Walters v. McCormick , 122 F.3d 1172 ( 1997 )

Opinion by Judge FARRIS; Dissent by Judge NOONAN.

FARRIS, Circuit Judge:

INTRODUCTION

George Ronald Walters appeals the denial of his habeas corpus petition. Walters was convicted by a jury of sexual assault and of sexual intercourse without consent. He challenges: (1) the admission at trial of the videotaped testimony of the victim, then four years old; and (2) the trial court’s refusal to permit certain cross-examination of the victim’s mother.¹ We affirm.²

I.

Admission of the testimony of the child victim, K.C., is an evidentiary issue that the Montana trial court addressed under Montana law. We do not review the admission for error; “we may only consider whether [Walters’s] conviction violated constitutional norms.” Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.1991).

Walters argues that K.C. was incompetent to testify, and that admitting her testimony therefore violated his rights to confrontation of witnesses and due process. Walters directs the court to the trial transcript, noting correctly that the child’s testimony was riddled with inconsistencies and did not comprise a clear, unequivocal narration of events. Walters also observes that KC.’s responses to questions in her testimony and her competency hearing were not consistently truthful, and that she appears to be easily manipulatable. He concludes from these observations that K.C.’s testimony should have been excluded.

Regardless of Walters’s observations, his legal conclusion is flawed. K.C. was not an ideal witness. Her descriptions of events varied, depending primarily on who was questioning her. She testified both that Walters had molested her, and that her mother had invented the story. She testified that God smiles when you tell the truth, but that sometimes he wants you to lie. A finder of fact might well look with scepticism on her testimony, but that is a question of weight, not admissibility.

Walters argues that any “confrontation” of a witness who is as vacillatory and manipulatable as K.C. cannot be meaningful for purposes of the Confrontation Clause. Walters cites no direct precedent for this novel proposition. We reject it.

“[T]he Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” Kentucky v. Stincer, 482 U.S. 730, 739, 107 S.Ct. 2658, 2664, 96 L.Ed.2d 631 (1987) (per curiam) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985)). When a witness gives “testimony that is marred by forgetfulness, confusion, or evasion .... the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination.” Fensterer, 474 U.S. at 22, 106 S.Ct. at 295. Walters had such an opportunity.

Walters also argues that K.C.’s testimony should not have been admitted because she did not demonstrate an appreciation of the duty to tell the truth. K.C. may not have understood the oath she took, and she was not subject to any penalty for perjury. Where out-of-court statements are offered into evidence, “[cjonffontation ... insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury.” California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970) (dictum). However, it is the “literal right to ‘confront’ the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause.” Id. at 157, 90 S.Ct. at 1934-35. KC.’s testimony was not hearsay, and therefore does not implicate the Confrontation Clause’s “primary object”: that an accused not be convicted on the basis of “depositions or ex parte affidavits.” See id. (quoting Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 339-40, 39 L.Ed. 409 (1895)).

Incapacity to understand the duty to testify truthfully does not automatically offend the Confrontation Clause when the witness in question is a young child. At least where, as here, there is reason to believe that the incriminating testimony will be truthful, a young child may constitutionally be a witness. K.C. had described Walters’s acts in graphic detail immediately after the events occurred.³ That description was delivered to three persons including the defendant’s wife, whom no one has suggested had a motive to coach the child or to misrepresent what she said. K.C.’s testimony, which had already been videotaped prior to the competency determination, comported with her initial description of the event. A physical examination of K.C. immediately following the event provided expert medical testimony corroborating the fact of abuse.

The Confrontation Clause is not merely a mechanical test, and “[t]here are circumstances that excuse compliance with the right of confrontation.” Maryland v. Craig, 497 U.S. 836, 844 & 850, 110 S.Ct. 3157, 3162-63 & 3166, 111 L.Ed.2d 666 (1990) (quoting Graham, The Right of Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One, 8 Crim. L. Bull. 99,107-OS (1972)). Even the right to confront one’s accuser face-to-face may “give way to considerations of public policy and the necessities of the case” where the testimony of a young child abuse victim is concerned. Id. at 849, 110 S.Ct. at 3165, quoting Mattox, 156 U.S. at 243, 15 S.Ct. at 340. No federal court has held that the Constitution places limits on allowing even the youngest child to testify at trial. See Stincer, 482 U.S. at 742 n. 12, 107 S.Ct. at 2665 n. 12 (observing that several states impose no competency requirement); see also FRE Rule 601 (“[e]very person is competent to be a witness” except as otherwise provided; no provision for determining competency of children).

“All that the Sixth Amendment demands [is] ‘substantial compliance with the purposes behind the confrontation requirement.’” Ohio v. Roberts, 448 U.S. 56, 69, 100 S.Ct. 2531, 2540, 65 L.Ed.2d 597 (1980) (quoting Green, 399 U.S. at 166, 90 S.Ct. at 1939), limited on other grounds, White v. Illinois, 502 U.S. 346, 353-54, 112 S.Ct. 736, 741-42, 116 L.Ed.2d 848 (1992). The Clause’s “central concern” is that evidence be “subject[ed] to rigorous testing ... before the trier of fact.” Craig, 497 U.S. at 845, 110 S.Ct. at 3163. A primary theme of Walters’s cross-examination of K.C. was her willingness to lie, and the jury saw that cross-examination. Because Walters was allowed to make the jury fully aware of the child’s arguable incapacity, the Confrontation Clause was satisfied.

