Petition for Writ of Certiorari — Lewis v. Webb

94163 4 MAR 20 1995)

NO. ___aeeies OF THE CLERK

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IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1994

— me

SAMUEL LEWIS, Director of Department of Corrections,

Arizone State Prison,

PETITIONER,

-VS-

TERRY L. WEBB,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

GRANT WOODS

Attorney General

PAUL J. MCMURDIE

Chief Counsel

Criminal Appeals Section

(Counsel of Record)

DIANE M. RAMSEY

Assistant Attorney Gener#!

1275 West Washington

Phoenix, Arizona 85007-2997

Telephone: (602) 542-4686

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QUESTIONS PRESENTED FOR REVIEW

1. Was the holding of Idaho v. Wright a “new rule” for the

purposes of federal habeas review or was that holding dictated by

precedent and thus applicable to a state case tried in 1987?

2. Although corroborating evidence cannot support hearsay

reliability under Idaho v. Wright, can noncorroborating evidence

support unreliability?

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TABLE OF CONTENTS

Page

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prt Be sys yy ||: iii

ee a ss ks ig 4 4 Ae 8b vw eee oe 1

SIATEMENL OF JURISDICTION .........0c cc eeee 1

CONSTITUTIONAL PROVISIONS INVOLVED ......... 2

STATUTORY PROVISIONS INVOLVED ............. 2

mEPusteeeees GFE Bete GAGE www ce ee 4

ARGUMENTS

I

THIS COURT’S HOLDING IN JDAHO V. WRIGHT

WAS A NEW RULE THAT SHOULD NOT BE

APPLIED ON COLLATERAL REVIEW. ......... 8

II

IDAHO V. WRIGHT FORBIDS USE _ OF

CORROBORATING EVIDENCE TO DETERMINE

Soe fog os 46: re 11

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re ea ga 6 ag ao 4 ee a8 wk ww Bl

Pea O PANE TN IRL Ot Bor et ’ , ~

TABLE OF AUTHORITIES

CASE PAGE

Brecht v. Abrahamson,

> Die 5 She oe Mae 8F8U,

ae ti ee: a ee Ey 6 io be ee ee eke 15, 16

Butler v. McKellar,

494 U.S. 407, 110 S. Ct. 1212,

fe OS ee ee eae 9

Dana v. Department of Corrections,

Se oe ae Ge. ED 6 ee ee ee eee 15

Dolney v. Erickson, 32 F.3d 381 (8th Cir. 1994) ........ 16

Estelle v. McGuire,

502 U.S. 62, 112 S. Ct. 475,

Se aay ee ee bo & & 6 60d 0d a Oe ea 12

Gilmore v. Taylor,

LB. gs BAD GS. GA. S28,

Rae a ee ED gp 8 4 os hea oe Ae keels eee Ot 8

Idaho v. Wright, 497 U.S. 805,

110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990) ...... i, 14

Larson v. Nutt, 34 F.3d 647 (8th Cir. 1994) ........... 15

Penry v. Lynaugh,

492 U.S. 302, 109 S. Ct. 2934,

ee ® & Fs. ere eee ee ee ee 9

Saffle v. Parks,

494 U.S. 484, 110 S. Ct. 1257,

ee i ee ee ee es vw a aoe we Oe ek 7)

Swan v. Peterson, 6 F.3d 1373 (9th Cir. 1993) ......... 12

Teague v. Lane,

489 U.S. 288, 109 S. Ct. 1060,

Sa me Fg: errr eee 9, 10

ill

Sane Ares aap

United States v. Bailey, 581 F.2d 341 (3d Cir. 1978) ..... i0

United States v. Nick, 604 F.2d 1199 (9th Cir. 1979) ..... 13

Webb v. Lewis, 33 F.3d 1079 (9th Cir. 1994) ........... 1

CONSTITUTIONAL PROVISIONS PAGE

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United States Constitution,

Cs a aa ewe & eee ee Ae Ge l

SS iwc ce ven eee aset ede ee en 2

ee ee a 2

RULES

United States Supreme Court

rs os 5 ee ek. 4 & STOR SS ee 1

Arizona Rules of Evidence

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ES Ge ate op a 6 ae Kee ee eae A aed 4

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EE ba so 6:4 ae nes oe eee ON ee eS 2

iV

OPINION BELOW

On August 24, 1994,” the Ninth Circuit Court of Appeals, in

a divided opinion, overturned the district court and granted a writ of

habeas corpus to a state prisoner convicted of molestation of a child

and sexual conduct with a minor. Webb v. Lewis, 33 F.3d 1079 (9th

Cir. 1994). The court denied the petition for rehearing with

suggestion for rehearing en banc on January 20, 1995.

STATEMENT OF JURISDICTION

Respondent’s petition was mailed on ~ 1955. Thus it

was filed within the 90-day time limit of Rule 13, Rules of the

United States Supreme Court, which calculates the time for the filing

of the petition from the denial of a motion for rehearing in the lower

court. Rule 13.4, U.S. Sup.Ct. Therefore this Court’s jurisdiction

vests pursuant to the United States Constitution, article III, § 2 and

28 U.S.C. § 1257(a).

? Opinion amended October 13, 1994 and December 8, 1994.

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CONSTITUTIONAL PROVISIONS INVOLVED

Sixth Amendment to the United States Constitution:

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.

Fourteenth Amendment to the United States Constitution:

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and the State wherein they reside.

No Siate 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 laws.

STATUTORY PROVISIONS INVOLVED

Rule 804(b)(5) of the Arizona Rules of Evidence states:

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

2

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 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 part.

STATEMENT OF THE CASE

Procedural History of the Case.

Respondent was charged with one count of molestation of a

child and one count of sexual conduct with a minor, both class 2

dangerous crimes against children. A jury convicted him as

charged. The trial court sentenced him to presumptive, consecutive

prison terms of I7 years and 20 years. Respondent appealed his

convictions and sentences. He challenged the admissibility of the

victim’s out-of-court statements to her mother, her babysitter, and

her psychotherapists. -The Arizona Court of Appeals affirmed both

convictions and sentences on July 25, 1989 by Memorandum

Decision. The Arizona appellate court upheld the trial court’s

finding that the girl’s statements to her mother and her babysitter

had sufficient guarantees of trustworthiness to be admissible under

the residual hearsay exception found in Rules 803(24) and 803(b)(5),

Arizona Rules of Evidence. The Arizona court found that the

statements to the psychotherapists were admissible under the medical

diagnosis exception to the hearsay rule, Rule 803(4), Arizona Rules

of Evidence. Alternatively, the court of appeals found that these

same statements were also admissible under the residual hearsay

exception to the hearsay rule. The court further found that

admission of the videotaped interview if error, was harmless error

because the videotape was cumulative to other evidence properly

admitted. Thus the Arizona court rejected Respondent’s claims

based upon the confrontation clause. On December 12, 1989, the

Arizona Supreme Court denied Respondent’s petition for review.

