Petition for Writ of Certiorari — Larson v. Minnesota

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a y Pret: Bupreme Court, U.S.

FILED

SEP 19 199)

| BeFIME OF THE CLERK

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

BRUCE PHILIP 1,ARSON, Petitioner,

STATE OF MINNESOTA, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

MINNESOTA SUPREME COURT

PETITION FOR A WRIT OF CERTIORARI

MICHAEL F. CROMETT

Counsel of Record

Attorney for Petitioner

1708 American National Bank Building

101 E. Fifth Street

Saint Paul, MN 55101

(612) 227-5363

QUESTIONS PRESENTED

i. Where a Competent, Available

Witness Does Not Testify, Does the General

Confrontation Clause Rule Requiring

Unavailability Before Out-of-Court

Statements are Admissible, Ohio v. Roberts,

or the Exception to this Rule in cases of

Statements of Co-Conspirators, United

States v. Inadi, Govern the Admissibility

of Out-of-Court Statements Which Do Not

Meet Any of the Traditional Exceptions to

the Hearsay Rule?

2. Is a Witness "Available" for

Confrontation Clause Purposes Merely

Because the Witness Can be Called to

Testify at Trial by the Accused?

. - Is the Constitution Violated When

a Defendant is Required to Expressly Demand

the State to Call a Witness in Order to

Exercise His Right of Cross-Examination?

Page

Rs i

8 > iv

II.

TABLE OF CONTENTS

OPINIONS BELOW ..cccccccccccccccvces

JURISDICTION .ccccccccccccvcccvcces

CONSTITUTIONAL PROVISIONS INVOLVED.

SLALUIES/RULES INVOLVED ........00-

mimiement OF THE CASE ..-ccccccccece

REASONS FOR GRANTING THE WRIT:

THIS CASE RAISES THE IMPORTANT

ISSUE OF WHETHER THE

CONFRONTATION CLAUSE REQUIRES

UNAVAILABILITY OF A WITNESS AS A

PREREQUISITE TO THE ADMISSION OF

OUT-OF-COURT STATEMENTS UNDER THE

RESIDUAL EXCEPTION TO THE HEARSAY

RULE, A SLIGHTLY DIFFERENT ISSUE

THAN RAISED IN WHITE V. ILLINOIS

WHICH IS NOW PENDING BEFORE THIS

RUE ere wesc eee cenececescccccccces

THIS CASE ALSO RAISES THE ISSUE

OF WHETHER THE ACCUSED CAN BE

FORCED TO CALL A WITNESS WHOSE

OUT-OF-COURT STATEMENTS HAVE BEEN

ADMITTED IN ORDER TO EXERCISE HIS

CONSTITUTIONAL RIGHT TO CROSS-

EXAMINATION, AN IMPORTANT ISSUE

WHICH IS BEYOND THE SCOPE OF

VII.

WHITE V. ILLINOIS, AND AN ISSUE

WHICH IS LIKELY TO RECUR UNTIL

DECIDED BY THIS COURT... cscccccvces 20

IN THE ALTERNATIVE, THIS COURT

SHOULD STAY ACTION ON THIS

PETITION PENDING ITS DECISION IN

WHITE V. ILLINOIS AND REMAND

PETITIONER’S CASE FOR APPLICATION

OF THE RULING IN WHITE TO HIS

APPENDIX

q. Decision of Minnesota Supreme

Court, July 12, 1991, I 1-47

II. Final Judgment, II 1

III. United States Supreme Court Order

vacating judgment, and remanding

case for further consideration,

October 1, 1990, III 1-3

A. Decision of Minnesota Supreme

Court, 1990, A 1-27

1ii

AB OF AUTHORITIES

Page

UNITED STATES SUPREME COURT DECISIONS:

Bourjaily v. United States,

483 U.S. 171, 172 (1987) 20

Coy v. Iowa, 487 U.S. 1012

(1988) 8

Idaho v. Wright, 497 U.S.

(June 27, 1990) passim

Larson v. Minnesota, U.S. :

111 S.ct. 29 (1990) t. 3

Lee v. Illinois, 476 U.S. 530,

549 n.2 (1986) 20

Ohio v. Roberts, 448 U.S. 56

(1980) passim

United States v. Inadi, 475 U.S.

387 (1986) passim

White v. Illinois, 0.4. P

111 S.Ct. 1681 (1991)

(cert. granted) passim

MINNESOTA DECISIONS:

State v. Larson, 472 N.W.2d 120

(Minn. 1991) 1, 12-15

State v. Larson, 453 N.W.2d 42

(Minn. 1990) 1, 12, 29-30

State v. Larson, 447 N.W.2d 593

(Minn. Ct. App. 1989) : ee |

OTHER DECISIONS:

White v. Illinois, 198 Ill.

App. 3d 781, 555 N.E.2da

1241, ave t eal

denied, 133 Ill. 2d 570,

561 N.E.2da 705 (1990),

cert. granted 111 S. Ct

1681 (1991) passim

UNITED STATES CONSTITUTION:

Amendment VI 3

Amendment XIV 3-4

FEDERAL STATUTES:

28 U.

MINNESOTA

Minn.

S. C. 8 1257 (a) 3

RULES AND STATUTES:

Stat. section 595.02,

subd. 3 5-7

R. Evid. 803 (4) 11

R. Evid. 803 (24) 4, 11-12

PETITION FOR A WRIT OF CERTIORARI TO THE

MINNESOTA SUPREME COURT

Petitioner, Bruce Philip Larson,

respectfully prays that a writ of

certiorari issue to review the judgment and

opinion of the Minnesota Supreme Court

entered in the above entitled matter on

July 12, 1991.

OPINIONS BELOW

The opinion of the Minnesota Supreme

Court, upon remand from this Court, Larson

v. Minnesota, ae. » 223-8. CRs 29

(1990), will be reported at 472 N.W.2d 120

(Minn. 1991), and is attached as Appendix

I. Final Judgment is attached as Appendix

ili.

The original opinion of the Minnesota

Supreme Court is reported as State v.

Larson, 453 N.W.2d 42 (Minn. 1990), and is

attached as Appendix A. The Order of this

Court granting the Petition for Certiorari,

vacating the judgment, and remanding for

further consideration, entered on October

1, 1990, is attached as Appendix III. (The

opinion of the Minnesota Court of Appeals

is not attached but is reported as State v.

Larson, 447 N.W.2d 593 (Minn. Ct. App.

1989)).

il.

JURISDICTION

After a jury trial, petitioner was

convicted of a single act of criminal

sexual conduct in the second degree,

(sexual contact), and filed a timely

appeal. After decisions by the Minnesota

Court of Appeals and the Minnesota Supreme

Court were entered, petitioner filed a

Petition for a Writ of Certiorari with this

Court. This Court granted the Petition,

vacated the judgment, and remanded the case

for further consideration in light of Idaho

v. Wright, 497 U.S. , 2320 8. Ce. 3239

(1990). Upon remand, the Minnesota Supreme

Court affirmed the conviction.

This Court has jurisdiction to review

the judgment of the Minnesota Supreme Court

by Writ of Certiorari pursuant to section

1257 ta), Tztie 26, Y.8.C.

III.

CONSTITUTIONAL PROVISIONS INVOLVED

UNITED STATES CONSTITUTION AMENDMENT VI:

In all criminal prosecutions, the

accused shall enjoy the right

to be confronted with the

witnesses against him

SECTION ONE, UNITED STATES CONSTITUTION

AMENDMENT XIV:

All persons born or naturalized

in the United States, and subject.

to the jurisdiction thereof, are

citizens of the United States and

of the State wherein they reside.

No State shall make or enforce

any law which shall abridge the

privileges or immunities of

citizens of the United States;

nor shall any State deprive any

person of life, liberty, or

property, without due process of

law; nor deny to any person

within its jurisdiction the equal

protection of the law.

IV.

STATUTES/RULES INVOLVED

RULE 803 (24), MINNESOTA RULES OF EVIDENCE:

Other Exceptions. A statement not

specifically covered by any of the

foregoing exceptions but having equivalent

circumstantial guarantees of

trustworthiness, if the court determines

that (A) the statement is offered as

evidence of a material fact; (B) the

statement is more probative on the point

for which it is offered than any other

evidence which the proponent can procure

through reasonable efforts; and (C) the

general purposes of these rules and the

interests of justice will best be served by

admission of the statement into evidence.

However, a statement may not be admitted

under this exception unless the proponent

of it makes known to the adverse party

sufficiently in advance of the trial or

hearing to provide the adverse party with a

fair opportunity to prepare to meet it, the

proponent’s intention to offer the

statement and the particulars of it,

including the name, address, and present

whereabouts of the declarant.

MINNESOTA STATUTE, 8 595.02, SUBD. 3:

595.02. Testimony of witnesses.

Subd. 3. Certain out-of-court

statements admissible. An out-of-court

statement made by a child under the age of

ten years or a person who is mentally

impaired as defined in section 609.341,

subdivision 6, alleging, explaining,

denying, or describing any act of sexual

contact or penetration performed with or on

the child or any act of physical abuse of

the child or the person who is mentally

impaired by another, not otherwise

admissible by statute or rule of evidence,

is admissible as substantive evidence if:

(a) the court or person authorized to

receive evidence finds, in hearing

conducted outside the presence of the jury,

that the time, content, and circumstances

of the statement and the reliability of the

person to whom the statement is made

provide sufficient indicia of reliability;

and

(b) the child or person mentally

impaired as defined in section 609.341,

subdivision 6, either:

(i) testifies at the proceedings; or

(ii) is unavailable as a witness and

there is corroborative evidence of the act;

and

notifies the adverse party of the

proponent’s intention to offer the

statement and the particulars of the

statement sufficiently in advance of the

proceeding at which the proponent intends

to offer the statement into evidence to

provide the adverse party with a fair

opportunity to prepare to meet the

statement.

For purposes of this subdivision, an

out-of-court statement includes video,

audio, or other recorded statements. An

unavailable witness includes an incompetent

witness.

Vv.

STATEMENT OF THE CASE

On November 2, 1987, petitioner was

charged in Martin County District Court

with a single count (multiple acts over an

extended period of time) of criminal sexual

conduct in the first degree (sexual

penetration) with his daughter. The

allegations first arose amidst petitioner’s

divorce and cnild custody dispute in May,

1987. Family court proceedings were

immediately initiated and seven months

later the criminal charge was filed.

Petitioner asserted his innocence and

maintained that the conduct did not occur

Or was perpetrated by someone else.

