United States v. Ferlin K. Dorian , 803 F.2d 1439 ( 1986 )

MAGILL, Circuit Judge.

Ferlin Dorian appeals from a jury verdict finding him guilty of assault with intent to commit rape. The victim was Dorian’s five-year-old daughter, Roxanne. For reversal, Dorian argues (1) that the district court¹ erred in admitting the hearsay testimony of Roxanne’s foster mother regarding statements Roxanne made about the sexual abuse; and (2) that admission of the hearsay statements violated his sixth amendment right of confrontation. For the reasons discussed below, we affirm.

1. BACKGROUND.

In June of 1985, Ferlin Dorian was living in Rosebud, South Dakota, on the Rosebud Indian Reservation with his wife, Norma, and their three children: Roxanne (age 5), Ferlin, Jr. (age 4), and Buck (age 2). On the night of June 14, after they had been drinking for several hours, Ferlin and Norma began to quarrel. According to Norma, Ferlin eventually told her to get out of the house and leave Roxanne there.² Norma left, taking Roxanne with her, and sought refuge at a friend’s house. The friend later testified that Norma arrived drunk and crying, and said that Ferlin was going to get her and that he was trying to rape her daughter. Apparently frightened that Ferlin would follow them, Norma soon left the friend’s house and walked with Roxanne to the Rosebud Police Department.

The police officer who met with Norma at the police station that night observed that she was very frightened and agitated, and that she appeared to be intoxicated. He testified that Norma grabbed him and said, “He is after us, he is after us.” When he took Norma and Roxanne into a secure area of the police station, Norma calmed down somewhat, and said, “Ferlin is trying to get my daughter. We can’t stay at home.” The police officer tried without success to locate a relative with whom Norma and Roxanne could stay, and then contacted Penny Virchow, the on-call child protection worker for the State Department of Social Services, to make arrangements for Roxanne. Norma agreed to stay in protective custody at the police station for the night.

Penny Virchow took custody of Roxanne, and, at approximately 2:00 a.m. on June 15, placed her in emergency foster care at the home of Roger and Monica Whiting. Ms. Virchow testified that Roxanne was extremely upset and frightened at the time. When the social worker returned to the Whiting’s home later that morning to reassure Roxanne that her mother was all right and to try to find out what had happened to frighten the child, Roxanne was still frightened and spoke very little, communicating mostly by nodding her head.

According to Roxanne’s foster mother, Monica Whiting, Roxanne continued to act frightened for several days, and after a chance encounter with her parents at a local drive-in, refused to go outside to play. When Monica asked why, Roxanne explained that she was afraid that her parents might have followed them to the Whitings’ home. Monica also testified that Roxanne was initially very fearful of men, and that she was especially intimidated by a male guest in their home who was drinking beer.

On June 17, 1985, Monica took Roxanne for a routine physical exam at the Mission Medical Clinic. Monica testified that the examination proceeded without incident until the physician’s assistant reached for a speculum to do a vaginal exam. At that point, Roxanne, who had been lying down, sat bolt upright, put her hands between her legs, and looked terrified.

In an effort to find out what was behind Roxanne’s abnormal behavior and to determine whether the Department of Social Services needed to file a petition for a minor in need of care, Penny Virchow, Priscilla Hornby (the Supervisor of Child Protection Services in Mission), and Monica Whiting conducted several interviews with Roxanne. The first interview took place between Roxanne and Penny Virchow on June 17, 1985, in a bedroom of the Whiting’s home. Anatomically correct dolls were used to facilitate the interview, because Roxanne was still uncommunicative. Ms. Virchow asked Roxanne if her mother touched her anywhere on her body to hurt or scare her, and Roxanne nodded no. When asked the same question about her father, Roxanne nodded yes. Ms. Virchow then repeated the question as she pointed to various parts of the girl doll’s body. Roxanne gave negative responses except when Ms. Virchow pointed to the doll’s chest. She then indicated that she felt scared when her father touched her there, and that although she was fully clothed when he did so, her father was not wearing a shirt.

