United States v. Roy Spotted War Bonnet , 882 F.2d 1360 ( 1989 )

WOLLMAN, Circuit Judge.

Roy Spotted War Bonnet (defendant) appeals his convictions on two counts of carnal knowledge in violation of 18 U.S.C. §§ 1153, 2032 and two counts of incest in violation of 18 U.S.C. § 1153 and S.D. Codified Laws Ann. §§ 22-22-1(6), 25-1-6. We affirm.

I.

Defendant was indicted for carnally knowing and accomplishing acts of sexual penetration with his daughters, Skylene Spotted War Bonnet, then age six, and Annie Spotted War Bonnet, then age four. Prior to trial, defendant moved the district court¹ to conduct an in camera examination of Skylene and Annie to determine if they were competent to testify and to appoint a psychiatrist to examine Skylene and Annie. The court denied both motions. The court granted defendant’s motion that any person who had interviewed Skylene or Annie be prevented from expressing an opinion regarding Skylene’s and Annie’s truthfulness.

After considering testimony from Sky-lene and Annie bearing on their competency to testify, the district court allowed them to testify about the sexual acts their father had committed against them.

Ms. Priscilla Hornby, who at the time in question was a supervisor of Child Protection Services for the South Dakota Department of Social Services, interviewed Sky-lene and Annie three days after their mother reported the alleged acts giving rise to the charges against defendant. Ms. Horn-by had also interviewed Skylene the preceding month in connection with allegations that she had been sexually abused by her uncle. Over defendant’s objections, Ms. Hornby was permitted to testify about the statements Skylene and Annie had made to her about the sexual acts allegedly performed on them by defendant.

Dr. Mary Curran, a clinical psychologist who had interviewed the girls at the request of the South Dakota Department of Social Services, also testified. She described her evaluation of and therapy with the girls. At one point, Dr. Curran testified to Skylene’s conflicting statements about whether her father had sexually abused her:

[Dr. Curran] I asked her how she got the courage to tell, to say that her dad did it when he really didn’t, because she had said he didn’t do it. I went with her current statement that Roy had not done anything to her. I said you know, that must have taken a lot of courage to say he did it and then to say he didn’t do it. How did you get that courage.

[United States Attorney] What was her response?

[Dr. Curran] Her response was I didn’t want to be sent to a foster home.

# * * * * *

[United States Attorney] On that occasion did you have any further conversation with Skylene concerning the alleged abuse by her father?

[Dr. Curran] No. I think basically what I noted was that Skylene was pretty anxious and she was looking at [her mother] all the time. I sensed that what I had gotten was by not asking her a question that she could have been prepared for, like how did you get the courage to do that, that what she really gave me was an honest answer, that—

Record at 152-53. At this point, defense counsel objected and moved the court to strike the “honest answer” statement and to instruct the jury to disregard it. The district court denied the motion, holding that Dr. Curran’s statement was nonre-sponsive and did not directly comment on Skylene’s veracity with respect to her testimony that her father had committed sexual abuse against her.

II.

Defendant contends that the district court should have appointed a psychiatrist pursuant to 18 U.S.C. § 3006A(e)(l) to examine Skylene and Annie. Section 3006A(e)(l) authorizes a court to appoint an expert for a defendant if the court finds that the expert’s services are necessary and the defendant is financially unable to obtain them. To establish that an expert is necessary, however, 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. United States v. St. John, 851 F.2d 1096, 1098 (8th Cir.1988); Little v. Armontrout, 835 F.2d 1240, 1244 (8th Cir.1987) (en banc), cert. denied, — U.S.-, 108 S.Ct. 2857, 101 L.Ed.2d 894 (1988).

We conclude that defendant failed to show a reasonable probability that a psychiatrist would aid in his defense. In his motion for appointment of an expert and throughout the motion hearing defendant claimed that he needed an expert to examine Skylene and Annie and then testify as to their credibility and competency. Appointment of an expert for those reasons, however, would have been inappropriate. First, an expert witness may not give an opinion as to the believability or truthfulness of an alleged victim’s story. United States v. Azure, 801 F.2d 336, 340-41 (8th Cir.1986). Second, there is no showing that an expert witness would have helped defendant show that the children were not competent to testify.

We also find that the district court’s refusal to appoint a psychiatrist did not result in an unfair trial. Under section 3006A(e)(l), “the state need not provide the indigent with all the tools the wealthy may buy, [but] it must provide the defendant with the ‘basic tools of an adequate defense.’ ” Little, 835 F.2d at 1243 (quoting Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971)). Defendant was given the “basic tools of an adequate defense.” The district court appointed a clinical psychologist to assist defendant. Although the appointment did not include the right to examine Skylene and Annie, the psychologist reviewed the records of interviews conducted by the Department of Social Services and Dr. Cur-ran. The psychologist was present in the courtroom when Skylene and Annie testified, and defense counsel consulted with him during the trial.

III.