TRIAL. After the state filed notice

of intent, pursuant to Minnesota Statute

section 595.02 subd. 3, to use a number of

out-of-court statements made by his

daughter, petitioner requested a hearing to

challenge the constitutionality of the use

of such statements. After a hearing on

June 16, 1988, the trial court ruled the

out-of-court statements were admissible,

assuming for the purposes of that hearing

that the child was incompetent. The trial

court reconsidered its ruling in light of

this Court’s decision in Coy v. Iowa, 487

U.S. 1012 (1988), and held that, assuming

the unavailability of the victim, all the

out-of-court statements of the witness were

admissible, but the video tape of one of

the statements was not admissible.

On August 30, 1988, pursuant to

petitioner’s request, the trial court held

a competency hearing and found petitioner’s

daughter, who was then 5 years old, to be

competent to testify. The state, however,

did not call this witness at trial, but

instead offered the out-of-court statements

she made in response to questioning on four

separate occasions: (1) May 1, 1987 toa

physician’s assistant; (2) May 7, 1987 to

law enforcement officers; (3) October 22,

1987 to a therapist; and (4) November 24,

1987 to law enforcement officers.

Petitioner noted his continuing

constitutional objections before trial and

objected on the basis of hearsay during

trial.

On September 3, 1988, the jury found

petitioner guilty of a lesser offense, a

Single act of criminal sexual conduct in

the second degree (sexual contact). On

November 14, 1988, the trial court

sentenced petitioner to 24 months in

prison. The trial court stayed execution

of this sentence pending appeal.

APPEAL. Petitioner appealed his

conviction to the Minnesota Court of

Appeals. That court found that

petitioner’s rights to confrontation and

due process were violated by admission of

the out-of-court statements where the

witness was available and did not testify,

but remanded the case for "re-enunciation

of the basis for the trial court’s

competency determination." State v. Larson,

447 N.W.2d 593, 600 (Minn. Ct. App. 1989)

Petitioner filed a petition for review

of the decision of the Court of Appeals

with the Minnesota Supreme Court, only

challenging this unusual type of relief.

The petition was granted and the Minnesota

Supreme Court by a 6-1 decision, (without

requesting further briefing or argument),

found no constitutional violation in

admitting out-of-court statements, under

the residual exception to hearsay rule,

Rule 803 (24), Minn. R. Evid., even though

the available declarant did not testify.

The court issued its opinion reversing the

decision of the Court of Appeals and

affirming the judgment of conviction. A

Petition for Rehearing was denied. State v.

Larson, 453 N.W.2d 42 (Minn. 1990) (Larson

I); Appendix A.

PETITION FOR WRIT OF CERTIORARI.

Petitioner filed a Petition for a Writ of

Certiorari with this Court on July 25,

1990. On October 1, 1990, this Court

granted the Petition, vacated the judgment,

and remanded for further consideration in

light of Idaho v. Wright, 497 U.S. 230

S. Ct. 3139 (1990). Larson v. Minnesota,

U.S. 111 S.Ct. 29 (1990); Appendix III.

———— f

REMAND. Upon remand, after briefing

and arguing both "unavailability" and

"reliability", the Minnesota Supreme Court

affirmed the judgment of conviction, again

by a decision of 6-1 though membership of

the court had changed.

The court re-examined the reliability

of the out-of-court statements admitted in

this case in light of this Court’s analysis

in Idaho v. Wright, supra. It held that

one statement was admissible under the

medical treatment exception,1! two

statements were reliable under the analysis

required by Wright and admissible pursuant

to the residual exception to the hearsay

rule“, and one statement did not qualify as

reliable under Wright and was improperly

admitted. Appendix I, at 21-2, 29-32. The

court found the erroneously admitted

statement to be harmless error. State v.

Larson, 472 N.W.2d 120, (Minn.

1 Rule 803 (4), Minn. R. Evid.

2 Rule 803 (24), Minn. R. Evid.

1991) (Larson II); Appendix I, at 32.

The majority opinion only addressed

the question of unavailability in a lengthy

footnote. (Appendix I, n.1 10-16). There,

it noted the confusion among commentators

as to the unavailability requirement and

the significance of the decision in Idaho

v. Wright, supra, on this point. Appendix

I, at 13-14 n.1. It also noted that this

Court had granted certiorari in a case

raising the issue of unavailability, White

v. Illinois, 198 Ill. App. 3d 781, 555

N.E.2d 1241, leave to appeal denied, 133

Ill. 2d 570, 561 N.E.2d 705 (1990), cert.

granted 111 S. Ct 1681 (1991). Appendix I,

at 15 n.1. Nonetheless, the court

reiterated its position that, pursuant to

its analysis of United States v. Inadi, 475

U.S. 387 (1986), the constitution did not

require a showing of unavailability as a

prerequisite for admission of out-of-court

statements of a witness under the residual

exception to the hearsay rule. Appendix I,

at 10-16 n.1; See also Appendix A, 11-16.

The Minnesota court, again relying on

its interpretation of Inadi, also

reiterated its earlier ruling that, since

petitioner could have called the declarant

as a witness at trial to confront her,

there was no confrontation violation in

this case. Appendix I, at 15-16 n.1; See

also Appendix A, 13-15. Acknowledging

constitutional concerns with requiring the

accused to call a witness to obtain

confrontation, the majority reiterated its

prospective evidentiary rule, requiring the

state to call available witnesses whose

out-of-court statements are admitted

against defendants when expressly requested

to do so by the defendant. Id.

Justice Tomljanovich in her dissent

did not agree that "the confrontation

Clause of the sixth amendment permits the

state to substitute hearsay for the in-

court testimony of an available witness in

the particular circumstances presented by

this case." Appendix I, at 33. Reviewing

this case "in light of Idaho v. Wright",

Justice Tomljanovich stated that the

“general rule" of Ohio v. Roberts, 448 U.S.

56 (1980) (requiring unavailability of the

declarant), continued in effect despite the

decision in United States v. Inadi, 475

U.S. 387 (1986), and in fact was reaffirmed

by this Court in its decision in Wright.

Appendix I, at 41-43.

Justice Tomljanovich found that the

out-of-court statements were not

constitutionally admissible and that the

creation of a new prospective rule of

evidence (requiring the state to call an

available declarant if the defendant so

requests) did not remedy that violation.

Appendix I, at 43-45. Justice Tomljanovich

would have remanded the case for a new

trial. Appendix I, at 47.

VI.

REASONS FOR GRANTING THE WRIT

A. THIS CASE RAISES THE IMPORTANT

ISSUE OF WHETHER THE

CONFRONTATION CLAUSE REQUIRES

UNAVAILABILITY OF A WITNESS AS A

PREREQUISITE TO THE ADMISSION OF

OUT-OF-COURT STATEMENTS UNDER THE

RESIDUAL EXCEPTION TO THE HEARSAY

RULE, A SLIGHTLY DIFFERENT ISSUE

THAN RAISED IN WHITE V. ILLINOIS

WHICH IS NOW PENDING BEFORE THIS

COURT

Interpreting Inadi as limiting the

"general rule" in Roberts to cases of

former testimony and ignoring the language

of Idaho v. Wright on unavailability, the

Minnesota Supreme Court reiterated its

holding that "unavailability" is not

constitutionally required by the

Confrontation Clause as a prerequisite for

admission of out-of-court statements under

the residual exception to the hearsay rule.

Appendix I, at 10 n.1; See also Appendix A.

11-15.3 This holding is inconsistent with

this Court’s decisions and violates the

principles of the constitutionally

guaranteed right of confrontation. This

Court should review petitioner’s case to

definitively resolve the conflict lower

courts have found between its decisions in

3 In its order denying the petition

for rehearing in Larson I, the court added

one word to its previously released

Opinion: ". . . (T)he United States Supreme

Court made it clear in Inadi that the

unavailability of the declarant is not

always prerequisite to admissibility of

hearsay evidence against the declarant in a

criminal trial." (emphasis supplied to note

added word) 453 N.W2d at 46; Appendix A. 15.

Roberts and Inadi.

Since remanding petitioner’s case for

further consideration in light of Idaho v.

Wright in October, 1990, this Court has

granted certiorari in White v. Illinois,

198 Ill. App. 3d 781, 555 NE2d 1241, leave

to appeal denied 133 Ill. 2d 570, 561 NE2d

705 (1990), cert. granted 111 &. Ct. 1681

(1991), a case which raises the same

important issue, although in a slightly

broader fashion,* as that submitted to the

Court in this petition, (as well as in the

previous petition): does the Confrontation

Clause require a showing of unavailability

4 The decision of the appellate court

in White held that unavailability of the

declarant "is totally irrelevant to the

determination of whether an out-of-court

statement of that declarant is admissible

under an exception .. . to the hearsay

rule." Id. at 1252. In this case, the

issue involves the requirement of

availability of a declarant whose out-of-

court statements do not fit any of the

traditional exceptions to the hearsay rule.

of a declarant whose out-of-court

statements are admitted under the residual

exception to the hearsay rule?

Upon the remand to state court,

petitioner again sought to persuade the

court that the Confrontation Clause

required a showing of unavailability under

the circumstances of this case by using

this Court’s analysis in Idaho v. Wright,

(reaffirming that Ohio v. Roberts stated

the general rule requiring unavailability

and indicating its continuing vitality) and

other decisions of this Court.5

Despite acknowledging that this Court

> See Bourjaily v. United States, 483

U.S. 171, 172 (1987) (citation of the

"general approach"); Lee v. Illinois, 476

U.S. 530, 549 n.2 (1986) (Blackmun, +

dissenting) (appropriate test compares

particular hearsay with former testimony

and co-conspirator statements to determine

applicability of unavailability

requirement--custodial confession like

former testimony, unavailability required).

would probably address this issue in White

v. Illinois,® the state court in a lengthy

footnote merely reiterated its earlier

view, again holding that United States v.

Inadi provided a constitutional basis tc

depart from the requirement of

unavailability in this case, citing the

views of several commentators to support

this interpretation of Inadi. Appendix I,

at 13-15 n.1; See also Appendix A, 12-3,

Ave

This case presents the important

issues of whether unavailability of a

witness is generally required as a

prerequisite to admission of out-of-court

statements, and whether unavailability is

required in the particular situation of

6 The opinion of the Minnesota Supreme

Court miscited the lower court decision in

that case. The correct citation is "555

N.2.24 1241."

Of, or conflict between, its decisions in

Ohio y, Roberts and United States Vv. Inadi

raised Or answered to the Satisfaction of

lower courts in Idaho V. Wright, and to

determine the applicability Of the

constitutiona) requirement of

unavailability in the Narrow context of

hearsay admitted under the residual

exception to the hearsay rule.

