Opposition Brief — Larson v. Minnesota

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. FILED

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No. 90-168 JOSEPH F. SPANIOL, yp

PEOER ISIS, Se ea A 3

In The

Supreme Court of the United States

October Term, 1990

BRUCE PHILLIP LARSON,

Petitioner,

Vs.

STATE OF MINNESOTA,

Respondent.

On Petition For A Writ Of Certiorari

To The Supreme Court Of Minnesota

RESPONDENT’S BRIEF IN OPPOSITION

—}

Husert H. Humpurey, III

Attorney General

State of Minnesota

Pau. R. KemMPAINEN

Counsel of Record

Assistant Attorney General

Criminal Division

200 Ford Building

117 University Avenue

St. Paul, Minnesota 55155

Telephone: (612) 296-7573

Counsel for Respondent

BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether the Confrontation Clause allows admis-

sion of the out-of-court statements of a nontestifying five

year old victim, unexpectedly declared competent on the

eve of trial, where the statements were otherwise admis-

sible under the residual exception to the hearsay rule and

the victim was equally available as a witness to the

defense had it chosen to call her for cross-examination?

2. Whether the Minnesota Supreme Court’s pro-

spective rule, requiring the State to call an available child

witness whose hearsay statements are being admitted if

expressly requested to do so by the defense, comports

with the Confrontation Clause?

II.

Ill.

IV.

TABLE OF CONTENTS

THE MINNESOTA SUPREME COURT COR-

RECTLY APPLIED ESTABLISHED CONFRON-

TATION CLAUSE PRINCIPLES TO THE

PARTICULAR FACTS OF THIS CASE.........

THE FACTUAL SITUATION PRESENTED BY

THIS CASE IS NARROW, IF NOT UNIQUE,

AND IS UNLIKELY TO RECUR ON ANY TYPE

OF Ripe Me is hs eceeedwcwnnd Cakynn sa.

THE MINNESOTA SUPREME COURT’S PRO-

SPECTIVE RULE, REQUIRING THE STATE TO >

CALL AN AVAILABLE WITNESS WHOSE

HEARSAY STATEMENTS ARE BEING ADMIT-

TED WHEN REQUESTED BY THE DEFENSE

TO DO SO, IS A STATE RULE WHICH ADDS

TO DEFENDANTS’ RIGHTS AND DOES NOT

DIMINISH THE CONSTITUTIONAL RIGHT OF

CONFRONTATION IN THE LEAST...........

THE MINNESOTA SUPREME COURT’S FAC-

TUAL FINDING OF SUFFICIENT CIRCUM-

STANTIAL GUARANTEES OF TRUST-

WORTHINESS IS IN ACCORD WITH THE

RELIABILITY STANDARDS OF IDAHO V.

ili

TABLE OF AUTHORITIES

Page

CasES

Bourjaily v. United States, 483 U.S. 171 (1987)......... 9

Coy v. Iowa, 487 U.S. 1012 (1988).................. 4,12

Idaho v. Wright, __ U.S. __, 110 S.Ct. 3139 (1990)

ee ven b eae eee ae 7, 9, 15, 16

Lee v. Illinois, 476 U.S. 530 (1986) ................. 8, 14

Maryland v. Craig, __ U.S. __, 110 S.Ct. 3157

ee e's ha bbw eu aut 12

Ohio v. Roberts, 448 U.S. 56 (1980)......... 6, 7, 8, 9, 16

Reardon v. Manson, 806 F.2d 39 (2d Cir. 1986) cert.

sadn é eo tweese 8

State v. Larson, 453 N.W.2d 42 (Minn. 1990) 1, 5, 10, 13

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

SAV i ew hG eee eh nb aee cM beeg hss viereredeees r

Tennessee v. Street, 471 U.S. 409 (1985)............. 8, 14

United States v. Inadi, 475 U.S. 387 (1986)... .6, 8, 9, 10, 14

United States v. Massa, 740 F.2d 629 (8th Cir. 1984)

re Ce cst asnckcnewneee 8, 14

STATUTES

i cca senseesesecews cues 15

r,s ecceteeetwecseceund 15

ee er 4

Minn. Stat. § 609.343, subd. 1(g) (1986) .............. 2

RULE

SN Gh TN BUD cece cece ccicevesccucdsncees 6

No. 90-168

In The

Supreme Court of the United States

October Term, 1990

BRUCE PHILLIP LARSON,

Petitioner,

vs.