The second interview took place on June 19, 1985, in the Whiting’s living room. In addition to Roxanne and Penny Virchow, Monica Whiting and Priscilla Hornby were present. Anatomical dolls were again used, and this time, Ms. Virchow pointed with the hand of the male doll to parts of the girl doll’s body, and asked Roxanne if it scared her when her father touched her there. Again, Roxanne responded that she felt scared when her father touched her on the chest. She became very uneasy and uncommunicative during the course of the interview, and indicated that she wanted Penny Virchow to leave. Thereafter, Monica Whiting and Priscilla Hornby continued the interview, and at some point, asked Roxanne if her father ever put anything between her legs. Roxanne shook her head no.

That day, Roxanne was taken to see a physician for a complete physical examination. The examination revealed that the entrance to Roxanne’s vagina was red and inflamed, and that there was a tear in her hymenal ring. Because the edges of the tear were healed, the physician estimated that the injury had occurred at least five or six days prior to the examination, although it could have happened years earlier. The physician testified that she could not state with any degree of medical certainty what had caused the inflammation or the tear in the hymen, but her impression was suspected sexual abuse.

Priscilla Hornby and Monica Whiting interviewed Roxanne again on June 24, 1985. On this occasion, the anatomical dolls were not used. Because Roxanne found it easier to communicate with only Monica present, the two of them went into the Whiting’s kitchen to talk, while Ms. Hornby waited in the living room. Roxanne told Monica about a time when her father carried her from the kitchen of the Dorian home into the bedroom, where he took off his pants and undershorts. Roxanne said her mother then came into the room and told her father to get out, and he left. Monica and Roxanne went back into the living room and related the incident to Ms. Hornby. Later, Ms. Hornby asked Roxanne again if her father had ever put anything between her legs, and this time Roxanne responded that he had put his finger there.

The final interview took place on July 10, 1985, with Roxanne, Monica, and Priscilla Hornby present. The interview began in the Whiting’s living room, but when Roxanne was reluctant to talk in front of Ms. Hornby, she and Monica went into the kitchen. Monica testified that Roxanne then told her about a time when she was sleeping in a bed, and her father came in and woke her up. Roxanne said that her father was standing at the foot of the bed with his trousers and undershorts off, and that she was scared and ran into the kitchen. She said her father followed her into the kitchen and picked her up under the arms. According to Monica, Roxanne covered her face with her hands at this point, and was very reluctant to continue her story. Monica then suggested that Roxanne use the anatomical dolls to show what happened next.

Monica and Roxanne returned to the living room and, using the dolls Roxanne had previously designated as the “Roxanne doll” and the “daddy doll,” recreated for Ms. Hornby what Roxanne had already told Monica. Roxanne said she was wearing a red dress that day, so they put a red dress on the Roxanne doll, and put the doll in a box that was supposed to be a bed. At Roxanne’s direction, the pants and underwear were removed from the daddy doll, and it was placed at the foot of the “bed.” When Roxanne agreed that they had everything right, they showed the daddy doll waking the Roxanne doll, and showed the Roxanne doll running into the kitchen. They then showed the daddy doll picking up the Roxanne doll under the arms. At this point, Roxanne again became reluctant to continue in front of Ms. Hornby, so she and Monica took the dolls into the kitchen.

Monica testified that Roxanne then showed the Roxanne doll hitting the daddy doll on the chest. According to Monica, Roxanne became very frightened when she showed this, as though she thought she had done something very bad. However, when Monica reassured her that hitting her father was okay, Roxanne relaxed and continued her story. She then showed the daddy doll hitting the Roxanne doll in the stomach, and the Roxanne doll falling to the floor. Roxanne then had the daddy doll pick up the Roxanne doll, carry her back into the bedroom, and lay her on the bed. She showed the daddy doll pulling the Roxanne doll’s dress up to her shoulders, and taking the panties off the Roxanne doll. Roxanne had the daddy doll kneel on the bed next to the Roxanne doll, and then moved the daddy doll between the Roxanne doll’s legs. Monica testified that when she asked what happened next, Roxanne said, “He put his boy thing in the hole between my legs.” Roxanne then showed the daddy doll lying down beside the Roxanne doll on the bed, with his arm over the Roxanne doll’s body.