Respondent filed a petition in the federal district court alleging

that the admission of the victim’s out-of-court statements to the four

witnesses violated his rights under the Confrontation Clause of the

Sixth and Fourteenth Amendments. The district court held that the

Confrontation Clause was not violated because the statements to the

mother and babysitter admitted under a residual hearsay exception

contained particularized guarantees of trustworthiness. The district

court also found that the statements to the psychotherapists were

properly admitted under the firmly rooted hearsay exception of

Statements made for the purpose of diagnosis and treatment.

Therefore, those statements presumptively had sufficient

trustworthiness to avoid a Confrontation Clause violation. And

alternatively, those statements too had particularized guarantees of

trustworthiness.

The Ninth Circuit Court of Appeals reversed the district court

and held that the videotaped interview with the victim, conducted by

a social worker, was not admissible under the hearsay exception for

medical diagnosis or treatment, and it did not have sufficient

guarantees of trustworthiness to be admissible under the residual

exception to the hearsay rule and therefore violated the Defendant’s

right of confrontation.

Facts of the Case.

Connie Martin babysat the 2-year-old victim, Heather, from

December 1984, to June 1986. The victim’s mother, Leslie, then

started often leaving the girl overnight with her neighbors,

Respondent and his friend, Cindy. Leslie noted that Heather was

reluctant to stay at Respondent’s residence. On one occasion at

home, the 2-year-old entered the bathroom and saw her mother

applying prescription cream to her vaginal area. She told her

mother, “Terry put medicine on me.” Leslie confronted Respondent

(Terry) and Cindy with this comment, but they denied it. The two

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of them moved away and Leslie started leaving Heather with Connie

Martin, her former babysitter.

The mother eventually asked the babysitter about the “Terry

put medicine on me” statement. The babysitter related that Heather

had told her, “Terry put medicine in me” like a “bolt out of the

blue.” In addition, Heather said such things as “Terry was a bad

bad boy. He pulled down his panties. And he put his finger up in

my little thingy and it hurt my tummy real bad.” She also

demonstrated to Connie how Terry put a fist in her face and said,

“don’t you tell, Heather.”

While riding with the babysitter in the car in the Parker,

Arizona area, Heather spontaneously pointed out the Kahok Motel

and said, “Terry is there and he’s going to hurt me.” At one point,

Respondent lived at the Kahok Motel while he was babysitting the

girl. Heather made other statements to the babysitter, such as

“Terry put his pee pee in her mouth and it dripped in her mouth” as

she showed Connie Martin how it made her gag. Heather also sat

spread-eagle on a chair and pointed to her vagina to demonstrate

where “Terry put his pee pee in my side.” Heather later repeated

these statements to two child abuse experts. She asked to have the

doctor take the “medicine” out of her. The state also presented

photographic medical evidence and expert testimony that the girl’s

abnormal genital area was consistent with repeated episodes of

sexual abuse.

By the time of trial, Heather was 3 years old. She refused to

communicate about the incidents when both parties attempted to

videotape her testimony. The trial court found her to be unavailable.

Respondent made ro attempt to call her during trial.

ARGUMENTS

I

THIS COURT’S HOLDING IN IDAHO V. WRIGHT

WAS A NEW RULE THAT SHOULD NOT BE

APPLIED ON COLLATERAL REVIEW.

The federal appellate court has reversed Respondent’s

convictions based upon a holding by this Court that did not exist

when this case was tried in 1987. To impose the requirements of the

1990 decision in Jdaho v. Wright on the state courts, as the Ninth

Circuit did in this case tried in 1987, is an improper application of

a new rule to a case on collateral review. Gilmore v. Taylor,

BN i nn wise ha sisi

U.S. __, 113 S. Ct. 2112, 124 L. Ed. 2d 306 (1993); Saffle v.

Parks, 494 U.S. 484, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990);

Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L Ed. 2d 334

(1989). See also Butler v. McKellar, 494 U.S. 407, 110 S. Ct.

1212, 108 L. Ed. 2d 347 (1990); Penry v. Lynaugh, 492 U.S. 302,

109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989). As a threshold matter,

a court must determine first if the relief the petitioner seeks would

create a “new rule.” Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct.

2934, 2944, 106 L. Ed. 2d 256 (1989) (citing Teague v. Lane, 489

U.S. 288, 109 S. Ct. 1060, 1069, 103 L. Ed. 2d 334 (1989)

(plurality opinion)). A “new rule” is when the relief sought “breaks

new ground or imposes a new obligation on the states or the Federal

Government.” Penry, 492 U.S. at 312; Teague, 489 U.S. at 298.

A case announces a new ruie if “the result was not dictated by

precedent” existing at the time the defendant’s conviction became

final. Penry, 492 U.S. at 312 (emphasis in original), Teague,

489 U.S. at 298.

Prior to Wright, many jurisdictions admitted out-of-court

statements of child victims under the residual exception by referring

Keeani lesen ee ee ee

to extrinsic corroborating evidence just as the trial court did in this

case. See, e.g, United States v. Bailey, 581 F.2d 341, 349 (3d Cir.

1978) (“(T)he trustworthiness of a statement should be analyzed by

evaluating not only the facts corroborating the veracity of the

Statement, but also the circumstances in which the declarant made

the statement and the incentive he had to speak truthfully or

falsely.”). The dissent in Wright gave other examples of state and

federal courts that looked to corroborating evidence to determine

trustworthiness prior to Wright. 497 U.S. at 829n.2. This shows

that Wright set forth a new rule.

Under Penry and Teague, new rules will not be applied in

federal habeas corpus unless they fall into one of two exceptions.

The first exception is if the rule places “certain kinds of primary,

private individual conduct beyond the power of the criminal

law-making authority to proscribe.” Teague, 489 U.S. at 303. The

second exception is the “procedure at issue must implicate the

fundamental fairness of the trial.” Teague, 489 U.S. at 304

(emphasis added). Neither exception applies to the evidentiary issue

in this case. It is wholly improper under Teague to reverse a state

OER ee ee TT ee

court evidentiary ruling based upon law that was not in existence

when the case was tried and became final.

