Petition for Writ of Certiorari — Larson v. Nutt

Supreme Court, U.S.

ee a a

94 864 Nov 1 41994

OFFICE OF IHE CLERK

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

BRUCE PHILIP LARSON, Petitioner,

V.

GERALD NUTT, Sheriff, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

MICHAEL F. CROMETT

Counsel of Record

Attorney for Petitioner

E-1314 First National Bank

Building

332 Minnesota Street

Saint Paul, MN 55101

(612) 227-5363

QUESTIONS PRESENTED

i. Does the Confrontation Clause

require a “rule of necessity," i.e.,

unavailability of the declarant oor an

inability to replicate the evidence, which

compels the court to consider both the need

that the out-of-court statements’ be

admitted and the benefits to the defendant

in requiring that the government present

the declarant at trial?

2. Is the availability of a witness

only relevant for Confrontation Clause

purposes where the out-of-court statements

offered are former testimony and

"irrelevant" in all other circumstances,

even where the out-of-court statements are

offered under a non-firmly rooted hearsay

exception such as the residual exception?

E_OF N

QUESTION PRESENTED

TABLE OF AUTHORITIES

I.

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PRCVISIONS

STATUTES/RULES INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT:

THE DECISION OF THE EIGHTH

CIRCUIT COURT OF APPEALS--THAT

THE AVAILABILITY OF A DECLARANT,

WHOSE OUT-OF-COURT STATEMENTS ARE

ADMITTED UNDER THE RESIDUAL OR

CATCH-ALL EXCEPTION TO THE

HEARSAY RULE, IS "IRRELEVANT" FOR

PURPOSES OF THE CONFRONTATION

CLAUSE--IS AN ISSUE OF NATIONWIDE

IMPORTANCE WHICH SHOULD BE

DECIDED BY THIS COURT

ii

10

B. THE DECISION OF THE EIGHTH

CIRCUIT COURT OF APPEALS

CONFLICTS WITH THE APPLICABLE

DECISIONS OF THIS COURT 19

VII. CONCLUSION 25

APPENDIX

A. .Judgment of the Eighth Circuit

Court of Appeals Denying the Writ

of Habeas Corpus (Al - A2)

B. Per Curiam decision of the United

States Court of Appeals for the

Eighth Circuit, September 1, 1994

(B1 - B7)

C. Order of District Court denying

application for a writ of habeas

corpus (Cl - C2)

D. Report and Recommendation of the

Magistrate Judge (D1 - D12)

E. Petitioner’s Objections’ to

Magistrate’s Report and

Recommendation (El - E10)

F. Statutes/Rules Involved: Minn.

Stat. § 595.02, subd. 3; Rule 803

(24), Minn. R. Evid. (Fl - F4)

iii

EN eT ey

TABLE O UTHORITIES

Page

UNITED STATES SUPREME COURT:

Coy v. Iowa, 487 US 1012 (1988) 7

Green v. California, 399 US 149, 158

(1970) 21

Idaho v. Wright, 497 U.S. ae

S. Ct. 3139 (1990) passim

Larson v. Minnesota, U.S. P

111 S.Ct. 29 (1990) 2

Mattox v. United States, 156 US 237,

242-3 (1895) 20

Ohio v. Roberts, 448 US 56 (1980) Sas 23

United States v. Inadi, 475 US 387

(1986) 22

White v. Illinois, US » aaa St

736 (1992) passim

UNITED STATES COURT OF APPEALS:

Larson v. Nutt, 34 F3d 647 (8th Cir.

1994) passim

Lowery v. Collins, 988 F2d 1364,

1369-70 (5 Cir. 1993) 14

iv

People of Territory of Guam v.

Ignacio, 10 F3d 608, 611 &

n. 1 (9 Cir. 1993) 15

Ring v. Erickson, 983 F2d 818, 819

(8th Cir. 1992) 9, 12-13

Seigfriedt v. Fair, 982 F2d 14,

i6-7 & n. 2 {1 Cir. 1992) 15

Swan v. Peterson, 6 F3d 1373, 1379

& n.2 (9 Cir. 1993) 16

United States v. Accetturo, 966 F2d

631, 634 & n. 6 (11 Cir. 1992) 14

United States v. Jacoby, 955 F2d

1527, 1538 (11 Cir. 1992) 14

United States v. Johnson, 971 F2d

562, 572 (10 Cir. 1992) 14

United States v. Joseph, 964 F.2d

1380 (3 Cir. 1992) 14

MINNESOTA DECISIONS:

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

(Minn. 1991) cert. denied 112

Sct 965 (1992) 2

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

1990) cert. granted remanded

Larson v. Minnesota, ____ ~ U.S. ___,

111 S.Ct. 29 (1990) 2

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

Ct. App. 1989) 2

UNITED STATES CONSTITUTION:

Amendment VI 4

Amendment XIV 4

FEDERAL STATUTES:

28 U.S.C. §1254 (1) 4

MINNESOTA RULES AND STATUTES:

Minn. Stat. § 595.02, subd. 3 5

Rule 803 (24), Minn. R. Evid. 5

OTHER:

Ass’n of Public School Employees v.

Lakewood Board, 624 NE2d 1043,

1047 (Ohio 1994) 15

Barnett v. State, 440 SE2d 247-8

(Ga. App. 1994) 15

Chapman v. State, 628 A2d 676, 686-7

(Md. 1993) 15, 17-18, 22

vi

|

Comm. v. Crawford, 629 NE2d 1332,

1335 (Mass. 1994) 15

Franco v. State, 866 P2d 247, 253

(Nev. 1993) 14

People v. March, 620 NE2d 424, 433

(Ill. App. 4 Dist. 1993) 13

State v. McGriff, 871 P2d 782, 790

(Hawaii 1994) 14

State v. Poole, 859 P2d 944, 946

(Idaho 1993) 13

State v. Shoop, 622 NE2d 665, 671-2

(Ohio App. 3 Dist. 1993) 13

State v. Wicker, 832 P2d 127 (Wash.

