United States v. Willie Wright ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-2978
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Willie Wright, *
*
Appellant. *
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Submitted: March 12, 1997
Filed: July 10, 1997
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Before MAGILL1 and MURPHY, Circuit Judges, and GOLDBERG,2 Judge.
___________
MAGILL, Circuit Judge.
Willie Wright appeals his conviction for abusive sexual
contact and aggravated sexual abuse. Wright argues that:
(1) the evidence was not sufficient to sustain his
1
The Honorable Frank J. Magill was an active judge at the time this case was
submitted and assumed senior status on April l, 1997, before the opinion was filed.
2
THE HONORABLE RICHARD W. GOLDBERG, Judge, United States Court
of International Trade, sitting by designation.
conviction; (2) the district court3 abused its discretion
in allowing leading questions
3
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
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during the government examination of the victim; (3) the
emergency room physician's testimony as to his sexual
abuse examination was improper bolstering; (4) the
district court both improperly allowed a government
expert to testify as to hearsay and prohibited the
defense from examining the expert regarding the victim's
prior inconsistent statements for the purpose of
impeaching the victim; and (5) he was denied a fair trial
by a juror's misconduct in not disclosing the juror's
relationship to a tribal children's court judge. We
affirm.
I.
This case involves the sexual abuse of a four-year-
old girl. The girl, A. Doe, lived with her mother, I.
Doe, and her seven siblings on the Rosebud Indian
Reservation in South Dakota. Wright is the biological
father of I. Doe's youngest child and A. Doe's baby
brother. At the time of the abuse, I. Doe and Wright's
relationship had ended and Wright was not living with the
family. However, during late October and early November
of 1994, Wright babysat the children for I. Doe.
On November 2, 1994, A. Doe first reported the abuse
to a Head Start teacher's aide, Teresa Farmer. A. Doe
protested having to go home, and when Farmer asked A. Doe
why she did not want to go home, A. Doe stated that her
baby brother's dad was mean, used bad words, threw
things, and touched her. Trial Tr. at 40. A. Doe
pointed to her vagina when asked by Farmer where she was
touched. Id.
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Following the initial disclosure, I. Doe, also a Head
Start worker, was summoned, and A. Doe again recounted
the touching to I. Doe. A. Doe told I. Doe that Wright
had "'touched me in a bad place'" and, when asked where,
pointed to her vagina. Id. at 68; see also id. at 87.
On the way home from Head Start, A. Doe also told I. Doe
that "'[h]e touched me with his pee-pee like [T. Doe's]
pee-pee.'" Id. at 73. T. Doe is A. Doe's older brother.
When asked where he touched her, A. Doe told I. Doe, "'On
my pee-pee, on my middle.'" Id.
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Once at home, I. Doe confronted Wright with A. Doe's
accusations. Wright denied the accusations and stated,
"'[o]h, I don't care, nobody is going to believe a little
kid, anyway.'" Trial Tr. at 72 (testimony of I. Doe);
see also id. at 377.
On November 3, 1994, A. Doe was examined by Dr. Luis
Lopez in the Indian Health Services Hospital Emergency
Room. A. Doe told Lopez that Wright "'went into the room
where she was sleeping, removed the covers, removed her
pants, and touch[ed] her on her pee-pee. She also
refer[ed] that he also put his pee-pee into her pee-pee,
and that she told him that it hurt.'" Id. at 102
(reading from emergency room record); see also id. at 96-
97. Dr. Lopez's medical examination revealed no physical
evidence of abuse.
On November 4, 1994, A. Doe again recounted the abuse
to Joanne Yankton, a State of South Dakota Child
Protection worker. Yankton asked A. Doe if anyone had
hurt her or did a bad touch to her. A. Doe pointed to
the vagina on a picture of a girl and said "'Willie
did.'" Id. at 218-19. At this interview, A. Doe also
stated that three times Wright had stuck two fingers
inside her. Id. at 219.
