Opposition Brief — Dolny v. Erickson

Soprems Cost, U.S.

\) FILED

94 911 NOV 1 719%

au the

October Term, 1994

KEITH RICHARD DOLNY,

Petitioner,

vs.

ROBERT ERICKSON, Warden,

MINNESOTA STATE PRISON,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Jack S. Nordby

Counsel of Record

Meshesher & Spence, Ltd.

1616 Park Avenue

Minneapolis, Minnesota 55404

(612) 339-9121

Attorney for Petitioner

1904 — Bachman Legal Printing & (612) 339-9518 @ FAX (612) 337-8053

QUESTION PRESENTED FOR REVIEW

Whether Petitioner's right to confrontation was violated

where out-of-court statements of a child witness were received in

a state sex offense prosecution where the child testified by

videotape and the trial judge relied on corroboration of the

Statements in ruling them admissible?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ....0...........cccccccseseseees i

SPs GF CEU ccs sinisiissiitindatd asic dila tia staisdaictibat li

PAGE

Cases

California v, Greene, 399 U.S. 149 (1970) ..ccccccccccccccceccsssesee 16,18

Coy v. Iowa, 487 U.S. 1012 (1988) ......cccccccccccccccccseseceseesesee 18,19

Delaware v. Van Arsdall, 475 U.S. 673 (1986) .....-cccccccscssssssssse 19

Idaho v. Wright, 497 U.S. 805 (1990)... 7-9, 14, 15, 17

Lee v. Illinois, 470 U.S. 530 (1986) ....ccccccccsccccsceccccseessssessssee 9,11

Maryland v, Craig, 497 U.S. 836 (1990) ......ccccccccccccccccsccsseee 18,19

Ohio v. Roberts, 488 U.S. 56 (1980).......cccccsssssssssssssssssesssssssssvese 9

Pointer v. Texas, 380 U.S. 400 (1965) .....cccccccccssscsssssscsssssssssssse 15

Ping v, Erickson, 983 F.2d 818 (8th Cir.

SEGRE SER SE Ca 19

State v. Dolny, No. C5-91023, Minn. Ct. App.

GAS EPS ae 9

v 965 F.2d 575 (8th Cir.

OAS TERRE IRS a ee 17

United States v. Owens, 484 U.S. 554 (1988)... cccccccssssssese 18

United States v. Spotted War Bonnet, 933 F.2d

ee I SOD siprivtnibsiinciniinisnannennidicinniseveies 12, 15, 17

White v. Illinois, 502 U.S. — (1992)........ccccccccecceseeeseseees 9, 11, 19

PI Wiis cicininitsnsschendeniaiiieirwetonanticeibaiieiet, hare eee 2

Statutes

Peémemmmncts Bante SSGS.02 ann. cscnsesccocececnceceesncceseeeseanes 7, 8,19

iV

Gu the

Supreme Court of the Hnited States

October Term, 1994

KEITH RICHARD DOLNY,

Petitioner,

vs.

ROBERT ERICKSON, Warden,

MINNESOTA STATE PRISON,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Petitioner Keith Richard Dolny petitions for a writ for certiorari

to review the judgment of the United States Court of Appeals for

the Eighth Circuit in this case.

OPINIONS BELOW

The decision of the Court of Appeals is reported as Dolny v.

Erickson, 32 F.3d 381 (8th Cir. 1994). The earlier unreported

l

decision of the Minnesota Court of Appeals on direct appeal of

the conviction in State v. Dolny is reproduced in the appendix.

JURISDICTION

Judgment was entered August 19, 1994. There was no

petition or order for rehearing. The statutory provision believed

to confer jurisdiction for review on certiorari is 28 U.S.C.

1254(1).

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution:

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

witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.

STATEMENT OF THE CASE AND FACTS

Petitioner was convicted after jury trial in state court in

Minnesota, of first degree criminal sexual conduct. The

Minnesota Court of Appeals affirmed the conviction and the trial

court's denial of a petition for post-conviction relief in an

unpublished opinion. (Appendix.)

He then filed a petition under 28 U.S.C. § 2254 contending

that his rights to confrontation and due process were violated by

the use in evidence against him of out-of-court statements made

by the alleged victim, K.S., who was seven years old at the time

of trial. (Trial Transcript, hereafter T. 20). Though it was agreed

K.S. was competent to testify (T. 22), after some preliminary

questions, she was asked about something "bad" that happened

with petitioner, and she began to have difficulty and said she was

afraid (T. 20-26), after questioning out of the presence of the jury,

the trial judge ruled she was “psychologically traumatized by the

presence of the defendant in the courtroom” and that her

testimony could be videotaped with Mr. Dolny observing by

closed circuit television from a separate room (T. 31-38). Mr.

Dolny and his counsel agreed there would be no separate screen

showing Mr. Dolny to the witness while she testified (T. 35-41).

The videotape was then played for the jury, with no comment as

to whether Mr. Doiny had been present when the videotape was

made (T. 81-82). The use of the videotape as such was not

challenged.

The trial court also allowed testimony by the child's mother

as to statements K.S. made to her more than a year after the

alleged offense to the effect she had bad dreams and was afraid of

Mr. Dolny (T. 183-185), and statements K.S. made some ten

months later (i.e. almost two years after the alleged events).

Those statements, and those discussed hereafter, were challenged

in a pre-trial hearing, then on appeal, and in the proceedings under

28 U.S.C. §2254, raising the confrontation issue here presented.

(Pre-trial Hearing, P.T. March 20, 1990, pp. 7-10).

The first allegations were made when the child was in trouble

and frightened of possible discipline, were extracted by the

mother's questioning, and concerned things that supposedly

happened about two years before.

The trial judge said in admitting these statements:

I believe they have sufficient indicia of reliability.

With respect to the time they were reported, it was a

reasonable time. Given the nature of the offense, the

age of the child and reviewing the reports, I believe

questions were not asked in a suggestive and leading

manner, they are spontaneous responses by the child to

Miss Martin, and in language that I think is suitable to a

child the age of six years of age with respect to this type

of sexual conduct...

I also find that this reliability is reinforced by

reviewing the statement to Detective Clark Holden,

where the child is, in effect—her statements are

consistent with the statements given to Leslie Martin,

and also in reviewing the statements given to Dr.

Pottebaum, the testimony of--the statements of the child

are consistent. And that, in the Court's mind, makes the

statements reliable.

With respect to the reliability of the persons to

whom the statements were made with respect to Miss

Martin, I believe her statements are consistent with the

Statements that were given to the two trained police

investigators in this case. They were also not

suggestive. (Pre-Trial Hearing pp. 7-10)

The judge referred to the reliability of the mother, but not the

child.

The Court excluded a more recent statement K.S. had made

after watching a news program about a child molester (P.T. 21,

22; T. 71-80).

After the statements K.S. made, her mother called a child

psychologist; he suggested she report this to the police, and she

did so (T. 189-91). After the mother told a detective what KS.

had said, he interviewed K.S. for about 45 minutes: a social

worker was also present; part but not all of the interview was

recorded (T. 193-202). The trial judge reviewed the transcript of

this interview before ruling that the two could testify to the

Statements K.S. made to them. (P.T. 40; T. 74) Before the

recording began, K.S. was "specific" that the petitioner touched

her in the living room with the television on, (on the recording,

she said it was in the bedroom); she said he was wearing blue

pants and a red and white shirt (but could not remember on the

recording), she also said nothing came out of his penis (but could

not remember on the recording).