I]

IDAHO V. WRIGHT FORBIDS USE OF

CORROBORATING EVIDENCE TO DETERMINE

UNTRUSTWORTHINESS.

In Idaho v. Wright, this Court said corroborating evidence may

not be considered because it “would permit . . . bootstrapping on the

trustworthiness of other evidence at trial.” Jd. 497 U.S. at 823.

The Court held that a finding of trustworthiness must be based on a

consideration of the totality of the circumstances, but that “the

relevant circumstances include only those that surround the making

of the statement and that render the declarant particularly worthy of

belief.” Jd., 497 U.S. at 814. The standard is whether “the

declarant’s truthfulness is so clear from the surrounding

circumstances that the test of cross-examination would be of

marginal utility.” Jd. at 815. Thus, the Court held that a trial court

may not consider independent corroborating evidence in judging the

admissibility of a hearsay statement sought to be admitted pursuant

to a residual hearsay exception. /d. at 816-17.

11

It is a perversion of this Court’s holding in Wright to say that

while corroborating evidence is irrelevant to a determination of

trustworthiness, it can be used to show untrustworthiness. Yet the

Ninth Circuit’s opinion extends Wright beyond its holding by

claiming that although corroborating evidence cannot support

reliability, noncorroborating evidence can support unreliability. If

this evidence is irrelevant on the issue of reliability, it should also

be irrelevant on the question of unreliability. As the dissent in Webb

points out, this reasoning is inconsistent with the Ninth Circuit's

: holding in Swan v. Peterson, 6 F.3d 1373, 1381 (9th Cir. 1993),

cert. denied, 115 S. Ct. 479 (1994) (Wright’s caution against

reference to other evidence at trial suggests noncorroborating

evidence cannot be used to demonstrate unreliability). By its

December 8, 1994, amendment to the opinion, the Webb majority

merely refers to Swan as dicta on this point.

Furthermore, this extension of Wright actually put the majority

in the business of determining the admissibility of evidence contrary

to Estelle v. McGuire, 502 U.S. 62, 69, 112 S. Ct. 475, 116 L. Ed.

2d 385 (1991) (evidentiary rulings do not raise federal constitutional

12

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4

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ah VE se Bae ites

eet, et we Me ee

questions reviewable in habeas corpus proceedings). A large part of

the Webb opinion discusses extrinsic evidence at trial and the

inferences to be drawn from it. 33 F.3d at 1084-85. That is not the

role of a federal appellate court on collateral review. The majority’s

look at the circumstances surrounding the statement also strays from

the role of the federal court on collateral review. The majority holds

that age-appropriate language about sex and body parts indicates

unreliability. 33 F.3d at 1085. In other words, this 3-year-old’s

failure to use sophisticated sexual terminology makes her statement

unreliable. That is contrary to the same court’s holding in United

States v. Nick, 604 F.2d 1199, 1204 (9th Cir. 1979), that age-

appropriate testimony signifies reliability. 604 F.2d at 1204

(“childish terminology has the ring of verity”). If childish

terminology can signify both reliability and unreliability, then the

inferences to be drawn from the facts obviously belongs to the trial

court, not a federal appellate court reviewing a record 7 years later.

The fact that the Ninth Circuit had a videotape to view over and

over in this matter does not change the law with regard to that

court’s role in reviewing state evidentiary rulings. Mere

13

end Sah SAVE Wolly Rb A Ba I a 0k RO ha ina il te dil li a ani

Gia ar dee Th

disagreement with the trial court’s inferences drawn from the same

facts does not make out a constitutional violation.

As noted by the dissent, the law sanctions a trial court

considering the sexual terminology of a child molestation victim in

determining reliability, but it does not dictate that age-appropriate

terminology equals unreliability. 33 F.3d at 1086. This Court’s

previous case law supports the dissent. There is no mechanical test

for determining particularized guarantees of trustworthiness. Courts

have considerable leeway in their consideration of appropriate

factors. Wright, 497 U.S. at 816. Because there is no mechanical

test, it is also not correct for the Webb majority to hold that

subsequent consistent statements by a victim cannot be spontaneous

once the victim has been previously questioned about the case. The

opinion states that if the victim has talked about the case before,

spontaneity means unreliability. 33 F.3d at 1084. Petitioner submits

that Jdaho v. Wright never meant to put state trial courts into such

a Straight jacket. The dissent’s observed conundrum is correct. The

opinion tells the police that they should not investigate because only

the first statement counts. Like childish terminology, spontaneity

bo

PS ich at PO AR RN Ln te i lid

may or may not indicate reliability. It is not the federal court’s role

to say whether it does or does not in a particular case. It is the role

of the federal habeas court to see that the state trial court considered

appropriate factors that are supported by the record thus assuring the

defendant a fair trial.

Lastly, Petitioner would ask the Court to consider Brecht v.

Abrahamson, __ U.S. __, 113 S. Ct. 1710, 123 L. Ed. 2d 353

(1993). On collateral habeas corpus review, the harmless error

standard is that the prisoner must establish that the constitutional

violation “had a substantial and injurious effect or influence in

determining the jury’s verdict.” 113 S. Ct. at 1722. That standard

is not met unless the state prisoner establishes that the constitutional

violation resulted in “actual prejudice.” Jd.

When the victim’s out-of-court statements in a child sex case

have been properly admitted by witness testimony, error in admitting

an additional videotape of the child’s statements may be harmless.

Larson v. Nutt, 34 F.3d 647, 648 (8th Cir. 1994), cert. pet. filed,

Nov. 14, 1994; Dana v. Department of Corrections, 958 F.2d 237,

240 (8th Cir.), cert. denied, _U.S.__, 112 S. Ct. 3043 (1992):

15

see Dolney v. Erickson, 32 F.3d 381, 382 (8th Cir. 1994), cert. pet.

filed, Nov. 18, 1994. The Webb opinion gives only a one-sentence

nod to the Brecht harmless error standard. Petitioner submits that

the state is entitled under Brecht to as much discussion of the other

evidence in the case as the Webb majority gave to the discussion of

extrinsic evidence of unreliability of the tape. In Brecht, 113 S. Ct.

at 1722, this Court discussed al] of the evidence in the record as a

whole before making its harmless error determination. That was not

: done in this case.

Ce EN ee ek eee Fr

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CONCLUSION

The 1990 decision in Idaho v. Wright should never have been

applied to this 1987 state trial. The Ninth Circuit also misread

Wright when it decided that noncorroborating evidence was relevant

to determine untrustworthiness under the residual hearsay exception.