Monica asked Roxanne if she saw her father’s “boy thing,” and Roxanne said “yes.” Monica asked Roxanne if her father’s boy thing looked like the doll they were using, and Roxanne said “yes,” but then grabbed the daddy doll’s penis, put it in an erect position, and said, “This was up here.” Monica and Roxanne then returned to the living room and went through the entire procedure with the dolls again in front of Priscilla Hornby. Roxanne later indicated that her father had been drinking beer prior to this incident. It was never determined exactly when this episode of sexual abuse might have occurred, except that it was sometime after May 28, 1985, and before June 15, 1985.

On August 21, 1985, Ferlin Dorian was indicted for rape, carnal knowledge, and incest. Shortly thereafter, Priscilla Horn-by informed Monica Whiting that Dorian was in jail, and that it would be safe for Roxanne to return home to live with her mother. Monica testified that she discussed going home with Roxanne, but failed to inform her that her father would not be there. According to Monica, Roxanne immediately became withdrawn, and started breaking household rules. However, as soon as Monica explained to Roxanne that when she went home, only her mother and brothers would be there, Roxanne became very well-behaved and verbal again.

Prior to trial in October 1985, the government notified Dorian and his attorney that it would seek to offer into evidence the statement Roxanne Dorian made to Monica Whiting on July 10, 1985, under one of the residual exceptions to the hearsay rule, Rule 803(24) or Rule 804(b)(5) of the Federal Rules of Evidence. The defense objected, and at trial, the government made an offer of proof. The district court reserved its ruling on the admissibility of the evidence until after Roxanne had testified. Thereafter, the five-year-old was called to the stand, but because of her age and obvious fright, she was unable to testify meaningfully. The district court, noting that her brief testimony had at least established a foundation — and a need — for further evidence, ruled that Monica Whiting’s testimony regarding the July 10 statement was admissible under Fed.R.Evid. 803(24).

In addition to the evidence outlined above, Norma Dorian testified about an unusual event that occurred in June 1985. Norma explained to the jury that she was responsible for all the cooking, washing, and cleaning in the Dorian home. However, on one occasion in June, she found Ferlin washing Roxanne’s underwear. She testified that her husband had never done that before, and that the underwear was the only thing he washed that day.

The jury found Ferlin Dorian guilty of the lesser included offense of assault with attempt to commit rape, and he received a ten-year sentence. This appeal followed.

II. DISCUSSION.

A. Admissibility of the Hearsay Testimony.

Dorian contends that the district court should not have permitted Monica Whiting to testify to the statements Roxanne made on July 10, 1985. As noted above, the district court admitted the extrajudicial statements as substantive evidence under Fed.R.Evid. 803(24), the residual or “catch-all” exception to the hearsay rule. We will reverse the district court only if admission of the evidence constituted a clear abuse of discretion. See, e.g., United States v. Renville, 779 F.2d 430, 439 (8th Cir.1985); United States v. Cree, 778 F.2d 474, 477 (8th Cir.1985).

This court has observed that for hearsay evidence to be admissible under Rule 803(24), it must satisfy five criteria:

The statement must have circumstantial guarantees of trustworthiness equivalent to the twenty-three specified exceptions listed in rule 803;

(2) The statement must be offered as evidence of a material fact;

(3) The statement must be more probative on the point for which it is offered than any other evidence the proponent can procure through reasonable efforts;

(4) The general purposes of the Federal Rules and the interests of justice must best be served by admission of the statement into evidence;

(5) The proponent of the evidence must give the adverse party the notice specified within the rule.

Renville, 779 F.2d at 439. See also Cree, 778 F.2d at 477. Dorian contends that the challenged evidence (1) did not have the necessary guarantees of trustworthiness; (2) was not more probative than any other evidence the government could have procured through reasonable efforts; and (3) did not serve the purposes of the Federal Rules or the interests of justice. We reject these claims.