In ruling that these witnesses could testify to the statements,

the trial judge said he had reviewed the reports and:

The Court's finding, after reviewing the statements, is

that both of the reporters to whom the statements were

made are trained child—trainei investigators dealing

with child abuse cases. The statements were tape-

recorded for their accuracy. So it's the Court's finding

that the people to whom the statements were made are

reliable.

(T. 165).

Note that the questioners' training and the fact the

questioners are reliable witnesses does not show the reliability of

what the child said and only part of the interview was recorded,

not the arguably most important initial portions.

5

The statements were made to both individuals

within a very reasonable time after the child first

reported this incident to her mother. The statements

were not leading or suggestive in terms of the questions

being asked by Detective Holden, the child was

spontaneous in her response and described her answers

in language that was consistent with the child of the age

of Kendra Senrick, age six, relating to sexual affairs that

she described in this report.

(Ibid.).

The statement was two years after the events referred to;

many of the questions were leading.

K.S. next met with a psychologist a few days later and again

a week after that (T. 201-2). Again, the trial judge reviewed the

witness's report, and said:

I'm going to allow those statements to be entered, both

under the statute and under Rule 803(4) of the Rules of

Evidence. I believe that they--This witness is obviously

a trained professional. The record reflects here that he

did not lead the witness; questions were spontaneously

received from him, they're consistent with the statements

that were given a couple days earlier to both the child

protection worker, Mr. Morrissey, and Burnsville Police

Officer Clark Holden, and they have sufficient indicia of

reliability, as does this witness, in reporting it and his

knowing the accuracy of reporting that accurately in his

reports.

(T. 113-114).

After the trial, this Court decided Idaho v. Wright, discussed

below; Mr. Dolny filed a petition for post-conviction relief in the

Minnesota trial court on this and other grounds. The trial judge

reaffirmed his rulings allowing the out-of-court statements, saying

these were

properly admitted pursuant to Minnesota Statute §

595.02, subd. 3, and in full compliance with Petitioner's

rights under both the Minnesota and United States

Constitution.

In a memorandum incorporated and made a part of this order he

added:

The trial court also found that these statements

were reliable because the child consistently gave the

same statements to her mother, Mr. Pottebaum,

Detective Holden and Child Protection Worker

Morrissey and that this consistency corroborated the

veracity and reliability of those statements. It appears

that the majority in Idaho v. Wright has ruled that any

corroboration of the statement by other evidence cannot

be considered by the trial court in determining whether

that statement bears a particularized guarantee of

trustworthiness. This restriction improperly narrows the

focus that the trial court may use in evaluating the

reliability and trustworthiness of the hearsay statements.

Indeed, it creates a situation whereby the trial court, in

determining whether the out-of-court statements were

particularly reliable, cannot consider a

inconsistent statement made by the child declarant at a

later date. The trier of fact, in evaluating the credibility

of that witness's testimony at trial, would be allowed to

7

consider that subsequent inconsistent statement. See

— WIG 3.15. eS

(Order of Trial Court, December 20, 1990, emphasis added,

Appendix. )

The Minnesota Court of Appeals, in an unpublished opinion

affirmed on June 25, 1991, saying as to these issues:

Dolny argues the trial court improperly considered

corroborative trial evidence in deciding to admit three

hearsay statements of the victim. We disagree. The

record demonstrates the trial court considered (a) the

timing of the child's report, (b) the spontaneity of the

statements, (c) the use of leading questions by the

questioner, (d) the child's use of age-appropriate

language, (e) whether the statements were consistently

repeated, and (f) the child's lack of a motive to fabricate.

Under these circumstances, the trial court considered

only appropriate reliability factors in determining to

admit the three hearsay statements. In addition, the

statements made to the child psychologist were also

admissible under Minn.R-Evid. 803(4). See In re

Welfare of R.T., 364 N.W.2d 884, 886-87 (Minn. App.

1985); see also State v. Edward Charles L., 398 S.E.2d

123, 136 (W. Va. 1990). Because the trial court did not

improperly consider corroborative evidence, there was

no error in admitting the child's out-of-court statements

under Minn. Stat. § 595.02, subd. 3. Considering the

totality of the circumstances surrounding the making of

the statements, the statements were sufficiently reliable

to be admissible pursuant to the statute.

(State v. Dolny, No. C5-91-23, Minn.Ct.App., June 25, 1991, pp.

2-3, Appendix.)

Upon the petition under 28 U.S.C. §2254, the United States

District Court Judge held a due process claim procedurally

barred, and ruled that confrontation was not violated "because

complainant testified during this case and was cross-examined by

defense counsel." (Appendix)

The Eighth Circuit Court of Appeals affirmed. (Appendix.)

REASONS FOR GRANTING THE PETITION

This Court decided Idaho v. Wright, 497 U.S. 805 (1990),

after the trial but before the post-conviction hearing and appeal;

therefore, the courts below considered the application of that

decision, which held inadmissible (without a particular showing of

reliability) under the residual exception to the hearsay rule a

child's statements to a pediatrician. (The decision in White v.

Illinois, 502 U.S. __, 112 S.Ct._, 116 L-Ed.2d 848 (1992),

holding similar statements to a doctor admissible under the

medical treatment exception to the hearsay rule, an issue not

addressed in Idaho v. Wright, came later.) The majority in Idaho

y. Wright (Justices O'Connor, Brennan, Marshall, Stevens and

Scalia), held that an out-of-court statement by an unavailable

witness is admissible and not in violation of the confrontation

clause only if it falls within a “firmly rooted" exception to the

hearsay rule (which it held the residual exception is not), or when

it is supported by “a showing of particularized guarantees of

trustworthiness," quoting Ohio v. Roberts, 448 U‘S. 56, 66

(1980). This is because such statements are “presumptively

unreliable and inadmissible for confrontation clause purposes,"

quoting Lee v. Illinois, 470 U.S. 530, 543 (1986). Requiring an

examination of all the circumstances in which a

statement was made, the Idaho v. Wright Court held that

9

surround the making of the statement and that render

the declarant particularly worthy of belief.

497 U.S. at 819. The burden is on the proponent of the

statement, and the showing may not include other evidence

tending to corroborate the statement. The Court said:

Thus, unless an affirmative reason, arising from the |

circumstances in which the statement was made, |

provides a basis for rebutting the presumption that a

hearsay statement is not worthy of reliance at trial,

the confrontation clause requires exclusion of the

out-of-court statement.

the relevant circumstances include only those that

|

497 U.S. at 821. (emphasis added). Or, put another way,

To be admissible under the Confrontation Clause,

hearsay evidence used to convict a defendant must

possess indicia of reliability by virtue of its inherent

trustworthiness, not by reference to other evidence at

trial,

497 U.S. at 822. (emphasis added). |

Cautioning that it intended to create no exclusive inventory |

of considerations bearing on reliability under this test, the Court |

commented on several factors: First, the Court below had noted

that the interview was not recorded on videotape, leading

questions were used, and the questioner had a pre-conceived idea

of what the child should disclose; these, the Supreme Court said,

may bear on reliability but cannot be endorsed as an “artificial

litmus test." 497 U.S. at 819. The Court then turned to other

factors the state and federal courts have properly identified:

10

Spontaneity (though this may be undermined if there is prior

interrogation or prompting), consistent repetition, the mental state

of the declarant, use of terminology unexpected of a child of

similar age, lack of motive to fabricate. 497 US. at 821, 826.

