Petition for Writ of Certiorari — Dever v. Ohio

() | Supreme Court, U.S,

9 0-6 63 4 FILED

OCT 29000

No. JOSEPH F. SPANIOL, JR,

— as

In The ai

Supreme Court of the United States

October Term, 1990

>

FREDERICK M. DEVEK, JR.,

Petitioner,

versus

THE STATE OF OHIO,

Respondent.

PETIL ION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS, FIRST APPELLATE

DISTRICT, HAMILTON COUNTY, OHIO

ANDREW B. DENNISON

200 Main Street

Batavia, Ohio 45103

Telephone (513) 732-6800

Attorney for Petitioner

COCKLE LAW BRIEF PRINTING ©O., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Whether the petition was denied his right of confron-

tation granted to him by the Sixth and Fourteenth

Amendments of the Constitution of the United States by

the admission of testimony, pursuant to Rule 803(4), Ohio

Rules of Evidence, in petitioner’s trial, over his objection,

from a physician concerning statements made to that

physician by a young child pertaining to sexual abuse

and the identification of the alleged perpetrator, where

there was no evidence of abuse or physical or emotional

injury, no evidence of the child-declarant’s motive in

making statements, for which the evidence was that the

child did not understand the purpose for questions and

examination, resulting in no evidence before the trial

court that the statements by the child pcssessed any

indicia of reliability, established a particularized guaran-

tee of trustworthiness, or met the firmly rooted purpose

of a Rule 803(4) admission, in which the admission of that

hearsay deprived petitioner of his rights under the Con-

frontation Clause.

ii

PARTIES TO THE PROCEEDING BEFORE THE

COURT OF APPEALS, FIRST APPELLATE

DISTRICT, HAMILTON COUNTY, OHIO

The caption of the case in this Court contains the

names of all parties.

iii

TABLE OF CONTENTS

Question Presented For Review ..............+++++00+5 i

Parties to the Proceedings Before the Court of

Appeals, First Appellate District, Hamilton

os Serer rT Tree eee eee ii

Opinions Below .............ccccccecteccessccecens 1

cee heen wa couse ceed nsereeeeescers 2

Constitutional, Statutory and Rule Provisions

CC GRSUSGRAWSh 55650 ess accosscvccccenevesce 2

Statement Of the Case ....... 2.2... ccc ccce cc ccccees 3

Reasons for Granting the Writ...................-- 10

PUSS kwyec kee sccsecccscsccscecsesevssscenes 12

ECAR 554 deb nde bet vase nicescsencvenwsis 20

0 aT tT tS eee eee eee App. 1

iv

TABLE OF AUTHORITIES

Pages

CASEs:

California v. Green, 399 U.S. 149 (1970) ............. 15

Cassidy v. State, 74 Md. App. 1, 535 A.2d 667

PRS) esha cecal cd ewes abs cckce eee be iatasenin 18

Chapman v. California, 386 U.S. 18 (1967)........... 20

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

oo SRL CERES A 0 Ha awk eek Ow uke besddes cad 10, 16, 17, 19

Lee « Eiimete, 476 US. SSO CISGS) . ww. wc ccc cc ccccss 18

Ohio v. Roberts, 448 U.S. 56 (1980).................. 15

Pointer v. Texas, 380 U.S. 400 (1965) ................ 10

State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220

GUO wee U bv aveddvesuardacseynecesasbncscseces passim

State v. Eastham, 39 Ohio St.3d 307, 530 N.E.2d

ig ike OC eee 13

United States v. Renville, 779 P.2d 430 (8th Cir.,

URES Seg Nee ey SRS Tare EN AI oe pe ONES 5, 18

CONSTITUTIONAL PROVISIONS:

Sixth Amendment, Constitution of the United

iia ee wo sedis cba aveoenanecd 2, 5, 10, 19, 20

Fourteenth Amendment, Constitution of the

SRR TSAR ray alias Saat AL Va Poa ae Te 2, 10

STATUTES:

Section 2907.02, Revised Code of Ohio............. 2,3

Section 2907.05, Revised Code of Ohio...... oe aot ss 2,3

Vv

TABLE OF AUTHORITIES —- Continued

Pages

RULEs:

Rule 102, Rules of Evidence, Title 23, Revised

I a ee eas CRA GRAOS 2, 16

Rule 601(A), Rules of Evidence, Title 23, Revised

eee ae whabeeaenen 2, §, 15

Rule 803(4), Rules of Evidence, Title 23, Revised

GE SE 5 da av KR bee NSndeiladndnd cecenene passim

Rule 803(24), Idaho Rules of Evidence ............. 17

Rule 804(A)(3), Rules of Evidence, Title 23,

ey RU GIs bs CG's a Gk 0 o's u'vcs ssasse 2, 9, 15

No.

+o

In The

Supreme Court of the United States

October Term, 1990

+

FREDERICK M. DEVER, JR.,

Petitioner,

versus

THE STATE OF OHIO,

Respondent.

,%

ag

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS, FIRST APPELLATE

DISTRICT, HAMILTON COUNTY, OHIO

4

OPINIONS BELOW

The orders of the Supreme Court of Ohio overruling

petitioner’s motion for leave to appeal and his claimed

appeal as of right and the denial of petitioner’s motion

for rehearing are unreported and set forth as Appendices

A and B, respectfully. The opinion of the Court of

Appeals, First Appellate District, Hamilton County, Ohio,

affirming the conviction of petitioner is unreported and

set forth herein as Appendix C. The journal entry of the

Court of Common Pleas, Hamilton County, Ohio, finding

the child not competent to testify is unreported and set

forth herein as Appendix D.

-.

.

1

JURISDICTION

The Court of Appeals, First Appellate District, Ham-

ilton County, Ohio, affirmed the judgments and sentence

of the Court of Common Pleas, Hamilton County, Ohic,

on January 31, 1990. The Supreme Court of Ohio refused

to accept petitioner’s appeal and dismissed the motion

for leave to appeal and the appeal as of right on June 15,

1990. The Supreme Court of Ohio denied petitioner's

motio» for rehearing on July 25, 1990.