On September 21, 1995, a three-count indictment was
filed against Wright. Wright was charged with one count
of abusive sexual contact and two counts of aggravated
sexual abuse. On October 2, 1995, Wright was arrested,
and at his arraignment on October 12, 1995, Wright pled
not guilty to all three counts.
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Before trial, on February 24, 1995, and February 9,
1996, Margaret Pier, a licensed professional counselor
and school psychologist, interviewed A. Doe. A. Doe was
referred to Pier by the Federal Bureau of Investigation
(FBI). During the first appointment, A. Doe and Pier
prepared a picture of A. Doe's family. The picture was
drawn by Pier with A. Doe directing Pier. Upon the top
of the drawing Pier wrote A. Doe's statement, "'He moved
because he touched my bad part. I started telling mom
and she started fighting.'" Id. at 312.
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At trial, the jury heard A. Doe testify that Wright
touched her:
Q[the prosecutor] When you were home with
Willie when he was baby-sitting, did he do
something to you that you didn't like?
A[A. Doe] Yeah.
Q Can you remember what he did to you?
A Unh-unh.
Q Did he touch you anyplace?
A Yeah.
Q Where did he touch you?
A In the private.
Q In your private parts?
A Yeah.
Q [A. Doe], I'm going to show you a picture of
a girl, and she's maybe a little bigger than you
are, which has been marked as Exhibit 4. And
I'm going to ask you to pretend that this girl
is you.
Can you take this magic marker and mark on
Exhibit 4 where Willie touched you?
A (Witness marking exhibit).
Q Okay. Make a black mark there where you
just touched.
A (Witness marking exhibit).
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Q And what do you call the part where you just
made the mark?
A Middle.
MR. SEILER [the prosecutor]: Your Honor,
we'd ask the record to reflect that the witness,
on Exhibit 4, has made a black mark in the
vaginal area, and we would offer Government's
Exhibit 4.
Id. at 185-86.
The jury also heard A. Doe testify that Wright
touched his penis and her vulva:
Q[the prosecutor] Okay. Did he touch you
down there with his pee-pee?
A[A. Doe] Yeah.
Q I'm going to show you another drawing, [A.
Doe], which has been marked as Government
Exhibit 3. And I'm going to ask you to pretend
that this is Willie.
Can you take this magic marker and put a
circle around the part that Willie touched you
with?
A (Witness marking exhibit)
MR. SEILER [the prosecutor]: Your Honor,
we'd ask the record to reflect that the child
has circled the penis of the anatomically
correct drawing, and we would offer Government's
Exhibit 3 at this time.
Id. at 186-87; see also id. at 188-89.
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On April 24, 1996, the jury returned a guilty verdict
on Count I abusive sexual contact (intentional touching
of genitalia with hand) and on Count III aggravated
sexual
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abuse (contact between penis and vulva). Wright was
found not guilty of Count II aggravated sexual abuse
(penetration of genitalia with finger). Wright's motion
for a new trial was denied, and he was sentenced to 189
months. Wright appeals.
II.
Wright first argues that the evidence was not
sufficient to convict him. Wright's two pronged argument
can be summarized as follows: (1) because of the lack of
physical or other evidence, the government's case rests
on the testimony of A. Doe, who cannot be believed; and
(2) because the jury acquitted Wright on Count II
(penetration of genitalia with finger) it is logically
inconsistent to convict him on count I (touching
genitalia with hand). We disagree.
The Federal Constitution's Due Process Clause
protects "the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary
to constitute the crime with which he is charged." In re
Winship, 397 U.S. 358, 364 (1970). Our task in reviewing
a claim of insufficiency of the evidence is to determine
"whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime
beyond a reasonable doubt." Jackson v. Virginia, 443
U.S. 307, 319 (1979). We will draw all reasonable
inferences from the evidence in favor of the prosecution.
See United States v. Larson, 110 F.3d 620, 624 (8th Cir.
1997).
