ROY SPOTTED WAR BONNET, PETITIONER V. UNITED STATES OF AMERICA No. 89-6289 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit Brief For The United States OPINION BELOW The court of appeals opinion (Pet. App. A1-A32) /1/ is reported at 882 F.2d 1360. JURISDICTION The judgment of the court of appeals was entered on August 23, 1989. A petition for rehearing was denied on October 19, 1989 (Pet. App. B). The petition for a writ of certiorari was filed on December 18, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner's Confrontation Clause and due process rights were infringed by the admission into evidence of statements made by child victims of sexual abuse to a social worker and a clinical psychologist. 2. Whether petitioner's due process rights were violated by an expert witness's incidental comment on the credibility of a statement made to her by a child victim of sexual abuse. 3. Whether petitioner was denied due process when the district court, which had appointed a clinical psychologist to assist the defense, refused to appoint a psychiatrist as well. STATEMENT After a jury trial in the United States District Court for the District of South Dakota, petitioner was convicted on two counts of carnal knowledge of his young daughters in violation of 18 U.S.C. 1153 and 2032, /2/ and two counts of incest in violation of 18 U.S.C. 1153 and S.D. Codified Laws Ann. 22-22-1(6) and 25-1-6. Petitioner was sentenced to fifteen years' imprisonment on each of the carnal knowledge counts and ten years' imprisonment on each of the incest counts, all sentences to run concurrently. The court of appeals affirmed. Pet. App. A1, C1-C2. 1. On July 16, 1986, Patricia White Buffalo Chief, petitioner's wife and the mother of his daughters Skylene (then age six) and Annie (then age four), told social worker Priscilla Hornby tht both children had been sexually abused by petitioner. Hornby was familiar with Skylene and her mother because of an ongoing investigation of Skylene's earlier report that she had been sexually abused on June 19, 1986, by her mother's brother, Ernie White Buffalo Chief. Govt C.A. Br. 4. Three days after this report, Hornby met with Skylene, Annie and their mother at the Women's Shelter in Mission, South Dakota. Hornby conducted separate interviews with the two girls. Skylene told Hornby again about the incident of sexual abuse by her uncle Ernie and told of a subsequent incident of similar sexual abuse by petitioner. Annie also told Hornby of an incident in which petitioner had sexually abused her, and described where and how her father had touched and assaulted her. Gov't C.A. Br. 4-5. On January 29, 1987, Skylene was interviewed by Dr. Mary Carole Curran, a clinical psychologist from Yankton, South Dakota. During this first of several interviews with Dr. Curran, Skylene fully described the incident of sexual abuse by her uncle Ernie, but denied that petitioner had ever sexually abused her. She explained that Ernie had told her to tell others that her father had sexually abused her. Pet. App. A10. On February 4, 1987, in connection with Ernie's trial for sexual abuse of Skylene, Skylene was interviewed again by Dr. Curran and Ms. Hornby. Skylene initially told each of them that Ernie had abused her but that petitioner had not. Skylene repeated her explanation that Ernie had threatened her and told her to accuse petitioner. When Dr. Curran asked Skylene "how she got the courage" to say previously that her father had done it when now she was saying that he had not done it, she responded that she did not want to be sent to a foster home. Pet. App. A2-A3, A11; Gov't C.A. Br. 19. Annie also was interviewed at this time by Dr. Curran. Using anatomically correct dolls, Annie described to Dr. Curren how petitioner had sexually assaulted her. Pet. App. A11. Dr. Curren also interviewed the children on March 2, April 10, and September 15, 1987, and again used anatomically correct dolls to aid the children in describing what had happened to them. Both girls described sexual abuse by petitioner. Gov't C.A. Br. 3; Pet. App. A18 & n.4; Pet. 7. 