# Petition for Writ of Certiorari — Larson v. Nutt

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1111

## Text

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

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0809%3A1. Public record. Not legal advice.