App. 1992) 16-17

vii

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioner, Bruce Philip Larson,

respectfully prays that a writ of

certiorari issue to review the decision of

the United States Court of Appeals for the

Eighth Circuit entered in the above-

entitled matter on September 1, 1994.

Le

OPINIONS BELOW

The opinion of the United States Court

of Appeals for the Eighth Circuit affirming

the district court’s denial of a writ of

habeas corpus is Larson v. Nutt, 34 F3d 647

(8th Cir. 1994); see Appendix B.

The other reported decisions in this

case are as follows: State v. Larson, 472

N.W.2d 120 (Minn. 1991) cert. denied 112

SCt 965 (1992); State v. Larson, 453 N.W.2d

42 (Minn. 1990) cert. granted remanded

Larson v. Minnesota, U.s. » Bae

S.Ct. 29 (1990); 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 and

filed a timely appeal.

The Minnesota Court of Appeals found a

constitutional violation. The Minnesota

Supreme Court reversed and affirmed the

conviction. This Court then granted a

Petition for a Writ of Certiorari,

2

eee ee

vacated the judgment, and remanded the case

for further consideration in light of Idaho

v. Wright, 497 U.S. » 2240 &. CE. 3139

(1990). The Minnesota Supreme Court again

affirmed the conviction and this Court

denied a petition for writ of certiorari to

review that decision.

Petitioner then filed an application

for a Writ of Habeas Corpus in United

States District Court for the District

Court of Minnesota. The writ was denied.

Petitioner appealed that decision to the

United States Court of Appeals for the

Eighth Circuit which affirmed the denial of

the petition for a writ of habeas corpus.

This Court has jurisdiction to review

the decision of the judgment of the United

States Court of Appeals for the Eighth

Circuit by Writ of Certiorari pursuant

3

to section 1254 (1), Title 28, U.S.C.

Iil.

U OV V

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

Minn. Stat. § 595.02, subd. 3; Rule

803 (24), Minn. R. Evid. See Appendix F.

Vv.

STA NT OF THE CASE

On November 2, 1987, petitioner was

charged in Martin County (Minnesota)

District Court with a single count of

criminal sexual conduct in the first degree

(multiple acts of penetration over an

extended period of time) involving his

daughter. The charge first arose amidst

petitioner’s divorce and child custody

dispute in May, 1987. Family court

proceedings were immediately initiated, and

petitioner’s visitation with his child was

later resumed. When charges were brought,

5

petitioner asserted his innocence and

maintained that the conduct did not occur

or was committed by someone else.

Before trial, the state gave notice

that it intended to introduce four out-of-

court statements made by the child: (1) May

1, 1987 to a physician’s assistant; (2) May

7, 1987 to a police officer and child

protection worker; (3) October, 1987 to a

therapist; and (4) November 24, 1987 a

videotaped interview by police and child

protection worker. The statements were

offered under Minn. Stat. § 595.02, subd.

3, which required, among other things, that

the child either testify or be unavailable.

After a hearing challenging admission of

the statements as a violation of the Sixth

Amendment right of confrontation, the trial

court, assuming the child was incompetent

6

ee eee ee ae

for purposes of the hearing, ruled the

statements were admissible. The court

reconsidered its ruling in light of Coy _v.

Iowa, 487 US 1012 (1988), and allowed three

of the out-of-court statements to be

admitted assuming that the child was

incompetent. Petitioner noted a continuing

constitutional objection to the out-of-

court statements.

Immediately prior to trial, the court

held a competency hearing and found the

child, who was then five years old, to be

competent to testify. THE STATE DID NOT

CALL THE CHILD AS _A WITNESS BUT INSTEAD

SUBSTITUTED THE OUT-OF-COURT STATEMENTS FOR

HER LIVE TESTIMONY. In light of the

court’s ruling admitting the three out-of-

court statements, petitioner waived his

objection to the fourth videotaped

7

statement which the state then also played

during its case in chief.

Petitioner testified and offered the

testimony of ten character witnesses. On

September 3, 1988, the jury found

petitioner guilty of a lesser offense,

criminal sexual conduct in the _ second

degree involving a single act of sexual

contact. Petitioner was sentenced on

November 14, 1988, and the sentence was

later corrected to a term of 21 months in

prison, execution stayed and petitioner was

placed on probation.

After exhausting his state court

remedies, where the court focused on the

admissibility of the statements under the

Minnesota Rules of Evidence, including the

catch-all exception, petitioner filed a

petition for a writ of habeas corpus in the

8

Anta

District Court for the District of

Minnesota alleging he was convicted in

violation of his Sixth Amendment right of

confrontation where hearsay, which did not

fit any of the firmly rooted exceptions to

the hearsay rule, of an available witness

was admitted even though the witness did

not testify. The District Court denied the

writ.

Petitioner appealed from this decision

to the United States Court of Appeals for

the Eighth Circuit. That Court affirmed

the decision denying the petition for a

writ of habeas corpus. Larson v. Nutt, 34

F3d 647 (8th Cir. 1994). The per curiam

decision stated:

- «+» According to Larson, an

available, nontestifying

witness’s out-of-court statements

may be admitted only when the

out-of-court statements fit a

9

firmly rooted exception to the

hearsay rule and his daughter’s

statements do not fit any firmly

rooted hearsay exception.

We disagree with Larson’s

premise. "(Wjhether ([Larson’s

daughter] was available is

irrelevant for purposes of the

[Confrontation] Clause." Ring v.