STATE OF MINNESOTA,

Respondent.

,™

_—

On Petition For A Writ Of Certiorari

To The Supreme Court Of Minnesota

i...

RESPONDENT’S BRIEF IN OPPOSITION

Respondent respectfully requests that this Court

deny the petition for writ of certiorari, seeking review of

the Minnesota Supreme Court’s opinion in this case.

THE OPINION BELOW

Petitioner seeks a writ of certiorari to review the

judgment and opinion of the Supreme Court of Minne-

sota in State v. Larson, 453 N.W.2d 42 (Minn. 1990). This

opinion reversed the decision of the Minnesota Court of

Appeals in State v. Larson, 447 N.W.2d 593 (Minn. Ct.

App. 1989).

STATEMENT OF THE CASE

On September 3, 1988, petitioner was found guilty by

a Minnesota district court jury of one count of criminal

sexual conduct in the second degree in violation of Minn.

Stat. § 609.343, subd. 1(g) (1986). Investigation of the case

had begun on May 1, 1987, when B., a girl then almost

four years old, reported sexual contact by her father to a

physician’s assistant during a medical examination at a

family practice clinic. B. had previously complained of

vaginal soreness and burning urination and was taken to

the clinic for an exam by her mother (T. 172).1

The physician’s assistant conducting the exam

observed redness and swelling around the vaginal open-

ing (T. 173). The examiner, suspecting abuse, asked B.

who had touched her. In response, B. said that “Daddy”

had touched her with “his bone” that “came out of his

pants.” B. told the examiner that it had hurt and she had

asked him to stop.

Subsequent investigation, which included out-of-

court statements by B. to medical personnel, investigators

and her mother, led to a complaint being filed on Decem-

ber 15, 1987, charging petitioner with criminal sexual

conduct against B.

1 “T.” refers to the trial transcript.

ae TE

Because of the prosecutor’s good faith belief that B.

was incompetent to testify, the State’s professed intention

from the beginning was to rely solely on the out-of-court

statements of B. rather than calling her personally as a

witness at trial (e.g. Ist O.H. 3; 2d O.H. 4; T. 13-14, 154).?

B. was only three or four years old at the time of the

abuse, and had only recently turned five years old by the

trial. Therefore, the prosecutor had serious concerns

about her ability to remember and relate facts concerning

the incident (T. 33). These concerns were bolstered by the

opinion of a psychotherapist. As the prosecutor

announced at the first pretrial omnibus hearing:

I should advise the court at this time that it

is not the state’s intention to call the victim in

this case as set forth in my affidavit due to the

fact that it is my opinion after speaking with the

victim and the opinion of the psychotherapist,

as I understood that opinion, that the victim is

not presently competent to testify as to the facts

and circumstances surrounding the claimed

criminal act.

(ist O.H. 3).

Accordingly, at the June 15, 1988 omnibus hearing,

petitioner moved to suppress the out-of-court statements

made by B., on the ground that his constitutional right to

confrontation would be denied. The parties

2 “1st O.H.” refers to the transcript of the first omnibus

hearing held on June 15, 1988.

“2d O.H.” refers to the transcript of the ~econvened

omnibus hearing held on August 19, 1988.

assumed for purposes of the hearing that B. was incom-

petent. The trial court ruled that the out-of-court state-

ments were reliable, corroborated, and admissible under

Minn. Stat. § 595.02, subd. 3.3

At the August 18, 1988 reconvened omnibus hearing,

petitioner renewed his motion to suppress B.’s out-of-

court statements on constitutional grounds, based on this

Court’s then recent decision in Coy v. Iowa, 487 U.S. 1012

(1988). The trial court again denied petitioner’s motion to

suppress B.’s out-of-court statements, finding that Coy

did not apply.

This remained the state of the evidentiary questions

until August 30, 1988, the first day of trial, when peti-

tioner informed the trial court that he intended to call B.

as a witness (T. 14-16). Therefore, the trial court arranged

a competency hearing in chambers before the trial would

commence (T. 15). The trial court explained that “it is

understood that neither party — if the Court finds [B.] is

competent . . . has to call her if they don’t wish to do so”

(T. 16).