The Court also said inability to communicate to the jury at the

time of trial may be relevant to trustworthiness. 497 U.S. at 824.

These and other appropriate factors may be used to answer the

central question of whether in a given case there are adequate

“particularized guarantees of trustworthiness" to demonstrate "the

child declarant was particularly likely to be telling the truth when

the statement was made." 497 U.S. at 822. Applying these

criteria, the Court found "no special reason for supposing the

incriminating statements were particularly trustworthy." 497 U.S.

at 826. (emphasis added).

This is not a quality easily. shown or to be established by

casual enquiry, because the harm that may be done “poses too

serious a threat to the accuracy of the verdict to be countenanced

by the Sixth Amendment." 497 US. at 824, quoting Lee v.

Illinois, supra.

(White v. Illinois, 502 U.S. __ (1992), held that statements

made for medical treatment and spontaneous declarations are

firmly rooted hearsay exceptions with attendant guarantees of

reliability, which do not require a showing that the witness is

unavailable.)

The child's statements in the present case do not carry

particularized guarantees of accuracy:

l. They were not promptly made, but came nearly two

years after the alleged events.

something from her. She was “afraid” and "crying," and the

statements did not come all at once but in response to further

questioning.

3. The child knew her mother and Mr. Dolny had

separated and divorced, and she was “upset” with him and "glad"

her mother divorced him, and she did not want them to get back

together, making Mr. Dolny a natural target of accusation.

4. The child was then questioned by a police officer and a

social worker, who had been told by the mother what the child

had said, which gave them a preconceived notion of what they

expected to hear.

5. This interview was not videotaped but was selectively

audiotaped—the earlier parts of the questioning (apparently a sort

of rehearsal) were not recorded, and and the recording was

interrupted at one crucial point.

6. Many of the questions were leading.

7. The statement to the police contained at least one

admitted lie—that the events took place in the living room rather

afraid of the questioners (i.¢., at least in this instance, afraid of

telling the truth).

8. The questioners used “anatomically correct dolls,"

which commentators, including then Chief Judge Lay of the

Eighth Circuit, have recognized may by their suggestiveness

diminish rather than enhance trustworthiness and create distorted

recollection. See United States v. Spotted War Bonnet, 933 F.2d

1471 (8th Cir. 1991).

12

y The child psychologist spoke with the child after these

suggestive interrogations; he, too, used dolls; he, too, knew what

the mother told him the child had said.

10. The statements were not consistently repeated but

varied a good deal.

11. Often the language she used was suggestive of

calculation; she even told the police, when asked what her mother

had told her to say, "I didn't practice or anything", suggesting she

was repeating a phrase she had been told. Similarly, there is

something unnatural in the child's statement that her mother told

her "to tell the whole truth."

12. There was no medical or other physical evidence of the

a “reasonable time" (in fact, it was nearly two years after the

of the child” the questions were not leading or suggestive (in fact,

the mother could not recall most questions she asked: the nature

of offense and age of the child are not relevant to whether the

questioning was suggestive); that the statements were

"spontaneous" (in fact, the accusations came when the child

herself was in trouble and were not spontaneous but in response

13

the judge indicate what criteria be applied to reach this

conclusion); and the statements are "consistent" with other

statements "and that, in the Court's mind, makes the statements

reliable."

Here the judge invokes external, corroborating evidence, not

part of the circumstances of the statements themselves—-precisely

what the Court in Idaho v. Wright said must not be done.

The judge found: That the police were trained investigators

(which if anything tends to give them a preconceived idea of what

they expected to hear); that the statements were tape recorded (in

fact, only the latter part was recorded after the events had been

already discussed, and even then the recording was interrupted);

that the statements were made in a reasonable time after the child

told the mother (but that is irrelevant; it was nearly two years

after the alleged events); that the questions were not leading (in

fact many were); that the statements were spontaneous (in fact

nothing in the statement is spontaneous—part in fact was

admittedly calculatedly false, because the child was afraid of the

questioner); that the language was consistent with that of a child

her age; and that she had no motive to fabricate (in fact she

admittedly fabricated where the alleged events took place because

she was afraid of the questioner, and this is a much less

compelling motive to fabricate than she had in accusing Mr.

Dolny, whom she apparently did not like). —

As to the psychologist, the judge found the statements

admissible under the medical exception of Minnesota Evidence

Rule 803(4) and also because the questions were not leading, the

"questions were spontaneously received from him" (sic) (an

apparently meaningless pronouncement), and they were

consistent with statements given earlier.

In his post-conviction order, the trial judge acknowledged

that it "appears" the majority in Idaho v. Wright held such

corroboration could not be used, but he rejected the majority's

4

reasoning because in his opinion it "improperly narrows the focus

of what the trial court may use," and therefore “the dissent in

Idaho v. Wright is more compelling than the majority opinion."

State judges, it should go without saying, are not free to

reject the pronouncements of this Court on issues of federal

constitutional law. Rarely if ever does one see a more brazen

example of precisely that. The confrontation clause was declared

applicable to the states as long ago as Pointer v. Texas, 380 US.

400 (1965), has been applied many times since, and was in fact

applied to a state court in Idaho v. Wright itself. Remarkably the

Minnesota Court of Appeals, reviewing this unfortunate

performance, simply exacerbated the problem by flatly misstating

the record: "The trial court considered only appropriate reliability

factors," and "did not improperly consider corroborative

evidence." This, obviously, is belied by the trial judge's own very

explicit words.

It is precisely to correct misuses and distortions of federal

constitutional law such as this that federal courts exercise their

habeas corpus powers. Otherwise there would be no protection

for federal constitutional rights from assault in the state courts, no

barrier indeed to anarchy.

One other factor requires attention. In United States v.

Spotted War Bonnet, 933 F.2d 1471 (8th Cir. 1991), the panel

majority affirmed a conviction which had been remanded for

reconsideration under Idaho v. Wright. The statements in

question were by two children to a social worker and a clinical

psychologist. Noting that Idaho v. Wright was apparently "at

odds” with a number of Eighth Circuit cases upholding trial

court's discretion, the majority nevertheless affirmed, noting first

that here the child witnesses testified, unlike Wright, and were

cross-examined, though recognizing that mere presence of a

witness may not satisfy the confrontation clause if “an opportunity

15

for effective cross-examination" is not afforded. 933 F.2d 1474,

citing Delaware v. Fensterer, 474 U.S. 15 (1985).

Chief Judge Lay dissented (and would also have granted

hearing en banc), saying the majority "sidesteps" the mandate of

Wright for testing reliability. Noting that this Court knew the

witnesses testified when it granted certiorari and remanded, 933

F.2d at 1475, footnote 1, Chief Judge Lay would have held that

even assuming arguendo the witnesses were "available" the

reliability of the out-of-court statements must be evaluated and,

doing this, he found no adequate indicia of reliability. 933 F.2d at

1476, footnote 2. He noted that the "need to ensure reliability is

underscored by the fact that there is no medical evidence to

support the allegations that either child was abused," 933 F.2d at

1476 (emphasis in original), just as there was not in the present

case; and Chief Judge Lay reviewed other factors tending to show

a "strong possibility that a false memory was created" by the

manner in which their statements were developed, including use

of anatomically correct dolls by a prosecution doctor, which "may

cause permanent memory alteration," and give a "false

impression” the results are "scientific." 933 F.2d at 1477.