The jurisdiction of this Court is founded upon the

presence of federal questions governed by the Constitu-

tion of the United States as a continuity of state appellate

review to provide procedural and substantive due pro-

cess safeguards within the state of Ohio’s criminal justice

system. The issue raised for review is denial of peti-

tioner’s right of confrontation vested to him by the Sixth

and Fourteenth Amendments of the Constitution of the

United States.

The jurisdiction of this Court is invoked under 28

U.S.C. Section 1257(3) and Part III of the Rules of this

Court.

—

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Sixth and pertinent provisions of the Fourteenth

Amendments of the Constitution of the United States are

set forth in Appendix E. The pertinent provisions of

Section 2907.02, Revised Code of Ohio, and Section

2907.05, Revised Code of Ohio, are set forth in Appendix

F. Rules 102, 601(A), 803(4) and 804(A)(3), Rules of

Evidence, Title 23, Revised Code of Ohio, are set forth in

Appendix G.

>

STATEMENT OF THE CASE

Petitioner was convicted by jury of the crime of rape

in violation of § 2907.02, Revised Code of Ohio, and of

the offense of gross sexual imposition in violation of

§ 2907.05, Revised Code of Ohio. On October 12, 1988,

petitioner was sentenced for the rape offense by the

Court of Common Pleas, Hamilton County, Ohio, to a

term of incarceration in the Ohio penal system of not less

than 10 nor more than 25 years, with a provision for

actual incarceration of five years. The trial court imposed

no sentence for the offense of gross sexual imposition

finding that it merged with the crime of rape.

Petitioner’s convictions rested upon the testimony of

Ann Saluke, M.D., a pediatrician who examined peti-

tioner’s daughter on October 23, 1987, two days after the

alleged sexuai abuse averred in the indictment: October

21, 1987. Dr. Saluke was permitted to testify, over peti-

tioner’s objection on hearsay and Confrontation “lause

violation grounds, as to the following:

Q. Doctor, what did Kristen tell you hap-

pened?

A. Kristen told us that her father put his pee

pee in her mouth and there was some white

stuff that had a yucky taste and also that he put

his hands on her pee pee and his pee pee on her

pee pee and she identified her genital area as

pee pee.

Q. Did she identify what she meant by father’s

pee pee?

A. The same area.

Q. Okay, now did she describe that taste any

further besides yucky taste?

A. She described it as mashed potatoes with

butter.

At the time of Dr. Saluke’s examination petitioner’s

child was four and one-half years old. The duration of the

entire examination of the child was 30 minutes. Dr.

Saluke stated that there was no finding of abuse and the

examination and tests administered neither confirmed

nor disproved sexual abuse.

Dr. Saluke stated that she did not recall the child’s

specific responses of whether the child understood why

she was being asked questions by the physician. At the

commencement of the questioning, petitioner’s daughter,

according to Dr. Saluke, “seemed to kind of jump from

topic to topic and didn’t really seem to be answering our

questions and she kept looking at her mother and looking

around the room and changing the subject.” The child’s

mother left the room and Dr. Saluke then asked the child

what happened.

Petitioner objected to Dr. Saluke’s testimony of the

child-declarant’s statements on the basis that there was

no adequate showing by the prosecution that the child

understood the reason for the examination and the

request for identification of the purported offender; that

there was no evidence of any adequate understanding

between patient and physician and that the child did not

understand what was being asked or that identification

would be necessary for diagnosis or treatment bearing

upon motive for the response; that there was nothing to

establish reliability and trustworthiness of any statement;

and that the purpose was for investigation not medical

treatment from which petitioner was denied his right of

confrontation granted to him by the Sixth Amendment of

the Constitution of the United States.

The trial court overruled the objection finding that a

sufficient foundation was present within medical history

reasonably pertinent to treatment and that United States v.

Renville, 779 F.2d 430 (8th Cir., 1985) was controlling.

Dr. Saluke described the protocol and “customary”

practice of examining potentially abused children before

she related the declarant’s statements set forth above. No

testimony was presented by Dr. Saluke concerning how

the protocol and the “customary” practice generally

employed in child abuse cases was applied to petitioner’s

child.

Before trial a hearing was conducted by the Court of

Common Pleas on April 5, 1988, approximately five

months after the alleged abuse, to examine the child, then

five years of age, to determine her competency to testify

pursuant to Ohio Evid.R. 601(A). She recalled the past

Halloween (the period of the criminal allegation) and that

in that period she went to a hospital, talked with doctors,

remembered pictures presented to her and that she had

placed marks on those pictures. Referring to a picture

(apparently of the genitals) she was asked if that was a

“pee pee” and she responded that she didn’t know. When

asked whether she had been touched in the genital area

she replied, “no” and offered no reason for why she had

circled a portion of a picture exhibited to her. (That

picture was never made a part of the record). She further

stated that she had not seen that part (assumed to depict

the genitals) of her “daddy” before and that no one had

touched that part of her body in the past.

The child did not recall the names of persons with

whom she met, but recalled meeting with hospital per-

sonnel. She did not remember telling anyone that her

father had her touch his penis. The child did not recall

telling someone that “white stuff” came from “daddy’s

pee pee,” explaining that it was bubbles, and she didn’t

know whether the bubbles came from his penis. Respon-

ding to where it happened, she said it was in the bathtub

and that her father told her to count to 100, but she

counted to 11. (This information was directly related to

the subsequent trial testimony of Diane Potter). Asked

whether the bubbles ever got on her hands, she replied,

“no” and that she had not told anyone that it had. She

stated that she had never touched her father’s penis with

her hands and that he had never asked her to do so.

At that point, and without the opportunity for peti-

tioner to inquire of the child, the trial court excused the

child, precluding any examination by petitioner. The trial

court ruled that the child understood the difference

between truth and falsity and that she was a bright little

girl. The judge held: “[t]he problem is she just can’t relate

what happened in this instance two years ago if it did

occur, and for that reason I can’t find her competent

under Rule 601 to testify as a witness under this test.”

The court, however, was in error as to the two-year-time

interval: the offense was alleged to have happened on

October 21, 1987; the competency hearing was a little

over five months after the alleged abuse.