As Dorian points out, Congress intended the residual hearsay exception to “be used very rarely and only in exceptional circumstances.” S.Rep. No. 1277, 93d Cong., 2d Sess. 20, reprinted in 1974 U.S.Code Cong. & Ad.News 7051, 7065-66. See also Renville, 779 F.2d at 439. Nevertheless, the district court has a considerable measure of discretion in applying this exception. See, e.g., Cree, 778 F.2d at 477. See also Huff v. White Motor Corp., 609 F.2d 286, 291 (7th Cir.1979). In the present case, the district court offered little explanation for its decision to admit the evidence, but after careful review of the record, we are convinced that the district court did not abuse its discretion.

1. Trustworthiness.

Dorian first argues that Roxanne’s July 10, 1985 statement did not possess sufficient circumstantial guarantees of trustworthiness to be admissible under Rule 803(24). In particular, he emphasizes the length of time between Roxanne’s description of the sexual abuse, and the date when any such abuse could have occurred (at least twenty-five days); the contradictions in the statements Roxanne gave during the various interviews (e.g., indicating on June 19 that her father never put anything between her legs, on June 24 that he put his finger between her legs, and on July 10 that he put his “boy thing” between her legs); and the possibility that Roxanne’s statement to Monica Whiting was the result of suggestiveness and pressure by the social workers. In addition, Dorian submits that the mere use of anatomically correct dolls is suggestible to a young child.

In Renville, another case involving the admissibility of a sexually abused child’s hearsay statements under Rule 803(24) this court pointed out that, in assessing the trustworthiness of an out-of-court statement, we must examine the reliability of the declaration “in light of the circumstances at the time of the declaration and the credibility of the declarant.” Renville, 779 F.2d at 440. In the present case, although Dorian’s objections raise legitimate concerns, our review of the record reveals that the statement in question possessed sufficient guarantees of trustworthiness to be admissible under Rule 803(24).

To begin with, the women who interviewed Roxanne — including her foster mother, Monica Whiting — had received training in interviewing children and in the use of anatomical dolls.10 All three testified that they were careful not to use leading or suggestive questions during any of the interviews. They also indicated that, because of Roxanne’s withdrawn behavior and her obvious discomfort with sharing the things that frightened her, the initial interviews were stopped before they were complete. Indeed, it appears that the reason Roxanne did not make the challenged statement until July 10 was because she was able fully to reveal what had happened only after she had developed a relationship of trust with Monica Whiting.

10 Although Monica was not a social worker, her background included experience in both teaching and child development. During college she worked with children in a mental hospital, teaching reading and other skills. (Tr. 161). She received training in child development as a high school home economics teacher. (Tr. 165). During the three years she had been licensed as an emergency foster parent, she had taken care of approximately 60 children. (Tr. 161-162). In addition, to maintain her certification as a foster parent, Monica attended a number of classes offered by the State Department of Social Services. (Tr. 166). Those classes included some training on interviewing children and the use of anatomical dolls. (Tr. 168).

Nor do the conflicts in Roxanne’s statements necessarily render her July 10 statement untrustworthy. As a clinical psychologist testifying as an expert witness explained, the contradictions may well have been a function of Roxanne’s concern about how the information would be received, and whether she would be punished for what she said. According to the psychologist, it frequently takes a long time for children to share what is really going on and they may then do so in stages, telling a little more each time. Furthermore, because defense counsel cross-examined Penny Virchow, Priscilla Hornby, and Monica Whiting extensively about the contradictions in Roxanne’s statements and the circumstances in which her statements were made, the jury was certainly in a position to consider those factors in deciding what weight to give her July 10 statement. See Cree, 778 F.2d at 478 n. 6.

