed that A, inconsistent as she was in her statements, was not available. What the record reveals as to her unavailability is her non-responsiveness 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. A “froze” as the prosecutor said. A momentary freezing is insufficient ground to find unavailability established especially 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 , 100 S.Ct. 2581 , 65 L.Ed.2d 597 (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 has taken seriously the first requirement of Wright . The witness whose words will be reported by someone else must actually be not available. We owe deference to the state court’s findings of fact. We do not owe deference 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 principle overarching any admission of this sort of hearsay: cross-examination of the child, the declar-ant herself, would not materially increase a *984 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 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 untrustwor-thiness, 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 , 110 S.Ct. 3139 . The Supreme Court of the United States, embracing this “theory of the hearsay rule” went on to restate the rule’s rationale 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 utility, then the hearsay rule does not bar admission of the statement at trial. The basis for the “excited utterance” exception, for example, is that such statements are given under circumstances that eliminate the possibility 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 , 110 S.Ct. 3139 . 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 , 110 S.Ct. 3139 . 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 ... Id. at 821 , 110 S.Ct. 3139 . 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 particularized guarantees. Let us look at them. The first is that A 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 indicative 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 horri-bles 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 *985 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 responding 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 “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, 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 Zino-vitch 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 finished his questions, she asked, “Can I see the dolls now?” Zinoviteh 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 talking 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 positions that had occurred.” He added, “She was happy throughout 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 Zinoviteh. Five things mark this part of his interview. 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 Zino-vitch’s report. Not only did he testify 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 A on the body parts. And throughout this reliving of what is portrayed by the prosecution as a fearful trauma, A seemed happy! Her happiness is part of the totality of the circumstances of her statement. Her happiness must undermine confidence in the credibility of what she is said to have said. *986 We owe 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 reasonably 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 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 Judicial Dish Court, 104 Nev. 427 , 760 P.2d 1245, 1261 (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 constitutes 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 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 prosecutor wouldn’t be trying to introduce it if it were implausible. Chronological order seems to be characteristic of any narrative. The judge found that A had no motive to fabricate. This negative conclusion was scarcely a guarantee of trustworthiness. That the trial judge thought the statements reflected A’s perception 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, 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. *987 As to the other requirements of Wnght, 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 different 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9612176. Public record. Not legal advice.