On the question of confrontation itself, Chief Judge Lay said:

The key to ascertaining whether suggestive

procedures foreclose effective cross-examination is to

determine whether the goals of confrontation can be

achieved with regard to the witness. The three

procedural benefits of confrontation are 1) testimony

sworn under oath, 2) the jury's ability to observe the

witness's demeanor, and 3) cross-examination. See

Greene, 399 U.S. at 158, 90 S.Ct. at 1935. The

value of the oath and observation of the witness's

demeanor is significantly diminished when the

16

witness's memory has been altered, for the witness

then has a sincere belief in her testimony.

933 F.2d at 1478-9.

Drawing an analogy to witnesses who have been hypnotized,

he emphasized that "the confrontation clause is more than a

simple preference for live testimony," and "mandates an enquiry

into reliability in this situation" because here "the circumstances

require some enquiry into the reliability of out-of-court statements

irrespective of the technical availability of the declarant," and to

apply a "general rule of availability" as the majority does "makes

mockery of the principles behind the confrontation clause." 933

F.2d at 1480.

Next, in United States v. Balfany, 965 F.2d 575 (8th Cir.,

1992), another panel affirmed a sexual conduct conviction. Even

though the complaining child witness testified at trial and "was

subject to meaningful cross-examination," however, the Court

examined the admissibility of out-of-court statements and found

error (though harmless) in allowing the testimony of one witness.

The Court held that the witness, who (like the mother here)

was not trained in interviewing children, "was neither more

probative than other available evidence nor sufficiently

trustworthy," despite the fact that this was the first person the

alleged offense was reported to and despite the apparent use of

"age-appropriate language,” because the witness's testimony

“never established that she questioned S.N. in a non-suggestive

manner," (again as with the mother here), citing Idaho v. Wright.

This decision, then, clearly indicates that judges should and

will review reliability of out-of-court statements even though the

witness testifies at trial and is in fact subject to cross-examination.

In this respect, Balfany goes even beyond Chief Judge Lay's

dissent in Spotted War Bonnet. (In the present case, neither the

17

trial judge nor the Minnesota Court of Appeals relied on the fact

the witness testified in rejecting the confrontation claims.)

In the trial, an additionally prejudicial anomaly and

constitutional difficulty was interjected with the child, having

begun her testimony, reacted to questions about Mr. Dolny, and

her testimony was then completed by videotape. In her direct and

v. Owens, 484 U.S. 554 (1988) (hearsay of identification by

witness with loss of memory) and California v. Greene, 399 U.S.

149 (1970) (loss of memory may prevent cross-examination), see

also Delaware v. Fensterer, 474 U.S. 15 (1986) (expert's loss of

memory as to basis for opinion).

In Coy v. Iowa, 487 U.S. 1012 (1988), the court held the

confrontation clause was violated by the use of a screen in the

courtroom to prevent the witness from seeing the defendant

during her testimony. Maryland v. Craig, 497 U.S. 836 (1990)

approved testimony by closed-circuit television after a showing of

necessity.

The Craig court held that testimony by closed-circuit

television may be permissible under the confrontation clause only

when a three-part case specific finding is made after an adequate

enquiry that 1) the child's welfare requires it, 2) the child's ability

to testify is affected not by the trauma of the courtroom setting in

general but specifically by the presence of the accused, and 3) the

emotional distress must be more than de minimus or "mere

nervousness or excitement or some reluctance to testify." This is

because, as the court had only recently recognized in Coy, supra,

that:

It is always more difficult to tell a lie about a person

‘face to face’ than ‘behind his back’ .... That face-to-

face presence may, unfortunately, upset the truthful

rape victim or abused child; but by the same token it

18

may confound and undo the false accuser, or reveal

the child coached by a malevolent adult. Coy, supra,

487 U.S. at 1019-20.

Here, the testimony was partly live, partly by videotape (not

live closed-circuit television), the change being made because of

the child's reaction to questions about the defendant. The specific

issues that may have been raised by Coy and Craig were not

argued to the trial court or on appeal, and accordingly these were

held not to be shown to be within the medical exception of White,

supra, because the mother sought out the doctor, not the child,

who was not shown even to have known she was talking to a

doctor. 983 F.2d at 820. A statement to a social worker was

held not admissible under Minn. Stat. § 595.02, subd. 3, which is

not a “firmly rooted exception," because there was no adequate

showing of indicia of reliability and the trial court relied in part on

corroborative evidence. 983 F.2d at 821. Without specifying

what they were, the Court noted the trial court had “listed many

factors that it found supported the reliability of the statement," but

nevertheless found them inadequate. Id.

The present decision of the Court of Appeals relies

principally upon the fact that the child testified and was available

19

and subject to cross-examination. The authorities leave doubt

and confusion as to the function and effect of "availability" of the

witness in confrontation situations.

Therefore, this case presents several important and related

points concerning confrontation which it would be most beneficial

for this Court to resolve: How “availability” affects the criteria by

which the reliability and admissibility of out-of-court statements

are judged; and whether a trial judge's ruling based largely on

improper "corroboration" can be upheld because the witness was

subject to cross-examination, especially where the trial judge

explicitly disapproved a decision of this Court on the use of

corroboration.

CONCLUSION

For these reasons we respectfully pray that the petition for a

writ of certiorari be granted.

Respectfully submitted,

Jack S. Nordby, #79546

Counsel of Record

Meshbesher & Spence, Ltd.

1616 Park Avenue

Minneapolis, MN 55404

Telephone (612) 339-9121

Attorneys for Petitioner

November 17, 1994

20

APPENDIX

PAGE

Decision of the Court of Appeals.o.....0.......cccccccccccececeesese.., A-1

Order of the District Court ................0cescocscesesesesosceeeess.., A-13

Unpublished Opinion of Minnesota Court of Appeals ...... A-16

State Court Order Denying Post-Conviction Relief... A-20

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 93-2904MN

Keith Richard Dolny,

Appellant,

On Appeal from the United

States District Court

for the District of

Minnesota.

Robert A. Erickson, Warden,

* #*# # # # # #® # # #

Appellee.

Submitted: May 10, 1994

Filed: August 19, 1994

Before RICHARD S. ARNOLD, Chief Judge, LIVELY,”

Senior Circuit Judge, and FAGG, Circuit Judge.

RICHARD S. ARNOLD, Chief Judge.

“The Hon. Pierce Lively, Senior United States Circuit Judge for the

Sixth Circuit, sitting by designation.

A-1

Keith Richard Dolny was convicted of criminal sexual assault

against his former stepdaughter, K.S., in Minnesota state

court, and sentenced to 43 months in prison. He filed a direct

appeal and an appeal from the trial court's refusal to grant

post-conviction relief. The Minnesota Court of Appeals

consolidated his claims then rejected them. Dolny did not seek

review in the Minnesota Supreme Court; instead, he sought

federal habeas corpus relief under 28 U.S.C. § 2254. A

magistrate judge recommended that the petitioner's claim be

denied,’ and the District Court? agreed. Dolny now appeals to

this Court.

The petitioner claims that his Sixth Amendment

Confrontation-Clause rights were violated by the introduction

of out-of-court statements made by K.S. Dolny contends that

these hearsay statements were introduced without sufficient

findings as to their reliability and without Opportunity for

effective cross-examination of the child, whose testimony was

presented by videotape.” The state replies that Dolny is

procedurally barred from asserting his claims, and that, in any

event, the trial court's reliability findings were sufficient,

particularly given that the child testified in detail and was

subject to questioning by petitioner's trial counsel. We

conclude that we may properly consider Dolny’s claims on the

merits, but affirm the District Court's denial of relief

' The Hon. Jonathan Lebedoff, United States Magistrate Judge for

the District of Minnesota.