The Constitutional] ramifications of a

decision on unavailability (Procedural)

have even broader applications than those

surrounding reliability (factual)

questions. aA wholesale departure from

that unavailability is no longer required

for admission of hearsay statements under

the residual exception. As will be

discussed later, see 27-35 infra, the

application of this new ruling is indeed

great and far reaching.

This Court should grant the petition

for a writ certiorari to decide this

Significant issue, an issue which

apparently has left other courts (and

commentators) throughout the country

confused about the requirements of the

Confrontation Clause. This Court has

already recognized the importance of this

issue. White vy. Illinois, Supra.

Petitioner’s case would help to identify

the concerns raised by this issue ana to

resolve then.

B. THIS CASE ALSO RAISES THE ISSUE

OF WHETHER THE ACCUSED CAN BE

FORCED TO CALL A WITNESS WHOSE

OUT-OF-COURT STATEMENTS HAVE BEEN

ADMITTED IN ORDER TO EXERCISE HIS

CONSTITUTIONAL RIGHT TO CROSS-

EXAMINATION, AN IMPORTANT ISSUE

WHICH IS BEYOND THE SCOPE OF

ITE V. LLINOIS, AND AN ISSUE

WHICH IS LIKELY TO RECUR UNTIL

DECIDED BY THIS COURT

Though deciding that unavailability

was not constitutionally required, the

Minnesota Supreme Court also held that, for

constitutional confrontation Purposes, a

witness was "available" as long as the

accused was able to call this person to

testify at trial. Appendix I at 15 n.1; See

also Appendix A, 14-15. The court also

fashioned a Prospective evidentiary rule

requiring the state to call as a witness

during its case-in-chief, a declarant whose

out-of-court statements are admitted at

trial if expressly requested to do so by

the accused. Appendix I, at 15-6 n.1; See

also Appendix A, 23-24.

These rulings raise important

questions which have not been answered by

this Court and which do not appear to be

before the Court in the case of White v.

Illinois, supra. This case will assist the

Court to identify and resolve the

constitutional concerns beyond White. The

decision on these issues is Clearly one

which this Court should decide. These

issues are likely to recur until this Court

does so.

Definition of availability. Even

though the decision of the Minnesota

Supreme Court rejected the requirement of

unavailability in this case, it went on to

define "availability" in constitutional

terms that this Court has yet to set forth:

the declarant whose out-of-court statements

were admitted was "available" because the

accused could call her as a witness at

trial. Appendix I, at 15-6 n.1; See also

Appendix A, 14-15. The state court

emphasized that since petitioner could hav

called the witness at trial if he wished t

confront her, but chose not to do so, this

demonstrated that there was no

constitutional violation in petitioner’s

case. Id.

The state court, picking language out

of context from this Court’s decision in

Inadi, held that petitioner’s ability to

call the declarant as a witness at trial

and cross-examine her satisfied any

constitutional claim. Appendix I, at 11-12

n.1; See also Appendix A, 14-5.

The Minnesota Supreme Court took very

narrow, fact specific language in Inadi,

expanded upon it, and applied it to a

completely different situation. This Court

did not hold that the defendant’s ability

to call a witness satisfies all

constitutional claims. Inadi only held

that the benefits of requiring

unavailability, under the facts of that

case, did not outweigh the substantial

burdens that it would impose. The ability

of the defendant to call a witness was only

one of the many factors considered by this

Court in reaching that conclusion. United

States v. Inadi, 475 U.S. 387, 394-400

(1986).

The Minnesota court’s overbroad

interpretation of Inadi establishes a

dangerous precedent which, if not

corrected, sounds the death knell for the

right of confrontation in criminal cases.

The decision completely circumvents

the constitutional requirement of

unavailability in only one case--

petitioner’s case. See 28-29, infra. In

other, future cases, it replaces the

constitutional requirement with a

prospective evidentiary rule that requires

the accused to demand that the state call |

Specific witness at trial. If

unavailability is not constitutionally

required, then of course, Minnesota’s rule

is not constitutionally required. Other

States would be able to follow the

Minnesota decision on availability without

adding the evidentiary rule. Minnesota

could also change or abandon this rule in

the future.

This decision in a child sex

Prosecution may be applied to many other

types of prosecutions and evidentiary

Situations. Courts in Minnesota and

elsewhere would be free to decide that the

Confrontation Clause does not require adult

victims of rape, elderly victims of any

crime, or any reluctant witnesses to

testify, and allow the state to prosecute

Simply on the pasis of out-of-court

statements to police and others admissible

under the residual exception because they

are "reliable."

Many, if not most, prosecutions rely

on victim/witness testimony. If the ruling

of the Minnesota Supreme Court is allowed

to stand, the most fundamental rule of law

and our criminal justice system, the right

of the defendant to confront his accusers,

Will become meaningless. The critical

Significance of the court’s decision

sounded by the dissenting justice in Larson

I is worth repeating here:

I would hold that if the state

wishes to establish the crime by

victim testimony, which is almost

always the case in this type of

prosecution, it must do so by

producing the alleged victim on

the witness stand in open court

so the accused may be afforded

his constitutional right of

confrontation. 453 N.W.2d at 48;

Appendix A 27.

The far reaching application of the

court’s ruling, to virtually any and all

prosecutions involving victim/witness

testimony, demonstrates the many situation:

in which the issue is likely to recur

unless this Court decides this question.

In addition, sirice the statements were

admitted under the residual exception to

the hearsay rule, and not a unique

Minnesota law, the decision could be

adopted by any of the many states whose

rules of evidence, like Minnesota’s, are

based on the uniform rules.

Prospective rule: Defendant demands

that witness be called by the state. The

Minnesota court, however, seemed to sense

constitutional problems with its reasoning

that the accused must call an "available"

witness in order to cross-examine the

witness. To remedy these problems, the

court then fashioned a prospective

evidentiary rule: the state must call as a

witness a declarant whose out-of-court

statements have been admitted if expressly

requested by the accused. Appendix I at 15

n.1; See also Appendix A at 23-4.

The state court, however, failed to

address the clear constituticnal violations

presented by its ruling in petitioner’s

case, suggesting he should have anticipated

its unusual if not unprecedented criminal

ruling and asked the prosecutor to call the

witness or call her himself. Appendix I, at

16 n.1. More importantly though, even the

court’s prospective evidentiary rule raises

significant constitutional issues which

neither this Court nor the state court hav:

addressed.

The state court’s reasoning is

constitutionally flawed because it focuses

on what a defendant can do to obtain his

right of confrontation instead of focusing

on how the state is required to meet its

burden of proof in a criminal case. The

real question is the propriety of allowing

the state to meet its burden of proof by

out-of-court statements, even ones not

meeting any of the tradition exceptions to

the hearsay rule, without calling an

available declarant. The state court’s

evidentiary rule unconstitutionally shifts

the burden to the defendant, by forcing him

to call the witness or to expressly demand

the state to call the witness.

The prospective rule (and the rule in

petitioner’s case) deprive the accused of

the fundamental constitutional rights to

have the state present witnesses against

him, to be presumed innocent, and to have

no burden of proof whatsoever.

The state court ruling confuses the

protection of the compulsory process

clause, (which gives the accused the right

to compel trial attendance of witnesses in

his favor), with confrontation and cross-

examination. The former does not allow the

state to abdicate its burden of proof

and/or justify its shift to the defendant.

These questions are clearly very

important constitutional questions which

this Court, not the lower courts of this

country, should decide. These questions

are ones which will keep recurring until

decided by this Court. This Court should

provide the lower courts with guidance by

enunciating what the constitutional

definition of "availabile" is for admissior

of out-of-court statements under the catch-

all residual exception to the hearsay rule

and how it can be satisfied.

This case presents this Court with the

opportunity to resolve a number of issues

in what has been a highly litigated area in

recent years. In addition to the number of

Situations in which out-of-court statements

are being offered at trial, state

legislatures are continually passing new

laws attempting to make out-of-court

Statements admissible in even more

Situations. This pattern can be expecte,

to continue until this Court steps in and

again clarifies the law on these issues.

These issues also raise questions

about the fairness of a procedure which

allows the state to present its case on the

basis of out-of-court statements, without

the declarant appearing, testifying, and

being cross-examined before the jury.

Where the accused is facing a 10 or 20 year

prison term--or longer, and the witness is

available, it is not at all clear what

state interest outweighs the right to

confrontation. Discarding the fundamental

requirement of unavailability abrogates the

fundamental protection and significance of

the right to confrontation.

Petitioner’s case presents this Court

with the opportunity to clarify the

protection of the Confrontation Clause as

appiied in a typical criminal prosecution,

to go beyond the decision in White v.

Illinois, and to reaffirm the fundamental

principles of confrontation in the face of

ever narrowing interpretation by state

courts and legislatures.

Cc. IN THE ALTERNATIVE, THIS COURT

SHOULD STAY ACTION ON THIS

PETITION PENDING ITS DECISION IN

WHITE V. ILLINOIS AND REMAND

PETITIONER’S CASE FOR APPLICATION

OF THE RULING IN WHITE TO HIS

CASE

The Minnesota Supreme Court reiterated

its rulings--(that unavailability was not

constitutionally required and even if it

was there was no error because petitioner

could have called the witness at trial to

confront her) --despite acknowledging that

this Court had granted certiorari in White

v. Illinois, a case raising constitutional

questions on the requirement of

unavallability. If this Court chooses not

to grant this petition now, it is

respectfully requested that this Court stay

a decision in this case until after

deciding White v. Illinois. The Court

could then, if appropriate, grant this

petition and review this case, or vacate

the judgment, and remand for further

consideration in light of the decision in

White.

In July, 1990, petitioner sought

review of the earlier decision of the

Minnesota Supreme Court (Larson I) by this

Court and raised very similar issues to

those now before this Court in White v.

Illinois, supra. Upon remand from this

Court, petitioner again sought to persuade

the state court that the decisions of this

Court indicated that the Confrontation

Clause did require a showing of

unavailability as a prerequisite for the

admissibility in this case where the

numerous out-of-court statements did not

meet any of the traditional hearsay

exceptions. The Minnesota court in a

7 petitioner advised the state court

that this Court had granted certiorari in

White on May 2, 1991, attaching a copy of

lengthy footnote acknowledged that this

issue was before this Court but nonetheles

reiterated its reasoning that

unavailability was not constitutionally

required.

Petitioner has been vigilant in

preserving the important constitutional

issues raised by his case on appeal. Even

if this Court might not be inclined to

grant the Petition for Writ of Certiorari

for some reason, petitioner respectfully

requests that the Court stay action on the

petition until after its decision in White

v. Illinois, supra, so that it can then

decide whether this petition should be

Granted for review or whether petitioner is

entitled to relief under this Court’s

ruling in White. It is expected that this

Court’s ruling in White will Clarify the

the lower court decision to the letter.

confusion some courts have found

surrounding the Confrontation Clause’s

unavailability requirements. Despite the

narrower issue involving the unavailability

requirement (residual exception to the

hearsay rule) and the broader issue of the

constitutionally required definition of

"available," application of this Court’s

ruling and analysis in White may be

sufficient to allow determination of the

issues presented in petitioner’s case.