Petitioner filed a motion in limine with the trial court

on June 17, 1988, seeking the exclusion of any evidence of

statements made by the child on the grounds of hearsay

and denial of petitioner’s right of confrontation. That

motion was heard by the Court of Common Pleas on

August 29, 1988, at which time the trial court postponed a

ruling; the trial court recognized the issue to be the

reliability of the declarant’s statements and the substan-

tial guarantee of trustworthiness, vel non, associated with

the Sixth Amendment’s right of confrontation.

At trial the respondent presented two witnesses in

addition to Dr. Saluke: Diane Potter who lived in the

apartment above petitioner and Specialist Mike Wilson,

Mariemont, Ohio, Police Department, who received a

report from Ms. Potter and conducted an investigation.

Ms. Potter testified that on October 21, 1987, around

10:00 o’clock p.m. she was in her bathroom and heard the

child “whining” and her father “arguing”. She stated that

she heard the child crying and her father saying “come

on, it will take only a minute,” and the child responding,

“no, daddy, I’m sleeping.” The witness then “heard a

toilet seat” and knew that they were in the bathroom. At

that point Ms. Potter heard petitioner groaning and she

listened carefully. She heard petitioner tell his daughter

to count to 600 and heard her counting. She then heard

petitioner remark that it “feels rea! good,” and the child

say, “does that feel good daddy” with an affirmative

response from petitioner and his instruction to continue

to count. Ms. Patten then testified that she heard the child

say, “you got it all over my hand” and petitioner respond,

“yes, I got it all over you didn’t I.” Ms. Potter left her

house and telephoned the police.

Specialist Wilson received the telephone call from

Ms. Potter and at the officer’s request she came to the

police department where a detailed report was prepared.

The following day, October 22, 1987, the officer spoke

with the child’s mother and the child was removed from

the home to a relative’s residence without revealing the

reason to petitioner. On October 23, 1987, the policeman

spoke with petitioner and the tenor of that discussion is

not reported. That same day Specialist Wilson spoke with

the child and her mother and they were taken by the

officer to be interviewed by a social-worker member of

the sexual abuse intervention team for the Hamilton

County Department of Human Services. The officer’s

information was communicated to the social worker. An

interview of the child was conducted by the social

worker, in the presence of the officer, of approximately

30-to-40 minutes. The tenor of that discussion and the

circumstances of the interview is not in the record. The

child and her mother were taken by officer Wilson to

Children’s Hospital where the child was examined by Dr.

Saluke.

On appeal the confrontation issue was raised and

preserved although the appellate court did not directly

address that issue in its decision affirming the conviction.

The Court of Appeals affirmed petitioner’s conviction on

the authority of State v. Boston, 46 Ohio St.3d 108, 545

N.E.2d 1220 (1989), decided during the pendency of peti-

tioner’s appeal. The appellate court incorrectly stated the

dates of the offense and interviews of the child as Febru-

ary rather than the correct month as October, and incor-

rectly placed the age of the child as three and one-half

years old when she was in fact four and one-half years

old, which was of significance in the erroneous finding

that the child was three and one-half years at the time of

the alleged offenses and five and one-half years of age at

the time of the proceedings. This in part may have been

the result of the appellate court adopting the statement of

the trial court’s determination of the competency issue in

which the trial court erroneously stated: “[t]he problem is

she just can’t relate what happened in this instance two

years ago, if it did occur.”

The Court of Appeals followed the State v. Boston,

supra, guidelines, but disregarded the Ohio admissibility

test requiring specific and independent evidence of phys-

ical or emotional abuse. The appellate court further con-

cluded that “the trial court precluded the victim from

testifying because she could not remember the events

constituting the alleged crime.” The record, however,

does not suppozt a finding by either the trial or appellate

courts to conclude that the child could not remember the

events, rather an inference was drawn by both courts that

while the child remembered things very well she stated

that nothing happened and it is that statement from

which the erroneous conclusion was reached that the

child didn’t remember the events which constituted a

crime. A lack of memory of the subject matter to qualify

the child as an unavailable witness pursuant to Evidence

Rule 804(A)(3) was not warranted from the record.

10

Petitioner presented the constitutional issue to the

Supreme Court of Ohio, but that court declined jurisdic-

tion to address the issue and denied rehearing although

petitioner advised that court of this Court’s decision

released June 27, 1990, Idaho v. Wright, __ U.S. __, 110

S.Ct. 3139, which was submitted as adequate authority on

the constitutional issue raised by this case.

sa.

vv

REASONS FOR GRANTING THE WRIT

Petitioner seeks a review by this Court to recognize

his deprivation of confrontation in a criminal prosecution

as granted te him by the Sixth Amendment of the Consti-

tution of the United States and as the Confrontation

Clause is made applicable to the states by the Fourteenth

Amendment. Pointer v. Texas, 380 U.S. 400, 403, 406 (1965).

Prior to trial and during a witness-competency hear-

ing the court terminated the examination and released the

child witness precluding petitioner from making any

inquiry or otherwise exercising his right of confrontation.

During the trial, over petitioner’s objection on hearsay

and Confrontation Clause repugnancy grounds, the

examining physician, who found no evidence of any

physical or emotional sexual abuse and concluded that

there was neither confirmed nor disproved sexual abuse,

was permitted to state what the child had allegedly told

that physician, including the identity of the alleged per-

petrator, petitioner. The physician’s testimony was

received by the trial court pursuant to Ohio’s Evid.R.

803(4). However, the respondent offered no evidence to

11

support an indicia of reliability and a particularized guar-

antee of trustworthiness of the child’s statements to the

physician, relying solely upon the hearsay exception cod-

ified in Ohio Evid.R. 803(4). Significuntly, the physician

could not state that the child, age four and one-half years,

understood or appreciated the purpose for the questions

or examination, or in any manner responded with a

motive which sought medical treatment.