Erickson, 983 F2d 818, 819 (8th

Cir. 1992)... . 7d. at 647-8.

The decision went on to state: "Larson’s

argument is foreclosed by White (v.

Illinois), (Idaho v. )Wright, and Ring."

VI.

REASONS FOR GRANTING THE WRIT:

A. THE DECISION OF THE EIGHTH

CIRCUIT COURT OF APPEALS--THAT

THE AVAILABILITY OF A DECLARANT,

WHOSE OUT-OF-COURT STATEMENTS ARE

ADMITTED UNDER THE RESIDUAL OR

CATCH-ALL EXCEPTION TO THE

HEARSAY RULE, IS “IRRELEVANT” FOR

PURPOSES OF THE CONFRONTATION

CLAUSE--IS AN ISSUE OF NATIONWIDE

IMPORTANCE WHICH SHOULD BE

DECIDED BY THIS COURT

Despite this Court’s clear analysis

10

and holding in White v. Illinois, US ,

112 SCt 736 (1992), many federal and state

courts have disagreed about the decision.

Petitioner’s case provides this Court with

an opportunity to resolve the question of

whether White abolished consideration of

avallability and end the confusion and

disagreement about the fundamental

principles of the Confrontation Clause.

In White, this Court held that the

Confrontation Clause of the Sixth Amendment

did not require a showing of unavailability

for admission of out-of-court statements

which met a firmly rooted exception to the

hearsay rule and found that exceptions for

Spontaneous utterances and medical

examination were firmly rooted. This Court

did not decide whether production of a

witness or a showing of unavailability was

11

required for hearsay exceptions which were

not firmly rooted, like the catch-all or

residual exceptions. See Idaho v. Wright,

supra, (residual exception is not firmly

rooted exception).

The conflicting interpretations of the

decision in White apparently arise because

some courts have focused on the holding set

forth above while others have focused on

broader language in the opinion. Some

courts have read the discussion of Ohio v.

Roberts, 448 US 56 (1980), and concluded

that unavailability is only an issue in

cases involving statements made during a

prior judicial proceeding.

The Eighth Circuit based its ruling in

petitioner’s case--that for purposes of the

Confrontation Clause the declarant’s

availability “is irrelevant"--upon dicta

12

from a previous decision.

- + « (W)e now know that whether

(the declarant) was available is

irrelevant for purposes of the

(Confrontation) Clause. T h e

Supreme Court recently held in

White v. Zilinois, ... » that

unavailability of the declarant

is not constitutionally required.

Ring v. Erickson, 983 F2d 818,

819-20 (8 Cir. 1992).

Cf. Larson _v. Nutt, 34 F3d 647 (8 Cir.

1994). Since the court in Ring granted the

writ because it found no "particularized

guarantees of trustworthiness," the casual

reference to availability was unnecesSary.

A number of state court decisions have

read this Court’s decision in White in a

Similarly overbroad manner, see State vy.

Poole, 859 p2d 944, 946 (Idaho 1993);

People v. March, 620 NE2d 424, 433 (I1l.

App. 4 Dist. 1993); State v. Shoop, 622

NE2d 665, 671-2 (Ohio App. 3 Dist. 1993),

43

th ee SE — a i aN ah a tian

or have read the decision in only a

slightly narrower manner, only former

testimony requires unavailability. See

State v. McGriff, 871 P2d 782, 790 (Hawaii

1994); Franco v. State, 866 P2d 247, 253

(Nev. 1993). See also Larson v. Nutt, 34

F3d 647 (8 Cir. 1994).

Other federal courts have expressed

disagreement with this position, instead

reading the White holding to the issue

decided by this Court: unavailability is

not necessary where the out-of-court

statements are the firmly rooted exceptions

for spontaneous utterances and medical

examination. See e.g., United States v.

Johnson, 971 F2d 562, 572 (10 Cir. 1992);

United States v. Jacoby, 955 F2d 1527, 1538

(11 Cir. 1992), United States v. Accetturo,

966 F2d 631, 634 & n. 6 (11 Cir. 1992);

14

United States vy. Joseph, 964 F.2d 1380 (3

Cir. 1992); Lowery vy. Collins, 988 F2d

1364, 1369-70 (5 Cir. 1993). See also

Seigfriedt v. Fair, 982 F2a 14, 16-7 &n. 2

(1 Cir. 1992)("no need to ponder the import

of the dictum" in White). Many state

courts have accepted this interpretation of

White. See Ass’n of Public School Employees

V. Lakewood Board, 624 NE2d 1043, 1047

(Ohio 1994); Comm. v. Crawford, 629 NE2d

1332, 1335 (Mass. 1994); Barnett v. State,

440 SE2d 247-8 (Ga. App. 1994); Chapman v.

State, 628 A2d 676, 686-7 (Md. 1993).

There is disagreement between judges

on the Ninth Circuit Court of Appeals on

this issue. In People of Territory of Guam

Vv. Ignacio, 10 F3d 608, 611 & n. 1 (9 Cir.

1993), a panel of judges stated: "... White

Vv. Illinois, ... does away with the

15

unavailability requirement." Another panel

of the same court stated: "We have no

reason to decide whether White v. Illinois,

. « « limits the unavailability requirement

to cases involving the admission of prior

testimony." Swan _v. Peterson, 6 F3d 1373,

1379 & n.2 (9 Cir. 1993).