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Wright's first argument amounts to an assertion that
the jury erred in weighing credibility. Wright asserts
that the jury did not properly consider both A. Doe's
suggestibility after being repeatedly questioned in
unrecorded interviews and A. Doe's inconsistencies in
remembering such details as whether or not she had school
on the day of the abuse or what time of day the abuse
took place. However, despite Wright's assertion that
"'nobody is going to believe a little kid, anyway,'"
Trial Tr. at 72 (testimony of I. Doe); see also id. at
377, the jury was free to do just that.
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This Court has repeatedly made clear that "[i]t is
the sole province of the jury to weigh the credibility of
a witness." United States v. Martinez, 958 F.2d 217, 218
(8th Cir. 1992); see also United States v. Robinson, 110
F.3d 1320, 1323-24 (8th Cir. 1997); United States v.
Smith, 104 F.3d 145, 148 (8th Cir. 1997); United States
v. Gordon, 974 F.2d 97, 100 (8th Cir. 1992); United
States v. Fortenberry, 973 F.2d 661, 664 (8th Cir. 1992);
United States v. Thompson, 972 F.2d 201, 203 (8th Cir.
1992); Bachman v. Leapley, 953 F.2d 440, 441 (8th Cir.
1992). The jury heard testimony regarding the
suggestibility of children. See Trial Tr. at 338-42
(testimony of the defense's expert Dr. Steven Manlove);
id. at 288-90 (testimony of the government's expert
Margaret Pier). The jury also heard testimony regarding
A. Doe's inconsistencies in remembering such details as
whether or not she had school on the day of the abuse or
what time of day the abuse took place. See id. at 187
(testimony of A. Doe that the touching took place after
school when the rest of the kids were at school); id. at
96, 102 (testimony of Dr. Lopez that A. Doe told him that
Wright touched her Friday morning, a day when there was
no school); cf. id. at 191 (testimony of A. Doe that it
happened around the 4th of July with loud explosions and
fireworks going on around). Nevertheless, after hearing
all of the testimony, the jury was free to give whatever
weight they chose to A. Doe's testimony. See Martinez,
958 F.2d at 218.
Moreover, had A. Doe been the government's sole
witness against Wright, it would have been perfectly
proper for the jury to credit A. Doe's testimony and
convict Wright. See id.; cf. People v. McGravey, 14 F.3d
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1344, 1346-47 (9th Cir. 1994) (upholding jury instruction
that no corroboration of minor victim's testimony is
necessary if the victim is believed beyond a reasonable
doubt); Sullivan v. Minnesota, 818 F.2d 664, 666 (8th
Cir. 1987) (holding that victim's testimony, which
included detailed description of incident, demonstration
of act with anatomically correct dolls, and third
parties' testimony that victim exhibited masturbatory
behavior following alleged incident was sufficient
evidence to supported defendant's state conviction for
first-degree intra familial sexual abuse involving
four-year-old victim).
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Second, Wright argues that he could not have used his
hand to commit the act charged in Count I (intentional
touching of genitalia with hand) without also using his
fingers as charged in Count II (penetration of genitalia
with finger).4 We cannot agree.
4
To bolster this argument, Wright points to A. Doe's in-court testimony in which
she states that Wright did not touch her with his fingers:
Q[the prosecutor] When he touched you, [A. Doe], down there, how
did he touch you? What did he touch you with?
A[A. Doe] I don't know.
Q Did he touch you down there with his fingers?
A. Unh-unh.
Q Okay. Did he touch you down there with his pee-pee?
A Yeah.
Trial Tr. at 186. Again A. Doe testified:
Q And he touched you with his pee-pee?
A Yeah.
Q Did he touch you with his fingers down around your middle?
A Unh-unh.
Id. at 189.
We note that the jury was free to credit any specific aspect of A. Doe's
description of the abuse while simultaneously discounting any other aspect. See United
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Notwithstanding Wright's argument, a conviction on
Count I and an acquittal on Count II are not logically
inconsistent. Wright could have touched with his hand
without penetrating with his fingers.
Following our review of the record, we hold that a
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.
III.