B. was produced by the State for the competency

hearing (T. 25). Despite the concerns of the State as to her

ability as a witness (T. 15, 33, 38), B. was determined to be

competent by the trial court (T. 45). However, in making

its competency ruling, the trial court recognized that B.’s

ability to remember was very limited (T. 44-45). It said:

3 The text of Minn. Stat. § 595.02, subd. 3 is set forth in the

petition at pages 4-6.

The Court recognizes that on the stand she

may say nothing more than she doesn’t remem-

ber, but that doesn’t make her incompetent as a

witness.

(T. 45).

In any event, neither the State nor petitioner called B.

as a witness during the course of the four day trial. The

State did not call her in accord with its professed concern

whether B. had the ability to present any relevant evi-

dence (T. 154). Instead, the State introduced B.’s out-of-

court statements.

The defense failed to call B. for reasons not apparent

in the record. However, petitioner did call twelve other

witnesses, including defendant himself (T. 459). As part

‘of his defense, petitioner called an expert witness who

questioned the investigative procedures used by the

State’s witnesses (T. 528-579).

At the end of the trial the jury found petitioner guilty

of the amended charge of criminal sexual conduct in the

second degree (T. 664). On direct appeal the Minnesota

Court of Appeals remanded the case, concluding that

admission of B.’s out-of-court statements was prejudicial

error if she had been properly ruled competent, but that

the competency ruling therefore had to be reexamined in

that light. State v. Larson, 447 N.W.2d 593, 598-599 (Minn.

Ct. App. 1989). However, on further review by the Minne-

sota Supreme Court, the Court of Appeals was reversed

and petitioner’s conviction affirmed. State v. Larson, 453

N.W.2d 42 (Minn. 1990).

REASONS FOR DENYING THE WRIT

I. INTRODUCTION

The writ should be denied in this case because there

exist no “special and important reasons” for the exercise

of this Court’s discretionary power of review. U.S. Sup.

Ct. Rule 10.1. The Supreme Court of Minnesota was

clearly correct in holding that, under the particular facts

of this case, petitioner’s right of confrontation simply was

not violated by admitting the extrajudicial statements of

an available but nontestifying child witness where peti-

tioner himself was free to call and cross-examine the

child, but declined to do so.

In reaching its decision, the Minnesota Supreme

Court correctly applied the basic principles relating to

“unavailability” which have already been established in

Ohio v. Roberts, 448 U.S. 56 (1980) and United States v.

Inadi, 475 U.S. 387 (1986). Accordingly, there is no need to

revisit the subject area. Furthermore, the unique factual

situation presented by this case, where a young child

with limited ability to remember was unexpectedly (and

just barely) found competent on the eve of trial, is

unlikely to recur on any sort of regular basis. Therefore,

the petition herein should be denied.

Il. THE MINNESOTA SUPREME COURT COR-

RECTLY APPLIED ESTABLISHED CONFRONTA-

TION CLAUSE PRINCIPLES TO THE

PARTICULAR FACTS OF THIS CASE.

Petitioner contends that this case presents an oppor-

tunity to address the allegedly unsettled question of

’

when “unavailability” is required by the Confrontation

Clause before admitting extrajudicial statements in a

criminal trial; a question which petitioner argues was left

open by Idaho v. Wright, __. U.S. __, 110 S.Ct. 3139

(1990). Petition at 15-20. However, there is nothing unset-

tled about that question at all. The basic principles relat-

ing to the Confrontation Clause’s “unavailability”

requirement are already well established. Furthermore,

the Minnesota Supreme Court correctly applied those

principles to the unique facts of this child sexual abuse

case.

In Ohio v. Roberts, 445 U.S. 56 (1980) this Court drew

upon its previous Confrontation Clause jurisprudence to

generally establish what has come to be known as the

“unavailability” requirement, but which can be more

accurately defined as a rule of “necessity.” This Court

held that:

First, in conformance with the Framers’ prefer-

ence for face-to-face accusation, the Sixth

Amendment establishes a rule of necessity. In the

- usual case (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.

Id. at 65 (emphasis added).