A four and one-half-year-old child possessing no

apparent or discernible injury, physical or emotional, of

whom the record reflects does not understand the pur-

pose for the questions and examination, is not an individ-

ual to whom her statements can be ascribed as reliable

and trustworthy in responses to questions by a physician

in accord with the purpose for a firmly rooted hearsay

exception recognized by Evid.R. 803(4). The failure to

show a particularized guarantee of trustworthiness and

the presence of some indicia of reliability by the respon-

dent deprives petitioner of his right of confrontation.

+.

vr

12

ARGUMENT

Whether the petitioner was denied his right of confron-

tation granted to him by the Sixth and Fourteenth

Amendments of the Constitution of the United States

by the admission of testimony, pursuant to Rule 803(4),

Ohio Rules of Evidence, in petitioner’s trial, over his

objection, from a physician concerning statements made

to that physician by a young child pertaining to sexual

abuse and the identification of the alleged perpetrator,

where there was no evidence of abuse or physical or

emotional injury, no evidence of the child-declarant’s

motive in making statements, for which the evidence

was that the child did not understand the purpose for

questions and examination, resulting in no evidence

before the trial court that the statements by the child

possessed any indicia of reliability, established a partic-

ularized guarantee of trustworthiness, or met the firmly

rooted purpose of a Rule 803(4) admission, in which the

admission of that hearsay deprived petitioner of his

rights under the Confrontation Clause.

Statements made to a physician during examination

for purposes of medical diagnosis and treatment are tra-

ditionally trustworthy and reliable as recognized under

the common law and as codified by Ohio’s Evid.R. 803(4)

and its counterpart in federal courts, and in several sister-

states. The essence of this hearsay exception codified in

Evid.R. 803(4) is the circumstantial guarantees of trust-

worthiness of statements made for the purpose of treat-

ment being found to exist in a person’s motive for

seeking treatment.

Ohio recognizes the reliability of statements made by

patients to physicians as derived from the presumption

that the patient will be truthful about one’s physical

condition because of the risk of harmful treatment result-

ing from false statements, motivating the declarant to tell

13

the truth. State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d

1220, 1225, 1233 (1989); State v. Eastham, 39 Ohio St.3d

307, 530 N.E.2d 409, 413 (1988). (H. Brown, J., concur-

ring).

The rationale of Evid.R. 803(4) to create a hearsay

exception and to remove implication of the Confrontation

Clause in the admission of a young child’s statements to a

physician requires a showing by the proponent of the

statements that there is some indicia of reliability and a

particularized guarantee of trustworthiness for the

admission of the statements. At the least, the proponent

for admission of the out-of-court statements must estab-

lish that the child understood the purpose for the ques-

tions seeking the statements and was motivated to tell the

truth for purposes of the examination leading to diag-

nosis and potential treatment. In short, the state of mind

of the declarant at the time that the statements were

made must be established as being within the rationale of

Evid.R. 803(4).

Ohio has recognized the state-of-mind fault in the

Evid.R. 803(4) admission of a child-declarant’s statements

through the testimony of a physician: “[w]e have serious

reservations, in this case, that this is correct and in other

cases as well where the child involved is of tender years.”

State v. Boston, 545 N.E.2d, at 1233. The court acknowl-

edges that in order to comply with Evid.R. 803(4), the

child’s statement must have been motivated by her desire

for medical diagnosis or treatment. State v. Boston, 545

N.E.2d, at 1234. The Boston plurality observed that to

avoid the predicament of ascertaining a very young

child’s motivation in child abuse cases, some Ohio courts

have applied Evid.R. 803(4) and, in other jurisdictions its

14

pertinent counterpart, as if there were no motivational

component. Id.

The Boston court acknowledges that several authori-

ties considering the application of Evid.R. 803(4) in child

abuse cases involving young children admit testimony of

experts concerning a declarant’s out-of-court statements

without considering the motive of the child in making the

statement. 545 N.E.2d, at 1234. “The reason is that we

really know that such a young child is not giving the

doctor the information for the required purposes required

by Evid.R. 803(4). More than likely, the child does not

even want to be seeing the doctor!” State v. Boston, 545

N.E.2d, at 1234. The use of Evid.R. 803(4) under such

circumstances fails to establish the purpose required by

the rule and a fortiori the reliability of the child’s out-of-

court statements to a physician.

The underlying rationale attributing reliability for

the admission of a child-declarant’s out-of-court state-

ments through an examining physician pursuant to

Evid.R. 803(4) is significantly undermined. Where the

facts of this case implicating the Confrontation Clause

consist of the 30-minute interview by the physician which

produced no discernable evidence of sexual abuse cou-

pled with the child’s unresponsiveness to the physician’s

interview and the physician’s acknowledgement that she

didn’t know if the child understood the reason or pur-

pose for the questioning and the examination, one must

conclude that there is no indicia of reliability and signifi-

cant absence of any guarantee of trustworthiness to be

attached io the declarant’s out-of-court statements.

od

15

Petitioner’s child was not subjected to cross-examina-

tion at the competency hearing based upon the trial

court’s determination that she was incompetent to testify

under Evid.R. 601(A). That court terminated the child’s

examination without cross-examination by petitioner. The

child was not presented at trial to testify. The damning

hearsay testimony was admitted in the course of trial on

the basis of the child’s determination of incompetency as

a witness pursuant to Evid.R. 601(A) and on appeal by

the determination by the appellate court that the child

was an unavailable witness pursuant to Evid.R. 804(A)(3).

California v. Green, 399 U.S. 149, 159 (1970), controls

on the proposition that the child’s unavailability for

cross-examination precluded petitioner from testing her

truthfulness.

Applying the constitutional standard announced by

Ohio v. Roberts, 448 U.S. 56, 65 (1980), admission of the

out-of-court statements of an unavailable declarant does

not infringe on a defendant’s right of confrontation if the

proponent of the statement makes a good-faith effort to

produce the declarant and the proposed hearsay state-

ments have sufficient indicia of reliability to satisfy the

fundamental reason and policy of the hearsay exception

being used.

The essence of the Confrontation Clause issue raised

here is the admission of the child’s statements through

Dr. Saluke absent any evidence of a “particularized guar-

antee of trustworthiness;” those statements did not have

sufficient indicia of reliability to satisfy the essential pol-

icy and reason of the hearsay exception utilized for

admission. Cf. Ohio v. Roberts, 448 U.S., at 66. Frustration

16

of the purpose of Evid.R. 803(4) to carve from ii a rule of

trustworthiness never within its basic rationale does not

pass Confrontation Clause muster.