Vous

CONCLUSION

For the above reasons, a writ of

certiorari Should issue to review the

judgment and Opinion of the Minnesota

Supreme Court in this matter.

Respectfully Submitted,

Michael F. Cromett

Counsel of Record

Attorney for Petitioner

1708 American National Bank

Building

101 East Fifth Street

Saint Paul, MN 5510]

(612) 227-5363

STATE OF MINNESOTA

IN SUPREME COURT

C2-88-2379

On Remand By United States Coyne, J.

Supreme Court Dissenting, Tomljanovich, J.

State of Minnesota,

Respondent,

vs. Filed July 12, 1991

Office of Appellate Courts

Bruce Philip Larson, petitioner,

Appellant.

SYLLABUS

Under Idaho v. Wright, 110 S. ct. 3139

(1990), trial court did not violate

defendant’s right of confrontation in

admitting extrajudicial statements made by

a child to assistant to doctor to whom

Child was taken for treatment of Symptoms,

to child protection Specialist, or to

Clinical Psychologist during weekly therapy

Sessions; defendant received a fair tria]

and was properly found guilty of criminal

sexual conduct in the second degree.

Affirmed.

APPENDIX I, Page _/

i l,

Heard, considered and decided by the

court en banc.

OPINION

COYNE, Justice.

In State v. Larson, 453 N.W.2da 42

(Minn. 1990), we affirmed the child sex

abuse conviction of the defendant against a

number of contentions, including the

contention that extrajudicial statements by

the complainant were improperly admitted

against the defendant in violation of his

right of confrontation. We decided Larson

On March 23, 1990, and denied defendant’s

petition for rehearing on May 15, i990.

Subsequently, on June 27, 1990, the United

States Supreme Court filed its Opinion in

Idaho_v. Wright, 110 S. Ct. 3139 (1990).

Then on October 1, 1990, the United States

Supreme Court granted defendant’s petition

for a writ of certiorari, vacated the

APPENDIX I, Page <

judgment of this court and remanded the

case to this court for “further

consideration in light of" the Wright case.

arso » gas 8a CS.. 29 (i99G).

The parties thereafter filed further briefs

and oral argument was held. After careful

reconsideration of the case in light of

Wright, we reaffirm the judgment of

conviction.

In late April of 1987 complainant, B.,

not quite 4 years old, complained toc her

mother of vaginal soreness and burning

urination. On May 1, B.’s mother, who had

custody of the child subject to defendant

father’s visitation privileges, took her to

a family practice clinic for diagnosis and

treatment. The physician’s assistant, who

conducted the examination, saw redness and

swelling around the vaginal opening.

Suspecting abuse, the examiner, after

APPENDIX I, Page J

assuring B. that she was there to “assist

her," asked B. if anyone other than her

mother or herself had touched her vaginal

area. B. initially responded "no" and

turned away. When the examiner repeated

the question, B. said "yes," that "Daddy"

had touched her there. When the examiner

asked whether her daddy had touched her

there to help wipe her or dry her, B. said

"yes," but then, when asked "where,"

pointed to her abdomen. When asked with

what he had touched her, B. replied that

"Daddy" had touched her "between [the]

legs" with "his bone" that "came out of his

pants." Asked whether this had happened

before, B. said "yes," that "he laid me on

the couch and he rubbed my belly * * «*

until my skin came off." B. further stated

that it hurt "because he pressed hard

against her tummy and hugged her real

APPENDIX I, Page “f

hard," and that she had asked him to stop.

She further described feeling wet on her

abdomen and having to wipe herself dry

afterwards. Although B. apparently told

her mother when the examiner briefly left

the room that she was “only kidding," B.

immediately recanted this to the examiner

and explained that "she didn’t want to have

her father in trouble." Indeed, the

examiner observed that B. was "very nervous

and very protective of her father," whom B.

"obviously loved."

Visits were temporarily discontinued

pursuant to a court order obtained on May 2

in the district court in the county where

defendant resides.

On May 7, B. made equally damaging

statements to a child protection

specialist.

Defendant retained an attorney and

APPENDIX I, Page 5

obtained a court order in June allowing

supervised visits.

A doctor who talked with B. four times

as part of a psychological evaluation

concluded that there was a "high

probability" that she had been involved in

"inappropriate sexual] activity."

Nonetheless, on July 31, 1987, the

court ordered reinstatement of defendant’s

unsupervised visitation privileges.

In August B. began weekly

psychotherapy with Dr. Susan Lund, a

Clinical psychologist specializing in the

treatment of abused children who is

employed at Midwest Children’s Resources

- Center. These one hour long weekly

sessions, conducted largely outside the

mother’s presence, were for the purpose of

therapy, not substantiating the existence

of abuse. During a session held on October

APPENDIX I, Page le

22, #1987, B., prompted by Dr. Lund’s

questions about B.’s trouble with waking

and with nightmares, particularly at

defendant’s house, said that defendant

"pushed at her with his penis and wiggled

his penis on her." Using anatomically

correct dolls, B. demonstrated by pushing

the father doll’s penis “at her [doll’s)

vaginal area" and “wiggl{ing]) his penis

horizontally across the clitoris." B. said

that this "felt warm and nice." She said

it happened during the recently reinstated

unsupervised visits.

Hennepin County, the county of the

mother’s residence, obtained an order

assuming custody of both B. and her younger

brother and terminating defendant’s

visitation privileges. A social worker and

a police officer interviewed B. in

November. The prosecution was commenced in

APPENDIX I, Page /

December of 1987 in Martin County where the

abuse occurred.

The pre-trial suppression hearing was

held in June of 1988 shortly before trial

was to commence. That hearing was held on

the state’s motion for permission to use

the extrajudicial statements of B. and on

defendant’s motion to suppress’ the

statements on the ground that admitting

them would violate defendant’s right of

confrontation. For purposes of the

Suppression hearing the parties stipulated

that B., then 5, was incompetent to

testify. The trial court rejected

defendant’s arguments in favor of

Suppression and ruled that the statements

were admissible under Minn. Stat. § 595.02,

subd. 3 (1988). Afterward, the trial court

granted the defense a continuance so that

the defense could try to obtain expert

APPENDIX I, Page _&

testimony and also so the defense could

decide whether to call B. to testify.

At the reconvened suppression hearing

in August, shortly before the rescheduled

trial date, defendant renewed his

Suppression motion, relying on Coy v. Jowa,

487 U.S. 1032 (1988). The trial court

ruled that Coy did not apply.

On the first day of trial defendant

made a continuing objection to the

statements on the ground that their

admission would violate his right of

confrontation. Defendant also said he

intended to call B. as a witness. The

trial court therefore conducted an in-

Chambers competency hearing and determined

that B. was competent, thereby enabling

defendant to call B. as a witness if he

wished. Defendant, however, decided not to

call B. as a witness.

APPENDIX I, Page 4

Eee!

In our earlier decision we heid, jnter

alial that the statements were admissible

1In Qhio vy, Roberts, 448 U.S. 56, 65

(1980), the Court set forth a "general

approach" for determining when

incriminating hearsay statements admissible

under an exception to the hearsay rule

satisfy the requirements of the

Confrontation Clause. Under the general

approach the prosecution "must either

produce, or demonstrate the unavailability

of, the declarant", 448 U.S. at 65, and

must demonstrate that the declarant’s

Statement bears adequate “indicia of

reliability," 448 U.S. at 66. However, as

we said in Larson I, the Court in United

States v. Inadi, 475 U.S. 387, 394 (1986),

made it clear that "the unavailability of

the declarant is not always prerequisite to

admissibility of hearsay evidence against

the defendant in a criminal case." 453

N.W.2d at 46. In Inadi the Court made an

exception to the general unavailability

requirements in a case involving admission

of statements by nontestifying but

available to co-conspirators of the

defendant. The Court said that the

unavailability rule was developed in cases

involving admission of former testimony,

where there is good reason for a rule of

preference for the live testimony unless

the witness is shown to be unavailable,

specifically, "former testimony often is

Only a weaker substitute for live testimony

[and] seldom has independent evidentiary

Significance of its own." 475 U.S. at 394.

The same logic does not apply equally to

APPENDIX I, Page /0

those extrajudicial statements which derive

much of their significance from the context

in which they are made, a context very

different from trial. Id. at 395-96. The

Court rejected an unavailability

requirement in the IJnadi context because it

would impose a significant practical burden

on the prosecution to insure _ the

availability of declarants even where it

was clear neither the prosecutor nor the

defense wishes to examine the declarants at

trial. As the Court put it:

Any marginal protection to

the defendant by forcing the

government to call as witnesses

those co-conspirator declarants

who are available, willing to

testify, hostile to the defense,

and yet not already subpoenaed by

the prosecution, when the

defendant himself can call and

cross-examine such declarants,

cannot support an unavailability

rule. We hold today that the

Confrontation Clause does. not

embody such a rule.

Inadi, 475 U.S. at 399-400.

We concluded that the same reasoning

applied in this case. As we put it:

As in JInadi, it is not at

all clear that it was in the

interests of the defendant that

the declarant be called by either

APPENDIX I, Page //

side. It may well have been

better for the defendant to go to

the jury and challenge the

ambiguity of the child’s

statements (when she said that

the abuse occurred in defendant’s

house but would not say who did

it) than to have the child called

and possibly testify in court

that it was defendant who did it.

Larson J, 453 N.W.2d at 45-46.

Given the circumstances of the case--

including the fact that the statements in

question had independent evidentiary

significance, the fact that the trial court

had conducted a competency hearing and

found B. to be competent after the defense

expressed a desire to confront the child

and cross-examine her, and the fact that

the defense, after apparently considering

the matter carefully, demonstrated that it

did not wish to call B. --we concluded that

the JInadi reasoning made equal sense in

this context. Id. at 46.

However, because we recognized "that a

defendant who wants to cross-examine an

available child witness whose extrajudicial

Statements are being sued by the state

should not be compelled to call the child

as a witness if the defendant would prefer

that the state call the witness," we

prospectively adopted a modified version of

the approach suggested by Professor Westen

and held that "in future cases of this kind

APPENDIX I, Page /a&

the state must, when expressly requested by

the defendant to do so, call in its case-

in-chief an available witness whose hearsay

statements are being admitted against the

defendant." Id. at 47 (emphasis in

original), citing Westen, Confrontation and

Compulsory Process: A Unified Theory of

vide imj ses, 91 Harv. L.

