United States v. N. Turning Bear, III ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-2280
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of South Dakota.
Nicholas Turning Bear, III, also known *
as Nicholas Turning Bear, Jr., III, *
*
Appellant. *
___________
Submitted: December 16, 2003
Filed: February 2, 2004
___________
Before MORRIS SHEPPARD ARNOLD, HEANEY, and FAGG, Circuit Judges.
___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Nicholas Turning Bear, III, was convicted by a jury of five counts of
aggravated sexual abuse of his son and daughter, in violation of 18 U.S.C. §§ 1153,
2241(c), and 2246(2). Mr. Turning Bear's son, N.T.B., was between the ages of four
and six during the period over which the offenses were alleged to have occurred, and
his daughter, M.T.B., was between the ages of one and three during this time. The
government's case rested largely on statements that the two children made during the
course of the investigation and at trial. Mr. Turning Bear made no incriminating
admissions, and there was no eyewitness testimony from third parties. A physical
examination of M.T.B. revealed some evidence that was consistent with, but did not
necessarily indicate, sexual abuse. Much of the government’s case thus hinged on the
credibility of the two alleged victims.
Mr. Turning Bear appeals, contending that three separate constitutional errors
were made during his trial. He first asserts that the district court erred in ruling
inadmissible the opinion testimony of a witness regarding the untruthfulness of
N.T.B., thereby violating his fifth and sixth amendment rights to present witnesses
in his defense. He also maintains that the district court violated his sixth amendment
right of confrontation by ruling that M.T.B. could testify by closed-circuit television.
Finally, he urges us to hold that the court again denied him his right of confrontation
by admitting a videotape of M.T.B.'s out-of-court statements to a forensic interviewer.
In addition to his constitutional arguments, he argues that the district court committed
two sentencing errors. After reviewing the district court's conclusions of law de novo
and its findings of fact for clear error, see United States v. Yousif, 308 F.3d 820, 827
(8th Cir. 2002), we reverse and remand this case to the district court for further
proceedings.
I.
Mr. Turning Bear subpoenaed Gloria Odens, the foster care parent with whom
both children had lived following the initial report and investigation of abuse.
Ms. Odens testified that she saw N.T.B. on a daily basis during the four to six months
that he resided with her, and that she believed that she was in a position to give an
opinion as to his truthfulness or untruthfulness. She offered to testify that, based on
her daily contact with N.T.B. over these several months, she had formed an opinion
that he "was untruthful" and "didn't always tell the truth." The district court ruled the
proffered opinion testimony inadmissible because it was "strictly her personal opinion
and that would be a slippery slope." The district court also agreed with the
government's argument that the opinion testimony would be "illegal vouchering" and
concluded that the testimony would be "outside the rules of evidence."
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Criminal defendants have a fundamental right to present the testimony of
witnesses in their defense, a right grounded in the fifth and sixth amendments. See
Taylor v. Illinois, 484 U.S. 400, 408-09 (1988); Washington v. Texas, 388 U.S. 14,
18-19 (1967). A defendant cannot establish a violation of this right to offer testimony
merely by showing that the court deprived him of that testimony; rather, he must "at
least make some plausible showing of how [the] testimony would have been both
material and favorable to his defense." United States v. Valenzuela-Bernal, 458 U.S.
858, 867 (1982). Arbitrarily excluding proffered testimony can violate the right to
present a defense where there is no claim of a discovery violation against a defendant
proffering a witness's testimony and that testimony is otherwise admissible under the
rules of evidence. While "state and federal rulemakers have broad latitude under the
Constitution to establish rules excluding evidence from criminal trials," United States
v. Scheffer, 523 U.S. 303, 308 (1998); see also Chambers v. Mississippi, 410 U.S.
284, 302 (1973), Mr. Turning Bear contends here that the district court did not
properly rely on any cognizable evidentiary rule in excluding his proffered evidence.