Irrespective of the child’s availability, the Ohio rule

and the constitutional requirement is that the child-

declarant’s out-of-court statements are admissible if those

statements meet the rationale and policy of a firmly-

rooted exception to the hearsay rule, such as Evid.R.

803(4). Admission under the Ohio rule is subject to the

out-of-court-statements having an indicia of reliability

from a consideration of factors such as the age of the

child, the presence of corroborative physical evidence,

the child’s relationship to the person to whom the state-

ments were made, and the terminology used by the child.

State v. Boston, 545 N.EB.2d, at 1238-1239.

There is no indicia of reliability and no guarantee of

trustworthiness of the declarant’s statements in the

record within the purpose and scope of Evid.R. 803(4), or

any showing by respondent of independent evidence

supporting an indicia of reliability.

This Court has considered Confrontation Clause

repugnancy in the context of the admission of testimony

by an examining physician of out-of-court statements of a

two and one-half-year-old child. Idaho v. Wright, __ U.S.

___, 110 S.Ct. 3139 (1990). There the testimony was admit-

ted under Idaho’s residual hearsay exception, Bvid.R.

803(24), of which Ohio has no comparable evidence rule.

Ohio’s Evid.R. 102 is significantly different from the

Idaho and federal rule. Ohio’s Evid.R. 102 requires that

the evidence rules be construed in a manner consistent

—s

—-

17

with the common law. State v. Boston, 545 N.E.2d, at

1229-1230.

The factual similarity of Wright is remarkable when

compared to the record of this case. 110 S.Ct., at

3143-3145.

Idaho’s residual hearsay exception, Idaho Rule Evid.

803(24), as found by this Court, is not a firmly rooted

hearsay exception for Confrontation Clause purposes;

however, admission under a firmly rooted hearsay excep-

tion satisfies the constitutional requirement of reliability

because of the weight accofded the judicial and legisla-

tive experience in assessing the trustworthiness of certain

types of out-of-court statements. 110 S.Ct., at 3147. The

weight accorded judicial end legislative experience

underlying Evid.R. 803(4) as a firmly-rooted exception is

absent for the admission of the out-of-court statements of

a child who does not understand the purpose for the

questions and examination and where there is no show-

ing of the mental state and motive of the child-declarant

to indicate an indicia of reliability and trustworthiness.

Some evidence must be submitted by the proponent of

the circumstances surrounding the statement as a require-

ment for admission of the out-of-court statement to estab-

lish its reliability where the policy and purpose of Evid.R.

803(4) is not met.

The ” ‘medical treatment’ exceptions to the hearsay

rule are based upon the belief that the persons making

such statements are highly unlikely to lie.” 110 S.Ct., at

3149. The record here demonstrates total inability to

ascribe an understanding and related truthfulness of the

child’s statement to Dr. Saluke. Ohio questions the

18

reliability of a child declarant as the proper subject for

Evid.R. 803(4) application as associated with the ques-

tioned state of mind of the child declarant. State v. Boston,

supra, 545 N.E.2d, at 1225, 1233, 1234; see, Cassidy v. State,

74 Md. App. 1, 535 A.2d 666, 687 (1988), criticizing the

rationale of United States v. Renville, 779 F.2d 430 (8th Cir.,

1985).

This record fails to establish any factor which

“relate[s] to whether the child declarant was particularly

likely to be telling the truth when the statement was

made,” [110 S.Ct., at 3150] especially where, in consider-

ing the circumstances of the interview, there is a failure to

establish the underlying rationale for admission of the

statement.

To remove Confrontation Clause violation the hear-

say admitted must be so trustworthy that cross-examina-

tion of the declarant would be of marginal utility. 110

S.Ct., at 3150. Cross-examination of the declarant as iden-

tified by this record was simply not of marginal utility.

The absence of any background supplied by the propo-

nent leading to the declarant’s statements were factors

bearing upon petitioner’s Confrontation Clause chal-

lenge. Cf. 110 S.Ct., at 3150.

Petitioner is mindful that “[c]orroboration of a child’s

allegations of sexual abuse by medical evidence of abuse,

for example, sheds no light on the reliability of the child’s

allegations regarding the identity of the abuser. There is a

very real danger that a jury will rely on partial corrobora-

tion to mistakenly infer the trustworthiness of the entire

statement. Furthermore, we recognize the similarity

between harmless-error analysis and the corroboration

inquiry when we noted in Lee [v. Illinois, 476 U.S. 530

19

(1986)] that the harm of ‘admission of the [hearsay] state-

ment [was that it] poses too serious a threat to the accu-

racy of the verdict to be countenanced by the Sixth

Amendment.’ ” 110 S.Ct., at 3151. The corroborating testi-

mony of Ms. Potter, upon whom the Court of Appeals

placed reliance, produces several innocent inferences and

but a single sinister inference. Nonetheless and contrary

to the view of the Court of Appeals, such testimony does

not bootstrap the statements into reliable and trustworthy

statements made by a child to a physician.

Conversely, the offenses of rape and gross sexual

imposition and the identity of the offender for which

petitioner was found guilty and imprisoned are captured

in this record within the brevity of Dr. Saluke’s testimony

of the child-declarant’s statements consisting of three

sentences in the record. There is nothing else. That evi-

dence posed too serious a threat to the accuracy of the

verdict to be countenanced by the Sixth Amendment.

The circumstances presented by this record establish

that the respondent failed to show that the child’s state-

ments to Dr. Saluke possessed sufficient “particularized

guarantees of trustworthiness” under the Confrontation

Clause to overcome the presumption of inadmissibility.

110 S.Ct., at 3152-3153.

Petitioner was twice deprived of his right of confron-

tation: at the competency hearing and in the admission of

Dr. Saluke’s testimony of the child’s statemen:s at trial

absent any foundation of the circumstances required to

establish the reliability of the hearsay statements except

that those statements were made to a physician which is

indistinguishable from the facts of Idaho v. Wright, supra.