Two ‘state court decisions reflect the

truest application of this Court’s decision

in White. In State v. Wicker, 832 P2d 127

(Wash. App. 1992), the court was faced with

hearsay--an uncalled witness "verified" a

fingerprint examiner’s conclusion--which

did not meet any firmly rooted exception to

the hearsay rule. The decision

acknowledged that White may have limited

unavailability to former testimony, and

then went on:

Nonetheless, because in-court

16

ae

{

%

:

$

2

testimony would provide a

meaningful addition to the truth

finding process in the case at

bar, we find that the

confrontation clause requires

that unavailability be shown

before the out-of-court statement

may be admitted. State v. Wicker,

832 P2d 127, 130 & n. 7 (Wash.

App. 1992).

In Chapman v. State, 628 A2d 676 (Md.

1993), the court addressed a state statute

that allowed bank records to be admitted in

check dishonor cases without a bank

employee testifying. The court found that

the confrontation clause did not require

witness unavailability because there was

limited utility to cross-examination in

that situation and there was a substantial

burden to the banks. Id. at 688-9. The

court reasoned:

With Inadi and White, it appears

that the Supreme Court has

emphasized that Roberts

contemplated a rule of necessity,

17

not one of unavailability.

(citations omitted). In both

Inadi and White, the Court

focused on the necessity of

admitting at trial the type of

out-of-court statement, and

whether that need was outweighed

by the benefits to the criminal

defendant of requiring the

government to present the out-of-

court declarant. Furthermore,

the Inadi Court even recast

Roberts in terms of necessity.

It ‘made clear that where both

live testimony and hearsay are

available to prove the identical

point, the Confrontation Clause

favors production of the live

testimony at trial, rather than

permitting what is most

convenient for the government to

produce. Id. at 687-8.

These courts applied the analysis this

Court used in White and Inadi to reach

sound decisions about constitutional

requirements in hearsay which does not fit

any firmly rooted exception.

The spectrum of cases make it clear

that the issue presented in petitioner’s

18

se eeketillll

case is a recurring one of national

significance, involving a major

disagreement about the rule of law. Review

of petitioner’s case by this Court could

resolve this important national issue.

B. THE DECISION OF THE EIGHTH

CIRCUIT COURT OF APPEALS

CONFLICTS WITH THE APPLICABLE

DECISIONS OF THIS COURT

The decision of the Eighth Circuit

Court of Appeals in petitioner’s case

conflicts with many significant Sixth

Amendment decisions and principles set out

by this Court. This Court should review

petitioner’s case to eliminate these

significant conflicts which undermine the

very purpose and meaning of the

Confrontation Clause.

(i) Purpose of Clause.

The purpose of the Confrontation

Clause was to

prevent depositions or ex parte

affidavits . . . from being used

against the prisoner .. . in

lieu of a person examination and

cross-examination of the witness

in which the accused has an

opportunity, not only of testing

the. recollection and sifting the

conscience of the witness, but of

compelling him to stand face to

face with the jury in order that

they may look at him, and judge

by his demeanor upon the stand

and the manner in which he gives

his testimony whether he is

worthy of belief. Mattox v.

United States, 156 US 237, 242-3

(1895).

The similarities between the types of out-

of-court statements offered against

petitioner and those traditionally excluded

by the Confrontation Clause, depositions,

letters, and affidavits, were ignored by

the court.

20

<ee e eeeeS

Wee,

(ii) Preference for live testimony.

In White v. Illinois, supra at 743,

this Court again reiterated the long

recognized preference for live testimony.

Out-of-court statements may be admitted "as

long as the declarant is testifying as a

witness and subject to full and effective

cross~-examination," "the greatest legal

engine ever invented for the discovery of

the truth." Green v. California, 399 US

149, 158 (1970). The Court of Appeals

overlooked this constitutional preference.

(iii) Rule of necessity rather than

unavailability.

In Ohio v. Roberts, supra, this Court

stated that the Sixth Amendment required a

"rule of necessity." Since then, this rule

has been incorrectly transformed into the

rule of unavailability. Revisiting the

21

requirement of the "rule of necessity,"

which is what this Court has done in White,

is a return to the proper constitutional

standard. See e.g., Chapman v. State, 628

A2d 676, 688-9 (Md. 1993). The Court of

Appeals did not consider petitioner’s claim

that there was no "necessity" in this case.

(iv) Analysis in White and Inadi. In

harmony with the "rule of necessity," this

Court decided that only where the out-of-

court statements could not be replicated by

live testimony and cross-examination would

add little to the reliability of the

statements is an out-of-court statement

necessary and the preference for live

testimony overcome. White v. Illinois,

supra; ited tes v. i, 475 US 387

(1986). Because of the diversity of

hearsay which may be offered under the

22

ib lltvatast

abate? Mi nidinas 143"

residual, catch-all exception, it is clear

that, unlike firmly rooted exceptions,

there may not be a simple rule on

admissibility. Courts would be required to

analyze the specific type of hearsay before

it in terms of the White "rule of

necessity" analysis, and consider the

availability of the witness among other

factors, to reach a conclusion regarding

the constitutional requirements for

admissibility. The Court of Appeals

ignored these considerations.

(v) Residual exception is not firmly

rooted exception.

In Idaho v. Wright, supra, this Court

noted that the residual exception to the

hearsay rule is not a firmly rooted

exception.

a3

(vi) This Court reserved the issue of

unavailability where hearsay is offered

under a residual exception.

In Idaho v. Wright, supra, this Court

specifically reserved the issue of whether

unavailability was required when the

hearsay was offered under a residual

exception to the hearsay rule. The Court

of Appeals ignored this important point.

The conflict between this Court’s

rulings on the requirements of the

Confrontation Clause and the decision of

the Eighth Circuit is so significant that

the Court should grant review of the

decision in petitioner’s case.

24

CONCLUSION

Because the decision of the Court of .

Appeals for the Eighth Circuit is one based

on a fundamental issue of nationwide

importance, which has produced conflict

among many courts, and one which misapplied

many essential Confrontation Clause

principles of this Court’s decisions, a

writ of certiorari should issue to review

its decision in this matter.