Mr. Turning Bear's defense focused largely on the lack of believability and
reliability of the alleged victims, and he attempted to offer the opinion testimony of
Ms. Odens to help establish this defense by attacking the credibility of N.T.B.
Federal Rule of Evidence 608(a) provides that the "credibility of a witness may be
attacked ... by evidence in the form of opinion" subject to the limitation that "the
evidence may refer only to character for ... untruthfulness." Admissibility of opinion
testimony by lay witnesses is further limited by Rule 701, which requires that the
testimony be "rationally based on the perception of the witness" and "helpful to a
clear understanding of the witness' [sic] testimony or the determination of a fact in
issue."
We have stated that opinion testimony about the truthfulness or untruthfulness
of a witness may be excluded " 'if it amounts to no more than a conclusory
observation,' " United States v. Cortez, 935 F.2d 135, 139 (8th Cir. 1991), cert.
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denied, 502 U.S. 1062 (1992) (quoting United States v. Dotson, 799 F.2d 189, 193
(5th Cir. 1986)), or if the opinions were not " 'more than bare assertions,' " United
States v. McMurray, 20 F.3d 831, 834 (8th Cir. 1994) (quoting Dotson, 799 F.2d at
193). An adequate foundation must be laid in order for opinion testimony concerning
another witness's character for untruthfulness to be admissible. Such a foundation is
laid by demonstrating that the opinion witness knows the relevant witness well
enough to have formed an opinion. See, e.g., McMurray, 20 F.3d at 834; Cortez,
935 F.2d at 139-40; cf. United States v. Oliver, 492 F.2d 943, 946 (8th Cir. 1974).
Whether there has been an adequate showing that proffered opinion testimony
regarding a witness's truthfulness amounts to "more than bare assertions" is generally
a question committed to the trial court's discretion, McMurray, 20 F.3d at 834, but
here the district court did not conclude that the foundation was inadequate or that
Mr. Turning Bear otherwise failed to meet the requirements of Rules 608 and 701.
We think that Mr. Turning Bear laid a sufficient foundation for Ms. Odens's
testimony. Because Ms. Odens had had daily contact with N.T.B. over the four-to-
six-month period that he lived in her home, she knew him well enough to have
formed an opinion about his character for untruthfulness that was more than a "bare
assertion" or "conclusory observation." We believe that the proffered testimony quite
clearly complied with the requirements of Rules 608 and 701.
The government argues, however, that the district court acted within its
discretion under Federal Rule of Evidence 403 in excluding the opinion testimony,
even though it was otherwise admissible under Rules 608 and 701. Rule 403 allows
the exclusion of relevant evidence "if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence." And Rule 608(a) does not state that evidence meeting its
requirements must be admitted; it states that the "credibility of a witness may be
attacked" by opinion evidence that meets certain requirements.
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While the Eighth Circuit has not directly addressed the issue, the Fifth Circuit
has concluded that evidence admissible under Rule 608(a) may be excluded under
Rule 403 "if its probative value is substantially outweighed by its needlessly
cumulative nature," subject to the caveat that such an exclusion of testimony sought
to be presented by a criminal defendant must not be used in a way that violates the
defendant's sixth amendment rights. United States v. Davis, 639 F.2d 239, 244 (5th
Cir. 1981). We agree, but the proffered opinion testimony here was clearly not
needlessly cumulative. The credibility of N.T.B.'s testimony was one of the central
issues in the case, and it was thus critical that material evidence relating to its veracity
be admitted for the jury's consideration. In this case, the district court did not
identify, nor can we independently discern, sufficient harm from unfair prejudice or
any other proper Rule 403 consideration that would "substantially outweigh" the
probative value of the highly relevant and otherwise admissible opinion testimony
proffered by Mr. Turning Bear. The district court's decision to exclude Ms. Odens's
testimony because "[t]hat's strictly her personal opinion and that would be a slippery
slope" was not an appropriate application of Rule 403.
