United States v. Roy Spotted War Bonnet

882 F.2d 1360, 1989 WL 95740
Court of Appeals for the Eighth Circuit·Decided October 19, 1989·No. 88-5040·Published·Cited by 22 cases

Opinions

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 conversa[1362] tion 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.

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United States v. Roy Spotted War Bonnet, 882 F.2d 1360, 1989 WL 95740 (8th Cir. 1989).

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