Lastly, the appellate court gave short shrift to the review for

harmless error under the Brecht standard. The Webb opinion should

be vacated and district court order denying the federal habeas writ

should be reinstated.

Respectfully submitted,

GRANT WOODS

Attorney General

PAUL J. McMURDIE

Chief Counsel

(Counsel of Record)

DIANE M. RAMSEY

Assistant Attorney Geners]

Attorneys for PETITIONER

5638

APPENDIX A

ee Sat jai rd

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Respondent-Appellee.

TERRY L. WEBB, ) No. 93-16167

)

Petition-Appellant, ) D.C. No.

) CV-90-01608-SMM

)

v. ) ORDER AND

) AMENDED

SAMUEL A. LEWIS, ) OPINION

)

)

)

Appeal from the United States District Court

for the District of Arizona

Stephen M. McNamee, District Judge, Presiding

Submitted May 12, 1994*

San Francisco, California

Filed August 24, 1994

Amended October 13, 1994

Before: Warren J. Ferguson, John T. Noonan, Jr., and

Thomas G. Nelson, Circuit Judge

Opinion by Judge Noonan; Dissent by Judge T.G. Nelson

6 Bie i: ae am pan

*The panel unanimously finds this case suitable for submission

without oral arguemnt. Fed.R.App.P. 34(a); 9th Cir.R.34-4.

A-1

COUNSEL

Stafford W. Prante, El Cajon, California, for the petitioner-

appellant.

Diane M. Ramsey, Assistant Attorney General, Phoenix,

Arizona, for the respondent-appellee

OPINION

NOONAN, Circuit Judge

Terry L. Webb appeals the denial by the district court of a writ of

habeas corpus freeing him from imprisonment by the state of

Arizona. Holding that there has been a gross denial by Arizona of

a right secured to Webb under the Confrontation Clause of the

United States Constitution, we reverse the judgment of the district

court and direct the issuance of the writ.

FACTS AND PROCEEDINGS

In the summer of 1986 Leslie Morton was separated from her

husband and living in a trailer park with her two children, David,

age 10, and Heather, age 2 1/2. She worked the night shift at the

Little Brown Jug, finishing around midnight or in the small hours of

the morning.

A-2

Because of her work, Leslie Morton had to find babysitters for her

children. She usually left David with her own parents but because of

Heather’s difficult behavior she thought her parents would not be

able to cope with her. She found other babysitters in her next-door

neighbors in the trailer park, Terry Webb and his companion Cindy

Hammontree, who had a child of their own, Cody. Leslie Morton

thought of Terry and Cindy as her best friends.

During the summer months Heather Morton stayed on occasion

with Terry and Cindy and wrestled with Cody. When Heather

stayed overnight with Terry and Cindy, her mother would bathe her

in the morning. Her mother never noticed any signs suggesting

abuse by Terry or by Cindy. Heather never spoke to her mother of

any abuse. In late August 1986, when her mother was putting on

cream for a bladder infection and referred to it as "medicine,"

Heather said to her, "Terry put medicine on me." Her mother had

"no idea" of what Heather meant.

In September 1986 Leslie Morton began to use a new babysitter

during the day, Connie Martin. Connie used her home to babysit a

number of children, supplementing her income as a church

A-3

custodian. On four other occasions Connie Martin had reported to

the authorities that a child in her care had suffered sexual abuse.

On September 23, 1986, when Connie was "hustling about trying

to find her checkbook" and paying little attention to the children as

"there was kind of a lot of chitter-chat," Heather said that Terry had

put medicine in her. She then said, "Terry is a bad man, he hurt

me." Connie Martin’s husband then asked Heather to tell his wife

why Terry was a bad man. Heather went on, according to Connie

Martin, to accuse Terry Webb in childish language of digitally

assaulting her genitals and of instructing her not to tell. Connie

Martin’s response was "to mask the horror of it the best that I

could," to put her arms around her, and to ask her questions "in the

most non-threatening way" in order "to derive some basic

information. " Connie was immediately convinced of Terry’s

criminal guilt: "I emotionally didn’t feel like I could stand the

horrendousness of this heinous crime that was committed against this

child."

On September 30, 1986, Connie Martin told Heather. "Heather,

you know what Terry did to you was very very bad, and that

A-4

Heavenly Father and Jesus does not like bad things to happen to his

little children, and He has given us special friends to help us."

According to Martin, this statement was made as a way of preparing

Heather for "special friends" from the Children Protective Service

of the Division of Economic Security of the State of Arizona.

Also on September 30 Connie Martin for the first time informed

Leslie Morton of what Heather had said to her about Terry. This

conversation was overheard by Heather, who ran over and said,

"Terry no do those things to me, Connie."

Connie Martin then informed the district attorney’s office of LaPaz

County, Arizona about what she said Heather had first said to her by

way of accusations against Terry Webb. Allan Duprey from the

Victim Witness Office in LaPaz County arranged to have Heather

interviewed in San Diego, California at the Center for Child

Protection at Children’s Hospital and Health Center. Duprey

accompanied Heather and her mother to the Center on October 16,

1986. At the Center for Child Protection Heather was interviewed

by Linda Proctor, a social worker holding a B.A. and M.A. in

Social Work from San Diego State University. This interview was

A-5

videotaped and constituted part of the state’s case against Terry

Webb. It is discussed at greater length below.

After the interview with Proctor, Heather was medically examined

at the Center for Child Protection by Sylvia Strickland, a physician

specializing in child abuse cases and often consulted by law

enforcement and child protection services. Strickland found

fibroblasts in Heather’s hymen that she interpreted to be scar tissue

from the use of force on the hymen; she also formed the opinion

that the opening of the hymen had been enlarged beyond its normal

size. She believed that the abrasions would have been caused by

several episodes over a period of no less than two months. She had

no means of knowing when the episodes would have occurred,

except that it would have been more than two weeks before the

examination and not over a year from October 1986.

Webb was indicted. A pretrial hearing was conducted on February

18, 1987 as to the admissability of certain statements against him.

The hearing was convened pursuant to Arizona Criminal Code Sec.

13-1416, which made admissible a statement by a minor under the

age of 10 describing any sexual offense witnessed by the minor

A-6

provided that, in a hearing before the judge, it was established "that

the time, content and circumstances of the statement provide

sufficient indicia of reliability" and that the minor testified or, if

unavailable, there was corroborative evidence of the statement. In

1987 the Arizona Supreme Court found this statute to be

unconstitutional. State v. Robinson, 153 Ariz. 191, 198, 735 P.2d

801, 808 (1987). At the hearing in 1987 held prior to this decision,

the trial court found the videotape and other hearsay reports of

Heather’s statements to be admissible.