2. a. Prior to trial, the district court appointed a clinical psychologist, Dr. Lynn Goehring, to assist petitioner. The district court denied petitioner's motion to appoint a separate psychiatrist to examine Skylene and Annie on his behalf and likewise denied permission for petitioner's clinical psychologist to interview the children. All the reports received by the government from Dr. Curran were provided to the defense prior to trial. Dr. Goehring had access to those reports and was present in the courtroom for the testimony. Pet. App. A4; Gov't C.A. Br. 12-13. b. Over objection, the district court allowed both clinical psychologist Curran and social worker Hornby to testify about the statements made to them by Skylene and Annie. The court relied on the medical exception to the hearsay rule (Fed. R. Evid. 803(4)) to permit Dr. Curran's testimony, /3/ and on the residual exception to the hearsay rule (Fed. R. Evid. 803(24)) to permit Hornby's testimony. /4/ Both children also testified. Pet. App. A2, A7 & n.2. c. Prior to trial, the district court granted petitioner's motion that any person who had interviewed Skylene or Annie was prevented from expressing an opinion regarding either child's truthfulness. In the course of Dr. Curran's trial testimony, she stated that Skylene had given her "an honest answer" in saying during an interview that her fear of a foster home had been a reason why she first said that her father had sexually abused her, and then said that he had not. The defense objected, but the district court refused to strike this answer from the record. Pet. App. A2, A6-A7. 3. The court of appeals affirmed (Pet. App. A1-A8); Chief Judge Lay dissented (Pet. App. A8-A32). a. The court of appeals held (Pet. App. A3-A4) that petitioner had "failed to show a reasonable probability that a psychiatrist would aid in his defense" (Pet. App. A4), and that appointment of a psychiatrist was not required under 18 U.S.C. 3006A(e)(1). Petitioner had requested appointment of a psychiatrist to examine Skylene and Annie and to testify regarding their credibility and competency. The court of appeals concluded that testimony about the girls' credibility would not have been permissible, and that there was no showing that the expert would have helped petitioner show that the children were not competent to testify. The court also emphasized that the court-appointed clinical psychologist was able to provide petitioner with professional insight into the record and the testimony, which assured a fair trial. Pet. App. A4. b. The court of appeals also rejected (Pet. App. A7) petitioner's contention that the children's statements to Hornby and Curran were inadmissible. It upheld the district court's application of the residual exception to the hearsay rule (Fed. R. Evid. 803(24)) regarding Hornby and the medical exception (Fed. R. Evid. 803(4)) regarding Curran as permissible exercises of discretion by the district court. Pet. App. A7 & n.2. c. The court of appeals also disagreed (Pet. App. A6-A7) with petitioner's contention that the district court erred in failing to strike Dr. Curran's comment regarding an "honest answer." The court concluded that the comment did not put a "stamp of believability" on Skylene's entire testimony, and "did not interfere with the jury's role in determining the credibility of Skylene's testimony regarding (petitioner's) conduct." Pet. App. A7. /5/ d. Chief Judge Lay's dissent disagreed with the majority on each of these points. He concluded that the hearsay statements should not have been introduced because there was insufficient evidence of trustworthiness and because the interview techniques were impermissibily suggestive (Pet. App. A29-A30); that petitioner was entitled to the appointment of a psychiatrist to assist in his defense (Pet. App. A30); and that Curran's "honest answer" comment had a broader scope than the majority's opinion suggested. Pet. App. A16 n.3. ARGUMENT Petitioner makes three claims: (1) the introduction of the Hornby and Curran testimony violated the Confrontation Clause and due process; (2) Curran's comment regarding the "honest statement" violated due process; and (3) the failure to appoint a psychiatrist to assist the defense violated due process. 1. Petitioner first contends (Pet. 8-12) that the introduction of the Hornby and Curran testimony violated his Confrontation Clause and due process rights. Petitioner maintains that, without a showing of "particularized guarantees of trustworthiness" and adequate "indicia of reliability," the Confrontation Clause is violated; he also maintains that due process was violated because the procedures used were impermissibly suggestive. In Idaho v. Wright, No. 89-260, cert. granted (Jan. 16, 1990), the question presented is "(w)hether the 'indicia of reliability' and 'particularized guarantees of trustworthiness' mandated by the Sixth Amendment Confrontation Clause of the United States Constitution require that the hearsay statement of a very young victim of sexual abuse to an examining pediatrician be excluded unless the prosecution establishes that (a) the interview was either audio or videotaped; (b) leading questions were not used; and (c) the examining pediatrician conducting the interview did not have any preconceived idea of what the child should be disclosing." Because of the similarity of this issue to the Confrontation Clause issue raised by petitioner, this petition should be held and disposed of in light of Idaho v. Wright. /6/ 2. Petitioner also contends (Pet. 