Respectfully submitted,

Michael F. Cromett

Counsel of Record

Attorney for Petitioner

E-1314 First Nat’l Bank Bldg

322 Minnesota Street

Saint Paul, MN 55101

(612) 227-5363

25

UNITED STATES COURT OF APPEALS

For the Eighth Circuit

No. 94-1052MNMI1

Bruce Philip Larson, *

*

Appellant, *

* Appeal fron the

vs. * United States

* District Court

Gerald Nutt, Sheriff, * for the District

Martin County, x of Minnesota

*

Appellee. *

JUDGMENT

This appeal from the United States

District Court was submitted on the record

of the district court, briefs of the

parties and was argued by counsel.

After consideration, it is hereby

ordered and adjudged that the judgment of

the district court in this cause is

affirmed in accordance with the opinion of

APP. A-1l

this Court.

September 1, 1994

A trur copy.

ATTEST: /s/ Michael E. Gans

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

MANDATE ISSUED 9/23/94

APP. A-2

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 94-1052 MN

Bruce Philip Larson,

Appellant, Appeal from the

United States

District Court

for the District

of Minnesota.

Vv.

Gerald Nutt, Sheriff,

Martin County,

+ e+ + ee + eH HF HH F

Appellee.

Submitted: June 16, 1994

Filed: September 1, 1994

Before FAGG, Circuit Judge, ROSS, Senior

Circuit Judge, and BEAM, Circuit Judge.

APP. Bl

:

:

3

Ly die SR RR BN

PER CURIAM.

The State of Minnesota charged Bruce

Philip Larson with criminal sexual contact

with his three-year-old daughter. Larson’s

daughter was available at his trial and the

trial court found the child, then age five,

competent to testify, but neither the State

nor Larson called her as ae witness.

Overruling Larson’s hearsay and

Confrontation Clause objections, the trial

court admitted evidence of the child’s out-

of-court statements to a ephysician’s

assistant, to a child protection

specialist, to a therapist, and to a police

officer and a social worker. A jury found

Larson guilty and the Minnesota Supreme

Court affirmed his conviction. State v.

Larson, 472 NW2d 120 (Minn. 1991) cert.

APP. B 2

denied 112 SCt 965 (1992). Larson filed a

28 USC § 2254 petition, claiming his

conviction was obtained in violation of his

Sixth Amendment confrontation right. The

district court denied Larson’s petition.

Larson appeals, contending the

Confrontation Clause does not allow

admission of his daughter’s out-of-court

statements because she was available but

did not testify. According to Larson, an

available, nontestifying witness’s out-of-

court statements may be admitted only when

the out-of-court statements fit a firmly

rooted exception to the hearsay rule and

his daughter’s statements do not fit any

firmly rooted hearsay exception.

We disagree with Larson’s premise.

"(Wjhether [Larson’s daughter] was

APP. B 3

ON OE SN ee ES | I a a ee

unavailable is irrelevant for purposes of

the [Confrontation] Clause." Ring v.

Erickson, 983 F2d 818, 819 (8th Cir. 1992);

see White v. Illinois, 112 sct 736, 741

(1992) (availability analysis necessary only

when challenged out-of-court statement was

made in earlier judicial proceeding). The

relevant inquiry is whether the out-of-

court statements "’bear[] adequate "indicia

of reliability."’" Ring, 983 F2d at 820

(quoting Idaho v. Wright, 497 US 805, 815

(1990)). The reliability requirement is

met either when the out-of-court statement

fits a firmly rooted hearsay exception of

"by ‘a showing of particularized guarantees

of trustworthiness. ’" Ring, 983 F2d at 820

(quoting Wright, 497 US at 816).

In affirming Larson’s conviction, the

APP. B4

Minnesota Supreme Court considered whether

the challenged statements had particular

guarantees of trustworthiness. Larson, 472

NW2d at 126-28. Except for the child’s

statement to a police officer and a social

worker, the Minnesota court concluded the

statements were sufficiently reliable for

Confrontation Clause purposes. Id. The

Minnesota court also concluded admission of

a videotape of the child’s statement to a

police officer and a social worker was

harmless error beyond a reasonable doubt.

Id. at 128.

Larson’s habeas petition did not

challenge the Minnesota court’s conclusion

that three of the out-of-court statements

had particular guarantees of

trustworthiness. In any event, Larson’s

APP. B 5

skeletal assertion that "there were no

circumstantial guarantees of

trustworthiness surrounding the making of

the statements," buried in a brief point

discussing the benefits of cross-

examination, does not raise this issue on

appeal. See United States v. Dunkel, 927

F2d 955, 956 (7th Cir. 1991). Larson’s

sole argument on appeal is that only out-

of-court statements fitting firmly rooted

hearsay exceptions may be admitted without

a showing of unavailability. Larson’s

argument is foreclosed by White, Wright,

and Ring. We thus need not address

Larson’s assertion that his daughter’s

Statements do not meet any firmly rooted

hearsay exception.

We agree with the Minnesota Supreme

APP. B 6

Court that the child’s videotaped statement

to a police officer and a social worker was

merely cumulative and its admission was at

most harmless error. Indeed, Larson waived

his Constitutional Clause objection to the

videotape before trial, asking the trial

court to overrule its earlier suppression

order. We thus conclude Larson has failed

to show admission of his daughter’s out-of-

court statements violated his Sixth

Amendment confrontation right.

Accordingly, we affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF

APPEALS, EIGHTH CIRCUIT.