Webb’s trial followed. No person who had seen the alleged

criminal acts of Webb testified. Heather Martin herself refused to

answer questions put to her by the judge outside the courtroom. The

State did not present her as a witness. Neither did the state present

as a witness Terry Webb’s companion Cindy, who, if some of the

hearsay was correct, had actually witnessed the abuse. The state’s

entire case connecting Webb to the injuries found by Dr. Strickland

was made up of hearsay reported by Connie Martin, Leslie Morton

and Linda Proctor and of the videotaped interview with Heather.

A-7

The videotape was taken by the jury into the jury room during its

deliberations.

Webb was convicted of both counts and sentenced to consecutive

prison terms of 17 years and 20 years for a total of 37 years

imprisonment. He appealed, contending that his Confrontation

Clause rights had been violated. The Arizona Court of Appeals

affirmed his conviction. The Arizona Supreme Court denied his

petition for review.

On October 17, 1990 Webb filed pro se his petition for habeas

corpus in the federal district court for the District of Arizona, again

alleging the deprivation of his Confrontation Clause rights. On

February 27, 1991 the case was referred to a magistrate. On July

15, 1993, one year and four months later, the magistrate made a

report and recommendation to deny the petition. Nine months after

this report and over two and a half years after the filing of the

petition, on April 30, 1993, the district court denied Webb’s

petition. The district court also declined to provide counsel for

Webb.

A-8

Webb appealed. A motions panel of this court ordered that he be

provided with counsel.

ANALYSIS

The videotape of Linda Proctor interviewing Heather Morton is a

film of thirty minutes duration, in which Proctor interviews Heather

about the alleged sexual acts performed on her by Webb. The

purpose of this interview, according to Proctor’s own testimony, was

to obtain a statement from her. The interview is conducted with the

care and skill of a person who for six years has interviewed alleged

victims of child abuse. The social worker first interests Heather in

playing with dolls and engages tier in questions about her home and

family and babysitter. The interviewer then focuses on the sexual

characteristics of the dolls and induces Heather to comment on them.

In the course of the half-hour, Proctor repeatedly turns the

conversation into questions about the conduct of Terry to Heather,

salting the conversation three times with the comment that Terry is

a bad man or did a bad thing. The social worker asks Heather

directly whether she suffered any injury from Terry and whether she

now has any injury; that is the extent of her questions that could be

A-9

considered medical. Her focus is on discovering sexual abuse. She

persistently returns to this theme as Heather’s attention wanders to

the dolls. In a way that would never be permitted in a judicial

setting, Proctor repeats questions that Heather declines to answer.

The problem of obtaining evidence of sexual abuse of a small child

while observing the requirements of due process of law has led to

the admission of evidence under firmly rooted exceptions to the

"

hearsay rule. Otherwise the statements are "presumptively

unreliable and inadmissible for confrontation clause purposes’ ".

Idaho v. Wright, 497 U.S. 805, 818, 110 S.Ct. 3139, 3148, 111

L.Ed.2d 638 (1990), quoting Lee v. Illinois, 476 U.S. 530, 543, 106

S.Ct. 2056, 2063, 90 L.Ed.2d 514 (1986).

[1] The state of Arizona contends that the videotape is admissible

“under the firmly rooted hearsay exception of medical diagnosis or

treatment and thus no further guarantees of trustworthiness are

required." The exception to the hearsay rule invoked by the state

is, of course, firmly rooted. It is astonishing, however, to have the

State contend that Proctor, a social worker, was engaged in medical

diagnosis or treatment. Nothing in the videotape supports this

A-10

statement. At the trial the prosecutor offered an argument not

repeated on appeal: that the interview by Proctor was preparatory

to the medical examination by Strickland, and the latter could be

considered therapeutic. This argument, while showing that

Strickland was prepared by Proctor to find that Heather had been

abused, does not convert the social worker’s interview into a medical

procedure. Moreover, Strickland was being consulted by Allan

Duprey of the Victim Witness Office for law enforcement purposes;

she was not prescribing for Heather as her patient.

[2] The state now argues: "Heather had no motive in traveling to

a San Diego hospital and making the statements other than a patient

seeking or needing treatment." There is not the slightest indication

in Heather’s conduct that she is a patient seeking or needing

treatment. She was brought from Arizona to California at the

request of the prosecuting authorities and in the company of a state

official charged with protecting witnesses in criminal trials. Her

only reported comment as the adults took her to California was

concern that she would be made to pull down her panties. To

suppose that Heather had the capacity to seek medicz] help on her

A-11

Own or to suppose that the purpose of the victim witness protection

program was seeking therapy is to engage in fantasy. It is on the

basis of such fantasy that the state has defended its use of the

videotape in Webb’s trial.

[3]{4][5] Even if the hearsay does not fit within an established

exception, however, its admissibility is not barred by the

Confrontation Clause if, considered apart from any corroborating

evidence, there was ‘a showing of particular guarantees of

trustworthiness’ ". Idaho v. Wright, 497 U.S. at 818, 110 S.Ct. at

3148, quoting Ohio v. Roberts, 448 U.S. 56, 66, 110 S.Ct. 2531,

2539, 65 L.Ed.2d 597 (1980). The circumstances to be considered

are the totality of circumstances "that surround the making of the

statement and that render the declarant particularly worthy of

belief"--so worthy of belief " ’that the test of cross-examination

would be a work of supererogation.” " /daho v. Wright, 497 U.S.

at 819, 110 S.Ct. at 3149, quoting Wigmore on Evidence Sec. 1420

(1974 ed.). The guarantees of trustworthiness "must be at least as

reliable as evidence admitted under a firmly rooted hearsay

exception." Idaho v. Wright at 821, 110 S.Ct. at 3149, citing Ohio

A-12

a

v. Roberts, 448 U.S. at 66, 110 S.Ct. at 2539. An "affirmative

reason, arising from the circumstances in which the statement was

made," is necessary to rebut the presumption of unreliability and

exclusion under the Confrontation Clause. The state contends that

the court is imposing a new rule. To the contrary, Idaho v. Wright,

497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) applied

established precedents in measuring the admissibility of hearing from

a child. /d.

The Supreme Court declined to list what would constitute the

necessary guarantees, but, without approving the results reached in

the cases it cited, it gave a list of factors that could appropriately be

considered by a trial court: “use of terminology unexpected of a

child of similar age"; "spontaneity and consistent repetition";

"mental state of the declarant"; “lack of motive to fabricate." Id.

