Walters v. McCormick

122 F.3d 1172, 97 Cal. Daily Op. Serv. 6498, 97 Daily Journal DAR 10604, 1997 U.S. App. LEXIS 21551, 1997 WL 464701
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 12, 1997
DocketNo. 94-35684
StatusPublished
Cited by16 cases

This text of 122 F.3d 1172 (Walters v. McCormick) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walters v. McCormick, 122 F.3d 1172, 97 Cal. Daily Op. Serv. 6498, 97 Daily Journal DAR 10604, 1997 U.S. App. LEXIS 21551, 1997 WL 464701 (9th Cir. 1997).

Opinions

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

[1175]*1175I.

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 [1176]*1176least 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Burch v. Garrett
D. Nevada, 2022
Leopold v. Houser
D. Alaska, 2021
Fernandez v. Montgomery
182 F. Supp. 3d 991 (N.D. California, 2016)
State v. Brousseau
172 Wash. 2d 331 (Washington Supreme Court, 2011)
Lee v. Lampert
607 F. Supp. 2d 1204 (D. Oregon, 2009)
Pantano v. State
138 P.3d 477 (Nevada Supreme Court, 2006)
Manjit Kaur v. John Ashcroft, Attorney General
388 F.3d 734 (Ninth Circuit, 2004)
United States v. Thanh
100 F. App'x 697 (Ninth Circuit, 2004)
United States v. Valenzuela
21 F. App'x 634 (Ninth Circuit, 2001)
Rhodes v. Marshall
12 F. App'x 557 (Ninth Circuit, 2001)
Peyer v. Duncan
8 F. App'x 791 (Ninth Circuit, 2001)
Andrews v. Stegall
11 F. App'x 394 (Sixth Circuit, 2001)
State v. McNeill
700 N.E.2d 596 (Ohio Supreme Court, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
122 F.3d 1172, 97 Cal. Daily Op. Serv. 6498, 97 Daily Journal DAR 10604, 1997 U.S. App. LEXIS 21551, 1997 WL 464701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walters-v-mccormick-ca9-1997.