However, the reliability of Roxanne’s statement is perhaps best supported by the nature of her graphic but child-like description of the incident. In particular, we note Roxanne’s statement that her father “put his boy thing in the hole between my legs,” and her ability to describe an erect penis. As the clinical psychologist observed, an erect penis is not normally a matter within the knowledge of a five-year-old girl. The childish terminology Roxanne used, along with her demonstration of her father’s actions, “has the ring of veracity, and is entirely appropriate for a child of [her] tender years.” United States v. Nick, 604 F.2d 1199, 1204 (9th Cir.1979). Indeed, this court has held that “a declarant’s young age is a factor that may substantially lessen the degree of skepticism with which we view [her] motives,” and mitigates in favor of the trustworthiness and admissibility of her declarations. Renville, 779 F.2d at 441. See also Roberts v. Hollocher, 664 F.2d 200, 205 (8th Cir.1981); United States v. Iron Shell, 633 F.2d 77, 84 (8th Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981). It is unlikely that Roxanne could have fabricated the story she told to Monica and repeated in front of Priscilla Hornby, and ordinary experience suggests that Roxanne would not have engaged in the behavior with the anatomically correct dolls that Monica Whiting observed absent some prior similar experience. Cf. United States v. Short, 790 F.2d 464 (6th Cir.1986) (testimony of social worker regarding conduct of three-year-old alleged sexual abuse victim in playing with anatomically correct dolls was not inadmissible hearsay).

Finally, we note that Roxanne’s statement was corroborated by other evidence: the descriptions of her fearful behavior around men; her terror when the physician’s assistant prepared to conduct a vaginal examination; her disturbed behavior when told she was going home, which stopped when she learned her father would not be there; Dorian’s unprecedented act of washing Roxanne’s underwear; and Norma’s statements that Ferlin was trying to rape her daughter. Furthermore, the medical evidence, although inconclusive, was certainly consistent with sexual abuse. We therefore conclude that the requirement of trustworthiness was satisfied in this case.

2. Probative Value of the Evidence.

Dorian next contends that the government failed to make a reasonable effort to procure the most probative evidence about what occurred: Roxanne Dorian’s testimony. He contends that the prosecution made very little attempt to elicit facts concerning the alleged offense during Roxanne’s direct testimony, and that the defense was therefore denied an opportunity for a thorough cross-examination.

This argument is without merit. The record reveals that the government asked Roxanne a number of questions on direct examination, and made a good faith effort to present the evidence directly to the jury. However, it is clear from the record that the child was frightened and uncommunicative, especially when asked questions relating to sexual abuse. As Dorian acknowledges several times in his brief, Roxanne was simply unable to testify meaningfully at trial. Indeed, defense counsel must have reached the same conclusion at the time of the trial because he asked only four questions on cross-examination. In the circumstances, Roxanne’s July 10 statement to Monica Whiting was the most probative evidence the government could have reasonably procured with regard to the charges of sexual abuse.

3. The Interests of Justice.

Finally, Dorian asserts that admission of the hearsay statement did not serve the general purposes of the Federal Rules of Evidence because it lacked circumstantial guarantees of trustworthiness, and did not serve the interests of justice because it violated his sixth amendment right to confront witnesses against him. We have already rejected the first of these allegations and, for the reasons stated below, reject Dorian’s constitutional claim as well. Although Roxanne was unable to testify meaningfully at trial, she was able to provide her version of the relevant events in the more relaxed environment of her foster home. Cf. Cree, 778 F.2d at 478. The need for the only available account of the abuse was apparent after Roxanne’s limited testimony. We believe the interests of justice were duly served by the admission of the hearsay evidence where, as here, the other criteria of Rule 803(24) were satisfied.

B. Confrontation Clause.

Dorian also claims that by admitting Monica Whiting’s testimony, the district court violated his sixth amendment right to confront witnesses against him. He points out that because Roxanne was unable to testify meaningfully on direct examination, the defense was precluded from testing the truth of her July 10 statement on cross-examination. Thus, the question presented is whether the challenged evidence, even if admissible under Rule 803(24), nevertheless violates the rights guaranteed Dorian under the confrontation clause.