Rev. 567, 617-18 (1978).

The interpretation of Roberts and

Inadi by the dissenting justice, who was

not a member of this court when we filed

our earlier opinion, is at odds with that

advanced by leading commentators. For

example, Professor Haddad, in his analysis

of these cases, concludes, contrary to the

conclusion of the dissent, that the Supreme

Court “has rejected the principle that

prefers live testimony over hearsay when

the hearsay declarant is available at the

time of trial." J. Haddad, The Future of

Confrontation Clause Developments, 81

J.Crim. L. & Criminology 77, 80-81 (1990).

As Professor Haddad puts it, "After

seemingly accepting" a rule of preference

in Roberts, "the Supreme Court in JInadi

held that the rule of preference applies

only in a narrow class of cases." Id. at

81. He goes further and suggests that

"‘tjhe former testimony exception will

likely stand practically alone as to the

requirements that the prosecution

demonstrate the hearsay declarant’s

unavailability." Jd. at 82.

Professor Michael Grahan, in a

APPENDIX I, Page /J3

perceptive article analyzing Roberts and

Inadi, concludes that "Inadi Supports the

introduction of any available declarant’s

statement simply because of the defendant’s

ability to subpoena and examine the

declarant as to the subject matter of the

statement at trial." M. Graham, The

Confrontation Clause, the Hearsay Rule, and

Child Sexual Abuse Prosecutions: The State

the Relati ip, 72 Minn. L. Rev. 523,

587 (1988). Professor Graham argues,

however, for a rule requiring the

prosecutor offering an out-of-court

statement under either a hearsay exemption

or exception to produce an available

witness "if the circumstances surrounding

the making of the statement indicate that

it was accusatory when made." Id. at 593.

In fact, our earlier decision in this case

went farther than this and adopted a

prospective rule as a matter of state

evidentiary law rather than as a matter of

constitutional law, requiring the

prosecutor, when expressly requested by the

defendant to do so, to call in the state’s

case-in-chief an available witness whose

hearsay statements are being admitted

against the defendant. Larson I, 453

N.W.2d at 47.

As noted by the editors of the Harvard

Law Review, Wright focused on the issue of

reliability, not on whether a showing of

unavailability is a prerequisite to

admission of a child’s hearsay statements.

Note, 104 Harv. L. Rev. 129, 130-31, i138

(1990). Although they argue in favor of a

APPENDIX I, Page /4

narrowly-defined unavailability requirement

in this context, they conclude that it is

"unclear" from the several confrontation

clause decisions of the Supreme Court

whether a showing of unavailability is

required. Ia. at 138, n.77. Indeed, the

Court in Wright expressly said that it was

not addressing the question. Wright, 110

Ss. Ct. at 3147. And since the Court

declined to address the issue in Wright, it

can hardly be said to have altered its

position by the Wright decision. (It

appears that the Court will address the

question in White v. Jllinois, 198

I1l.App.3d 781, 556 N.E.2d 555, leave to

appeal denied, 133 I11l.2d 570, 561 N.E.2d

705 (1990), cert. granted, 111 S. Ct. 1681

(1991).

In any event, as we have said, our

earlier decision in this case answered the

concerns of those thoughtful analysts of

the confrontation clause who have argued

that if a _witness is "available," the

prosecutor should have to _ produce the

witness so that the defendant does not have

to call the witness in order to confront

and cross-examine the witness. We did this

by requiring, prospectively, as a matter of

state evidentiary law that when the

defendant so réquests, the prosecutor must

call in the state’s case-in-chief an

available witness whose hearsay statements

are being admitted against the defendant.

Interestingly, the Eighth Circuit in United

States v. Massa, 740 F.2d 629, 640 n.6 (8th

Cir. 1984), cert. denied, 471 U.S. 1115

APPENDIX I, Page [Ss

under Minn. R. Evid. 803(24) (the residual

exception) and Minn. R. Evid. 803(4)

(statements for purpose of medical

diagnosis or treatment) and that the

statements were sufficiently reliable to

satisfy the confrontation clause. But,

since our decision preceded the United

States Supreme Court’s decision in Wright,

we did not have the benefit of the Wright

analysis, an analysis on which we relied in

upholding the admission of extrajudicial

(1985), concluded that Roberts does not

require as much. It concluded that at most

Roberts places a burden on the government

to make a good faith effort to obtain the

presence at trial of any witness whose out-

of-court statements it is using against the

defendant and that if the government

obtains the declarant’s presence at trial,

"it need not call the witness to testify."

Id. Whether or not the Eighth Circuit’s

analysis in Massa is correct really does

not matter in this case, because, as we

said, the defense not only did not ask the

prosecutor to call the witness but, after

apparently considering the matter

carefully, mzde it clear that it did not

wish to confront and cross-examine her.

APPENDIX I, Page /é

statements of a child sex abuse victim in

State v. Lanam, 459 N.W.2d 656 (Minn.

1990), cert. denied, 111 S. Ct. 693 (1991).

In Wright there were two girls

involved, one 5% and the other 2% years

old. The older girl told her father’s

female companion, Goodman, that her

mother’s boyfriend, Giles, had had sexual

intercourse with her while her mother

covered her mouth and held her down. She

said she had seen them do the same thing to

her younger sister. Goodman reported the

matter toa the police and took the older

daughter to the hospital, where a medical

examination revealed evidence of sexual

abuse. Police and welfare officials then

took the younger daughter into custody.

The same doctor who had examined the older

daughter examined the younger daughter.

The main issue in Wright, for our

APPENDIX I, Page /7.

purposes, was whether the admission at

trial under the Idaho residual exception to

the hearsay rule of statements made by the

younger girl to the doctor violated the

mother’s right of confrontation. The Court

reaffirmed that the "“ingicia of

reliability" requirement of Ohio _ vy.

Roberts, 448 U.S. 56 (1980), generally can

be met by either of two ways: by

demonstrating that the extrajudiciai

Statement "falls within a firmly rooted

hearsay exception," or by showing that the

Statement has "particular guarantees of

trust-worthiness." wrianhe., 130 8. ¢€t. «et

3147. The Court cited the "excited

utterance," “dying declaration" and

"medical treatment" exceptions to the

hearsay rule as firmly-rooted hearsay

exceptions, but concluded that the so-

called residual hearsay exception,

APPENDIX I, Page /@

illustrated by Minn. R. Evid. 803(24), is

not firmly rooted for confrontation clause

purposes. Jd. at 3147-49. Since the state

in Wright conceded that the younger

daughter’s statements did not fall within a

firmly-rooted exception, the Court

proceeded to analyze whether the statements

possessed "Darticular guarantees of

trustworthiness." id. at 3148. The Court

said that trustworthiness guarantees must

be shown from the totality of the

circumstances that surround the actual

making of the statement, not evidence

corroborating the statement. Jd. at 3148-

49, As we said in Lanam in our summary of

Wright:

"(Tjhe focus is not on all the

circumstances, including evidence

at trial corroborating the

child’s statements, but only on

those circumstances’) actually

surrounding the making of the

statements. These circumstances

include, but are not limited to,

APPENDIX I, Page Pia

whether the statements’ were

Spontaneous, whether the person

talking with the child had a

preconceived idea of what the

child should say, whether the

statements were in response to

leading or suggestive questions,

whether the child had any

apparent motive to fabricate, and

whether the statements are the

type of statements one would

expect a child of that age to

fabricate.

459 N.W.2d at 661 (citing Wright, 110 s.

ge at 3149-52). Other circumstances

identified by the Court in Wright include

the "mental state" of the child at the time

the Statements were made and the

“consistent repetition" of the child’s

statements during the same interview or

conversation. 4i90 &. Ct. at 3150. In

addition to considering whether the child

had an apparent motive to fabricate, it

would seem that the Court could consider

whether the child had an apparent motive to

Speak truthfully. state v. Conklin, 444

APPENDIX I, Page 2°

N.W.2d 268, 276 (Minn. 1989) (case preceding

Wright).

Mosteller, u use qd

Statements for the Purpose of Medical

Lagnosis at t, 67 N.C.L. Rev. 257

(1989), cited jin Wright, 110 S. Ct. at

3149, points out that the federal rule

corresponding to Minn. R. Evid. 803(4)

(statements for purpose of medical

diagnosis or treatment) is broader than the

traditional or long-standing "medical

treatment" exception and suggests that

possibly only statements covered by the

"core" part of Rule 803(4) are admissible

without a showing of particularized

guarantees of trustworthiness. We believe

that the key hearsay evidence in this case,

B.’s statements to the medical assistant,

falls within the "core" part of Rule 803(4)

and should be admissible without any

APPENDIX I, Page &/

additional showing of particular guarantees

of trustworthiness. However, we need not

decide the point because we are convinced,

after considering the factors surrounding

B.’s making of the statements to the

assistant, that the statements possessed

particular guarantees of trustworthiness. 2

One key factor is that, unlike the

declarant in Wright, there is nothing to

indicate that B. was taken to the family

2we disagree with any Suggestion that

the case should be remanded to the trial

court so that the trial court in the first

instance may analyze the case in terms of

the Wright factors. The “heart of the

matter of determining whether to admit

hearsay is that unreliable evidence should

be kept from the jury," which is a "legal

determination * * «#," State v. Dana, 422

N.W.2d 246, 249 (Minn. 1988). "Of course,

if there is a question of fact relating to

the admission of hearsay evidence," then

"the trial court will often receive

evidence pro and con on the issue." Id.

Because there are no Significant disputed

factual issues relating to the

circumstances Surrounding the making of the

statements in question, there is no need to

remand to the trial court.

APPENDIX I, Page #4

practice clinic for any purpose other than

to have a doctor examine her and determine

the reason for the vaginal soreness and

burning urination she was experiencing. B.

knew she was being examined in a doctor’s

office and had the same "selfish"

treatment-related motive?’ to speak the

truth that anyone has when one goes to a

doctor’s office sincerely inquiring about

one or more symptoms. Second, before

beginning the exam the. physician’s

assistant had no preconceived notion that

abuse had occurred or that defendant had

committed the abuse. Third, on examination

the assistant, a person of both experience

and presumed integrity, apparently

immediately suspected abuse. Fourth, the

3See Mosteller, Child Sexual Abuse and

Statements for the Purpose of Medical

Diagnosis or Treatment, 67 N.C.L. Rev.

257,260-61 (1989).