APP. B 7

UNITED STATES COURT OF APPEALS

DISTRICT OF MINNESOTA

FOURTH DIVISION

Civil No. 4-92-456

Bruce Philip Larson,

Plaintiff,

V> ORDER

Gerald Nutt, Sheriff,

Martin County,

Defendant.

This matter is before the court upon

plaintiff’s objections to a Report and

Recommendation of United States Magistrate

Judge Floyd E. Boline dated October 22,

1993. Plaintiff objects to the magistrate

Judge’s recommendation that his application

for a writ of habeas corpus be denied.

Based upon a de novo review of the

record herein, the court adopts the

magistrate jJudge’s Report and

Recommendation dated October 22, 1993.

a ine |

Accordingly, IT IS HEREBY ORDERED that:

plaintiff’s application for a writ of

habeas corpus is denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: November 23, 1993

/s/ Daid S. Doty

David S. Doty, Judge

United States District Court

APP. C 2

Leper Ka I

van Riese

ta. Ci Misey lt CAB SOR OROESE RE RBS TSE

UNITED STATES COURT OF APPEALS

DISTRICT OF MINNESOTA

FOURTH DIVISION

Civil No. 4-92-456

Bruce Philip Larson,

Petitioner,

Vv. REPORT AND

RECOMMENDATION

Gerald Nutt, Sheriff,

Martin County,

Respondent.

Before the Court is petitioner’s

application for a writ of habeas corpus

under 28 U.S.C. § 2254. This matter was

referred to the undersigned United States

Magistrate Judge for Report and

Recommendation under 28 U.S.C. § 636 and D.

Minn. Local Rule 72.1 For the reasons set

forth below, it is recommended that

petitioner’s application be denied.

BACKGROUND

Petitioner is currently subject to a

APP. D l

state sentence for his 1988 conviction on a

charge of Second Degree Criminal Sexual

Conduct. ? The facts and circumstances

surrounding petitioner’s conviction are

recounted in State v- Larson, 472 N.W2d

120, 122-23 (Minn. 1991), cert. denied, 112

U.S. 965- (1992) .2 The facts of this case

are not in dispute.

Petitioner filed this petition for

writ of habeas corpus on May 11, 1992 and

alleged a single claim: that four out-of-

court statements were admitted at trial in

violation of his federal constitutional

rights under the Confrontation Clause of

the Sixth amendment. See Petition, Docket

l petitioner received a stayed

sentence of 21 months imprisonment and was

placed on probation for ten years on

condition that he also serve six months in

a county jail.

APP. D 2

MO. 1, at (para.) 12 (A). Petitioner’s

counsel submitted a lengthy brief in

support of this clain. The essence of

petitioner’s claim is that his right of

confrontation was violated because the

person who made the four out-of-court

statements - petitioner’s young daughter,

the victim of the offense - was available

and competent to testify, but was not

called as a witness by the prosecution.

Petitioner argues, based upon the Supreme

Court’s recent decision in White vv.

Illinois, 112 S.Ct. 965 (sic) (1992), that

2 petitioner’s conviction was also the

Subject of other judicial decisions before

1t was ultimately affirmed. See State v.

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

aff'd, 453 N.W.2d 42 (Minn. 1990), cert.

Granted, judgment vacated, _ and case

remanded sub nom. Larson v. Minnesota, 111

S.Ct. 29 (1990).

APP. D 3

the Confrontation Clause is violated by the

admission of hearsay which does not fall

within a “firmly rooted" exception where

the declarant is available but does not

testify. See Petitioner’s Brief in Support,

Docket No. 1, at 10-11.

DISCUSSION

In habeas corpus proceedings, a.

federal court has the power to examine

federal constitutional issues even after

trial and review by the state courts. See

Wainwright v. Sykes, 435 U.S. 72, 87

(1977). However, a federal court may only

intervene in state judicial processes to

correct wrongs of ae constitutional

Gimension. See Wycoff v. Nix, 869 F.2d

4211, 2113 (8th Cir. 1989). Thus, a

federal court is limited in a habeas

proceeding to determining whether or not

APP. D 4

there has been a violation of petitioner’s

constitutional rights, or whether the

alleged error was so prejudicial that it

denied the petitioner due process. Id.; see

Mercer v. Armontrout, 844 F.2d 582, 587

(8th Cir. 1988). A habeas petitioner bears

the burden of establishing his right to

relief. A state court’s factual findings

are entitled to a presumption of

correctness unless the petitioner can show

a denial of due process. See Sumner v.

Mata, 455 U.S. 591, 597 (1982); 28 U.S.C. §

2254 (da).

In this case petitioner has not

challenged any factual findings by the

state courts. Petitioner contends only

that his right of confrontation was

violated as a matter of law because the

declarant who made the hearsay statements

APP. D 5

was available, but was not called to

testify by the prosecution. This Court

finds that petitioner’s claim is foreclosed

by controlling precedents.

The United States Court of Appeals

recently addressed the meaning and scope of

the Confrontation Clause in Ring Vv.

Erickson, 968 F.2d 769 (8th Cic. 1992), @

case which originated in this Court. In

Ring, which was decided shortly after the

Supreme Court issued its opinion in White

v. Illinois, the court summarized the

present state of Confrontation Clause

jurisprudence as follows:

The Confrontation Clause does not

bar the use of all out-of-court

statements. Additionally, we now

know that whether C.-R. was

vailable Re evant

s . The

Supreme Court recently held in

White v. Illinois, U.S. .

432 §.€t. 736, 146 L.Ed.2d 848

APP. D 6

(1992), that unavailability of

the declarant is not.

constitutionally required. What ~

the Constitution does require,

however, is that the hearsay

statements "bear{[ ] adequate

‘indicia of reliability.’" Idaho

¥,...uriont, 497 U.S. 8605, 120 5S.