* The Hon. Diana E. Murphy, Chief Judge, United States District

Court for the District of Minnesota.

* Dolny does not challenge the introduction of K.S.'s videotaped

testimony per se (because he failed to do so in the state courts), but

contends that the way in which the child's testimony was presented is

relevant to the issue of whether receiving the out-of-court statements into

evidence was harmless error.

A-2

I.

The hearsay statements which are the subject of this

appeal consist of comments made by the child to four

individuals who appeared as witnesses at the trial: her mother,

Ms. Leslie Martin; her treating psychologist, Dr. Randall

Pottebaum; a police officer, Detective Clark Holden; and a

county child-protection worker, Mr. Rick Morrissey. These

comments, some recorded on audiotape, were made when

K.S. was six years old. The statements alleged acts of abuse

committed by Dolny on K.S. when the child was four.

Before the statements were allowed into evidence,

K.S. testified;* she appeared first in a pre-trial hearing, then

briefly in front of the jury, and, finally, by means of videotape

(because she was afraid of Dolny and, to a lesser extent, the

jurors). At trial, on direct examination, K.S. initially did not

recall many significant details of the abuse, other than Dolny's

having sat on her and threatened her. She could not remember

how many times the abuse occurred, whether it hurt, how long

the incident or incidents lasted, or how much clothing either

she or Dolny were wearing. She testified that she remembered

talking to her mother and to the police, but she could not

remember what she had said to the police until she saw her

statement. Eventually, after reading a portion of her statement

to the police, she testified in some detail about the incidents of

abuse. K.S. also explained why she had given conflicting

statements about where the abuse took place within the

residence, and why she waited as long as she did to tell

anyone.

On cross-examination, defense counsel began by asking

K.S. what had happened to her two front teeth; she replied

that she had lost them and had put them under her pillow for

the tooth fairy. She agreed that it had been a long time since

* By this time the child was seven years old. Pre-trial Tr. 3.

A-3

she lived with Dolny. Counsel asked her how many bedrooms

and bathrooms there had been in the residence, and whether

K.S. had ever bathed with her older brothers, which the child

denied. When asked if she goes to see her father, K.S. said

that she did and that she enjoyed doing so. Counsel then

asked K.S. about her mother's work, and asked who took care

of K. S. -- then and now -- in her mother’s absence (during the

period of alleged abuse it was Dolny; now it is her brothers).

K.S. was then asked if she knew a man named Buzz, and if he

was a friend of her mother’s; the child answered affirmatively.

Upon further questioning, K.S. agreed that she had

spoken with Detective Holden and social worker Morrissey, as

well as her mother, about the events to which she had testified.

However, she denied having spoken about the abuse to her

father. K.S. indicated that she had talked with the prosecutor

approximately three times. Finally, defense counsel asked

K.S. whether she had bad dreams about Keith doing

something to her brothers, to which she replied that she did,

and that the dreams included her. She agreed that dreams are

not real, but that sometimes she believes them, and they scare

her.

Subsequently, during the course of the trial, the Court

ruled on the admissibility of the contested statements. The

judge made individual findings concerning the reliability of

each, prior to its admission. To a large extent, the judge

looked to the reliability of the hearsay witness, as opposed to

the child's statement, and also considered the consistency

among the various statements. In each instance, for

substantially similar reasons, the statements were admitted.

Il.

Minnesota urges us to reject Dolny’s claim without

reaching the merits. For its principal reason, the state points

to the statute setting out federal habeas corpus remedies,

A-4

which provides that "[a]n applicant shall not be deemed to

have exhausted the remedies available in the courts of the

State .. . if he has the right under the law of the State to raise,

by any available procedure, the question presented." 28

U.S.C. § 2254(c). Minnesota contends that Dolny is guilty of

procedural default, because he did not seek review in the

Minnesota Supreme Court, and the time for seeking such

review has expired. The magistrate judge, on the other hand,

ruled that Dolny was required to pursue only his appeal as of

right, and did not have to petition for review by Minnesota's

highest court, because such review is discretionary. Minn. R.

Civ. App. P. 117, subd. 2.

The question of whether a criminal defendant must seek

discretionary review from a state's highest court prior to

requesting federal habeas relief remains open in this circuit,

although we have strongly hinted that such effort is not

necessary. Evans v. Dowd, 932 F.2d 739, 740-41 (8th Cir.),

cert. denied, 112 S. Ct. 385 (1991); Brown v. Armontrout,

898 F.2d 84, 86-87 & n.5 (8th Cir.), cert. denied, 498 US.

868 (1990). Other circuits are split. Compare Jennison v.

Goldsmith, 940 F.2d 1308, 1310 (9th Cir. 1991) (per curiam)

(petitioner must seek discretionary review in Arizona state

courts; "the nght to raise" an issue does not entail a right to

have that issue considered on its merits) and Richardson v.

Procunier, 762 F.2d 429, 431-32 (Sth Cir. 1985) (petitioner

must seek discretionary review in the Texas Court of Criminal

Appeals) with Buck v. Green, 743 F.2d 1567, 1569 (11th Cir.

1984) (for purposes of § 2254, Georgia defendant who lost

appeal as of right need not petition the Georgia Supreme

Court for certiorari, given that court's limited jurisdiction).

In Buck, the Eleventh Circuit noted that "the Supreme

Court of Georgia does not ordinarily review assignments of

error from a judgment of the Court of Appeals," and so did

not offer a practical remedy to the petitioner. 743 F.2d at

1569. The Eleventh Circuit then pointed out that § 2254's

A-5

requirements "are rooted in the doctrine of comity," and

therefore should not be interpreted so as “to burden the state

system with meaningless petitions for relief to forums which

are not intended by state law to consider them."' Id. at 1569,

quoting Williams v. Wainwright, 452 F.2d 775, 777 (Sth Cir.

1971). Here, the right of a petitioner to have his claim

considered by Minnesota's Supreme Court is unquestionably.

restricted. See Minn. R. Civ. App. P. 117, subd. 2. ("Review

of any decision of the Court of Appeals is discretionary with

the Supreme Court. Limited, though non-exclusive, criteria

are prescribed for determining which cases to review’ In

practice, less than 25% of petitions for review are granted.

* Discretionary Review. Review of any decision of the Court of

Appeals is discretionary with the Supreme Court. The following criteria

(a) the question presented is an important one upon which the

Supreme Court should rule; or

(b) the Court of Appeals has ruled on the constitutionality of a

Statute; or

(c) the lower courts have so far departed from the accepted and

usual Course of justice as to call for an exercise of the Supreme Court's

(d) a decision by the Supreme Court will help develop, clarify, or

harmonize the law; and

(1) the case calls for the application of a new principle or

policy; or

(2) the resolution of the question presented has possible

statewide impact; or

(3) the question is likely to recur unless resolved by the

Supreme Court.

Minn. R. Civ. App. P. 117, subd. 2.

A-6

Popovich and Miller, Obtaining Review in the Minnesota

Supreme Court, 14 Hamline L. Rev. 117, 128 (1990). Thus,

the practice in Minnesota is similar to that in Florida, where

the Court of Appeals decision is usually "the end of the road."

Williams v. Wainwright, 452 F.2d at 776.