Wright next argues that, considering children's
general suggestibility and the lack of a specific showing
of necessity or reluctance to testify, the district court
abused its discretion by allowing the government to ask
leading questions of A. Doe pursuant to Federal Rule of
Evidence 611(c). We disagree.
Based on the record, we see no reason to second-guess
the district court's evaluation of A. Doe's ability to
testify. See United States v. Rossbach, 701 F.2d 713,
718 (8th Cir. 1983) (approving use of leading questions
where fifteen- and seventeen- year-old victims were
hesitant to answer questions and had been threatened);
United States v. Nabors, 762 F.2d 642, 651 (8th Cir.
1985) ("The trial court's ruling deserves deference
because the court was in the best position to evaluate
the emotional condition of the child witness and his
hesitancy to testify."); United States v. McGovern, 499
States v. NB, 59 F.3d 771, 779 (8th Cir. 1995); cf. United States v. St. John, 851 F.2d
1096, 1099 (8th Cir. 1988) (upholding conviction where child at times denied and at
times acknowledged abuse).
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F.2d 1140, 1142 (1st Cir. 1974) ("[L]eading questions
sometimes must be tolerated if what the witness knows is
ever to become available: the witness' memory may be
temporarily exhausted; the witness may be disoriented or
incapable of concentration; the witness may misunderstand
what the questioner wants to know.").
IV.
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Wright argues that the district court permitted
improper bolstering of the child's allegations. This
allegedly took place when the government asked Dr. Lopez
what he had written on the emergency room form as his
diagnosis. Dr. Lopez responded to this question
regarding his diagnosis by stating, "Sexual molestation
exam." Wright asserts that, because Dr. Lopez found no
physical evidence of abuse, his diagnosis, or medical
conclusion, could only be based on A. Doe's story. Thus,
Wright concludes that applying the term "diagnosis" to A.
Doe's story improperly bolsters the truthfulness of her
account. We disagree.
First, Wright made no objection to the admission of
Dr. Lopez's testimony at trial. Therefore, its admission
is reviewed for plain error only. See United States v.
Roach, 28 F.3d 729, 732 (8th Cir. 1994).
Second, Dr. Lopez did not express an improper opinion
as to whether A. Doe was telling the truth. Cf. United
States v. Azure, 801 F.2d 336, 339-341 (8th Cir. 1986)
(holding that it is an abuse of discretion to allow a
doctor to give his opinion on the believability of the
victim's story); United States v. Whitted, 11 F.3d 782,
785-86 (8th Cir. 1993) (holding that a doctor may not
pass judgment on the victim's truthfulness in guise of
medical opinion, because it is the jury's function to
decide credibility). Instead, Dr. Lopez merely testified
that he conducted a "Sexual molestation exam" and that in
his opinion the lack of medical evidence was not
inconsistent with molestation. Whitted, 11 F.3d at 785
("A doctor can also summarize the medical evidence and
express an opinion that the evidence is consistent or
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inconsistent with the victim's allegations of sexual
abuse.").
V.
Wright has two objections with regard to the
testimony of the government's psychological expert,
Margaret Pier. First, after the district court ruled
that A. Doe's account of her abuse to Pier was
inadmissable hearsay, Wright argues that the district
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court erred by allowing a portion of A. Doe's account to
be admitted when the government questioned Pier about a
drawing of A. Doe's family. Second, Wright argues that
the district court erred in denying Wright's motion for
the limited admission of Pier's testimony, under Federal
Rule of Evidence 105, for the purpose of impeaching A.
Doe with prior inconsistent statements and showing A.
Doe's suggestibility. We disagree.
At trial, Wright made no objection to the admission
of the hearsay statement; therefore, we review its
admission for plain error only. See Roach, 28 F.3d at
732. Furthermore, Wright opened the door to the
admission of the statement. The statement, "'He moved
because he touched my bad part. I started telling mom
and she started fighting,'" was made by A. Doe and
written by Pier on the top of a drawing of A. Doe's
family. Trial Tr. at 312. Although admitted by the
government, Wright had previously made extensive use of
the drawing while cross-examining both A. Doe and Pier.