497 U.S. at 821-822, 110 S.Ct. at 3150. In Idaho v. Wright itself

the trial court had admitted the hearsay of a child 2 1/2 years old,

finding (1) that she had no motive ‘o lie and (2) that the statements

made to her doctor about Daddy touching her pee-pee were not "of

the type ‘that one would expect a child to fabricate.’ " Jd. at 826,

A-13

110 S.Ct. at 3152, citing trial judge. The Supreme Court of Idaho

found the presumptive unreliability of these statements to be

unaffected by these findings and reversed the defendant’s conviction.

The Supreme Court of the United States agreed, holding that the

circumstances found by the trial court offered "no special reason for

supposing that the incriminating statements were particularly

trustworthy." Jd.

The Supreme Court of Idaho also found that the trial court had

erred in admitting the two-year-old’s statement to her doctor, "he

does it a lot more with my sister." The Supreme Court of the

United States agreed, although "the spontaneity of the statement and

the change in demeanor" suggested that she was telling the truth.

The Supreme Court emphasized that "it is possible" that where there

was prior interrogation or prompting or manipulation by adults,

spontaneity was an inaccurate indicator of trustworthiness. Jd. at

826-27, 110 S.Ct. at 3152-53.

[6] In the light of Idaho v. Wright and its specific examples of

testimony that failed to rebut the presumption of unreliability, we

examine whether circumstances surrounding the making of Heather’s

A-14

TAR RE SOMBER nh 2 LEME

statements on the videotape made her particularly worthy of belief

so that the test of cross-examination would have been a work of

supererogation. As "no mechanical test prevails," Swan v. Peterson,

6 F.3d 1373, 1379 (9th Cir. 1993), the character of the guarantees of

trustworthiness in this case must be weighed. We are not to

second-guess the state courts. Id. at 1378. It is not our task to

retry the case, or to determine Webb’s guilt or innocence, or even

to decide if Heather’s statements were true. But on the ultimate

determination of trustworthiness we act de novo. Id. at 1379. Our

task under the Constitution is to determine if these presumptively

unreliable statement were made under circumstances affirmatively

establishing that they were so reliable that cross-examination of

Heather was "of marginal utility." Idaho v. Wright, at 820, 110

S.Ct. at 3149.

[7] Taken by itself, the videotape does not carry guarantees of

trustworthiness. Heather’s language is not "unexpected of a child of

similar age." The video does not contain a declaration of Heather

made soon after the alleged assaults; her "state of mind," as used

in the case cited by Wright, was not the state of mind of one

A-15

excitedly reporting a recent assault. In the interview, within two

minutes of the start of filming, Heather told Proctor that Terry

pulled down his pants and put medicine in her. Captured by the

camera, her statement comes through with a force and vividness and

apparent spontaneity that are striking. Such a precise statement to

a stranger, a person Heather had never seen before, invites reflection

on what had prepared Heather to be so candid. The inescapable

facts are that, for almost a month preceding the interview, she had

been asked about Terry’s conduct by Connie Martin, Mr. Martin,

her mother, Allan Duprey and other state authorities. If the

Supreme Court of the United States in Idaho v. Wright found the

mere possibility of prior interrogation to destroy spontaneity as a

valid indicator, a fortiori Heather’s initial accusation on the tape

must be stamped as insufficiently reliable and as the product of

previous questioning.

Thereafter on the tape, Heather gave a variety of answers about

Terry after Proctor had deliberately probed with questions about

Terry’s conduct and after Proctor had described Terry or his actions

as bad. In addition, Heather’s accusations are marked with grave

A-16

i det

Pra)

inconsistency on the principal sexual allegations--according to

Heather, Terry did and did not engage in oral sex with her;

according to Heather, his vaginal assault on her was by medicine

obtained from a bottle.

The videotape fails to pass the criteria set by Wright. There are

additional reasons for holding it unreliable. Wright forbids recourse

to other evidence to corroborate the trustworthiness of the hearsay

offered; Wright does not forbid recourse to other evidence that

confirms the presumptive unreliability of the hearsay. We are not

bound by the dictum in Swan, supra at 1391 interpreting Wright as

suggestingthecontrary. While the evidence here is not essential to

our holding, there is a good deal of such evidence.

As to consistency, Heather on September 30, 1986 had denied that

Terry had done "those things to me." In the videotape interview

she used the term "medicine" in a way that could have been

understood to mean male semen, but her usage of this term varied.

For example, on December 10, 1986, in an interview with

Jacqueline Scheider, a psychotherapist, Heather told her: "They

spilled the medicine all over Mommy’s car and Mommy had to clean

A-17

ick as Nid ad

it up." Asked about this incident, her mother said that she, the

mother, had spilled some hair gel in the car and had had to clean it

up. The mother later said that Terry and Cindy had spilled the gel.

Here "medicine" as used by Heather almost certainly referred to a

commercial product.

As to Heather’s reputation for truthfulness and as to whether she

had any tendency to fantasize, her mother was asked at trial whether

Heather ever lied to her and replied, "Not a lie. She’s only three

years old." Asked if Heather knew the difference between a lie and

a truth, her mother said, "As well as any three-year-old does."

Pressed on cross-examination, her mother admitted that when

Heather was "fighting" with her ten-year-old brother David, she

would blame David, not necessarily truthfully, "things like that"--for

example, Heather had blamed David for breaking the back of the

toilet seat.

On September 23, 1986, on the same occasion on which she first

accused Terry to Connie Martin and her husband, Heather also

declared to Connie, "Terry had made her mother Leslie pull down

her pants and he pulled down his pants, and ’he put his pee pee in

A-18

where she pee pees.’ " Heather’s mother testified that she had

never had a sexual relationship with Webb. On this point either her

mother lied or Heather lied or fantasized. There is no way of telling

which alternative is true. It is clear that her mother did not believe

Heather spoke truthfully about this significant sexual action Heather

said that Terry had performed.

On September 30, 1986, Heather told Connie: "I can’t talk any

more about my mother being a bad girl and pulling her panties down

because she’s going to get really sick and she’s going to cry and the

cops is going to get really mad at me." Her mother testified that

she never told Heather not to talk about Terry. Again it is evident

that her mother believed that Heather had not told the truth to

Connie. Did her mother instruct Heather not to repeat the charge

about her and Terry having sex? According to her mother’s

testimony, Heather lied about her mother’s instructions.