We believe that "[t]he right . . . to raise" an issue referred

to in § 2254 means more than a mere opportunity to seek

leave to present an issue; it means a realistic, practical chance

to present an issue and have it considered on the merits.

Furthermore, we agree with the Eleventh Circuit that concerns

of comity are best met by not requiring fruitless and

burdensome petitions. An analogy may be found in Fay v.

Noia, 372 U.S. 391, 435 (1963), which dispensed with the

requirement that petitioners had to seek certiorari from the

United States Supreme Court before going into federal habeas

(overruling Darr v. Burford, 339 U.S. 200 (1950)). Thus, we

hold that, given the limited jurisdiction of the Minnesota

Supreme Court, when a petitioner has presented his claims to

the State's Court of Appeals, the petitioner need not take the

additional step of seeking discretionary review prior to

requesting federal habeas relief. When Dolny presented his

claims to the Minnesota Court of Appeals, he afforded "the

State a full and fair opportunity to address and resolve the

claim on the merits." Keeney v. Tamayo-Reves, 112 S. Ct.

1715, 1720 (1992). Therefore, the District Court was correct

in concluding that Dolny could proceed with his petition for

habeas corpus relief.°

Minnesota also contends that Dolny is procedurally barred

under Coleman v. Thompson, 501 U.S. 722 (1991), because

* Our decision in Kolocotronis v. Holcomb, 925 F.2d 278 (8th Cir.

1991) does not preclude this result. In that case the only issue before the

court was whether the petitioner must continually seek his freedom from

a state hospital for habeas corpus exhaustion purposes, or whether one

attempt would suffice. The need to seek discretionary review was not at

issue, and language in the opinion on this subject is dictum.

A-7

a

he did not raise the Sixth Amendment Confrontation Clause

issue in the Minnesota Court of Appeals. Even if an issue

does not appear on the face of the pleadings, however, the

issue is not barred from consideration if it was decided by the

court. See Ulster County Court v. Allen, 442 U.S. 140

(1979). In its order denying post-conviction relief, the trial

court explicitly ruled that “out-of-court statements made by

the six-year-old victim in this case . . . were legally and

properly admitted pursuant to Minnesota Statute § 595.02,

subd. 3, and in full compliance with Petitioner's rights under

both the Minnesota itution."

(Emphasis supplied.) The trial court's order was accompanied

oy a memorandum referring to Idaho v. Wright, 497 U.S. 805

(1990), a Sixth Amendment Confrontation Clause case. Next,

the Minnesota Court of Appeals held that the evidence was

properly admitted; the opinion referred to reliability factors

discussed in Wright and adopted by State v. Lanam, 459

N.W.2d 656 (Minn. 1990), cert. denied, 498 US. 1033

(1991). Thus, even if Dolny did not expressly invoke the

Sixth Amendment, the Minnesota courts considered the issue,

and he is not precluded from pursuing it here.

Finally, the State contends that Dolny failed to allege

actual prejudice from any trial error. See Brecht _v.

Abrahamson, 113 S. Ct. 1710 (1993). However, in his brief,

Dolny asserts that his conviction "is based entirely on out-of-

court statements, of no demonstrated reliability, by hearsay

witnesses and videotape." Appellant's Br. 35 (emphasis

original). This statement is a sufficient allegation of prejudice.

Having rejected the State's procedural contentions, we now

assess Dolny's substantive claims.

Il.

Dolny contends that the trial. court violated his Sixth

Amendment Confrontation Clause rights by admitting the

hearsay statements. As this court held in United States v.

Spotted War Bonnet, 933 F.2d 1471 (8th Cir. 1991), cert.

denied, 112 S. Ct. 1187 (1992), where out-of-court statements

are admitted pursuant to a hearsay exception, and the

declarant also testifies, the Confrontation Clause inquiry is

whether the trial provided an opportunity for effective cross-

examination. Id. at 1474-75.’

The petitioner argues that this Court's decision in United

States v. Balfany, 965 F.2d 575 (8th Cir. 1992), stands for the

proposition that, even if the child testifies herself, the court

must make reliability determinations just the same as when the

child does not appear. The petitioner reads Balfany too

broadly. The relevant portion of Balfany held that hearsay

statements made by a complaining child were simply not

admissible under the residual hearsay exception of the Federal

Rules of Evidence, Fed. R. Evid. 803(24). 965 F.2d at 581-

82.* The petitioner does not appear to contest the trial court's

finding that the evidence satisfied the relevant Minnesota

evidence statute, Minn. Stat. § 595.02, subd. 3.2 Therefore,

"Because the child testified, neither Idaho v. Wright, supra, nor

Ring v. Erickson, 983 F.2d 818 (8th Cir. 1993), is applicable.

*The defendant, however, was not entitled to reversal because the

Court concluded that the error was harmless. 965 F.2d at 582.

"The trial court's findings on reliability might not have satisfied

Idaho vy. Wright, in the absence of the child's testimony, because the

findings focused on the reliability of the persons to whom the child spoke

rather than on the reliability of the child herself. However, these findings

appear to have been in conformity with the requirements of the

Minnesota statute, which provides as follows:

A-9

the only question before us is whether the Confrontation

Clause has been violated. Spotted War Bonnet controls.

We are mindful that "simply putting a child on the stand,

regardless of her mental maturity, is not sufficient to eliminate

all Confrontation Clause concerns." Spotted War Bonnet, 933

F.2d at 1474. On the other hand, "a perfectly satisfactory

cross-examination is not required by the Clause, and a witness

who cannot remember the details of statements she has made

in the past can still be sufficiently available for cross-

examination to satisfy the constitutional requirement." Ibid.

In fact "a witness's inability to ‘recall either the underlying

events that are the subject of an extra-judicial statement or

previous testimony or recollect the circumstances under which

[an out-of-court] statement was given, does not have Sixth

Amendment consequence."' Ibid., quoting United States v.

Owens, 484 U.S. 554, 558 (1988). The key question is

whether there is "an opportunity for effective cross-

Certain out-of-court statements admissible. An out-of-court

statement made by a child under the age of ten years . . . 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. . . 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 a hearing conducted outside of 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

fficient indicia of reliability. and

(b) the child . . . testifies at the proceedings .. . and

(c) the proponent of the statement notifies the adverse party

... Sufficiently in advance . . .

Minn. Stat. Ann. § 595.02, subd. 3 (1988).

A-10

examination, not cross-examination that is effective in

whatever way, and to whatever extent, the defense might

wish." Ibid. (citations omitted) (emphasis original).

In the course of Dolny’s trial, the child testified in court,

and defense counsel cross-examined her at length. Counsel

queried K.S. on several subjects potentially bearing on the

child's credibility as well as potential theories for exculpation,

including whether K.S. bathed with her brothers, whether K.S.

had ever discussed the incidents with her father, and whether

the child had spoken with any of the witnesses about the

alleged abuse. Moreover, defense counsel established that it

had been quite a long time since the alleged incidents

occurred, that K.S. visits her father, and that her mother had a

friend named Buzz. K.S. also stated she had spoken with the

prosecutor on three separate occasions prior to tnial.

Prompted by defense counsel, K.S. acknowledged that she

believes in the tooth fairy, and that she believes her dreams,

which scare her. In general, the transcript indicates the child's

answers were responsive and coherent.

During cross-examination, the defense did not ask K.S. to

testify, to any substantial degree, on the acts of abuse

themselves. However, such territory would have been well

within the scope of the prosecution's direct examination.