Thus it is already settled that the State may meet the

necessity requirement by either producing the witness or

demonstrating her unavailability. In fact, Roberts itself

specifically noted that a “demonstration of unavailability

... is not always required.”; especially in cases where the

utility of trial confrontation would be minimal. Roberts at

65, n.7. In this case, B. was produced at trial and equally

available to both sides. The fact that she was not called as

a witness by the defense is an implicit admission that the

utility of confronting her at trial was too remote to invcke

constitutional concern over her “availability.”

Likewise, to respondent’s knowledge the require-

ment for production of a witness has never been inter-

preted, at least since Roberts, to require that the witness

actually be called to the stand, so long as the witness is

available to the defense for cross-examination if it so

chooses. It is the opportunity for cross-examination

which the Confrontation Clause requires, not that cross-

examination actually occur. See Roberts at 70; and Lee v.

Illinois, 476 U.S. 530, 549 n.3 (1986) (Blackmun, J., joined

by three other Justices, dissenting on other grounds]. See

also Tennessee v. Street, 471 U.S. 409, 416 (1985) [“It was

appropriate that, instead of forcing the State to call a

witness who could offer no relevant testimony on the

immediate issue . . . , the trial judge left to respondent the

choice whether to call (the declarant)”].4

Nothing in United States v. Inadi, 475 U.S. 387 (1986),

is contrary to these basic principles. Inadi simply recog-

nized that the “unavailability” language of Ohio v.

Roberts, 448 U.S. 56, 65 (1980) was not intended “as an

abstract answer to questions not presented in that case,

4 At least two of the federal circuits have, since Roberts

found that the government’s burden is met by simply obtain-

ing an available hearsay declarant’s presence at trial or making

the declarant available to the defense, without the need for

actually calling the witness to testify. United States v. Massa, 740

F.2d 629, 640 n.6 (8th Cir. 1984) cert. denied 471 U.S. 1115; and

Reardon v. Manson, 806 F.2d 39, 42-43 (2d Cir. 1986) cert. denied

481 U.S. 1020.

but rather as a resolution of the issue the Court said it

was examining...” Inadi at 392-393. See also, Bourjaily v.

United States, 483 U.S. 171 (1987) (The two pronged

unavailability and reliability approach of Roberts was set

forth “as a general matter only”). Thus, far from being in

conflict, the basic principles established in both Roberts

and Inadi are in agreement regarding the admission of

out-of-court statements under the Confrontation Clause.

This agreement was expressly recognized in Idaho v.

Wright, __ U.S. __, 110 S.Ct. 3139 (1990), when this

Court said:

In Ohio v. Roberts, we set forth “a general

approach” for determining when incriminating

statements admissible under an exception to the

hearsay rule also meet the requirements of the

Confrontation Clause.

We have applied the general approach artic-

ulated in Roberts to subsequent cases raising

Confrontation Clause and hearsay issues. In

United States v. Inadi, supra, we held that the

general requirement of unavailability did not

apply to incriminating out-of-court statements

made by a nontestifying co-conspirator and that

therefore the Confrontation Clause did not pro-

hibit the admission of such statements, even

though the government had not shown that the

declarant was unavailable to testify at trial. 475

U.S. at 394-400.

Id. at __, 110 S.Ct. at 3146.

Inadi did nothing more than recognize that there

were going to be cases, such as those involving state-

ments by co-conspirators, where a declarant of otherwise

admissible hearsay would technically be “available,” but

would not be called to the witness stand by either side for

a variety of reasons. Inadi at 396-398. This Court wisely

reasoned that application of a mechanical unavailability

rule in such circumstances is not required by the Con-

frontation Clause, holding that:

Any marginal protection to the defendant

by forcing the government to call as witnesses

those co-conspirator declarants who are avail-

able, willing to testify, hostile to the defense,

and yet not already subpoenaed by the prosecu-

tion, when the defendant himself can call and

cross-examine such declarants, cannot support

an unavailability rule.

Inadi at 399-400.

In the case at hand, the Minnesota Supreme Court

followed the same reasoning as Inadi. Here, B. was actu-

ally “produced” by the State and “available” for cross-

examination. However, because of her tender age and

marginal ability to remember and relate distasteful events

that occurred over a year before trial, the State decided,

openly and in good faith, not to call her to the witness

stand.