Because the district court's exclusion of Ms. Odens's testimony was not proper
under Rule 403 or any other evidentiary rule or principle that we can identify, and the
testimony was clearly relevant to one of the central issues of the case, we hold that
the exclusion violated Mr. Turning Bear's constitutional right to put on witnesses in
his defense. While a defendant's "right to present relevant testimony ... 'may, in
appropriate cases, bow to accommodate other legitimate interests in the criminal trial
process,' " Rock v. Arkansas, 483 U.S. 44, 55 (1987) (quoting Chambers, 410 U.S. at
295), the district court's exclusion of Ms. Odens's testimony, which would have been
material and favorable to Mr. Turning Bear's defense, served no such legitimate
interest.
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II.
The district court ruled that M.T.B.'s examination could be conducted by
closed-circuit television after she cried and exhibited distress at the beginning of her
testimony in the presence of the jury. Before commencing the closed-circuit
testimony, the court held a hearing in chambers. At the hearing, when the court asked
M.T.B. the open-ended question, "Why didn't you want to talk, honey?", she replied,
"Because I was scared to talk in front of them people." When the court then asked,
"Honey, is there any person that you are scared of?", M.T.B. said that she was scared
of the prosecuting attorney. Only in response to leading questions by the prosecuting
attorney did M.T.B. eventually indicate (by nodding her head) that she was also
frightened by the presence of her father in the courtroom. Following additional
questioning of M.T.B. by the prosecuting attorney, Mr. Turning Bear's counsel, and
a foster parent, the district court made the following findings: "I find that the child
would be unable to testify in the courtroom because of fear. It's clear to me that she
is afraid of her father, and that she is afraid of the jury as well, and [the prosecuting
attorney], apparently. And that's a combination. ... I find that the child is unable to
testify because of fear of the defendant, the jury, and [the Assistant United States
Attorney]. And it is intimidating to be in that very large courtroom for anyone."
Mr. Turning Bear maintains that the use of the closed-circuit television at his
trial violated his sixth amendment right of confrontation. We agree, because the
district court failed to make an adequate case-specific finding of necessity in
conformance with the requirements outlined in Maryland v. Craig, 497 U.S. 836,
855-60 (1990).
The district court was required to make certain findings in order to permit
M.T.B. to testify by closed-circuit television. Whether the district court's relevant
factual findings were supported by evidence in the record is reviewable under the
"clearly erroneous" standard, but whether those findings were sufficient to permit the
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use of closed-circuit television testimony consistent with Mr. Turning Bear's
constitutional right of confrontation is a legal issue that we review de novo.
The confrontation clause provides: "In all criminal prosecutions, the accused
shall enjoy the right ... to be confronted with the witnesses against him." As a general
matter, "the Confrontation Clause guarantees the defendant a face-to-face meeting
with witnesses appearing before the trier of fact." Coy v. Iowa, 487 U.S. 1012, 1016,
1020 (1988). "That face-to-face presence may, unfortunately, upset the truthful rape
victim or abused child; but by the same token it may confound and undo the false
accuser, or reveal the child coached by a malevolent adult." Id. at 1020.
The right to face-to-face confrontation, however, is not absolute. The Supreme
Court has recognized a narrow exception to this right for certain child witnesses,
reasoning that an "interest in the physical and psychological well-being of child abuse
victims may be sufficiently important to outweigh, at least in some cases, a
defendant's right to face his or her accusers in court." Craig, 497 U.S. at 853. Craig
held that the use of a closed-circuit television procedure that permits a child witness
in a child abuse case to testify at trial against a defendant in the absence of face-to-
face confrontation is permissible if the trial court makes an adequate "case-specific"
finding of "necessity." Id. at 855.