20

The verdict of guilt as to both charges was sustained

only by the child-declarant’s statements. The admission

of those statements was repugnant to the Confrontation

Clause of the Sixth Amendment and cannot be deemed

harmless error. Chapman v. California, 386 U.S. 18 (1967).

+

CONCLUSION

For the reasons set forth, certiorari should be

granted.

Respectfully submitted,

ANDREW B. DENNISON

200 Main Street

Batavia, Ohio 45103

(513) 732-6800

Attorney for Petitioner

App. 1

APPENDIX A

THE SUPREME COURT OF OHIO

1990 TERM

To wit: June 13, 1990

State of Ohio,

Appellee,

v. Case No. 90-502

Frederick Dever, Jr., ENTRY

Appellant.

(Filed June 15, 1990)

Upon consideration of the motion for leave to appeal

from the Court of Appeals for Hamilton County, and the

claimed appeal as of right from said Court, it is ordered

by the Court that said motion is overruled and the appeal

is dismissed sua sponte for the reason that no substantial

constitutional question exists therein.

COSTS:

Motion Fee, $40.00, paid by G. David Yaros.

(Court of Appeals No. C880712)

/s/ Thomas J. Moyer

THOMAS J. MOYER

Chief Justice

App. 2

APPENDIX B

THE SUPREME COURT OF OHIO

1990 TERM

To wit: July 25, 1990

State of Ohio, : Case No. 90-502

Appellee, REHEARING

v. s ENTRY

Frederick Dever, Jr., : (Hamilton County)

Appellant. :

(Filed July 25, 1990)

IT IS ORDERED by the Court that rehearing in this

case be, and the same is hereby, denied.

(Court of Appeals No. C880712)

/s/ Thomas J. Moyer

; ER

Chief Justice

App. 3

APPENDIX C

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO, ; APPEAL NO.

- Plaintiff-Appellee, Bo gel

vs. : B-875350

FREDERICK DEVER, JR., OPINION.

Defendant-Appellant.

PRESENTED TO THE CLERK

OF COURTS FOR FILING

(Filed January 31, 1990)

COURT OF APPEALS

Criminal Appeal from: Court of Common Pleas

Judgment Appealed from is: Affirmed

Date of Judgment Entry on Appeal: January 31, 1990

Arthur M. Ney, Prosecuting Attorney, Leonard Kirschner,

Esq., Christian J. Schaefer, Esq., and James E. Butler, Esq.,

420 Hamilton County Courthouse, Court and Main

Streets, Cincinnati, Ohio 45202, for Plaintiff-Appellee,

Yaros & Yaros and G. David Yaros, Esq., 615 East Seventh

Street, Cincinnati, Ohio 45202, for Defendant-Appellant.

HILDEBRANDT, J.

Defendant-appellant Frederick Dever, Jr., appeals

from the judgment of the Hamilton County Court of

Common Pleas in which he was found by intervention of

App. 4

a jury to be guilty of rape.’ For the reasons that follow,

we affirm the trial court’s judgment.

On February 21, 1987, the appellant resided with his

wife and adopted daughter, Kristen, on the first floor of a

two-family residence located in the village of Mariemont,

Ohio. Diane Potter resided on the second floor of the

building. At approximately 10:00 p.m., Potter was in her

bathroom preparing to shower when she heard the appel-

lant and Kristen talking.? At trial, Potter testified as fol-

lows:

I heard Kristen crying and I heard [appellant]

saying come on, come on, it will only take a

minute and Kristen kept saying no, Daddy, I’m

sleeping and he kept saying come on, come on,

Kristen, come on, it is only going to take a

minute. She said no, Daddy, I’m sleeping and

then finally she said o.k. and I guess — I could

hear them talking and it was just mumbling and

it seemed like it was getting closer but I wasn’t

really paying attention at that time because I

figured, I didn’t really know what he was get-

ting her up for but I figured it was something

she had to do.

* * *

And I heard — anyway, I heard the voices getting

louder and then I heard the toilet seat so I knew

1 The appellant had been charged with rape, R.C. 2907.02,

and gross sexual imposition, R.C. 2907.05. The jury returned

guilty verdicts as to each count. The trial court, finding that the

charges were of similar import, imposed a sentence on the rape

count only.

2 Appellant’s wife was as work at the time of the events

sub judice.

‘at ire

App. 5

they were in the bathroom because that’s where

the toilet is.

.. . Then I heard them talking, I heard [appel-

lant] groaning, he groaned three times very

loudly and that was what made me really start

listening, I didn’t turn on the water, I just lis-

tened and I heard him tell Kristen to count to

600 and I heard her counting and then he said

oh, that feels so good and she said oh, does that

feel good, Daddy, and he said yes, and he told

her to keep counting and she stopped and he

said come on, just count to 20, just count to 20,

and she said no, I don’t want to. I could hear

mumbling and then I heard her say, oh, daddy,

you got it all over my hand and he said yes, I

got it all over you, didn’t I, and then I just left

the house, and went next door and called the

police.

T.p. 171-72.3

Potter reported the foregoing conversation to Special-

ist Mike Wilson of the Mariemont Police Department.

Wilson concluded that Potter’s accusations warranted an

investigation. The following day, Wilson informed the

appellant’s wife of Potter’s allegations, and arranged for

the removal of the child from the appellant’s control. The

next day, February 23, Wilson arranged for the interven-

tion of the sexual abuse team of the Hamilton County

Department of Human Services (“HCDHS”). Wilson

informed the HCDHS team that the appellant was the

alleged perpetrator. With the aid of HCDHS, Kristen was

examined by Ann Saluke, M.D., at Children’s Hospital.

3 Potter explained that she could hear and understand the

foregoing exchange through a heating duct that was common

to both bathrooms. See, also, State’s Exhibit 1.

App. 6

Although Dr. Saluke’s physical examination neither

confirmed nor disproved a history of sexual conduct,

during the exam Kristen told the doctor that she had

sexual contact with appellant.