None of this denied petitioner his right of confronta-

tion. B. had been declared competent (albeit unexpectedly

so) by the trial court. Therefore, petitioner was free to call

her to the stand himse!f to confront her about the extra-

judicial statements she had made against him. But, as the

Minnesota Supreme Court correctly noted, petitioner did

not do so because it was “not at all clear that it was in the

interests of the defendant that the declarant be called by

either side.” Larson, 453 N.W.2d at 45-46. Clearly, the

Minnesota Supreme Court correctly found that petitioner

had been afforded his right of confrontation, but simply

chose not to exercise it.

There is no unsettled question of unavailability

raised in this case which is worthy of further review.

As for petitioner’s claim that Minnesota’s decision

will somehow open the floodgates to trials being held

without any victim testimony (Petition at 25-27), this is a

false specter indeed. In this country the availability of

circumstantial as well as direct evidence has meant that

all manner of criminal trials have for years been con-

ducted without the direct testimony of the victims them-

selves. Homicide cases are the most obvious example; but

they also include burglaries of unoccupied premises,

“blind-side” assaults, and other similar cases. In each

instance the question is whether the evidence actually

relied upon by the prosecutor is constitutionally admissi-

ble; not whether the prosecutor could have presented

something better. In any event, given the heavy burden of

proof placed upon prosecutors, it can be reliably said that

the vast majority of prosecutors who have direct victim

testimony available will continue to make every attempt

to use it at trial.

Ill. THE FACTUAL SITUATION PRESENTED BY

THIS CASE IS NARROW, IF NOT UNIQUE, AND

IS UNLIKELY TO RECUR ON ANY TYPE OF

REGULAR BASIS.

Another reason for denying certiorari in the instant

case is that it does not pose an important federal question

because of the very narrow and unusual set of facts

presented herein. The usual situation in cases of child

sexual abuse finds the prosecution offering the testimony

of the victim as the main pillar of its case. See, e.g.,

Maryland v. Craig, __ U.S. __, 110 S.Ct. 3157 (1990); and

Coy v. Iowa, 487 U.S. 1012 (1988). Likewise, it is usually

the defense which attempts to prevent such evidence by

arguing that the witness is incompetent.

Here, however, the roles were reversed in a situation

that is not likely to recur often, if at all. The prosecution,

supported by an expert’s opinion, realized from the very

beginning that B. was the type of very young girl who

would not be able to remember or relate at trial the abuse

which she had earlier reported happened to her over a

year before the trial (Ist O.H. 3). The prosecution, the

defense, and the trial court all assumed her incompetent

to testify and thus unavailable prior to trial. Conse-

quently, there was no thought prior to trial of holding a

competency hearing. .

But petitioner, on the first day of trial, announced his

intention to possibly call B. as a witness (an intention that

was not, in the event, fulfilled), thereby causing the trial

court to hold a competency hearing. At the end of that

hearing B. was unexpectedly found competent, although

in finding her so the trial court recognized the strong

possibility that B. may not be able to remember anything

(T. 45); and expressly told counsel that neither party had

to call her (T. 16).

Given these circumstances it is hardly surprising that

the prosecution continued with its planned strategy of

not calling-B. and instead relying upon other evidence,

including B.’s otherwise admissible hearsay statements,

to prove its case. What is surprising, however, is the fact

that petitioner did not call B. himself, even though she

had been “produced” by the State and was made avail-

able for cross-examination by the trial court’s competency

ruling.

Why petitioner did not call B. is not apparent from

the record. What is apparent, however, is that petitioner’s

failure to call a witness whom the State had produced,

and who had been found competent (albeit barely so) at

petitioner’s own request, is a very narrow, if not unique,

set of facts. Because it is highly unlikely to recur on any

sort of regular basis, the question is not an important one

for this Court to review.

IV. THE MINNESOTA SUPREME COURT’S PRO-

SPECTIVE RULE, REQUIRING THE STATE TO

CALL AN AVAILABLE WITNESS WHOSE HEAR-

SAY STATEMENTS ARE BEING ADMITTED

WHEN REQUESTED BY THE DEFENSE TO DO

SO, IS A STATE RULE WHICH ADDS TO DEFEN-

DANTS’ RIGHTS AND DOES NOT DIMINISH

THE CONSTITUTIONAL RIGHT OF CONFRON-

TATION IN THE LEAST.