We find no indication in the record that Dorian objected at trial to admission of the statement on confrontation clause grounds. Defense counsel clearly objected to Monica Whiting’s testimony on hearsay grounds (Tr. 142), but the only reference to the confrontation clause was made by the trial judge prior to the offer of proof. (Tr. 93-94). This court has held that “statements admitted into evidence in violation of the confrontation clause do not constitute grounds for reversal unless a timely and ' specific objection is made at trial.” United States v. McDaniel, 773 F.2d 242, 245 (8th Cir.1985). See also United States v. Helmel, 769 F.2d 1306, 1316-17 (8th Cir.1985). Assuming that this rule applies in the context of the present case, Dorian would be entitled to relief only if the admission of Monica Whiting’s testimony constituted plain error. See Fed.R.Crim.P. 52(b). To find such error we would have to conclude that admission of the hearsay testimony constituted a miscarriage of justice. McDaniel, 773 F.2d at 245; Helmel, 769 F.2d at 1317. However, after reviewing the record, we cannot say that admission of Roxanne’s statement constituted error at all. Thus even if, as the dissent suggests, this issue was properly preserved for appellate review, our conclusion would be the same.

Although the Supreme Court has emphasized the importance of face-to-face confrontation in criminal trials, it has also recognized that the confrontation clause neither bars the admission of all out-of-court statements, nor requires that all declarants be subject to cross-examination. See Ohio v. Roberts, 448 U.S. 56, 63-66, 100 S.Ct. 2531, 2537-39, 65 L.Ed.2d 597 (1980). A hearsay statement is constitutionally admissible if (1) the prosecution can “either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant,” and (2) the statement bears adequate “indicia of reliability.” Id. at 65-66, 100 S.Ct. at 2538-39. Where the evidence falls within a firmly rooted exception to the hearsay rule, reliability can be inferred; otherwise, the evidence must be excluded “absent a showing of particularized guarantees of trustworthiness.” Id. at 66, 100 S.Ct. at 2539.

In the present case, we believe both the requirements set forth in Ohio v. Roberts for admissibility under the confrontation clause were satisfied. The prosecution produced Roxanne as a witness at trial, but she was simply too young and too frightened to be subjected to a thorough direct or cross-examination. The trial court made no specific ruling on Roxanne’s availability as a witness following her testimony because the confrontation clause issue was not expressly raised by defense counsel. However, it is clear from the record that Roxanne was, for all practical purposes, “unavailable.” Indeed, courts have recognized a special type of “unavailability” for purposes of the confrontation clause in similar cases. See Iron Shell, 633 F.2d at 87. See also Nick, 604 F.2d at 1202. Furthermore, even assuming that Rule 803(24) may not be considered a “firmly rooted hearsay exception,” and therefore the reliability of Roxanne’s statement may not simply be inferred, we believe the same factors that render her statement trustworthy for purposes of admissibility under Rule 803(24) also constitutes a “showing of particularized guarantees of trustworthiness” sufficient to satisfy the requirements of the confrontation clause.

We note, moreover, that the Supreme Court has construed the confrontation clause in a pragmatic fashion, recognizing the need to balance the rights of the accused against the public’s “strong interest in effective law enforcement.” Ohio v. Roberts, 448 U.S. at 64, 100 S.Ct. at 2538. That interest is nowhere stronger than in the case of defenseless child abuse victims. Cf. Cree, 778 F.2d at 478 n. 7. Weighing these competing interests in the circumstances of the present case, we conclude that the hearsay testimony was constitutionally admissible. The challenged statement had sufficient indicia of reliability to afford the jury “a satisfactory basis for evaluating the truth of the prior statement,” California v. Green, 399 U.S. 149, 161, 90 S.Ct. 1930, 1936, 26 L.Ed.2d 489 (1970), and thus substantially complied with the purposes behind the confrontation requirement. See Ohio v. Roberts, 448 U.S. at 69, 100 S.Ct. at 2540.

Accordingly, the judgment of the, district court entered pursuant to the jury verdict is affirmed.

1 . The Honorable Donald J. Porter, United States District Judge for the District of South Dakota.

2 . The Dorians’ sons were staying at their grandmother’s house at the time.