This finding of necessity has three mandatory components: first, the "trial court
must hear evidence and determine whether use of the one-way closed-circuit
television procedure is necessary to protect the welfare of the particular child witness
who seeks to testify"; second, the "trial court must also find that the child witness
would be traumatized, not by the courtroom generally, but by the presence of the
defendant"; and third, "the trial court must find that the emotional distress suffered
by the child witness in the presence of the defendant is more than de minimis, i.e.,
more than mere nervousness or excitement or some reluctance to testify." Id. at 856
(internal quotations omitted).
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In explaining the reason for the requirement that the child witness must be
traumatized by the presence of the defendant particularly, the Supreme Court noted
that if the "interest were merely ... in protecting child witnesses from courtroom
trauma generally, denial of face-to-face confrontation would be unnecessary because
the child could be permitted to testify in less intimidating surroundings, albeit with
the defendant present." Id. Any trauma or fear created by elements present in the
courtroom other than the defendant is irrelevant to the inquiry whether the closed-
circuit television testimony is constitutionally permissible. The proper inquiry is
whether the presence of the defendant, standing alone, would trigger the requisite
level of trauma in the witness.
The district court found that M.T.B. was "unable to testify in the big
courtroom" because of fear of a "combination" of the presence of her father, the jury,
and the prosecutor, as well as intimidation from being in the "very large courtroom."
We conclude that these findings were legally insufficient to justify the use of the
closed-circuit television testimony because they failed to satisfy the requirement that
M.T.B. "be traumatized, not by the courtroom generally, but by the presence of the
defendant."
The district court's finding of fear seemed to be dependent upon the testimony
occurring in a particular physical location, as it specifically found that M.T.B. would
be unable to testify "in the big courtroom" because of fear arising from the various
sources. The physical location of the testimony, however, is irrelevant to the face-to-
face confrontation inquiry, as "the child could be permitted to testify in less
intimidating surroundings, albeit with the defendant present." Id.
The district court, moreover, did not make particularized findings as to the
existence or magnitude of any trauma specifically caused by the presence of
Mr. Turning Bear, without regard to the size of the courtroom or the presence of the
prosecutor and jury. Indeed, the court was aware that M.T.B. had successfully
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testified on the previous day during a motion hearing outside the presence of the jury
when her father had been present, and that during the hearing on the propriety of
closed-circuit testimony M.T.B. had indicated that the "people in the jury scare [her]
more than [her] dad being in the courtroom," considerations that likely led it to
attribute her disabling fear at trial to a "combination" of conditions rather than the
presence of her father alone. We think that this situation is similar in relevant
respects to Hoversten v. Iowa, 998 F.2d 614, 616-17 (8th Cir. 1993), in which we
upheld an order granting a defendant a writ of habeas corpus because the "trial court's
finding of necessity was based upon the 'traumatic experience of testifying in open
court,' a consideration expressly held in Craig to be insufficient," id. at 616. Because
the district court failed to separate out the effect on M.T.B. of her father's presence,
this case is distinguishable from United States v. Rouse, 111 F.3d 561, 568-69 (8th
Cir. 1997), cert. denied, 522 U.S. 905 (1997), in which we upheld the use of closed-
circuit testimony where the district court had found that the alleged abusers' presence
in the courtroom would "more than anything else prevent [the child witness] from
testifying," id. at 568.
III.
Mr. Turning Bear next argues that the admission at trial of a twelve-minute
videotape of M.T.B.'s previous out-of-court statements to a forensic interviewer
violated the confrontation clause of the sixth amendment. The videotaped interview
at issue took place after the children had been taken into custody by the South Dakota
Department of Social Services following a referral alleging that M.T.B. had been
sexually abused and after a preliminary investigation into those allegations. Colleen
Brazil, a forensic interviewer, conducted the interview at a center for child evaluation
before a physical examination by a doctor.