Despite her initial difficulties in remembering details,

ultimately K.S. testified extensively on the abuse. Apparently

defense counsel elected to use the cross-examination as a

means to discredit K.S. generally, rather than pick apart

specific allegations. This, however, is a matter of trial

strategy; it does not demonstrate that Dolny lacked an

opportunity for effective cross-examination. We hold that

Dolny's Sixth Amendment Confrontation Clause rights were

not violated by the introduction of the evidence of out-of-

court statements made by the child victim.

A-11

IV.

The judgment of the District Court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

A-12

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

Keith Richard Dolny,

Petitioner, Civ. No. 4-92-618

Vv.

Robert Erickson, Warden,

Minnesota State Prison,

ORDER

Respondent.

This matter comes before the Court upon the report and

recommendation of United States Magistrate Judge Jonathan

Lebedoff. Petitioner is a prisoner at the Minnesota

Correctional Facility in Stillwater, Minnesota. Following a

jury trial, petitioner. was convicted of two counts of first

degree criminal sexual conduct in violation of Minn. Stat. §

609.342, and was sentenced to a term of imprisonment of 43

months. The Minnesota Court of Appeals affirmed his

conviction on June 17, 1991. Petitioner then filed this

application for a writ of habeas corpus under 28 U.S.C. §

2254. The case was referred to United States Magistrate

Judge Jonathan Lebedoff for report and recommendation

pursuant to 28 U.S.C. § 636 and District of Minnesota Local

Rule 72.1(c) (1).

The magistrate judge recommended that the petition for

writ of habeas corpus be denied. He concluded that

petitioner's due process claim is procedurally barred and that

petitioner has not shown cause and prejudice to excuse his

procedural default. He also concluded that the admission of

A-13

complainant's out of court statements did not violate the

confrontation clause of the sixth amendment to the United

States Constitution.

Petitioner objects to the findings in the report and

recommendation that he is barred from addressing the merits

of the procedural due process claim. He also objects to the

finding that his rights under the Confrontation Clause of the

Sixth Amendment were not violated.

Upon the filing of objections to a report and

recommendation, the court must "make a de novo

determination of those portions . . . to which objection is

made." 28 U.S.C. § 636 (b)(1). After the court's de novo

review of the entire record, it finds itself in basic agreement

with the findings and conclusions of the magistrate judge.

Petitioner's due process claim is procedurally barred

because he did not present it to the Minnesota Court of

Appeals, Case v. State, 364 N.W.2d 797 (Minn. 1985), and he

has not shown cause and prejudice to excuse his procedural

default. See Coleman v. Thompson, 111 S.Ct. 2546, 2565

(1991). Furthermore, the admission of the testimony of other

witness about the complainant's statements to them did not

violate the confrontation clause of the Sixth Amendment

because the complainant testified during this case and was

cross-examined by defense counsel.

ORDER

Accordingly, based upon the above, and all the files,

records, and proceedings herein, IT IS HEREBY ORDERED

that petitioner's application for writ of habeas corpus under 28

U.S.C. § 2254 is denied. -

r A-14

Date: 6/18/93

s/s

Diana E. Murphy

Chief Judge

A-15

This opinion will blished and

be cited ided |

Minn, Stat. § 480A.08, subd. 3 (1990).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-91-23

Dakota County Short, Judge

Keith Richard Dolny, Peter A. Cahill

petitioner, Colich & Cahill

420 Lumber Exchange Building

Appellant, 10 S. Fifth Street

Minneapolis, MN 55402

VS.

State of Minnesota, Hubert H. Humphrey, III

Attorney General

Respondent. Second Floor, Ford Building

117 University Avenue

St. Paul, MN 55155

James C. Backstrom

Dakota County Attorney

James M. Crow

Assistant County Attorney

1560 West Highway 55

Hastings, MN 55033

Filed: June 25, 1991

Office of Appellate Courts

A-16

Considered and decided by Short, Presiding Judge,

Forsberg, Judge, and Schumacher, Judge.

UNPUBLISHED OPINION

SHORT, Judge

Keith Richard Dolny was found guilty in a jury trial of

two counts of criminal sexual conduct in the first degree.

Dolny appeals from the judgment of conviction and the order

denying his petition for postconviction relief. On appeal, he

argues (1) the trial court erred in admitting the child's out-of-

court statements pursuant to Minn. Stat. § 595.02, subd. 3

(1988), and (2) there is insufficient evidence to support the

conviction. We disagree and affirm.

DECISION

I.

In determining the reliability of a child's out-of-court

statements for purposes of admission under Minn. Stat. §

595.02, subd. 3, a trial court must ignore corroborative trial

evidence and consider only those circumstances surrounding

the making of the statements.

These circumstances include, but are not limited to,

whether the statements were spontaneous, whether

the person talking with the child had a preconceived

idea of what the child should say, whether the

statements were in response to leading or suggestive

questions, whether the child had any apparent motive

to fabricate, and whether the statements are the type

of statements one would expect a child of that age to

fabricate.

A-17

State v. Lanam, 459 N.W.2d 656, 661 (Minn. 1990) (citing

i __ US. _, _, 110 S. Ct. 3139, 3149-52

Idaho v. Wright,

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

Courts have discretion to consider appropriate factors, as long

as the factors relate to whether the child declarant was likely

to be telling the truth when the statement was made. See

Idaho v. Wright, _ U.S. _, _, 110 S. Ct. 3139, 3150

(1990).

Dolny argues the trial court improperly considered

corroborative trial evidence in deciding to admit three hearsay

statements of the victim. We disagree. The record

demonstrates the trial court considered (a) the timing of the

child's report, (b) the spontaneity of the statements, (c) the use

of leading questions by the questioner, (d) the child's use of

age-appropriate language, (e) whether the statements were

consistently repeated, and (f) the child's lack of a motive to

fabricate. Under these circumstances, the trial court

considered only appropriate reliability factors in determining

to admit the three hearsay statements. In addition, the

statements made to the child psychologist were also admissible

under Minn. R. Evid. 803(4). See In re Welfare of R.T., 364

N.W.2d 884, 886-87 (Minn. App. 1985); see also State v.

Edward Charles L., 398 S.E.2d 123, 136 (W. Va. 1990).

Because the trial court did not improperly consider

corroborative evidence, there was no error in admitting the

child's out-of-court statements under Minn. Stat. § 595.02,

subd. 3. Considering the totality of the circumstances

surrounding the making of the statements, the statements were

sufficiently reliable to be admissible pursuant to the statute.

Il.

Dolny also argues the evidence is insufficient to sustain

his conviction. When reviewing a claim of sufficiency of the

evidence, we must ascertain whether, under the facts in the

A-18

record and the legitimate inferences that can be drawn from

them, a jury could reasonably conclude the defendant was

guilty of the offense charged. State v. Bias, 419 N.W.2d 480,

484 (Minn. 1988). The evidence must be viewed in the light

most favorable to the prosecution, and we assume the jury

believed the state's witnesses and disbelieved any contrary

evidence. Id.

Dolny argues the evidence is insufficient due to

inconsistencies in the child's account of what occurred, the

lack of corroboration, the absence of physical evidence of

abuse, and the long delay between the time of the occurrence

and reporting of the alleged sexual abuse. We disagree.

Minor inconsistencies between a victim's testimony and

previous statements do not provide grounds for reversal. See

State v. Garden, 404 N.W.2d 912, 916 (Minn. App. 1987),

pet. for rev. denied (Minn. June 25, 1987); see also State v.