APPENDIX I, Page #/

/ [EE

questions the assistant asked were not the

kind of questions that would prompt a child

to fabricate the response the questions

elicited, including B.’s statement that

"Daddy" had touched her "between the legs"

with his "bone" that "came out of his

pants." Fifth, the story B. told had an

immediately apparent "ring of credibility"

to it and was not the sort of story that a

child of that age would be expected to

fabricate. Sixth, B. had no apparent

motive to fabricate the claim of abuse.

Indeed, just the opposite, she made it

Clear that she did not want to hurt

Gefendant. Seventh, the assistant who as

we said before is a person of experience

and presumed integrity, obviously believed

the child.

Of B.’s statements, those made to the

physician’s assistant clearly were key.

APPENDIX I, Page 2Y

B.’s subsequent statements were largely

cumulative evidence, evidence which at a

minimum was admissible for the non-hearsay

purpose of showing that B. was consistent

in her allegations of abuse by defendant.

See Minn. R. Evid. 801(c) (defining

"hearsay" as a statement, other than one

made by the declarant while testifying at~-

the trial or hearing, "offered in evidence

to prove the truth of the matter

asserted"). Although we conclude that any

error in admitting the subsequent other

statements as substantive evidence of

guilty was harmless beyond a reasonable

doubt, we nonetheless have analyzed the

admission of these statements under Wright.

Of B.’s other statements, those made

to the child protection specialist on May

7, to Dr. Lund during therapy, and to the

social worker and the police officer on

APPENDIX I, Page as

November 24 -- the least troubling, of

course, are the ones made to Dr. Lund

during therapy. These statements were for

the purpose of therapy, not the purpose of

substantiating the existence of abuse, and

were admissible under the "medical

treatment" exception, Rule 803(4), which is

firmly-rooted hearsay exception. However,

even if the statements were not admissible

pursuant to a firmly-rooted hearsay

exception, there were "particular

guarantees of trustworthiness" sufficient

to satisfy the Wright confrontation clause

analysis. On October 22, 1987, Dr. Lund

was questioning B. about B.’s trouble with

waking and with nightmares, particularly at

defendant’s house, when B. said that

defendant "pushed at her with his penis and

wiggled his penis at her." B., Of course,

had a "selfish" treatment-related motive

APPENDIX I, Page J¢

for being truthful with Dr. Lund since the

purpose of the weekly sessions, of which B.

was obviously aware, was to provide therapy

ser 3. Moreover, there is nothing in the

record to indicate that Dr. Lund used

leading or suggestive questions. Indeed,

the weekly sessions began in August and it

was not until October 22 that Dr. Lund,

using nonleading questions during the

discussion of nightmares, elicited the

statements. B.’s “acting out" of rescue

themes, e.g., adult female dolls rescuing

trapped child dolls, immediately following

her revelations further enhances’ the

reliability of the statements, as does the

fact that B.’s behavior at the time she

made the statements was, in the doctor’s

considerable experience, consistent with

that of sexually abused children of that

age. In addition, B.’s statements and her

APPENDIX I, Page #7

demonstration of the sexual abuse using the

dolls were certainly not what one would

expect from a child of B.’s age who had not

been sexually abused. state v. Sorenson,

143 Wis.2d 226, 246, 421 N.W.2d 77, 86

(1986), the case cited in Wright for this

factor, expressly noted the reliability

engendered by a child’s crude depiction of

sexual abuse with anatomically correct

dolls and a child’s description of wiping

herself off. Here, B. used the dolls to

demonstrate in detail the positions and

movements of defendant and herself during

the alleged abuse.

The case is almost as strong for the

admission of B.’s statements to the child

protection specialist on May 7. The child

protection specialist testified as to her

awareness of the problem of using leading

questions with children and there is no

APPENDIX I, Page &@

indication that she used leading or

Suggestive questions. B. said that

"someone" had put his penis “between her

legs and up her butt." She used

anatomically correct dolls to demonstrate

the abuse, showing herself on her back and

her abuser "on top of her, face-to-face."

B. would not say who that "someone" was

because "she loved her Daddy and she didn’t

want him to get into trouble." But she

said the abuse happened on the living room

couch "in her Daddy’s house." Later, while

crying quite heavily, she volunteered that

even though "her Daddy had promised it

would never happen again and he was sorry,"

the abuse had re-occurred. In concluding

that S.'*s statements to the child

protection specialist were admissible under

the Wright analysis, we rely on some of the

factors that we cited in our analysis of

APPENDIX I, Page 29

a ee oe

the statements to the medical assistant

during the initial examination and the

statements to the clinical psychologist

during the weekly therapy sessions:

nonleading questions were asked; the child

seemed not motivated to "get" defendant but

rather to protect him; the conduct

described and demonstrated was not the kind

of conduct a child that age would normally

be able to describe and demonstrate unless

the child had been the victim of sexual

abuse. We also note that B.’s emotional

state ("crying hysterically") upon making

the allegations to the child protection

specialist reinforces our conclusion that

the statements were sufficiently reliable

for confrontation clause purposes.

While we cannot say that B.’s

statements to the social worker on November

24 were unreliable, because some of the

APPENDIX I, Page jo

factors indicating reliability were

present, we are nevertheless reluctant to

conclude that the statements made on that

day were sufficiently reliable to satisfy

the Wright test. The initial questions by

the police officer, who was present and

participated in the interview, were leading

questions that began with the premise that

"Daddy hurt" B. The questions asked by the

participants were often repetitive and

leading, >. “8 responses were not

particularly spontaneous, and 8.‘s

emotional state appeared almost completely

unaffected by her revelations at that time.

Because of these factors as well as the

documented dangers4 of the "tag team"

approach to interviewing children and the

repeated questioning of children and

4 See Minnesota Attorney General’s

Report on Scott County Investigation,

February 12, 1985.

APPENDIX I, Page 3/_

because of the ambiguity of B.’s responses,

the circumstances do not sufficiently

establish the reliability of these

particular statements under Wright.

However, any error in admitting the

Statements made on November 24 Clearly was

harmless error beyonc reasonable doubt.

We conclude that all of the

extrajudicial statements except those

statements made On November 24 were

Properly admitted under the Wright

analysis, and we are satisfied that

defendant received a fair trial and was

properly convicted of the offense in

question. We therefore reaffirm the

Judgment of conviction.

Affirmed.

APPENDIX I, Page 3A

TOMLJANOVICH, Justice (dissenting).

I do not agree that the confrontation

clause of the sixth amendment permits the

state to substitute hearsay for the in-

cour® testimony of an available witness in

the particular circumstances presented by

this case.

In Qhio v. Roberts, 448 U.S. 56

(1980), the United States Supreme Court

articulated a general approach for

resolving the conflict between the

confrontation clause, guaranteeing an

accused person the right to be confronted

with witnesses against her or him, and the

numerous exceptions to the hearsay rule,

permitting out-of-court statements to be

offered at trial in place of live

testimony. The Court explained that, in

order to conform with confrontation clause

requirements, "Cijn the usual] case

APPENDIX I, Page 33

(including cases where prior. cross-

examination has occurred), the prosecution

must either produce, or demonstrate the

unavailability of, the declarant whose

statement it wishes to use against the

defendant." Jd. at 65 (citations omitted).

Once the state has met this generally

applicable burden, it must then demonstrate

the hearsay it wishes to introduce is

adequately reliable. Id. at 65-66. The

State may satisfy this second requirement

by demonstrating that the hearsay bears

particularized Guarantees of

trustworthiness or that the hearsay falls

within the scope of a "firmly rooted

hearsay exception." Jd. at 66.1

. "(Cjertain hearsay exceptions rest

upon such solid foundations that admission

of virtually any evidence within them

comports with the ‘substance of the

constitutional protection.’" Roberts, 448

U.S. at 66 (quoting Mattox v. United

states, 156 U.S. 237, 244 (1895)) (footnote

APPENDIX I, Page 3Y

I agree with the majority that

"Roberts cannot fairly be read to stand for

the radical proposition that po out-of-

court statement can be introduced by the

government without a showing that the

declarant is unavailable." United States

v. Inadi, 475 U.S. 387,394 (1986) (emphasis

added). Indeed, Roberts itself expressly

states such a disclaimer. See 448 U.S. at

65 Meds (*-A demonstration of

unavailability, however, is not always

required." Id.) Roberts clearly did not

establish a rule requiring unavailability

be demonstrated anytime the state wishes to

introduce hearsay as a substitute for live

testimony. Rather, it ecknowledged that in

most instances -- "in the usual case"--

the baseline requirements established by

the confrontation clause will not permit

omitted).

APPENDIX I, Page 3°

PR i SBT aR LANA ONO 0 OT

introduction of hearsay absent the

demonstrated unavailability of the

declarant.

However, I firmly disagree with the

majority’s suggestion that United States v.

iInadi, 475 U.S. 387 (1986), worked any

substantial change in the Roberts rule. In

inadi, 748 F.2d 812 (3d Cir. 1984), rev'd,

475 U.S. 387 (1986), the Third Circuit

concluded that there was no reason to

deviate from the unavailability requirement

where the government sought to introduce

hearsay statements of a nontestifying

coconspirator. See id. at 818. Given the

tremendous advantage such statements

provided the government, the court

reasoned, requiring the government to

demonstrate that live testimony was not an

Option, Owing to the declarant’s

unavailability, did not seem overly

APPENDIX I, Page 34

burdensome. See jd. at 818-19.

The Supreme Court disagreed. It first

explained that Roberts should not be read

without attention to its own factual

setting -- that is, where "the prosecution

seeks to admit testimony from a prior

judicial proceeding in place of live

testimony at trial." Inadi, 475 U.S. at

393. Because Roberts articulates a

general, but not a necessary rule, it

| obviously cannot be extended to instances

| Clearly distinguishable from the proffered

introduction of prior hearing testimony to

replace testimony in court. :

The Court then went on to explain why

the Third Circuit was incorrect in

concluding that out-of-court coconspirator

statements were not sufficiently dissimilar

from testimony given in a previous judicial

proceeding to justify relaxing the

APPENDIX I, Page 37

unavailability requirement:

There are good reasons why

the unavailability rule,

developed in cases involving

former testimony, is not

applicable to co-conspirators’

out-of-court statements. Unlike

some other exceptions to the

hearsay rules, or the exemption

from the hearsay definition [for

coconspirator statements], former

testimony often is only a weaker

Substitute for live testimony.

It seldom has independent

evidentiary significance of its

own, but is intended to replace

live testimony. If the declarant

is available and the same

information can be presented to

the trier of fact in the form of

live testimony, with full cross-

examination and the opportunity

to view the demeanor of the

declarant, there is Asttile

justification for relying on the

weaker version. When two

versions of the same evidence are

available, longstanding

principles of the law of hearsay,

applicable as well to

Confrontation Clause analysis,

favor the better evidence. But

if the declarant is unavailable,

no "better" version of the

evidence exists, and the former

testimony may be admitted as a

substitute for live testimony on

the same point.