The confrontation clause "does not necessarily prohibit the admission of
hearsay statements against a criminal defendant." Idaho v. Wright, 497 U.S. 805, 813
(1990). It does, however, bar "the admission of some evidence that would otherwise
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be admissible under an exception to the hearsay rule." Id. at 814. Out-of-court
statements incriminating a defendant may not be admitted without violating the
confrontation clause unless two requirements are met. First, "the prosecution must
either produce, or demonstrate the unavailability of, the declarant whose statement
it wishes to use against the defendant." Ohio v. Roberts, 448 U.S. 56, 65 (1980).
Second, "if the witness is shown to be unavailable ... his statement is admissible only
if it bears adequate 'indicia of reliability' " either because it "falls within a firmly
rooted hearsay exception" or it is supported by "a showing of particularized
guarantees of trustworthiness." Id. at 65-66 (footnote omitted); see also Wright,
497 U.S. at 814.
We have recognized that the admission of hearsay evidence against a criminal
defendant generally does not violate the confrontation clause, regardless of whether
the evidence bears adequate indicia of reliability, where "the hearsay declarants ...
actually appear in court and testify in person." United States v. Spotted War Bonnet,
933 F.2d 1471, 1473 (8th Cir. 1991), cert. denied, 502 U.S. 1101 (1992). We have
also held that a victim's testimony by closed-circuit television counts as actually
appearing in court and testifying in person for confrontation clause purposes. Rouse,
111 F.3d at 569-70. M.T.B. testified by closed-circuit television at Mr. Turning
Bear's trial. As explained above, however, M.T.B.'s closed-circuit television
testimony violated Mr. Turning Bear's sixth amendment right of confrontation and
should not have been considered by the jury. We thus cannot consider that testimony
when determining whether admission of the hearsay videotape satisfied the
confrontation clause. Because M.T.B. did not testify "in person" at trial in a legally
permissible manner, the issue presented is whether the government, as the proponent
of the videotape evidence presumptively barred by the hearsay rule and the
confrontation clause, has carried its burden of proving that M.T.B.'s incriminating
statements to Ms. Brazil bore sufficient indicia of reliability to withstand scrutiny
under the clause.
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The district court evidently admitted the videotape evidence under both the
residual hearsay exception, see Fed R. Evid. 807, and the hearsay exception allowing
admission of statements made for the purposes of obtaining medical diagnosis and
treatment, see Fed. R. Evid. 803(4). While the court cited only Rule 807 at the time
that it admitted the evidence, it later mentioned Rule 803(4) as an alternative basis for
admission of the hearsay.
The residual hearsay exception "accommodates ad hoc instances in which
statements not otherwise falling within a recognized hearsay exception might
nevertheless be sufficiently reliable to be admissible at trial." Wright, 497 U.S. at
817. The residual exception is not firmly rooted for confrontation clause purposes
because hearsay statements admitted under it "do not share the same tradition of
reliability that supports the admissibility of statements under a firmly rooted hearsay
exception." Id. Thus, even if the videotape were admissible under Rule 807, that
would not be enough to establish that the evidence had adequate "indicia of
reliability" for confrontation clause purposes.
The rule allowing admission of statements made for the purposes of medical
diagnosis or treatment "is widely accepted as a firmly rooted hearsay exception."
United States v. Sumner, 204 F.3d 1182, 1185 (8th Cir. 2000). This hearsay
exception is based on the rationale that "the patient's selfish interest in receiving
proper treatment guarantees the trustworthiness of the statements," and consequently,
hearsay statements disclosing the identity of a sexual abuser are admissible under
Rule 803(4) only "where the physician makes clear to the victim that the inquiry into
the identity of the abuser is important to diagnosis and treatment, and the victim
manifests such an understanding." United States v. Renville, 779 F.2d 430, 438 (8th
Cir. 1985). We have asked two questions in determining whether a statement meets
the standards for admission under Rule 803(4): "first, the declarant's motive in
making the statement must be consistent with the purposes of promoting treatment;
and second, the content of the statement must be such as is reasonably relied on by
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a physician in treatment or diagnosis." Id. at 436. We conclude that M.T.B.'s
disclosure in the forensic interview of the identity of her abuser and descriptive
details of the abuse might be reasonably relied on by a physician in treating and
diagnosing any trauma resulting from that abuse, but that there was insufficient
evidence in the record that M.T.B. had the requisite motive in making the statements.