Erickson, 454 N.W.2d 624, 629 (Minn. App. 1990) (jury

entitled to believe child sexual abuse victim even though her

story changed over time), pet. for rev. denied (Minn. May 23,

1990). In addition, a child's allegations of sexual abuse do not

require corroboration unless the other evidence is insufficient.

Further, the absence of physical evidence is not controlling

when the complainant's testimony is positive and consistent.

State v. Myers, 359 N.W.2d 604, 608 (Minn. 1984); see also

State v. Mosby, 450 N.W.2d 629, 635 (Minn. App. 1990),

pet. for rev. denied (Minn. Mar. 16, 1990); Minn. Stat §

609.347, subd. 1 (1988). After a thorough review of the

record, we conclude the evidence was more than sufficient to

support the guilty verdicts.

Affirmed.

6-17-91 s/ Marianne D. Short

A-19

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT

State of Minnesota,

Plaintiff, File No. K8-89-1384

vs.

ORDER DENYING REQUEST

Keith Richard Dolny, | FOR POST CONVICTION

RELIEF

Respondent. !

The above-entitled matter came on for hearing before the

undersigned Judge of District Court at the Dakota County

Judicial Center, Hastings, Minnesota. on December 17, 1990,

pursuant to Petitioner's petition for post conviction relief

under Minnesota Statute §590.01, et seq. Peter A. Cahill,

Esq., appeared with and on behalf of Petitioner. James Crow,

Assistant Dakota County Attorney, appeared on behalf of

Respondent.

Based upon the file, the Proceedings herein and the

arguments of counsel and the evidence adduced at the hearing,

the Court makes the following:

FINDINGS

1. During the trial Randall Pottebaum testified on behalf

of the State of Minnesota as a treating psychologist and as an

expert witness regarding child sex abuse. _ Mr. Pottebaum

described himself as the Director of Sexual Assault Services

for Park Nicollet Medical Center. At the post conviction

hearing Mr. Greg Winkel, Clinical Manager for the Mental

Health Department of Park Nicollet Medical Center produced

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Mr. Randall Pottebaum's personnel file and also testified in this

proceeding. After his testimony and the production of the

personnel records relating to Mr. Pottebaum. Petitioner

conceded that Mr. Pottebaum served in the capacity of

Director of Sexual Assault Services for Park Nicollet Medical

Center since August of 1987 and during Petitioner's trial

herein. Therefore, Petitioner has not established any newly

discovered evidence or evidence of misrepresentation on the

part of the State's witness, Randall Pottebaum with respect to

his credentials as an expert witness.

. CONCLUSIONS OF LAW

1. The evidence adduced at the trial was legally

sufficient to sustain Petitioner's conviction.

2. The admission of out-of-court statements made by

the six-year-old victim in this case to her mother Leslie

Martin, Mr. Randall Pottebaum, Burnsville Police Officer

Clark Holden and Dakota County Child Protection Worker

Rick Morrissey were legally and Properly admitted pursuant to

Minnesota Statute §595.02, subd. 3, and in full compliance

with Petitioner's rights under both the Minnesota and United

States Constitution.

ORDER

1. Petitioner's request for relief herein pursuant to

Minnesota Statute §590.01, et seq. is hereby denied.

2. Respondent's motion for an order revoking the stay

of the executed sentence of the Petitioner herein on the

grounds that Petitioner's appeal has been dismissed in this

matter and ordering that Petitioner immediately be taken into

custody and be remanded to the custody of the Department of

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Corrections for the service of his sentence of 43 months in

prison is denied. The execution of Petitioner's sentence herein

is stayed pursuant to Minnesota Rules of Criminal Procedure

28.02, subd. 7 an the same terms and conditions as was

originally stayed when the Court sentenced Petitioner herein

on July 17, 1990.

3. The attached memorandum is incorporated herein

and made a part of this order.

DATED: December 18, 1990

BY THE COURT:

.

Robert F. Carolan

Judge of District Court

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MEMORANDUM

In reviewing whether the evidence is sufficient to support

Petitioner's conviction, the trial court must view the evidence

in the light most favorable to the verdict and assume the jury

believed the witnesses for the state and disbelieved any

contrary evidence. State v. Bias, 419 N.W.2d 480 (Minn.

1988); State v. Lanam, 459 N.W.2d 656 (Minn. 1990). Under

this standard the trial court must conclude that the evidence is

sufficient to sustain Petitioner's conviction herein. Under this

standard the jury was free to believe the statements of the

child victim in this case and the other state witnesses and

disbelieve the testimony of the Defendant or the Defendant's

witnesses.

Since the trial of this case, United States Supreme Court

has ruled in the case of Idaho v. Wright. The Court ruled that

incriminating statements admissible under an exception to the

hearsay rule must either fall within a firmly rooted hearsay

exception or be supported by a showing that under the

circumstances under which the statement or statements were

made there were particularized guarantees of trustworthiness

to make it particularly likely that the child declarant was telling

the truth when the statements were made.

Subsequently. the Minnesota Supreme Court, in State v.

Lanam, supra, adopted the holding in Idaho v. Wright and

reiterated that the trial court, in determining whether hearsay

statements of a child witness are sufficiently trustworthy to be

admitted Pursuant to Minnesota Statute §595.02, subd. 3,

must focus only on those circumstances actually surrounding

the making of the statements.

With respect to the hearsay statements made by the child

victim to her mother, Leslie Martin, in this case, the trial court,

Prior to admitting those statements, but after Ms. Martin had

testified and the trial court had an opportunity to evaluate her

credibility as a witness. found that the statements were

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reported to Ms. Martin in a reasonable time, that questions

were not asked in a leading or suggestive manner and that the

child gave spontaneous responses to Ms. Martin.

With respect to the statements given to Detective Holden

and Child Protection Worker Morrissey, the Court also made

findings that those statements were made within a very

reasonable time after the child first reported this incident to

her mother, that the questions were not leading or suggestive,

that the child was spontaneous in her responses and answered

in language that was consistent and suitable with a child the

age of the victim in this case. The Court further noted that

these statements were made to trained investigators who had

no motive to fabricate and that the statements were tape-

recorded for their accuracy.

Ms. Martin, the child's mother, did not have any

Preconceived ideas of what the child should say or was about

to say when the child related to her that the Defendant had

previously taken her clothes off and part of his clothes off and

touched her in her private parts with both his fingers and his

penis. At the time these statements were given, the child was

six years of age. These are not statements that one would

expect a six-year-old child to fabricate.

The trial court also found that these statements were

reliable because the child consistently gave the same

statements to her mother, Mr. Pottebaum, Detective Holden

and Child Protection Worker Morrissey and that this

consistency corroborated the veracity and reliability of those

statements. It appears that the majority in Idaho v. Wright has

ruled that any corroboration of the statement by other

evidence cannot be considered by the trial court in determining

whether that statement bears a particularized guarantee of

trustworthiness. This restriction improperly narrows the focus

that the trial court may use in evaluating the reliability and

trustworthiness of the hearsay statements. Indeed, it creates a

situation whereby the trial court, in determining whether the

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out-of-court statements were particularly reliable. cannot

consider a subsequent inconsistent statement made by the child

declarant at a later date. The trier of fact, in evaluating the

credibility of that witness's testimony at trial, would be

allowed to consider that subsequent inconsistent statement.

See Crim. JIG 3.15. It appears that the dissent in Idaho v.

Wright is more compelling than the majority opinion.

RFC

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