Before the trial, the trial judge determined Kristen’s |

competency to testify. At the conclusion of the pretrial

hearing, the court stated:

All right, I have to conclude the rule says those

children under ten years of age who ppPear inca-

pable of receiving just on gas of the facts and

transactions respecting w they are examined or

relating them truly and there is no question that

Kristen understands the truth and the difference

between the truth and false statements and that

she is a bright little girl. The problem is she just

can’t relate what happened in this instance two

years ago, if it did occur, and for that reason I can’t .

find her competent under [Evid. R.] 601 to testify

as a witness under this test.

* * *

T.p. 20. At trial, Dr. Saluke was permitted to testify, over

the appellant’s objection, concerning Kristen’s statements

to her, as follows: :

Kristen told us that her father put his pee pee in

her mouth and there was some white stuff that had

a yucky taste and also that he put his hands on her

pee pee and his pee pee on her pee pee and she

identified her genital area as the peepee.

T.p. 209-10.

‘ Kristen was three and one-half years of age at the time of

the alleged offenses and five and one-half years of age at the

time of the proceedings below.

¢

App. 7

At the conclusion of the evidence, the jury returned

the verdicts described above and the appellant was sen-

tenced as it appears ot record. Appellant now urges on

appeal that the trial court erred by allowing Dr. Saluke to

testify concerning what Kristen had told her about the

crime sub judice. We are unpersuaded.

The Supreme Court of Ohio recently ruled on the use

of a child’s statement of identification made to an exam-

ining physician, under circumstances similar to the case

before us, in State v. Boston (1989), 46 Ohio St. 3d 108, 545

N.E.2d 1220. In Boston, the abused girl awakened scream-

ing during the night following a period of visitation with

her estranged father. The child told her mother,

“*** Daddy put something up my bucket [vagina}.” Id.,

at 108, 545 N.E.2d at __. The mother then observed

redness in the vicinity of the child’s genitals.

The following day the child was examined by a pedi-

atrician, but the child refused to permit the doctor to

touch her. The doctor’s visual examination of the child’s

vaginal and anal areas yielded nothing to note

An internal physical examination of the child was not

made until approximately one month later, during which

time the father continued to visit her. Upon internal

examination, the doctor made findings that were consis-

tent with sexual conduct.5 During the examination, the

child told the doctor that the father was the perpetrator.

5 At trial, the pediatrician testified that the child suffered

probable vaginal penetration and possible anal penetration.

(Continued on following page)

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App. 8

The child was also examined by a psychologist who

observed the child “ * * * play with [anatomically correct]

dolls in a sexually precocious manner, [heard] the child

use slang terms for genitalia, and noted signs of autono-

mic hyperactivity — typical of victims of child sex abuse.”

Id., at 120, 545 N.E.2. at ___ (footnote omitted).

At Boston’s trial, the mother and the two experts (the

pediatrician and the psychologist) were permitted to tes-

tify about what the child told them concerning the iden-

tity of the perpetrator. The experts were further

permitted to opine that the child’s statements to them

were truthful.

During the pretrial hearing to determine the three-

year-old child’s competency to testify, the child answered

initial questions, sometimes by a nod of the head. She

denied having been hurt and she made it clear that she

did not want to talk to the judge. The court found the

child incompetent to testify. During the trial, the court

further explained its ruling:

The child seems frightened, and considering the

age of the child, considering and general fact of

this particular case the Court based its incompe-

tency or fact that the child was not allowed to be

called on that and not on the ability of the child

to understand its obligation to tell the truth and

its ability to communicate.

Id., at 114, 545 N.E.2d at __ (Emphasis omitted).

(Continued from previous page)

She further stated that “probable” meant 95-99 percent cer-

tainty while “possible” meant greater than fifty percent cer-

tainty.

App. 9

In Boston, the Supreme Court of Ohio interpreted the

trial court’s ruling as having found the child to be

unavailable as contemplated by Svid. R. 804(A) rather

than incompetent to testify as prescribed by Evid. R. 601.

The court explained:

Thus, the trial judge really found (the vic-

tim) unavailable as a witness rather than incom-

petent to be a witness. We recognize that

appellant contends (admittedly with some effi-

cacy) that such a finding is not supported by the

record. However, the determination of compe-

tency (and availability) is within the sole discre-

tion of the trial court and absent a showing of an

abuse of discretion, such a determination will

not be disturbed by a reviewing court. We find

no abuse of discretion here.

Id., at 115, 545 N.E.2d at __ (Emphasis omitted).

In Boston, the Supreme Court of Ohio reversed the

father’s conviction of gross sexual imposition because the

trial court denied him a fair trial by permitting the

experts to testify that, in their opinion, the child told

them the truth when she identified the father as the

perpetrator. Id., at 128-29, 545 N.E.2d at ___. The Supreme

Court also determined that the use of expert testimony in

child abuse cases is proper, id. at 120, 545 N.E.2d at __,

and set down guidelines for the use of such expert testi-

mony. Among those guidelines, the court directed:

(F) When a child declarant is unavailable and

does not testify either at a hearing or trial and

no exception to the hearsay rule is a oo

and when “indicia of reliability” are absent, to

satisfy the requirements of the Confrontation

Clause the out-of-court statements must have a

— “guarantee of trustworthiness.”

o show that there is a “guarantee of trust-

App. 10

worthiness,” the proponent of a child’s out-of-

court statements must prove that a good-faith

effort has been made to produce the child as a

witness, there must be specific evidence of

abuse, either physical or emotional, and there

must be no apparent motive to falsify the out-of-

court statements.

Id., at 127, 545 N.3.2d at __ (Emphasis omitted). The

court thea held:

*** [A]n out-of-court statement of an allegedly

abused child of tender years, including identi-

fication of a perpetrator, made to a qualified

expert in child abuse, is admissible if the expert

has independent evidence of physical or emo-

tional abuse of the child, the child has no appar-

ent motive for fabricating the statement and the

child has been found unavailable after a good-

faith effort to produce the child in court.

Id.

In the cause sub judice, as in Boston, the trial court

precluded the victim from testifying because she could

not remember the events constituting the alleged crimes.

In both cases, the trial court concluded that the child

could comprehend the differences between truthful and

false statements and relate facts truly. See Evid. R. 601.