Even though Ms. Brazil's interview was tangentially related to a doctor's
physical examination, we think that the government has failed to establish that
M.T.B.'s frame of mind at the time of Ms. Brazil's interview was that of a patient
seeking medical treatment. There is simply no evidence that M.T.B., who was three
years and ten months old at the time of the interview, understood the medical
significance of being truthful in discussing the details of the alleged abuse with
Ms. Brazil, and that she thus had the selfish subjective motive of receiving proper
treatment. See Sumner, 204 F.3d at 1185-86.
Ms. Brazil testified that the doctor informed M.T.B. before the interview that
she was "there for a checkup" and that Ms. Brazil's job was to "take a history" for her
or to "kind of find out how things are" for her before she had her checkup. There is,
however, no evidence that M.T.B. was aware that she had an injury or that she
understood that telling the truth was important to the treatment for that injury.
Ms. Brazil did not discuss why the questions she asked were important to the
diagnosis and treatment and why it was important for M.T.B. to tell the truth
regarding the details of any abuse or the identity of any abuser. See id. To the
contrary, Ms. Brazil testified that when she spoke to M.T.B., she did not delve into
the distinction between telling the truth and lying because of M.T.B.'s young age. We
recognize that in situations involving very young declarants, it may be exceedingly
difficult to establish the existence of a selfish motive for receiving proper treatment,
but that is what the applicable principles require.
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Because we conclude that M.T.B.'s out-of-court videotaped statements do not
fall within a firmly rooted hearsay exception, we must determine whether they
nevertheless exhibit "particularized guarantees of trustworthiness" to overcome a
confrontation clause objection to their admission. The relevant circumstances with
regard to a showing of particularized guarantees of trustworthiness "include only
those that surround the making of the statement and that render the declarant
particularly worthy of belief." Wright, 497 U.S. at 819. The evidence must be "at
least as reliable as evidence admitted under a firmly rooted hearsay exception" and
"so trustworthy that adversarial testing would add little to its reliability." Id. at 821.
"[U]nless 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." Id. Evidence corroborating the truth of a
hearsay statement may not be used to support a finding that the statement bears
particularized guarantees of trustworthiness. Id. at 822. "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." Id.
In admitting the hearsay videotape, the district court relied, in part, on the fact
that other evidence conflicted with the videotape, stating that "[t]he testimony [at
trial] of the two children was not consistent with statements previously made by the
children in the videotaped interviews." But surely a finding that hearsay evidence is
inconsistent with evidence admitted at trial does not help bolster the case that the
hearsay was inherently trustworthy. The district court did find that the videotaped
interviews "apparently, were conducted under the appropriate safeguards as
established by various professional bodies," though it did not elaborate on what these
safeguards were. Other than this, however, the district court made no findings
relating to circumstantial guarantees of trustworthiness before it admitted the
videotape and played it for the jury. The district court did make supplemental
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findings relating to the reliability of the statements on the videotape after the jury had
watched it. Specifically, the court stated that it believed that M.T.B. understood that
it was important that she tell the truth, that the interview had been conducted soon
after the alleged abuse had been reported, that the questions posed "were open-ended
for the most part" with no indication of coaching or suggestive procedures used to
obtain the statements, that M.T.B. appeared to be spontaneous and relaxed during the
course of the interviews, and that M.T.B. used "somewhat age appropriate language."
