Joe Henry Johnson v. A. L. Lockhart ( 1995 )

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No. 95-1334
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Joe Henry Johnson, *
*
Plaintiff-Appellant, * Appeal from the United States
* District Court for the
v. * Eastern District of Arkansas.
*
A. L. Lockhart, Director, *
Arkansas Department of *
Correction, *
*
Defendant-Appellee. *
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Submitted: September 15, 1995
Filed: December 11, 1995
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Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN and HANSEN,
Circuit Judges.
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HANSEN, Circuit Judge.
Joe Henry Johnson appeals from the judgment of the district court1
dismissing his petition for habeas corpus relief under 28 U.S.C. § 2254.
Johnson argues that his Sixth Amendment Confrontation Clause rights were
violated when the state trial court permitted a physician to testify
regarding certain out-of-court statements made by the alleged victim. We
affirm.
1
The Honorable Henry L. Jones, United States Magistrate
Judge for the Eastern District of Arkansas, sitting by consent of
the parties pursuant to 28 U.S.C. § 636(c).
Johnson was charged with rape under Arkansas law and a jury later
found him guilty of the charge. The Supreme Court of Arkansas reversed the
conviction. Johnson v. State, 732 S.W.2d 817 (Ark. 1987). Upon retrial,
a jury again found Johnson guilty of rape. The Supreme Court of Arkansas
affirmed. Johnson v. State, 770 S.W.2d 128 (Ark. 1989). The Arkansas
courts subsequently denied Johnson postconviction relief. Johnson v.
State, No. RC 91-15, 1991 WL 95721 (Ark. June 3, 1991).
The facts underlying Johnson's conviction occurred on April 27, 1985.
On that day, Dr. Charles Kemp, a pediatrician, was called to the emergency
room at St. Bernard's Regional Medical Center in Jonesboro, Arkansas, to
examine the alleged victim, Jason Keiffer, who was nine years of age at the
time. Dr. Kemp had never met Jason prior to the examination. Dr. Kemp
testified at Johnson's second trial that Jason stated during the
examination that Johnson had forced him to have anal intercourse on several
occasions. At the time, Johnson was living with Jason's mother and Jason.
Dr. Kemp undertook a complete physical examination of Jason, including
Jason's rectal area, and found no evidence of sexual abuse.
Jason testified on Johnson's behalf at the second trial. Jason
testified at length that the statements that he made to Dr. Kemp at the
hospital were not true. He stated that he lied because he was angry with
Johnson because Johnson had reneged on a promise to take him fishing that
day. Jason also testified that subsequent, similar statements he made to
a police officer, social worker, and deputy prosecutor had likewise been
untrue.
Johnson filed the instant habeas petition alleging, inter alia, that
the State violated his Confrontation Clause rights by the introduction of
Dr. Kemp's testimony regarding Jason's out-of-court statements. The
district court denied relief.
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On appeal, Johnson renews his Confrontation Clause claim.2 Johnson
claims that this right was violated regardless of whether Dr. Kemp's
testimony was admitted under Arkansas Rule of Evidence 803(4), as found by
the district court, or under Rule 803(25), as implicitly held by the
Supreme Court of Arkansas on direct appeal.
We need not determine the evidentiary rule under which the state
trial court admitted Dr. Kemp's testimony in order to decide the
Confrontation Clause issue, for we believe that the outcome of this case
is governed by our holding in United States v. Spotted War Bonnet, 933 F.2d
1471 (8th Cir. 1991), cert. denied, 502 U.S. 1101 (1992). In Spotted War
Bonnet, the issue was whether testimony given by a social worker and a
clinical psychologist concerning out-of-court statements made by the
alleged victims violated the defendant's Confrontation Clause rights. Id.
at 1472. We concluded that no Confrontation Clause violation occurred
because "[t]he Clause is satisfied when the hearsay declarants, here the
alleged child victims, actually appear in court and testify in person."
Id. at 1473. However, we also held that this rule was subject to certain
limitations, such as when the declarant was too young or frightened to be
meaningfully cross-examined. Id. at 1474. Accordingly, we fashioned the
following test:
[W]hen the contention is made that the live testimony
of a given witness satisfies Confrontation Clause
concerns as to the admissibility of out-of-court
statements made by the same witness, the question is
whether there is "an opportunity for effective cross-
examination, not cross-examination that is effective
in whatever way, and to whatever extent, the defense
might wish."
Id. at 1474 (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). See
also United States v. Juvenile NB, 59 F.3d 771, 775 (8th Cir. 1995) ("In
sum, when the child whose hearsay testimony is
2
The district court's disposition of Johnson's other habeas
claims is not challenged on appeal.
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admitted also testifies himself or herself, the only Confrontation Clause
issue is whether the trial provided an opportunity for effective cross
examination.") (internal quotations omitted); Dolny v. Erickson, 32 F.3d
381, 385 (8th Cir. 1994) (same), cert. denied, 115 S. Ct. 902 (1995).
In this case, the out-of-court declarant, Jason, testified at
Johnson's trial. Although Spotted War Bonnet is not on all fours with this
case because Johnson called Jason to the stand, we find this distinction
analytically insignificant. Spotted War Bonnet and its progeny make clear
that the dispositive point is that Johnson was afforded the opportunity to
effectively examine Jason under oath and in front of a jury about the out-
of-court statements, not that the examination must occur during the
prosecution's case.
Johnson claims that Spotted War Bonnet is not controlling here
because if Dr. Kemp had not testified regarding Jason's out-of-court
statements, it is doubtful that Jason would have been called to testify at
all. This argument is unpersuasive. To reiterate, our cases make clear
that when the out-of-court declarant testifies at trial, the only
Confrontation Clause issue which remains is whether the declarant could be
effectively examined about the out-of-court statements. It is only when
the declarant is too young or too frightened when he does appear in court
to be meaningfully examined about the out-of-court statements attributed
to him that the Confrontation Clause remains unsatisfied, and the analysis
then turns to whether the admitted statements bear sufficient indicia of
reliability to withstand Confrontation Clause scrutiny. See Idaho v.
Wright, 497 U.S. 805, 816 (1990). Johnson does not claim, and after
conducting our own independent review we do not find, that Jason was too
young or frightened to be meaningfully examined about his out-of-court
statements. Therefore, we conclude that Johnson's Sixth Amendment
Confrontation Clause rights were not violated by
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the admission of Dr. Kemp's testimony concerning Jason's out-of-court
statements.3
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
3
Given this disposition, we decline to address the State's
argument that Johnson's Confrontation Clause claim is
procedurally defaulted.
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