If Heather had in fact observed sex between a man and her mother,

it seems possible, if not actually probable, that she could fantasize

that Terry had done something similar with her. Her motive would

have been to absorb or cushion the trauma of seeing her mother

A-19

engaged in intercourse. Leslie Morton, in fact, admitted that she

had had intercourse with Terry’s brother Irwin, although she denied

that Heather could have seen it. Irwin refined Leslie Morton’s

admission by saying Leslie had given him oral sex; like Leslie he

denied that Heather had seen them.

In summary, Heather was inconsistent in her accusations and in her

use of the key accusatory term. She did not use unusually

sophisticated language in setting out the accusations. She had a

possible motive to fabricate them. According to Irwin Webb and her

own mother she did fabricate another sexual accusation. Her

videotape statements carry far fewer guarantees of trustworthiness

than those rejected by the Supreme Court of Idaho and by the United

States Supreme Court in /daho v. Wright.

[8] The videotape was inadmissible evidence seen by the jury and

brought into the jury room during the jury’s deliberations.

Admission of this evidence violated in a gross fashion Webb’s right

to confront the evidence against him. After a careful review of the

entire transcript of the trial, we conclude that this inadmissible

evidence had an actual and prejudicial effect upon the jury. Brecht

A-20

tt

We ica re eR A eR NAT BB, eon NS

te VON Fy a ORY pe aaa ta Se Ot te et es 9 - breliuoncech:

v. Abrahamson, --- U.S. ----, ----, 113 S.Ct. 1710, 1722, 123

L.Ed.2d 353 (1993). Consequently Webb’s conviction must be set

aside.

As the use of the videotape alone was such a substantial violation

of Webb’s Confrontation Clause rights, we need not on this appeal

evaluate the further violations alleged by the admission of hearsay

reported by Connie Martin and by Leslie Morton. If, however,

these statements are to be used again they must be reevaluated in the

light of this opinion and of Idaho v. Wright. Their earlier

admission under a statute now found by Arizona to be

unconstitutional is now irrelevant.

Accordingly, the judgment of the district court is reversed. The

district court is ordered to issue the writ sixty days from the issuance

of the mandate, unless within that time the state of Arizona indicates

to the district court its intention to retry Webb. In that event, the

district court shall order Webb released to the proper authorities for

the purposes of retrial.

T.G. NELSON, Circuit Judge, dissenting:

A-21

SpE PION AAA LEER PN CRETE LAN 5 TIE EE Toi alin My Wiss Nba Rpt AScoed is lr

eet aiden a alse onae ee,

Sri laalh MnSida Atkin ‘sich. acbbinaceds a Cau ta ache nce Se dae aa

Si a :

Although I agree with the majority that the videotaped interview

between Proctor and Heather was not admissible pursuant to the

medical diagnosis exception, I dissent from the majority’s conclusion

that Heather’s videotaped statements were not admissible pursuant

to the residual exception because they lacked particularized

guarantees of trustworthiness.

The Supreme Court has held that particularized guarantees of

trustworthiness are to be determined from "the totality of

circumstances that surround the making of the statement and that

render the declarant particularly worthy of belief." Idaho v. Wright,

497 U.S. 805, 820, 110 S.Ct. 3139, 3149, 111 L.Ed.2d 638 (1990).

The Court concluded there is no exclusive set of factors to be

evaluated to determine the trustworthiness of a statement.

Consequently, it advised that courts are to be given "considerable

leeway in their consideration of appropriate factors." Jd. at 822,

110 S.Ct. at 3150.

In this case, the majority reviews the facts surrounding Heather’s

Statements and holds that the only possible conclusion to be drawn

from Heather’s use of age-appropriate language and the spontaneity

A-22

of her statements is that Heather’s statements were unreliable. |

disagree and believe that the majority’s method of adopting a

singular inference from factors which support multiple inferences is

contrary to Wright and deprives courts of their broad discretion to

consider the relevant factors in each particular case.

I disagree that Heather’s failure to use language "unexpected of a

child of similar age" supports the conclusion that her statements

were unreliable. The Court in Wright did note that the declarant’s

use of terminology unexpected of a child of similar age is a factor

indicating reliability. Jd. at 821, 110 S.Ct. at 3149. However,

relying on the converse, the majority states the fact that Heather’s

language was not unexpected of a child of similar age as a basis for

its conclusion that Heather’s statements lacked guarantees of

trustworthiness.

It is true the anatomical terms used by Heather were entirely

consistent with a child of similar age of two and one-half years. She

referred to both male and female genitals as "things," to the

posterior area as "butt," to female breasts as "boo-boos," and

specifically to Webb’s penis as "pee-pee." In Swan v. Peterson, 6

A-23

F.3d 1373 (9th Cir.1993), petition for cert. filed (April 18, 1994),

we approved of the trial court’s reliance on the child declarant’s

description of "sexual acts in specific terms, using age-appropriate

language" as a factor supporting reliability. Id. at 1380 (emphasis

added). We noted consideration of this factor was consistent with

the Supreme Court’s statement in Wright that courts have

considerable leeway in their consideration of appropriate factors. Id.

However, contrary to Swan, the majority establishes a bright-line

rule that only language inappropriate for a child of similar age

indicates reliability.

I do not agree that Heather’s use of age-appropriate terminology

supports the conclusion that her statements were unreliable. A child

molester cannot be expected to offer a course in correct anatomical

terminology while molesting a child, nor could a child as young as

Heather be expected to remember such terminology even if it were

used. The crucial inquiry should not be whether the language is

appropriate or inappropriate for a child of similar age, but whether

the language employed by the child adequately describes a sexual

encounter. Heather did describe explicit sexual encounters with

A-24

specificity in age-appropriate language. An example of one such

Statement is Heather’s claim that Webb pee-peed in her mouth.

Surely, this language is explicit enough to ensure the truthfulness of

Heather’s claim that Webb had sexually abused her, regardless of the

fact that Heather did not use sophisticated language.

I also disagree with the majority’s conclusion that no incriminating

Statement can be considered spontaneous if the child has been

previously questioned about the abuse. The Supreme Court in

Wright cites with approval a case relying on spontaneity and

consistent repetition as factors indicating reliability. See Wright, 497

U.S. at 821, 110 S.Ct. at 3149. | However, according to the

majority, the spontaneity of Heather’s statements to Proctor is a

factor indicating unreliability. The majority reasons that because

Heather had been questioned by her care-givers and investigators

regarding her accusations prior to the videotaped interview with

Proctor, Heather’s spontaneous accusation during the interview

"must be stamped as insufficiently reliable and as the product of

previous questioning." Maj. op. 1084. The majority’s reasoning

A-25

stands for the proposition that if there has been any prior

investigation, spontaneity can never be a factor supporting reliability.

