Bockting v. Bayer

505 F.3d 973, 2007 U.S. App. LEXIS 23929, 2007 WL 2964332
Court of Appeals for the Ninth Circuit·Decided October 12, 2007·No. 02-15866·Published·Cited by 8 cases

Opinions

Opinion by Judge WALLACE; Dissent by Judge NOONAN.

ORDER

The opinion and dissent filed on September 27, 2007 are withdrawn. A new opinion and dissent are filed with this order.

[975] OPINION

WALLACE, Senior Circuit Judge:

Bockting appeals from the district court’s order denying his petition for a writ of habeas corpus. Bockting challenges his state convictions on charges associated with the alleged sexual abuse of his then-six-year-old step daughter. We have jurisdiction under 28 U.S.C. § 2253(a). Bockting has not demonstrated the state court’s adjudication on the merits: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings,” 28 U.S.C. § 2254(d). Therefore, we affirm the district court’s order denying his petition for writ of habeas corpus.

I.

Prior to his arrest, Bockting lived with his wife, Laura Bockting (Laura), his six-year-old step daughter, A Bockting (A), and a three-year-old daughter, H Bockting (H), at the Paradise Motel in Las Vegas, Nevada. On Monday, January 11, 1988, Laura began attending evening classes at a local business college, leaving A and H at home under Bockting’s exclusive care and supervision. The following Saturday evening, when Bockting was away, A approached Laura, crying and “quite upset,” and told Laura that Bockting “put his pee-pee in her pee-pee, and that daddy put his pee-pee in her butt and daddy made her suck on his pee-pee like it was a sucker .... and he put his chin in her pee-pee.” A informed Laura that all this had happened in the bathroom, and described the positions that Bockting used to accomplish the assault. She further stated that Bockting threatened to “beat [her] butt” if she revealed the assault to her mother.

Laura awoke the next morning to find that Bockting had returned to the motel room. She obtained rent money from him and dropped by the motel office to pay the past week’s rent and have Bockting’s name removed from the couple’s rental papers. Returning to the motel room, she found A in tears. A explained that she had just told Bockting about their conversation from the previous evening and reported that “Daddy told me to tell you that I was lying.... I can’t do that, mommy.” Laura immediately confronted Bockting with A’s abuse allegations and ordered him to pack his things and leave. Bockting accused A of lying, but nevertheless complied with Laura’s request. A wanted to give Bockt-ing a hug and a kiss, but Bockting refused.

The following Tuesday, Laura called a rape hotline and agreed to take A to a local hospital where they met Detective Charles Zinovitch, a member of the Las Vegas Metropolitan Police Department’s sexual assault unit. Detective Zinovitch ordered an emergency room doctor to conduct a rape examination. The examining gynecologist-obstetrician, Dr. Stacy Rivers, discovered a fissure on A’s rectum. Dr. Rivers estimated that the fissure, which was fresh but not actively bleeding, had occurred within the last week. A’s hymenal ring — the thin film of skin covering her vaginal orifice — was gaping wide open, which was unusual for a girl A’s age. Although Dr. Rivers testified that she could not be certain what kind of “instrument or foreign body” had caused the tear in A’s rectum and the laxness of her hymen, she concluded that these injuries had been caused by a “blunt type of trauma” applied to the rectum and vagina.

Two days later, Detective Zinovitch interviewed A concerning the alleged sexual [976] abuse. Although A had been hysterical and uncommunicative at the hospital, she was now calm and cooperative. She described Bockting’s alleged assault, and stated once again that Bockting “put his pee-pee into her pee-pee ... butt and ... mouth” and put “his chin on her pee-pee.” She described the acts in vivid detail and reenacted the positions Bockting assumed during the assault with the aid of anatomically correct dolls, using age appropriate terminology. Detective Zinovitch testified that the positions A described were consistent with the relative body sizes of A and Bockting.

At Bockting’s March 30, 1988, preliminary hearing, A was called to the stand. A testified that she knew the difference between a truth and a lie and answered preliminary questions about the alleged assault and subsequent rape examination. A was initially cooperative, and answered in the affirmative when asked whether Bockting had touched her inappropriately. She stated that the incident had occurred in the bathroom, when her mother was not home, and that H was in the living room at the time. Her initial statements were consistent with what she told Laura and Detective Zinovitch, except in that she stated that Bockting left her pants on. Upon further questioning, however, A began to cry and averred that she could not remember basic facts as to what had occurred in the bathroom or the statements that she had told Laura and Detective Zinovitch. Laura encouraged A to “be honest” and “tell the truth,” but A refused to answer any further questions, responding instead, “[y]ou already told them.”

Bockting’s jury trial commenced on August 15, 1988. The government, represented by Deputy District Attorney Luk-ens, called A as its first witness. A was uncooperative, however, and found unavailable.

After hearing testimony from Laura and Detective Zinovitch outside the presence of the jury, the judge concluded that A’s hearsay statements to Laura and the detective were credible and admissible. The court observed that there appeared no motive to fabricate, as there appeared to be no conflict between A and Bockting. Further, the statements were neither irrational or implausible, they followed a chronological order, and they conveyed what appeared to be A’s perception of the events. While the court conceded that A’s statements at the preliminary hearing were not entirely consistent with the statements made to Detective Zinovitch and Laura, it noted that it was not uncommon for children to refuse to testify in similar circumstances. The court thus concluded that it had “no difficulty” concerning the reliability of the statements.

The court determined that A’s hearsay statements were admissible under Nevada Revised Statute 51.385 because A was effectively unavailable for questioning:

The very purpose of this statute was to avoid the problem we have here today where a little girl either is not willing to testify or for some reason is unable to or testifies in such an inconsistent manner that it means, in essence, that their testimony is worthless; and because of the fact that she is testifying in open court in front of strangers with all the things that surrounds that kind of a setting. .... The little girl is obviously unavailable. And as far as these two statements, I am meaning the one to the mother and the one to Detective Zino-vitch, I think they are allowed — they are credible enough to be allowed to be related to the jury.

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Bockting v. Bayer, 505 F.3d 973, 2007 U.S. App. LEXIS 23929, 2007 WL 2964332 (9th Cir. 2007).

505 F.3d 973 (Bockting v. Bayer) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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