Walters also contends that the admission of the child’s testimony violated due process. Where state or federal law provides that a competency determination must be made, failure to conduct an appropriate hearing implicates a defendant’s due process rights. Sinclair v. Wainwright, 814 F.2d 1516, 1522-23 (11th Cir.1987) (competency of insane witness); see Stincer, 482 U.S. at 745, 107 S.Ct. at 2667 (due process claim arising out of exclusion from child’s competency hearing). After a defendant raises a colorable objection to the competency of a witness, the trial court must perform “a reasonable exploration of all the facts and circumstances” concerning competency. Sinclair, 814 F.2d at 1523.

At the beginning of his trial Walters argued that K.C. was not competent to testify because she either did not know what truth was, or did not feel obligated to tell the truth. After this objection, the court conducted a lengthy hearing on K.C.’s competency under Montana law. The court questioned K.C., and also invoked the assistance of a child psychiatrist, who testified that K.C.’s responses had to be interpreted with care, but that she did not lie. Upon questioning by the psychiatrist, K.C. testified that she told the truth. At various times K.C. also testified that she sometimes did not tell the truth. However, our concern is solely whether the trial court conducted a meaningful hearing. The court inquired extensively into the matter and heard substantial evidence indicating that K.C. was competent. The court then exercised its discretion in admitting the testimony. See State v. Eiler, 234 Mont. 38, 762 P.2d 210, 214 (1988) (‘Witness competency is within the discretion of the trial court”). There was no due process violation.

II.

Walters’s second contention is that the trial court improperly precluded him from cross-examining the victim’s mother about accusations of abuse that the mother had previously made against her own father. Walters argues that this ruling denied him the opportunity to present his “sole means of defense” and to confront one of the witnesses against him. We reject this argument.

Walters contends that “[h]is theory of the ease, from the inception, was that the child’s maternal grandfather, not he, was the guilty party.” To support this theory Walters attempted to introduce evidence at trial that KC.’s mother had made prior accusations of abuse against her own father (K.C.’s grandfather), and then withdrawn the charges. The proffered relevance of this evidence was that “the alleged victim has had contact with [the maternal grandfather], ... he has taken care of her on occasion.” Walters also offered to prove that “the mother could have told the child not to identify [the maternal grandfather as the one who had abused her].” The trial court precluded inquiry into K.C.’s mother’s history, ruling that the proffered evidence would have no probative value.

When considering a claim that the exclusion of evidence denied a defendant his due process rights, we consider “the probative value of the evidence on the central issue.” Miller v. Stagner, 757 F.2d 988, 994 (9th Cir.), amended on other grounds, 768 F.2d 1090 (1985) (listing factors for consideration) (citing Perry v. Rushen, 713 F.2d 1447, 1452-53 (9th Cir.1983), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984)), cert. denied, 475 U.S. 1048 & 1049, 106 S.Ct. 1269 & 1271, 89 L.Ed.2d 577 & 579 (1986). The proffered evidence would not have been probative. It would not have supported Walters’s theory of the case. The State presented the testimony of a physician that abuse had occurred within several hours of her examination of K.C. Walters offered no evidence to rebut that testimony, and he did not and does not now contend that K.C. had contact with her maternal grandfather on that night. “Evidence of third-party culpability is not admissible ‘... [unless it is] coupled with substantial evidence tending to directly connect that person with the actual commission of the offense.’ ” People of the Territory of Guam v. Ignacio, 10 F.3d 608, 615 (9th Cir.1993) (applying Federal Rules of Evidence) (quoting Perry, 713 F.2d at 1449). There was no such evidence. The exclusion of tangential evidence of something that may have happened at a different time and place does not constitute a due process violation.

We are not persuaded by Walters’s argument that K.C.’s mother’s prior accusations against her own father gave her “a motive to testify falsely and to influence the child ... so as to shield her own father from suspicion.” Walters argues that “[t]he partiality of a witness is subject to exploration at trial.” Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). However, “a trial court may ... impose reasonable limits on defense counsel’s inquiry into the potential bias of a prosecution witness, to take into account ... confusion of the issues ... or interrogation that [would be] ... only marginally relevant.” Olden v. Kentucky, 488 U.S. 227, 232, 109 S.Ct. 480, 483, 102 L.Ed.2d 513 (1988) (per curiam). Walters has not explained how a history of abuse, or of false accusations of abuse, would constitute “a motive to testify falsely.” The evidence would not have been relevant, and Davis is therefore inapplicable.

Further, the record does not support Walters’s contention that K.C.’s mother fabricated the story. There was unrebutted medical evidence that abuse occurred on the night in question. It is uncontested that the child’s underpants were found by Walters’s wife in Walters’s bed. The victim told her parents about the abuse immediately upon their arrival at Walters’s house. The record contains more than substantial evidence, much of it not discussed herein but all well known to the parties, that Walters committed the crimes with which he was charged. The record also contains no indication that anyone else could have committed the act. The trial court did not err in concluding that the proffered evidence was not sufficiently probative to justify its admission.

AFFIRMED.

1 . The State contends that Walters has not exhausted his state remedies and that these claims are therefore barred from consideration on petition for habeas corpus. If Walters did fail to exhaust his remedies, that failure arose in part from the district court’s ruling that his claims were not barred. The Montana statute of limitations appears to have run while Walters's petition has been considered by the federal courts. We exercise our discretion and reach the merits of the claims. See McCleskey v. Zant, 499 U.S. 467, 490, 111 S.Ct. 1454, 1468, 113 L.Ed.2d 517 (1991).

2 . The district court had jurisdiction over the petition pursuant to 28 U.S.C. § 2241. We have jurisdiction over Walters’s appeal pursuant to 28 U.S.C. § 2253.

3 . The detail included a description of a physical event-a penis growing erect-that, although related in the language of a three-year-old, was both externally accurate and impossible for K.C. to have fabricated.