Defendant next contends that the district court erred in denying his motion for an in camera determination of Skylene’s and Annie’s competency to testify. The district court did not determine the girls’ competency before it allowed them to take the witness stand. Instead, the district court required the United States attorney to lay a foundation of competency before questioning Skylene and Annie regarding the sexual abuse.

A district court’s decision regarding competency is not disturbed on appeal unless clearly erroneous. This is true not only with respect to the district court’s decision regarding testimonial capacity but also with respect to the means by which the district court chooses to appraise capacity. United States v. Schoefield, 465 F.2d 560 at 562 (D.C.Cir.1972).

“The ultimate test of competence of a young child is whether he has the requisite intelligence and mental capacity to understand, recall and narrate his impressions of an occurrence.” Id.; see also McCormick on Evidence § 62, at 156 (3d ed. 1984). The district court found that both Skylene and Annie had the requisite intelligence. Moreover, they were able to testify to their age, grade in school, teacher, favorite subject, home, family members, and the consequences of committing wrongful acts. True, Annie, who was age six at the time of trial, had difficulty responding to the prosecutor’s questions on direct examination and failed to answer a number of questions. Nevertheless, the court found her competent to testify. In doing so, the district court followed a procedure that is in accord with conventional wisdom: “Though the tribunal is unskilled, and the [child’s] testimony [is] difficult to weigh, it is still better to let the evidence come in for what it is worth, with cautionary instructions.” McCormick on Evidence § 62, at 156 (3d ed. 1984); see also, Fed.R.Evid. 601 advisory committee’s note (discretion regularly exercised in favor of allowing testimony).

It is appropriate for the court to conduct a preliminary voir dire to determine the competency of young children. Schoefield, 465 F.2d at 562. Our decisions, however, do not require the court to conduct such a determination. We find that the district court did not err in following the procedures that it chose to adopt.

IV.

Defendant contends that the district court erred in not striking Dr. Curran’s opinion regarding the honesty of Skylene’s statement that she did not want to go to a foster home. He bases his contention on United States v. Azure, 801 F.2d 336 (8th Cir.1986), in which we held that an expert’s opinion regarding the credibility of an alleged victim’s testimony invaded the exclusive province of the jury to determine the credibility of witnesses. Id. at 340-41. We conclude, however, that Azure is distinguishable from this case.

In Azure, we found that Dr. ten Bensel, a pediatrician and an expert on child abuse, put “his stamp of believability on [the alleged victim’s] entire story.” Id. at 340. Although defense counsel objected to his testimony prior to trial, the trial court allowed Dr. ten Bensel to testify that the alleged victim was believable and that he could “see no reason why she would not be telling the truth in this matter.” Id. at 399. Essentially, Dr. ten Bensel told the jury that the alleged victim was truthful in saying that Azure was the person who had sexually abused her. Id. at 341.

In contrast, Dr. Curran did not usurp the jury’s role at defendant’s trial. She did not “put a stamp of believability” on Skylene’s entire testimony. She did not tell the jury that Skylene was truthful in saying that her father was the person who had sexually abused her. Rather, she testified that in response to a question for which Skylene was unprepared, Skylene gave “an honest answer”: that she did not want to be sent to a foster home. Indeed, at the point that she testified to Skylene’s honesty regarding her fear of being sent to a foster home, Dr. Curran had not yet testified regarding Skylene’s statements about her father’s sexual acts toward her. We therefore conclude that Dr. Curran’s challenged testimony did not interfere with the jury’s role in determining the credibility of Skylene’s testimony regarding defendant’s conduct.

V.

Defendant argues that because the five requirements of the residual hearsay rule, Fed.R.Evid. 803(24), were not satisfied, the trial court erred in permitting Dr. Curran and Ms. Hornby to testify regarding the statements made to them by the young girls about the sexual acts committed upon them by defendant.

We do not agree. Our review of the trial court’s decision to admit testimony under Rule 803(24) is governed by an abuse of discretion standard. We have recognized that the special circumstances inherent in child sexual abuse — the unwillingness or inability of the young victims of the sexual abuse to testify fully about the details of the events giving rise to the charges— make it necessary at times to admit testimony from social workers and other health professionals regarding the statements made to them by the victims in the setting of a doctor or social worker’s office. See, e.g., St. John, 851 F.2d at 1098-99; United States v. Shaw, 824 F.2d 601, 609 (8th Cir.1987), cert. denied, — U.S.-, 108 S.Ct. 1033, 98 L.Ed.2d 997 (1988). Those cases, together with the cases cited therein, provide ample authority for our holding that the district court did not abuse its discretion in admitting the testimony of Dr. Curran and Ms. Hornby.²

We have considered the other contentions raised by defendant, including the argument that the evidence is insufficient to support the conviction, and conclude that they are without merit.

The judgment of conviction is affirmed.

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

2 . Likewise, we conclude that the trial court did not abuse its discretion in admitting Dr. Cur-ran’s testimony under Rule 803(4).