Id. at 202-03, 291, 294-95, 307-08. At the close of
Wright's cross-examination of Pier, the trial court asked
Wright, "You did quite a bit of reference to a drawing
that neither side has offered in evidence. Does either
side wish to offer that?" Id. at 308. The government
accepted the court's invitation and the drawing was
admitted, without objection, as Defendant's Exhibit A
during the government's redirect examination of Pier.
Id. at 311. Once admitted, Pier read the hearsay
statement from the exhibit. Id. at 312. With this in
mind, and considering the other evidence of Wright's
guilt, we hold that the hearsay admission was at most
harmless error. See United States v. DeAngelo, 13 F.3d
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1228, 1233 (8th Cir. 1994) (holding that harmless error
when admission did not affect substantial rights of
defendant and had at most a slight influence on the
verdict).
Second, the district court properly denied Wright's
motion to examine Pier regarding A. Doe's prior
inconsistent statements because, when A. Doe testified
prior to Pier, Wright did not give A. Doe an opportunity
to explain or deny the inconsistent statements as
required by Federal Rules of Evidence 613(b). United
States v. Roulette,
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75 F.3d 418, 423 (8th Cir.) ("Extrinsic evidence of prior
inconsistent statements may not be used to impeach a
witness under Federal Rule of Evidence 613(b) unless the
witness is given the opportunity to explain or deny the
statements."), cert. denied, 117 S. Ct. 147 (1996).
Furthermore, the interests of justice do not necessitate
that we excuse Wright's compliance with this requirement.
See Fed. R. Evid. 613(b).
Lastly, by limiting Pier's testimony, the district
court did not improperly deny Wright the opportunity to
present expert testimony on children's memory and its
suggestibility. Instead, Wright was allowed to call his
own expert, Dr. Steven Manlove, for that purpose. Cf.
United States v. Rouse, 111 F.3d 561, 570-72 (8th Cir.
1997) (holding that the exclusion of additional expert
testimony regarding suggestibility was harmless error
because the jury had an informed basis for ultimate
credibility determinations, particularly the jurors had
heard lengthy testimony about expert's theory of
implanted memory, interviewing techniques, and social
influences on children at the time they made the
accusations); Bachman v. Leapley, 953 F.2d 440, 442 (8th
Cir. 1992) ("[G]eneral testimony about a victim's ability
to separate truth from fantasy, the expression of an
opinion on the similarities between a victim's claim and
the evidence, and the comparison of behavioral and
testimonial patterns of a particular victim with the
behavioral patterns observed in victims in general, [are]
all admissible in certain circumstances.").
VI.
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Finally, Wright argues that, because a juror, Jerry
Chasing Hawk, failed to disclose that he was the nephew
of a tribal children's court judge, Wright was unable to
assess the impartiality of or challenge Chasing Hawk and
thus Wright's due process right to a fair trial was
violated. We disagree.
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"[T]o obtain a new trial . . . a party must first
demonstrate that a juror failed to answer honestly a
material question on voir dire, and then further show
that a correct response would have provided a valid basis
for a challenge for cause." McDonough Power Equip., Inc.
v. Greenwood, 464 U.S. 548, 556 (1984). Wright has not
demonstrated that Chasing Hawk failed to answer honestly.
Wright cites to the jury questionnaire which asked jurors
if they were related to a "law enforcement officer."
Juror Questionnaire, reprinted in Appellant's Addendum at
B. In making his negative response, Chasing Hawk could
have honestly believe that a tribal children's court
judge was not a law enforcement officer. Because Chasing
Hawk "responded truthfully to the question asked, we find
no deliberate concealment on [his] part." See Bolin v.
Black, 875 F.2d 1343, 1350 (8th Cir. 1989) (junior with
son on probation did not respond to question asking if
family member was now incarcerated).
VII.
Accordingly, the judgment of the district court is
affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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