12-15) that his due process rights were violated by Curran's "honest answer" comment. With respect to this issue, the petition should be denied. As an initial matter, petitioner claims only that the decision conflicts with other Eighth Circuit decisions; however, an intra-circuit conflict does not provide a basis for this Court's review. Wisniewski v. United States, 353 U.S. 901, 902 (1957). In any event, petitioner's claim is not well founded. The court of appeals carefully distinguished a recent Eighth Circuit decision in which an expert was found to have commented impermissibly on a witness's credibility; here, unlike that case, the court determined that the expert's isolated comment "did not usurp the jury's role" and had a limited scope. Pet. App. A6. This case-specific evidentiary ruling does not warrant further review. 3. Finally, petitioner also contends (Pet. 15-17) that his due process rights were violated by the district court's refusal to appoint a psychiatrist to assist the defense. With respect to this issue also, the petition should be denied. The court of appeals determined that, under its interpretation of 18 U.S.C. 3006A(e)(1), which provides for the retention of experts to assist indigent defendants, "a defendant must show a reasonable probability that an expert would aid in the defendant's defense and that denial of expert assistance would result in an unfair trial." Pet. App. A3. Here, the court found neither condition satisfied. Petitioner did not make an adequate showing of the need for a psychiatrist in his defense; the failure to appoint a psychiatrist did not result in an unfair trial, particularly because the district court appointed a clinical psychologist, who had full access to the records of interviews and consulted with the defense during trial. Pet. App. A4. Petitioner again relies on Eighth Circuit precedent (Pet. 16-17), but, even if a conflict with those decisions would establish an appropriate basis for this Court's review, the court of appeals correctly concluded that its decision in this case was consistent with its previous precedents. /7/ The court's findings about the fairness of the trial, particularly given the role of the clinical psychologist in assisting the defense, preclude a finding of a due process violation in these circumstances. CONCLUSION As to petitioner's claim that the testimony regarding the child victims' statements violated the Confrontation Clause, the petition for a writ of certiorari should be held pending the Court's decision in Idaho v. Wright, cert. granted, No. 89-260 (Jan. 16, 1990), and disposed of in light of that decision. As to the second and third issues, the petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General RICHARD A. FRIEDMAN Attorney FEBRUARY 1990 /1/ Petitioner's appendix includes the court of appeals opinion, the denial of the petition for rehearing, and the judgment and commitment order. We will refer to these documents as Pet. App. A, Pet. App. B, and Pet. App. C, respectively. /2/ 18 U.S.C. 2032 was repealed in November 1986. See Pub. L. 99-646, Section 87(c)(1), 100 Stat. 3623 (1986); Pub. L. 99-654, Section 3(a)(1), 100 Stat. 3663 (1986). Petitioner was charged with, and convicted of, acts occurring in June and July of 1986. /3/ Rule 803(4) admits "(s)tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." /4/ Rule 803(24) admits hearsay declarations not covered by any of the other exceptions if the statement is offered as evidence of a material fact, is more probative on the point to which it is relevant than any other evidence which can be procured through reasonable efforts, and "the general purposes of (the) rules and the interests of justice will best be served by admission of the statement into evidence." /5/ The court of appeals upheld the district court's refusal to hold an in camera hearing regarding the children's competency to testify (Pet. App. A3-A5); petitioner does not pursue that claim in this Court. /6/ One difference between the cases should be noted. In Wright, the child who made the statemednt about which the pediatrician tstified did not herself testify (No. 89-260, Pet. App. 3); here, as noted, in addition to the Hornby and Curran testimony, both Skylene and Annie testified. /7/ Although petitioner also cites (Pet. 15) Ake v. Oklahoma, 470 U.S. 68 (1985), Ake is readily distinguishable. In Ake, this Court held that an indigent defendant whose sanity is at issue is entitled to access to a competent psychiatrist (470 U.S. at 83); in this case, in contrast, petitioner sought the services of a psychiatrist, rather than the court-appointed clinical psychologist, for the purpose of evaluating the credibility and competency of child witnesses. Pet. App. A4. Nothing in Ake suggests that it extends to this fundamentally different situation.