Our independent review of the record leads us to conclude that the
circumstances rehearsed by the district court are insufficient to justify its conclusion
that the hearsay was sufficiently trustworthy. While the district court based its
conclusion that the videotaped interview was reliable in part on the fact that the
interview occurred "almost immediately after the alleged sexual abuse had been
reported," the interview actually occurred over two months after the alleged abuse
had been reported and over two years after the date that the indictment alleged that
the abuse began. The district court's observation that M.T.B. appeared to be
"spontaneous and relaxed" is tempered by the facts shown on the videotape that
M.T.B. was initially crying and reluctant to enter the interview room, and that, before
responding to questions put to her by Ms. Brazil, M.T.B. looked back to caseworker
JoAnn Yankton, who was present throughout the course of the interview. The district
court's finding that M.T.B. used "somewhat age appropriate language" does not, we
think, count for much, as the language was found to be only "somewhat" age
appropriate, and we have noted in the past that "the fact that [a child] used
terminology typical of a child her age is not particularly helpful" in conducting the
Wright trustworthiness inquiry, Ring v. Erickson, 983 F.2d 818, 821 (8th Cir. 1992).
Finally, as noted above, nothing unique about the circumstances of the interview
indicates that M.T.B. had a particularly strong motivation to tell the truth, since there
is no evidence that she understood the medical significance of being truthful in the
interview, and Ms. Brazil testified at trial that when she interviewed M.T.B., she
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"didn't cover the difference between a truth and lie because with children under four
often I won't do that just because they're so young."
While we can discern nothing about the interview indicating that it is
particularly unreliable or untrustworthy, we see no "affirmative reason" suggesting
that the hearsay is "so trustworthy that adversarial testing would add little to its
reliability." There is a longstanding presumption in the law that hearsay statements
are not worthy of reliance at trial. The district court's findings are insufficient to
rebut this presumption, and because Mr. Turning Bear never had a constitutionally
adequate opportunity to confront his accuser at trial, the confrontation clause required
exclusion of the hearsay videotape.
IV.
We have concluded that the district court violated Mr. Turning Bear's right to
present witnesses in his defense by excluding Ms. Odens's opinion testimony for
improper reasons, and that it violated his right of confrontation by allowing M.T.B.
to testify by closed-circuit television and by admitting the videotape of M.T.B.'s out-
of-court statements to a forensic interviewer. Mr. Turning Bear is not entitled to
relief, however, if these errors were "so unimportant and insignificant that they may
... be deemed harmless." Chapman v. California, 386 U.S. 18, 22 (1967). Under
Chapman, the district court's errors were harmless only if it is clear beyond a
reasonable doubt that they did not contribute to the jury's guilty verdict. Id. at 24.
" 'The question is whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction.' " Id. at 23 (quoting Fahy
v. Connecticut, 375 U.S. 85, 86-87 (1963)). The proper inquiry "is not whether, in
a trial that occurred without the error, a guilty verdict would surely have been
rendered, but whether the guilty verdict actually rendered in this trial was surely
unattributable to the error." Sullivan v. Louisiana, 508 U.S. 275, 279 (1993).
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The jury convicted Mr. Turning Bear on five separate offenses: two counts of
unlawful sexual contact with N.T.B. and three counts of unlawful sexual contact with
M.T.B. We must determine whether it is clear beyond a reasonable doubt that the
three evidentiary errors did not contribute to the jury's guilty verdict on any of these
five counts. In analyzing the evidence for harmless error, M.T.B.'s closed-circuit
television testimony "must be entirely excluded because it would be 'pure speculation'
to consider whether the child's testimony, or the jury's assessment of that testimony,
would have changed had there been proper confrontation." Hoversten, 998 F.2d at
617 (quoting Coy, 487 U.S. at 1022). Similarly, in analyzing the evidence, we must
entirely exclude the videotaped interview and include Ms. Odens's proffered opinion
testimony.