Ct. 3139, 3246, i111 1.84.24 638

(1990). The Wright Court held,

citing Ohio v. Roberts, 448 US

36, 66, 100 &.Ct. 2531, 2539, 65

L.Ed.2d 597 (1980), that the

reliability requirement can be

met in either or two ways: "where

the hearsay statement ‘falls

within a firmly rooted hearsay

exception,’ or where it is

Supported by ‘’a showing of

particularized guarantees of

trustworthiness.’" 110 S.Ct. at

21467. "“’[(Pjarticularized

guarantees of trustworthiness’

must be shown from the totality

of the circumstances." Id. at

3148. The only circumstances

which are relevant, however, are

those surrounding the making of

the statement, not corroborative

evidence of the act. Id.

Ring, 968 F.2d at 762 (emphasis added).

In this case, petitioner’s challenge

to his conviction is predicated entirely

upon the fact that the declarant was

APP. D 7

available to testify, but was not called as

a witness by the state. Under Ring, which

this Court is bound to follow, the

availability of the declarant is

"jrrelevant" to any analysis of

petitioner’s rights under the Confrontation

Clause.2 Ring, 968 F.2d at 762. The

3 The Court notes that petitioner’s

argument, while well-crafted, appears to

suffer in part from the fallacy of inverse

reasoning. Petitioner correctly states the

holding of White: availability of the

declarant is not required where hearsay is

admitted under a ‘firmly rooted’ hearsay

exception. Petitioner’s logic fails when

he then goes on to argue that White stands

for the proposition that availability is

required where hearsay is not admitted

under a ‘firmly rooted’ exception. There

is, however, some support for petitioner’s

position. See Larson, 472 N.W.2d at 128-131

(dissenting Opinion of Justice

Tomljanovich). Importantly, the United

States Supreme Court declined to review

Larson despite Justice Tomljanovich’s

dissenting opinion.

APP. D 8

petition for writ of habeas corpus must

therefore be denied.

Petitioner makes no claim that the

admission of the four hearsay statements at

his trial was not Supported by a showing of

"pPparticularizea guarantees of

trustworthiness." ww Aght, 110 S.Ct. at

3147. In reaffirming petitioner’s

conviction, the Minnesota Supreme Court

discussed this question at length and held

that the "key hearsay evidence in this

case, B.’s statements to the medical

assistant. ° - possessed particular

guarantees of trustworthiness." Larson, 472

N.W.2d at 126. The court went on to set

forth seven factors that, in its view,

established the trustworthiness of this

first statement. 4. fhe court then

concluded that two of the other three

hearsay statements were also sufficiently

APP. D 9

reliable for confrontation clause purposes;

that the three other statements were

"largely cumulative evidence" and were also

admissible for the non-hearsay purpose of

showing that the victim’s allegations were

consistent; and that "any error in

admitting the subsequent other statements

as substantive evidence of guilt was

harmless beyond a reasonable doubt." id. at

126-8. Had petitioner raised the issue,

this Court would conclude that’ these

determinations by the Minnesota Supreme

Court were correct and were not "wrongs of

a constitutional dimension." Wycoff v. Nix,

869 F.2d at 1113.4

4 The court notes that the Supreme

Court has recently adopted a less rigorous

harmless error standard for habeas corpus

cases. See Brecht v. Abrahamson, 113 S.Ct.

1710, 1713 (1993) (error is harmless unless

it “had substantial and injurious effect or

influence in determining the jury’s

verdict."). The Minnesota Supreme Court

APP. D 10

EE ee eT mn EN Ne SE

In summary, petitioner’s sole clain-

that the Confrontation Clause was violated

because hearsay was admitted even though

the declarant was available to testify at

trial - is foreclosed by the controlling

precedents of White and Ring. As this

Court has no license to reconsider those

precedents, the petition for writ of habeas

corpus should be denied. |

RECOMMENDATION

Accordingly, IT IS HEREBY RECOMMENDED

that petitioner’s application for writ of

habeas corpus be denied.

3 d Oline

FLOYD E. BOLINE

UNITED STATES MAGISTRATE JUDGE

4 con’t

found admission of three of the four

hearsay statements was “harmless beyond a

reasonable doubt," the test set forth in

Vv. California, 386 U.S. 18, 24

(1967).

APP. D ll

Dated: October 22, 1993

Pursuant to Local Rule 72.1(c)(2) any party

may object to this Report and

Recommendation by filing with the Clerk of

Court, and serving all parties by November

5, 1993, a writing which specifically

identifies those portions of this Report to

which objections are made and the basis of

those objections. Failure to comply with

this procedure shall operate as a

forefeiture of the objecting party’s right

to seek review in the Court of Appeals.

APP. D 12

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

Civil No. 4-92-456

Bruce Philip Larson,

Petitioner,

vs. PETITIONER’S OBJECTIONS

TO MAGISTRATE’S REPORT

AND RECOMMENDATION

Sheriff Gerald Nutt,

Respondent.

Petitioner, Bruce Philip Larson,

through counsel, enters the following

objections to the magistrate’s Report and

Recommendation filed in the above-entitled

case:

i. Petitioner objects to the

conclusion that denial of the writ is

required by the decision in White vv,

Illinois, US , 112 SCt 736 (1992).

Report and Recommendation at 3-4, 6.