APPENDIX I, Page 3)

id. at 394-95 (citation omitted).

While clearly justifying applicatior

of the unavailability rule where the

government seeks to introduce hearsay in

the form of prior testimony, the Court

concluded this rationale does not justify

extending that rule to coconspirator

statements. See jd. at 395. Such

statements, the Court reasoned, are

independently valuable as evidence of the

context in which the conspiracy existed and

typically can not be replicated by in-court

testimony. In part, this is because the

coconspirator-declarant will have changed

from the defendant’s partner in a criminal

enterprise to a suspect or co-defendant,

with interests entirely adverse to those

she or he had as part of the conspiracy.

It therefore "is extremely unlikely that

in-court testimony will recapture the

APPENDIX I, Page 39

evidentiary significance of statements made

when the conspiracy was operating in full

force." Ida.

The Court further noted the

substantial practical burdens applying the

unavailability rule to coconspirator

statements would place on prosecutors,

often requiring the government to transport

incarcerated individuals to and from court,

Or to maintain constant information as to

the whereabouts of unincarcerated Suspects.

See id. at 399. Particularly where the

defendant’s interests clearly would not be

furthered by the opportunity to examine the

declarant at trial, the imposition of such

burdens can not be justified. See Pe.

Thus, the Court concluded, the same

reasons that Support requiring a

demonstration of the declarant’s

unavailability prior to introducing hearsay

APPENDIX I, Page YO

statements in the form of previous

testimony do not justify extending that

requirement to out-of-court statements made

by a non-testifying coconspirator, in large

part owing to the independent evidentiary

value such statements bear, the marginal

protection extending the requirement would

provide a defendant who has little or no

interest in examining the declarant at

trial, and the substantial burdens the

requirement would place on the government.

Taken together, Roberts and JInadi

establish a general presumption in favor of

live, in-court testimony, absent a showing

of unavailability coupled with demonstrated

reliability of the hearsay offered in

Substitution, and a set of reasons for

departing from that presumption with

respect to unavailability. I do not agree

with the majority that any subsequent

APPENDIX I, Page “/

Supreme Court decision, and particularly

Idaho _v. Wright, __ U.S. , £10 8. Ct.

3139 (1990), alters this arrangement.

In Wright, the Court unambiguously

stated that it was "[aljpplying the Roberts

approacn * * 4." Jd. at, 110 $.ct. at

3147 (emphasis added). Taking as given

that the child-declarant was unavailable

for Roberts purposes because. sh was

determined to be incapable of communicating

with the jury, the Court moved on to the

second prong of the Roberts test -- whether

the hearsay proffered by the state was

sufficiently reliable to satisfy

confrontation clause requirements. See id.

I find it curious that the majority does

not directly address this point in

reviewing its earlier decision, on express

instruction from the

obvious implication of the post-Wright

remand of Larson J is not that this court’s

conclusion as to the reliability of the

proffered hearsay was flawed, but rather

that its decision to circumvent the

unavailability requirement was in error.

In my opinion, the state has not

succeeded in demonstrating that the

rationale underlying the Roberts rule fails

to support application of that rule in this

instance. Indeed, the factual setting here

seems to track very closely the

circumstances Inadi itself suggests justify

excluding hearsay absent the declarant’s

demonstrated unavailability. The state is

Simply attempting to replace live, in-court

testimony with something the defendant can

not challenge in a situation where the

replacement clearly is not the _ best

evidence available.

APPENDIX I, Page L &,

Unlike the circumstances addressed

Inadi, the child-declarant here did het

make out-of-court statements that are

virtually irreplicable in court. Her

circumstances and interests have not

substantially changed so as to cast doubt

on her willingness to testify truthfully.

Finally, there is no pnarticular burden

placed upon the state in requiring that it

call her as a witness, evidenced by the

majority’s “prospective evidentiary rule"

permitting future defendants to demand such

a declarant be produced.

Thus, the state has not met its burden

of demonstrating both that the reasons

underlying Roberts are inapplicable to the

out-of-court statements at issue here and

that the grounds for diverting from

Roberts’ general rule outweigh any benefit

applying that rule might provide the

APPENDIX I, Page oY

defendant. For this reason, the majority’s

"quick fix" evidentiary rule -- a

prospective requirement that the state call

the available declarant if requested to do

s0 by the defendant -- is no solution.

Roberts defines introduction of the hearsay

at issue as a constitutional violation.

Declaring a new rule of evidence that does

not even apply to this defendant does

nothing to remedy that violation.

2 Because introduction of the hearsay

at issue does not clear the baseline

standard established by the confrontation

Clause, the majority’s reliance on Minn. R.

Evid. 803 (24), the "residual exception" to

the hearsay prohibition, is misplaced. As

the Supreme Court stated in JIdaho_v.

Wright,

Although we have recognized

that hearsay rules and the

Controntation Clause are

generally designed to protect

Similar values, we have also been

careful not to equate the

Confrontation Clause’s

prohibition with the general rule

prohibiting the admission of

hearsay statements. The

I would hold that in this particular

instance, absent a demonstration that the

child-declarant is unavailable to testify,

the confrontation clause of the sixth

amendment prohibits introducing that child-

declarant’s out-of-court statements to

Confrontation Clause, in other

words, bars the admission of some

evidence that would otherwise be

admissible under an exception to

the hearsay rule.

u.2. at 136 - S.Ct. - ak 3246

(citations omitted).

Beyond the fact that satisfying an

evidentiary rule does not automatically

demonstrate constitutionality, I also

disagree with the majority’s conclusion

that the child-declarant’s statements are

admissible pursuant to the residual

exception. That exception requires a

judicial determination that, among other

things, "the statement is more probative on

the point for which it is offered than any

other evidence which the proponent can

procure through reasonable efforts * * *,"

Minn. R. Evid. 803 (24) (B). Given the

child-declarant’s competence to testify, I

do not believe the hearsay at issue is the

most probative evidence the state may

reasonably be asked to procure.

APPENDIX I, Page 6

prove the truth of the facts they assert.

This case should be remanded for a new trial.

APPENDIX I, Page 47

STATE OF MINNESOTA

State of Minnesota,

Respondent,

vs.

Bruce Philip Larson,

petitioner,

Appellant.

Pursuant to an Ord

heretofore duly

cause it is determined

the judgment of the Cou

appealed from, to wit

“x

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be and the same hereby

the judgment be entered

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and made part of the re!

ted and signed: FOR T

1991 Attest Frederick

Appellate Courts B l

p St int wbers

Al N 3

X Supreme Court

Court of Appeals

JUDGMENT

C2~-88-2379

Appellate Court

Case Number

K-87-1265

Trial Court Case

Number

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made and entered in this

and adjudged that

rt below, herein

of the District

is affirmed and that

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ty IS FURTHER ORDERED that the

petitioner, Bruce Philip Larson, recover

from Minnesota Three Hundred Dollars

($300.00) for his costs herein expended.

Clerk’s costs: $300.90 October 1, 199”

A true copy

JOSEPH F.SPANIOL, he

Test:

Clerk of the Supreme Court

of the United States

Certified this 2nd day

of _ Nov. , 199¢

By _ Francis J. Cord

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SUPREME COURT OF THE UNITED STATI

No. 90-168

Bru Philip rsor

Petitioner,

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The petition herein for writ

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Stat. 8 595.02, subd. 3(1988), because the

declarant was available but did not

testify, the statements were admissible

under Minn. R. Evid. 803(24) (the catch-all

exception) and Minn. R. Evid.

803(4) (statements for purpose of medical

diagnosis or treatment).

. In the future in a case like thi

—

)

the state must call in its case-in-chief an

ivallable witness whose hearsay statements

are being admitted against the defendant if

he defendant so requests.

i Effect of determination of

Cr)

competency of child witness is not a factor

~~’

which trial court necessarily must consider

in making competency determination.

Reversed; judgment of conviction

affirmed.

Considered and decided by the court en

banc without oral argument.

OPINION

COYNE, Justice.

In its decision in this case the court

of appeals concluded that the trial court

erred in admitting certain extrajudicial

statements made by an available but

nontestifying complainant in a child sex

abuse prosecution. State v. Larson, 447

N.W.2d 593, 597 (Minn. App. 1989). The

court of appeals ruled that the error was

prejudicial error, assuming that the

complainant was competent, as the trial

court determined, and therefore available.

Id. at 598-99. The court ruled, however,

that the trial court may not have realized

the effect of its determination that the

child was competent, and it remanded with

nstructions that if the trial court on

be-

remand changed its competency determinatior:

based on its awareness of the effect of the

determination, then a new trial would not

APT A t 3

’

be needed. Id. One member of the panel,

arguing that a new trial was required,

dissented from the remand for a

reconsideration of the issue of competency.

Id. at 600. We granted both the

defendant’s petition for review and the

cross-petition for review filed by the

state. Having concluded that the trial

court did not err in admitting the hearsay

statements of the child, we reverse the

decision of the court of appeals and affirnr

the judgment of conviction.

he child in this case, B., was born

in May of 1983. On separating from

defendant, B.’s mother was awarded cus

of B., subject to defendant’s visitation

privileges. In late April 1987, when she

was not quite four years old, the child

mplained to her mother of vaginal

soreness and burning urination. Her mother

took her to a family practice clinic. The

Afr A p a

physician’s assistant, who conducted the

examination, saw redness and swelling

around the vaginal opening. Suspecting

abuse, the examiner asked B. who had

touched her. B. replied "Daddy" had

touched her with "his bone" that "came out

of his pants." B. said it had hurt and

that she had asked him to stop.

Visits were temporarily discontinued

pursuant to a court order obtained May 2,

1987, in the district court in the county

where defendant resides.

On May 7, 1987, B. made more

statements about the abuse to a child

protection specialist. She said "someone"

had put his penis "between her legs and ux

her butt." SHe would not say who the

"someone" was because "she loved her Daddy

and she didn’t want him to get into

trouble." She said the abuse happened "ir

her Daddy’s house."

p PP p » 5

Defendant retained an attorney and

obtained a court order in June allowing

supervised visits.

B. was evaluated psychologically by a

doctor, who talked with her four times. He

concluded that there was a "high

probability" that she had been involved on

"inappropriate sexual activity."

On July 31, 1987, after a hearing, the

court ordered reinstatement of defendant’s

unsupervised visitation privileges.

B. began weekly psychotherapy with Dr.

Susan Lund of Midwest Children’s Resource

Center in August. On October 22, 1987, B.

told Dr. Lund that defendant "pushed at her

with his penis." She demonstrated this

with anatomically ccrrect dolls and said it

happened during the recently reinstated

unsupervised visits.