We thus must determine whether inclusion of M.T.B.'s closed-circuit television
testimony and hearsay videotape and exclusion of Ms. Odens's opinion testimony
about N.T.B.'s untruthfulness contributed nothing to the jury's guilty verdict on any
of the five counts beyond a reasonable doubt. If the evidence of guilt actually
presented to the jury, not including M.T.B.'s closed-circuit television testimony or her
videotaped statements to the forensic interviewer, was "overwhelming" as to any of
the counts, then it is likely that the evidentiary errors were harmless with regard to
those counts. See, e.g. United States v. Oliver, 492 F.2d 943, 947 (8th Cir. 1974)
(quoting Harrington v. California, 395 U.S. 250, 254 (1969)).
Excluding M.T.B.'s closed-circuit television testimony and videotaped
interview, the government's remaining evidence was scant with regard to the counts
involving the alleged abuse of M.T.B. There was some evidence discovered in a
medical examination of M.T.B. that was consistent with physical abuse, but it did not
conclusively establish that M.T.B. had been physically abused or provide any
information about the identity of the abuser, if any. As the district court found, the
medical evidence did "somewhat backup the alleged abuse" of M.T.B. During
N.T.B.'s videotaped forensic interview, which was introduced into evidence, he
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described sexual contact by Mr. Turning Bear against M.T.B. At trial, however,
N.T.B. denied seeing Mr. Turning Bear abusing his sister, but testified that he himself
had sexually touched M.T.B., and that other minors had sexually touched M.T.B.
The doctor who physically examined M.T.B. and N.T.B., considering a range
of behaviors attributed by others to the two children, expressed the opinion "[t]hat
those behaviors could be consistent with child sexual abuse," but that they also might
be explained by other trauma. M.T.B. and N.T.B. had earlier been in an automobile
accident in which their mother and grandmother had been killed in the children's
presence, and the doctor testified that trauma from such an event was of the sort that
might cause the kind of abnormal behavior exhibited by the children.
M.T.B.'s statements to the forensic interviewer and during the closed-circuit
testimony were clearly important evidence in the government's case against
Mr. Turning Bear in the three counts relating to the alleged abuse of M.T.B., and we
believe that the statements very likely contributed to his conviction on these three
counts. We certainly cannot conclude beyond a reasonable doubt that the jury did not
give any weight to M.T.B.'s closed-circuit television testimony or her videotaped
interview in returning guilty verdicts on these counts.
The harmless error inquiry with regard to the two counts involving N.T.B. is
not as clear-cut. There was no physical evidence relating to the counts involving the
alleged abuse of N.T.B. In his videotaped interview that was played for the jury,
N.T.B. described sexual contact by his father against himself, saying at first that it
happened just "once," and then reversing himself to say that it happened "lots of
times." N.T.B. testified at trial, at first denying sexual contact by his father, but
eventually indicating that he had been abused between twenty and thirty times. He
also testified at trial that his father had punched him in the back "[p]robably every
day." Mr. Turning Bear was allowed broad inquiry on cross-examination of N.T.B.
Considering the record as a whole, testimony by a foster parent in whose custody
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N.T.B. was placed for a period of several months that she held an opinion that he was
untruthful would likely not have been the most significant or probative evidence
presented. N.T.B. was, however, the key government witness with regard to the
counts relating to his alleged abuse, and his credibility was a very important issue.
Because the evidence presented against Mr. Turning Bear on the two counts relating
to N.T.B. was not "overwhelming," we cannot say that the opinion evidence itself,
had it been admitted, would have counted for nothing in the jury's verdict beyond a
reasonable doubt. We thus conclude that there is a reasonable possibility that the
three evidentiary errors complained of contributed to the jury's conviction on each of
the five counts.
V.
Mr. Turning Bear also argues that the district court misapplied the United
States Sentencing Guidelines in calculating his sentence. Because we have concluded
that constitutional errors were committed during the course of Mr. Turning Bear's
trial, and that those errors were not harmless, the challenge to the computation of his
sentence is moot.
Reversed and remanded.
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