APP. E l

The holding and analysis in White was

limited to "firmly rooted" exceptions to

the hearsay rule, (the medical exception

and excited utterances exception), for

whieh unavailability is not

constitutionally required. The question

raised by petitioner -- whether

unavailability is constitutionally required

for exceptions to the hearsay rule which

are not "firmly rooted" exceptions -- was

not decided by White. The analysis and

reasoning used by the Court in White

strongly suggest that unavailability is

required when hearsay is admitted under

exceptions which are not firmly rooted.1

In White, the Supreme Court reviewed

the recent developments of the

unavailability rule. In Inadi_v. United

States, 475 US 387 (1986), the Supreme

Court held that the Roberts (prior

testimony) unavailability rule did not

apply to co-conspirator statements because

(a) the evidentiary value of the statements

could not be replicated even if the

declarant were available and testified in

court, and (b) there would be little

benefit and substantial cost to imposing a

requirement of unavailability. In White,

1 contrary to the Report and

Recommendation at 4 n. 3, petitioner’s

conclusion, that under White the out-of-

court statements in this case are

inadmissible, is based on logic of the

Supreme Court’s decision in White. See

Brief in Support of Petition for Writ of

Habeas Corpus at ll.

APP. E 3

the Court then went on to apply this same

analysis to "firmly rooted" exceptions to

the hearsay rule and found there was no

reason for a requirement of unavailability

in that context. White v. Illinois, supra

at 741-3.

Before the conclusion that

unavailability is irrelevant for purposes

of the Confrontation Clause can be reached,

the White/Inadi replication/benefit

analysis must be applied to the hearsay is

not offered under "firmly rooted"

exceptions, like the so-called catch-all

exception. Idaho v. Wright, 497 US » A&G

SCt 3139, 3147 (1990)(catch-all is not

APP. E 4

"firmly rootea" exception).2 The reasons

for not requiring unavailability in Inadi

and White do not apply to hearsay under the

catch-all exception or other hearsay which

2 Total elimination of unavailability

would result in virtual elimination of the

Confrontation Clause’s role in restricting

hearsay testimony, an outcome rejected in

White. See White yv. Illinois, supra at 740.

In nearly every case, a claim of

"Particularizegd guarantees of

trustworthiness" could be offered and

accepted, thus virtually eliminating true

confrontation from trials in most criminal

cases and replacing live testimony with

Professional witnesses. The result

suggested by language in Ring and in the

in support of a very narrow application of

the clause in White. Even under that

narrower application urged in White, the

Confrontation Clause would still apply to

cases where the statements were made for

the principal purpose of accusing or

incriminating the defendant. Id. at 740-1.

The statements in petitioner’s case were

made Primarily for Purposes’ of

incriminating or accusing him and would be

inadmissible even under the narrower rule

proposed and rejected in White.

APP. E 5

does not fit a “firmly rooted" exception.

Unavailability is constitutionally required

in those situations.

aa Petitioner objects to the

conclusion that denial of the writ is

required by the decision in Ring v.

Erickson, 968 F2d 760 (1992) aff’d 983 F2d

818 (8 Cir» 1993). Report and

Recommendation at 3-4, 6.

The court in Ring held that statements

made to a doctor did not fall within the

"firmly rooted" medical exception to the

hearsay rule and that those statements and

statements made to a social worker were not

supported by "particularized guarantees of

trustworthiness." Id. at 762-3.

Authority for the statement in Ring

that White held that unavailability “is

irrelevant for purposes of the"

APP. E 6

Confrontation Clause, see Ring v. Erickson,

Supra at 968 F2d 762 and Report and

Recommendation at 3-5, cannot be found in

the White decision or its analysis and is

incorrect. See Petitioner’s Objection No.

1. Given the decision in Ring, this

language about unavailability was

unnecessary to the holding and constitutes

dicta which does not foreclose a ruling in

petitioner’s favor on this issue in this

case. 3

3 The child in Ring, who was three

years old at the time of the hearsay

statements, was found to be incompetent at

trial. Ring v. Erickson, supra at 761.

Since the court granted the writ on the

basis of the failure to establish

"particularized guarantees of

trustworthiness," the questions of whether

unavailability was constitutionally

required and if so, whether incompetency

constituted unavailability were unnecessary

to the decision.

APP. E£ 7

3. Petitioner objects to the

conclusion that he has not challenged any

of the factual findings of the _ state

courts. Report and Recommendation at 3.

Petitioner maintains that the statements to

the physician’s assistant were not

admissible under the medical exception

because, as in Ring, the primary rationale

for the reliability of such statements was

absent: the three year old child did not

know that false statements could lead to a

false diagnosis and the child also said

"just kidding" after making the statements.

See Brief in Support of Petition for Writ

of Habeas Corpus at 13-4. Because this

hearsay did not fit a "firmly rooted"

exception, admission without showing

unavailability violated petitioner’s right

to confrontation.

APP. E 8

4. Petitioner objects to the

suggestion that the four statements were

Supported by "particularized guarantees of

trustworthiness." Report and Recommendation

at 5. The state court found that the last

statement was not Supported by

"“particularized guarantees of

trustworthiness" and should not have been

admitted. State v. Larson, 472 NW2d 120,

126-8 (Minn. 1991).

5. Petitioner objects to the

implication that a prior denial of a

petition for certiorari by the United

States Supreme Court can be interpreted as

speaking to the merits. Report and

Recommendation at 4 n. 3. See Brown vy.

Allen, 344 US 443, 489-97 (1953). |

6. Petitioner objects to the

magistrate’s recommendation that his

APP. E 9

application for a writ of habeas corpus be

denied. See Report and Recommendation at

RESPECTFULLY SUBMITTED,

Dated: October 31, 1993

MICHAEL F. CROMETT

Attorney at Law,

License # 19896

E-1314 First Nat’l Bank Bldg

332 Minnesota Street

Saint Paul, MN 55101

(612) 227-5363

ATTORNEY FOR PETITIONER

APP. E 10

STATUTES /RULES INVOLVED

U 0 @) F DENCE:

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

App. F-1

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

App. F-2

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

(c) the proponent of the statement

App. F-3

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.

App. F-4