Adherence to such a proposition would immunize sexual abusers

from all but one accusatory statement of those children they abuse,

i.e., the first spontaneous statement of the abused child. After a

child’s first spontaneous statement alleging abuse, an investigation

of the child’s claim will necessarily ensue, and the focus of the

investigation will be on the child. Pursuant to the majority’s

reasoning, however, investigators may not question the child,

otherwise, any future statements by the child are unreliable.

Conversely, if the investigators do not question the child, they

cannot determine if there is any substance to the child’s complaint.

Thus, prosecution of a sexual abuser of a very young child such as

Heather can never occur, either because the child cannot be

questioned, or because the child has been questioned. The fact that

the child is willing to talk without prompting at subsequent

discussions regarding the abuse, as Heather did during her interview

with Proctor, cannot be a factor indicating unreliability. If it were,

A-26

every investigation would inevitably lead to the conclusion that the

case cannot be successfully prosecuted.

Finally, the majority is critical of Proctor’s description of Webb as

bad. However, the majority fails to place Proctor’s comments in

context. Proctor’s first comment about Webb, i.e., that Webb

should be told not to pee pee in Heather’s mouth, occurred twenty

minutes into the interview after Heather had already said that 1)

Webb pulled down his pants; 2) he put medicine’ in "there"

(pointing to her vaginal area); 3) his penis "got little" afterwards;

and 4) he pee-peed in her mouth. While Proctor’s comment was

inappropriate, it should not distract us from the proper inquiry:

Were Heather’s statements prior to Proctor’s first negative comment

sufficiently shown to be reliable? I conclude that they were.

Heather's statements were in age-appropriate language; they were

internally consistent; and they were spontaneous or in response to

‘The majority contends Heather’s statements were inconsistent

because she used the term “medicine” when referring to hair gel and also

when referring to what “could have been understood to mean ... semen."

Maj. op. 1084. The majority, without basis, presumes Heather was

referring to semen when she indicated Webb put medicine in her vaginal

atca. However, what it fails to recognize is that perhaps what Heather

meant by medicine was a clear liquid gel--such as a lubricant

A-27

appropriate, non-leading questions. The majority’s statement that the

Proctor’s repetitious questions would not have been permitted by a

court is incorrect. Trial courts have great latitude in handling young

or vulnerable witnesses. See United States v. Castro-Romero, 964

F.2d 942, 944 (9th Cir. 1992) (holding district court did not abuse its

discretion by allowing Government to ask leading questions of

eight-year-old witness reluctant to testify regarding sexual abuse).

Under the totality of the circumstances surrounding the interview,

up until Proctor began to denigrate Webb, I believe Heaither’s

videotaped statements met the test of Wright. Thus, the only

remaining inquiry is whether Proctor’s comments rendered the

admission of the tape an error of constitutional dimension. Proctor

made three negative comments about Webb. Ajter the first negative

comment, Heather said that Webb did it more than one time; Cindy

watched but did not say anything; Webb’s "thing" touched her

vaginal area; and Webb took pictures while he was doing a bad

thing. Heather later retracted the statement about the pictures.

Proctor’s gratuitous negative comments about Webb were clearly

improper. They had the capacity to color Heather’s following

A-28

statements. However, I do not believe the admission of this later

portion of the videotape rose to the level of a constitutional error.

The majority of Heather’s incriminating statements were elicited

before Proctor began to counsel her. At most, admission of the last

minutes of the videotaped interview was harmless error. As the

Supreme Court in Wright noted, "the presence of corroborating

evidence ... indicates that any error in admitting [a] statement might

be harmless." 497 U.S. at 823, 110 S.Ct. at 3150 (footnote omitted).

In this case, corroborating physical evidence existed to support

Heather’s claim that she had been sexually abused: Heather’s

examining physician testified that Heather’s physical condition was

consistent with sexual abuse.

After killing the tape and burying it, the majority digs it up and

buries it again by discussing all the extrinsic evidence demonstrating

its unreliability. I dissent from the several pages of dicta offered by

the majority during this second burial. In this dicta, the majority

concludes that extrinsic evidence bolsters its conclusion that

Heather’s statements are unreliable reasoning that "Wright does not

forbid recourse to other evidence that confirms the presumptive

A-29

unreliability of the hearsay." Maj. op. 1084. In Wright, the

Supreme Court held that extrinsic evidence could not be used to

bolster the reliability determination. See 497 U.S. at 823, 110 S.Ct.

at 3150. It did not hold, however, that extrinsic evidence could be

used to bolster the presumptive unreliability of the hearsay. Having

already held that the presumption of unreliability of Heather’s

statements had not been overcome, there is simply no reason for the

majority to decide the flip side of Wright in this case. Further, in

doing so, the majority ignores our previous statement in Swan

regarding the use of extrinsic evidence to establish unreliability:

Wright forbids using other corroborating evidence at trial to show

that an initial hearsay statement is reliable. The issue here is subtly

different: can arguable noncorroborating evidence be used to

demonstrate the unreliability of a hearsay statement? Wright’s

caution against reference to other evidence at trial suggests not.

Swan, 6 F.3d at 1381 (footnote omitted),

In sum, I cannot agree with the majority’s method of adopting

singular inferences from factors to support its conclusion, thereby

ignoring many other reasonable inferences to be drawn from those

A-30

ie a ee et ee

factors. Furthermore, I dissent from the extensive dicta offered by

the majority. In the future, the question of whether

noncorroborating evidence may be used to demonstrate unreliability

Should be addressed in a case where the answer is needed,

unhampered by the decision in this case.

A-31

APPENDIX B

[filed Jan. 20, 1995]

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TERRY L. WEBB, ) No. 93-16167

Petition-Appellant, ‘ D.C. No.

) | CV-90-01608-SMM

V. ORDER

SAMUEL A. LEWIS, ;

Respondent-Appellee.

)

Before: FERGUSON, NOONAN and T.G. NELSON, Circuit Judges

The majority of the panel as constituted in the above case has

voted to deny the petition for rehearing. Judge Noonan voted to

reject the suggestion for rehearing en banc and Judge Ferguson so

recommended. Judge Nelson voted to grant the petiton for rehearing

and to accept the suggestion for rehearing en banc.

The full court has been advised of the suggestion for en banc

rehearing, and no judge of the court has requested a vote on the

Suggestion for rehearing en banc. Fed. R. App. P. 35(b).

B-1

The petiton for rehearing is denied, and the suggestion for a

rehearing en banc is rejected.