Regardless of the trial judge’s staternents in this case

concerning Kristen’s competency to testify, we believe

that Kristen, whom the state attempted to qualify as a

witness, was unavailable under the Supreme Court's rea-

soning in Boston, and pursuant to Evid. R. 804. The rule

states in pertinent part:

(A) Definition of Unavailability.

“Unavailability as a witness” includes situations

in which the declarant: |

App. 11

* . *

(3) testifies to a lack of memory of the subject

matter of this statement.

See supra at 6-7. We therefore hold that the element of

unavailability, under the Supreme Court’s Boston guide-

lines concerning the admissibility of a sexually abused

child’s out-of-court statement to an expert,® has been

satisfied. See supra at 8.

Furthet, we find no evidence from which the trial

court could have concluded that Kristen was fabricating

the events set forth in her statement to Dr. Saluke. Rather,

we find there was a guarantee of trustworthiness in the

child’s statement because the events concerning the crime

related by Kristen would ordinarily have been far afield

from the knowledge of a three-and-one-half-year-old

child.

The fact that Dr. Saluke did not find evidence of

physical or emotional abuse differentiates this case from

Boston. However, we place great significance upon what

Ms. Potter heard. Specialist Wilson, the investigating offi-

cer, made certain that he related, in great detail, the

events leading up to Dr. Saluke’s examination of Kristen

to the HCDHS sexual abuse team. See. t.p. 54-55. Further-

more, Dr. Saluke acknowledged at trial that she was

aware the appellant was the alleged perpetrator prior to

Kristen’s out-of-court statement to her. See. t.p. 215.

6 The expertise of Dr. Saluke, who had administered to

approximately two hundred fifty child-abuse victims, was not

challenged below.

App. 12

We, therefore, hold that, under the facts of this case,

Kristen’s out-of-court statement was admissible during

the proceedings below. Accordingly, we overrule the

appellant’s solitary assignment of error and affirm the

trial court’s judgment.

KLUSMEIER, P.J., and UTZ, J., CONCUR.

PLEASE NOTE:

The Court has placed of record its own entry in this

case on the date of the release of this Opinion.

es ee ee, ee ee eee een Se ene, ee Ol a ee ee ie Ee es ee ee!

App. 13

APPENDIX D

COURT OF COMMON PLEAS

HAMILTON COUNTY, OHIO

State of Ohio

Plaintiff __ /8/ Gorman, J.

-vs- No: B875350

Frederick Dever :

Defendant

Entry

(Filed April 5, 1988)

Upon hearing in open court under E.R. 601, the Court

hereby determines the [alleged /s/ RHG] victim Kristen

Nicole Dever not competant to testify as of this date.

Judge

/s/ James E. Butler, AP

/s/ Louis Rubenstein

Attorney for Def

App. 14

APPENDIX E

Constitution of the United States

AMENDMENT VI

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury

of the State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the wit-

nesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the Assis-

tance of Counsel for his defence.

(Effective 1791)

AMENDMENT XIV

[Pertinent Provision]

Section 1. 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, cr property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

a et

App. 15

APPENDIX F

Section 2907.02, Revised Code of Ohio (Rape.)

(A)(1) No person shall engage in sexual conduct

with another who is not the spouse of the offender or

who is the spouse of the offender but is living separate

and apart from the offender, when either of the following

apply:

(a) For the purpose of preventing resistance, the

offender substantially impairs the other person’s judg-

ment or control by administering any drug or intoxicant

to the other person, surreptitiously or by force, threat of

force, or deception.

(b) The other person is less than thirteen years of

age, whether or not the offender knows the age of such

person.

(2) No person shall engage in sexual conduct with

another when the offender purposely compels the other

person to submit by force or threat of force.

(B) Whoever violates this section is guilty of rape,

an aggravated felony of the first degree. If the offender

under division (A)(1)(b) of this section purposely com-

pels the victim to submit by force or threat of force,

whoever violates division (A)(1)(b) of this section shall be

imprisoned for life.

(C) A victim need not prove physical resistance to

the offender in prosecutions under this section.

” * *

App. 16

Section 2907.05, Revised Code of Ohio (Gross sex-

ual imposition.)

(A) No person shall have sexual contact with

another, not the spouse of the offender; cause another, not

the spouse of the offender, to have sexual contact with the

offender; or cause two or more other persons, to have

sexual contact when any of the following apply:

* » *

(3) The other person, or one of the other persons, is

less than thirteen years of age, whether or not the

offender knows the age of such person.

(B) Whoever violates this section is guilty of gross

sexual imposition. Violation of division (A)(1) or (2) of

this section is a felony of the fourth degree. Violation of

division (A)(3) of this section is a felony of the third

degree.

(C) A victim need not prove physical resistance to

the offender in prosecutions under this section.

* * *

App. 17

APPENDIX G

Rules of Evidence, Title 23, Revised Code of Ohio

RULE 102. PURPOSE AND CONSTRUCTION

The purpose of these rules is to provide procedures

for the adjudication of causes to the end that the truth

may be ascertained and proceedings justly determined.

These rules shall be construed to state the common law of

Ohio unless the rule clearly indicates that a change is

intended and shall not supersede substantive statutory

provisions.

RULE 601. GENERAL RULE OF COMPETENCY

Every person is competent to be a witness except:

(A) Those of unsound mind, and children under ten

(10) years of age, who appear incapable of receiving just

impressions of the facts and transactions respecting

which they are examined, or of relating them truly and;

* ” a”

RULE 803. HEARSAY EXCEPTIONS;

AVAILABILITY OF DECLARANT MATERIAL

The following are not excluded by the hearsay rule,

even though the declarant is available as a witness:

App. 18

ay * 7 *

(4) Statements for Purposes of Medical Diagnosis

or Treatment. 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 diag-

nosis or treatment.

—~é

RULE 804. HEARSAY EXCEPTIONS;

DECLARANT UNAVAILABLE

(A) Definition of Unavailability. “Unavailability as

a witness” includes situations in which the declarant:

* * »

(3) testifies to a lack of memory of the subject mat-

ter of his statement; or

* * *

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