On pages 21-25 of his petition, petitioner claims that

the prospective state rule adopted by the Minnesota

Supreme Court is a question for this Court to review.

However, the rule effectively grants defendants more

than what the constitutional rights to compulsory process

and confrontation require. Clearly, this is not a federal

question, much less an important one.

Minnesota’s rule, which requires the State to call

available child hearsay declarants when expressly

requested by the defense to do so, Larson, 453 N.W.2d at

47, is obviously based upon the Minnesota Supreme

Court’s own supervisory power over evidentiary and

procedural questions within Minnesota’s criminal justice

system.

In fashioning its rule the Minnesota Supreme Court

cited no federal authority. it simply said, by way of

justification, that:

We recognize, however, that a defendant

who wants to cross-examine an available child

witness whose extrajudicial statements are

being used 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.

Id. at 47. This is the sort of reasoning used by state

appellate courts in exercising their supervisory authority.

It is certainly not based upon any federal constitutional

imperative.

Nor does the rule violate any federal constitutional

provision. The Confrontation Clause does not absolve

defendants from procuring witnesses they feel are impor-

tant to their defense. As explained in Part I, supra, it has

become clearly established that the right to confrontation

is satisfied if a defendant has the opportunity to call the

declarant of hearsay as a witness for cross-examination.

Inadi, 475 U.S. at 397-399; Tennessee v. Street, 471 U.S. at

416; Lee v. Illinois, 476 U.S. at 549 n.3 (Blackmun, J.,

dissenting on other grounds); Reardon v. Manson, 806 F.2d

at 42; and United States v. Massa, 740 F.2d at 640 n.6.

Minnesota’s rule simply adds the option of allowing the

défense to force the State to call such witnesses, without

requiring the defense to put on a case at all.

a eemnnniaaniaaaiaes!

Likewise, there is no merit to petitioner’s contention

that Minnesota’s prospective rule somehow shifts the

burden of proof to defendants. The State must still prove

its case beyond a reasonable doubt, and if it cannot do so

on its case-in-chief then there will be a dismissal and the

defense need do nothing. If anything, the new rule adds

to the State’s burden rather than defendant's, by requir-

ing it to call hearsay declarant witnesses even in those

rare cases where the State feels that it can prove is case-

in-chief without them.

Because Minnesota’s prospective rule is a local one

that adds to defendants’ rights rather than diminishes

them, it is not an important federal question.

V. THE MINNESOTA SUPREME COURT’S FACTUAL

FINDING OF SUFFICIENT CIRCUMSTANTIAL

GUARANTEES OF TRUSTWORTHINESS IS IN

ACCORD WITH THE RELIABILITY STANDARDS

OF IDAHO V. WRIGHT.

In this case the Minnesota Supreme Court admitted

B.’s hearsay statements under two exceptions to the hear-

say rule. In one instance B.’s statements made for the

purpose of medical diagnosis or treatment were found

admissible under Minnesota’s medical treatment excep-

tion, Minn. R. Evid. 803(4), see 453 N.W.2d at 47; which is

one of the “firmly rooted” hearsay exceptions. Idaho v.

Wright, __ U.S. at __, 110 S.Ct. at 3149.

In the case of B.’s other statements, they were admit-

ted under the residual exception applicable even though

the declarant is available as a witness, Minn. R. Evid.

803(24). In doing so the Minnesota Supreme Court specif-

ically addressed the factual issues involved and found

that: “We are satisfied that the out-of-court statements by

the victim in this case had sufficient circumstantial guar-

antees of trustworthiness to justify their admission under

this rule.” 453 N.W.2d at 47.

This factual finding is fully in accord with the “suffi-

cient indicia of reliability” test established by Roberts and

applied in Idaho v. Wright. Indeed, Wright itself reaffirms

that the constitutional requirement of reliability is to be

drawn from the “totality of circumstances” surrounding

the making of the hearsay declaration. Id. 110 S.Ct. at

3149.

Because there is nothing in the opinion of the Minne-

sota Supreme Court which indicates that it relied for

trustworthiness upon circumstances other than those sur-

rounding the making of B.’s out-of-court statements,

there is no basis for either review or remand by this

Court. Absent a showing of clear error, such factual

determinations by state courts of competent jurisdiction

should remain undisturbed.

CONCLUSION

For all the above reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

Husert H. Humpnrey, III