Hennepin County, the county of the

mother’s residence, obtained an order

alr A f¢ b

assuming custody of B. and her younger

brother and terminating defendant’s

visitation privileges. More people

interviewed B. in November and this

prosecution was commenced in December of

1987.

The omnibus hearing was held in the

district court in the county where the

charged abuse occurred in June of 1988

shortly before trial was to begin. The

hearing was held on the state’s motion for

permission to use the out-of-court

statements of the complainant and on the

defendant’s motion to suppress the

statements on the ground that their

admission would violate defendant’s

constitutional right of confrontation. The

parties stipulated, but only for the

purposes of the hearing, that B., then

five, was incompetent to testify. The

trial court ruled that the statements were

Arr fo Z

Eee

En ee <r R

or ere ee

the presence of witnesses and to

enable the defendant to examine

witnesses whose statements are

used against him at trial.

Westen, Confrontation and

Compulsory Process, 91 Harv. L.

Rev. 567, 616. Stated

differently, confrontation and

compulsory process "work in

tandem toward a common goal of

assisting the defendant in

producing and examining witnesses

at trial." Jbid., p. 622. In

any event, even if it could be

Said that the prosecutor breached

some duty to call the victims,

defendant should not be able to

Claim that the interests served

by confrontation and compulsory

process were not served in this

case hecause he had the right to

call the victims at the hearing.

Any other rule would permit a

defendant to challenge his

conviction in bad faith by

pointing to the prosecutor’s

failure to call a witness whom

defendant by his own action

demonstrated he had no desire to

examine.

Subsequently, in United States v.

Inadi, 475 U.S. 387, 394 (1986), the United

States Supreme Court ruled that the

confrontation clause does not normally

require a showing that the declarant is

Arr. ft ¢g /2

unavailable in order to admit out-of-court

statements. The out-of-court statements in

Inadi were made by nontestifying but

available con-conspirators of the

defendant. The Court said that the

unavailability rule was developed in cases

involving testimony given in an earlier

trial, where there is good reason for such

a rule, but that the rule does not apply to

many kinds of hearsay admitted in criminal

trials. Id. at 392-94. Recognizing that

it would impose a significant practical

urden on the prosecutor to insure the

availability of declarants even when

neither the prosecutor nor the defense

4ished to examine the declarant at trial,

the Court rejected an unavailability rule:

Any marginal protection to the

defendant by forcing the

government to call as witnesses

those co-conspirator declarant

who are available, willing to

testify, hostile to the defense,

and yet not already subpoenaed by

the prosecution, when the

fo BR 1B

defendant himself can call and

cross-examine such declarant,

cannot support an unavailability

rule. We hold today that the

Confrontation Clause does not

embody such a rule.

Id. at 399-400.2

The same reasoning applies here. As

in Inadi, it is not at all clear that it

was in the interests of the defendant that

the declarant be called by either side. It

may well have been better for the defendant

2In a footnote the Court also said:

It is not clear from the

Court of Appeals’ opinion whether

in order to meet its burden of

showing unavailability, the

prosecution would be required to

call the declarant as a witness,

Or only to insure that the

declarant is available for

testimony if needed. The

unavailability rule suffers from

many of the same flaws under

either interpretation, and in

fact may be even less defensible

under an interpretation requiring

the prosecution to call each

declarant as a witness.

475 U.S. at 398 n. 10.

REP A f 14

to go to the jury and challenge the

ambiguity of the child’s statements (when

she said that the abuse occurred in

defendant’s house but would not say who did

it) than to have the child called and

possibly testify in court that it was the

defendant who did it. Given the

circumstances of this case, the Inadi

approach makes sense to us, at least with

respect to any constitutional clain.

Read literally, section 595.02,

Subdivision 3, recognizes the admissibility

of a child’s out-of-court statements only

if the child either testifies or is

unavailable as a witness. The legislature

enacted the statute in 1984, two years

before the United States Supreme Court made

it clear in Inadi that the unavailability

of the declarant is not prerequisite to

admissibility of hearsay evidence against

the defendant ina criminal case.

Arr A ’. 15

Understandably, since the question had not

yet been resolved, the legislature took the

safe constitutional course and codified

what it understood the confrontation clause

of the sixth amendment required in order to

make out-of-court statements admissible.

It may well be that in applying the

statue as a matter of comity,? we could

construe the statute as not requiring the

state to call a child declarant who is

3the court has the primary

responsibility under the separation of

powers doctrine for the regulation of

evidentiary matters but has enforced

reasonable statutory rules of evidence as a

matter of comity where the rules were not

in conflict with the Minnesota Rules of

Evidence. State v. Dana, 422 N.W.2d 246,

259 (Minn. 1988); State v. Willis, 332

N.W.2d 180, 184 (MInn. 1984). We disagree

with dictum contained in opinions of the

court of appeals deferring to the

legislature as the primary regulator of

evidentiary matters. E.g., In re Proposed

Suspension, Revocation or Non-Renewal of

the Nursing Home Licenses of Parkway Manor

Healthcare Center and Innsbruck Healthcare

Center, 448 N.W.2d 116, 120-21 (Minn. App.

1989), pet. for rev. denied (Minn., January

18, 1990).

Aer fi Pp 6b

available, at least where, as here, the

defendant has not requested the state to

call the child but has expressed his

intention to call the child to testify.

However, we see no need to rely on the

statute to sustain the admission of the

statements in this case.

By enacting section 595.02,

Subdivision 3, the legislature did not

deprive the court of authority to admit

extrajudicial statements of child

complainants or witnesses pursuant to any

court promulgated rule of evidence. As

have already noted, supra at n. 3, we hav

the primary responsibility under the

separation of powers doctrine for the

regulaticn of evidentiary matters.

Moreover, there is no reason to believe

that the legislature was attempting to

preempt the field. Indeed, the statute

expressly authorizes the admission of

Air Af /7

W €

certain out-of-court statements "not

otherwise admissible by statute or rule of

evidence," signifying an intention only to

supplement the rules of evidence.4 Here

the out-of-court statements were admissible

under two different rules of evidence,

Minn. R. Evid. 803(24) and 803(4).

Minn. R. Evid. 803(24), one of the two

so-called "catch-all" exceptions to the

4In State v. Bellotti, 383 N.W.2d 308,

313 (Minn. App. 1989), pet. for rev. denied

(Minn. April 24, 1986), the court of

appeals upheld the admission of certain

out-of-court statements pursuant to Minn.

R. Evid. 803(24), where those statements

were deemed inadmissible under the statute.

We have since rejected, in State v. Dana,

422 N.W.2d 246, 250 (Minn. 1988), the

conclusion of the court of appeals in

Bellotti that the statements by one child

about assaults on another child are

inadmissible under the statute, but we have

not rejected the conclusion that statements

inadmissible under the statute may be

admitted under one of our Minnesota Rules

of Evidence.

hearsay rule,° provides that a hearsay

statement may be admitted even if not

admissible under any of the other

exceptions to the hearsay rule if the

statement has “equivalent circumstantial

guarantees of trustworthiness" and certain

“The other is Minn. R. Evid.

804(b) (5). As the 1977 committee comment

makes clear, but for the requirement of

unavailability in rule 804(5), this

exception is identical to rule 803(24).

6The rule provides that, even though

the declarant is available as a witness, a

statement not specifically covered by any

of the other hearsay exceptions but having

"eguivalent circumstantial guarantees of

trustworthiness" is admissible:

(I]f the court determines that

(A) the statement is offered as

evidence of a material fact; (B)

the statement is more probative

on the point for which it is

cffered than any other evidence

which the proponent can procure

through reasonable efforts; and

rules and the interests of

justice will best be served by

admission of the statement into

evidence. However, a statement

At, Ap 14

of this court relying on rule 803(24)

include State v. Ortlepp, 363 N.W.2d 39, 44

(Minn. 1985) (ruling admissible

accomplice’s prior statement as substantive

evidence under the rule and citing other

cases involving the catch-all exceptions).

We are satisfied that the out-of-court

statements by the victim in this case had

sufficient circumstantial guarantees of

trustworthiness to justify their admission

under this rule. United States v. Shaw

824 F.2d 601, 610 (8th Cir. 1987) (trial

court did not abuse its discretion in

admitting, under identical federal versior

may not be admitted under this

exception unless the proponent of

it makes known to the adverse

party sufficiently in advance of

the trial or hearing to provide

the adverse party with a fair

opportunity to prepare to meet

it, his intention to offer the

statement and the particulars of

it, including the name, address,

and present whereabouts of the

declarant.

Ary. f}

“<7

of this rule, testimony by social worker

about interview with 1l-year-old victim of

sexual abuse by foster father where strong

circumstantial guarantees of

trustworthiness were present), cert.

denied, 484 U.S. 1068 (1988).

Similarly, the statements made for the

purpose of medical diagnosis or treatment

are independently admissible under Minn. R.

Evid. 803(4).’ Citing State v. Dana, 42:

N.W.2d 246 (Minn. 1988), the court of

appeals held that the trial court may not

7Rule 803(4) provides that statements

made for purposes of medical diagnosis or

treatment are not excluded by the hearsay

rule even though the declarant is available

as a witness. Statements covered by the

rule are:

Statements made for purposes of

medical diagnosis or treatment

and describing medical history,

Or past or present symptoms, pain

or sensations, or the inception

Or general character of the cause

Or external source thereof

insofar as reasonably pertinent

to diagnosis or treatment.

Wr, f} F J |

KELLEY, Justice (dissenting) :

i respectfully dissent. At all steps

of this criminal prosecution the defendant

duly objected to the admission of out of

court statements of the alleged victim on

the grounds that since the testimony of the

victim was crucial to the establishment of

the elements of the crime charged, the

state had the obligation to produce the

victim in court for examination and cross-

examination under the Sixth Amendment to

the United States Constitution and Article

I, Section Six of the Minnesota

Constitution, each of which provides that

the "accused shall enjoy the right * * * to

be confronted with the witnesses against

him." Any statute or court-promulgated

rule of evidence, or any concern for

"practical problems of prosecutors," in my

view, cannot dilute that constitutional

AFP. Ar 26

mandate. Moreover, admission of evidence

in violation of the confrontation clause is

seidom, if ever, harmless. State v.

Hansen, 312 N.W.2d 96, 102-105 (Minn.

1981). I would hold that if the state

wishes to establish the crime by victim

testimony, which is almost always the case

in this type of prosecution, it must do so

by producing the alleged victim on the

witness stand in open court so the accused

may be afforded his constitutional raght of

confrontation.

Consequently I would remand to the

trial court for a new trial.

AF? Por i

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