Donald Blount, Jr. v. James Hardy

Filing 920090709

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-6366

DONALD ALLISON BLOUNT, JR., Petitioner ­ Appellant, v. JAMES HARDY, Respondent ­ Appellee, and ROY COOPER; THEODIS BECK, Respondents.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, Senior District Judge. (5:07-hc-02071-H)

Argued:

May 15, 2009

Decided:

July 9, 2009

Before MICHAEL, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished opinion. Judge Shedd wrote the opinion, in which Judge Michael and Judge Agee joined. Judge Michael wrote a separate concurring opinion.

ARGUED: April M. Giancola, NORTH CAROLINA PRISONER LEGAL SERVICES, INC., Raleigh, North Carolina, for Appellant. Mary Carla Hollis, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Dawn N. Blagrove, Paul

Green, NORTH CAROLINA PRISONER LEGAL SERVICES, INC., Raleigh, North Carolina, for Appellant. Roy Cooper, Attorney General of North Carolina, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

SHEDD, Circuit Judge: Donald appeals corpus. the Allison Blount, of his Jr., a North for Carolina a writ of inmate, habeas of and

dismissal was of

petition by a

Blount rape

convicted a child,

North

Carolina sex

court

first-degree

first-degree

offense,

taking indecent liberties with a child. range of 336 to 413 months

He was sentenced to a We granted a

imprisonment.

certificate of appealability ("COA") to determine whether the state trial court's admission of out-of-court statements made by the child to victim confront to therapists violates For the the Sixth Amendment we

right

witnesses.

following

reasons,

affirm.

I. We begin with a summary of the facts pertaining to the underlying crime, as articulated by the North Carolina Court of Appeals in an unpublished opinion in Blount's direct appeal: "S.F. (victim or child) was three years old when her mother . . . began living with defendant (who is not the child's

father). Defendant and mother smoked marijuana and used cocaine on a regular basis. defendant's mother In November of 2002 they were living with because neither of them were employed.

Defendant and mother shared a bed, and the victim slept in a child's bed in the same room. 3

"One defendant cocaine.

evening, and

about went

the to

sixteenth bed after

of

November,

2002, and

mother

using

marijuana

The victim was already asleep in her bed. At trial,

mother testified that she awoke to see defendant standing at the foot of the victim's bed. She saw defendant remove the victim's

clothes, remove his clothes, apply lotion to her and himself, and briefly insert his penis into the child's vagina. Defendant Mother

left the room, returned, re-dressed and returned to bed.

went back to sleep without saying anything, because she feared defendant. "The victim eventually told what had happened to her to four different people. The victim moved in with her maternal

grandmother . . . , because her mother and defendant had no stable housing. Grandmother testified that though the victim

had been a happy-go-lucky child before, when she came to live with her after 16 November 2002 she clung to the grandmother and did not eat or sleep well. vaginal area, which was The victim complained of pain in her red, and stated she was having

difficulty urinating. "In December who of 2002, grandmother grandmother took that the the child child to a

pediatrician, gonorrhea.

informed

had

Grandmother did not know who had given the victim

gonorrhea, but on 25 January 2003 the child told her that she had a secret. She climbed onto grandmother's lap, crying, and 4

told

her

that

her

mother

had

held

her

down

while

defendant

inserted a `black needle with white medicine' into her vagina. The victim then stated that her mother and defendant took her into the bathroom and cleaned her up, that her vagina hurt and bled a little, and that they told her what had happened was a big secret and that she would have her toys taken away and be punished if she told anyone. "A friend (Lisa) was living with grandmother on 25 January 2003 when the victim told grandmother what had happened to her, and she heard the conversation. Her account of what the victim

said that night was consistent with that of the grandmother. "Wendy Meadows . . . was a counselor working for Kids First child advocacy center in December 2002 when the victim was

referred to her by Department of Social Services.

She testified

that the victim told her in their second session: `They gave me candy and told me not to tell.' In their third session, the

victim told Meadows that, while holding her legs, defendant put a black needle with white medicine in her vagina, while her mother held her down by the neck. Meadows had two sets of

anatomical dolls, one a white family and one a black family. Meadows asked the victim to show her what had happened using the dolls. The victim chose a girl doll and laid it on the table,

saying the doll was lying on a bed, she then chose an adult female doll, indicated that it was her mother, and used the 5

hands of that doll to press down on the neck of the girl doll. She then chose a black doll, and indicated it was defendant. She first had the male doll touch the girl doll in the area of its vagina, then she told Meadows that defendant put a needle in her. When asked to show how defendant did this, the child `took

the black adult male doll and laid it on top of the girl doll that was lying on the table.' that `it hurt, and I cried.' "The victim was referred to another counselor, Kelly Finally, the victim told Meadows

Roberts . . . .

According to Roberts' testimony, on their sixth

session, the victim told Roberts the same story she had told the other women: her mother held her down by the neck and arms, while defendant first touched her vagina then inserted a black needle with white medicine into her. to Roberts, the victim After her first revelation said, `[Mother] and

repeatedly

[defendant] hurt me.'

The victim repeated this story multiple

times in following sessions, and her story remained consistent. The victim also drew pictures depicting the events she had

described . . . . "Dare County Department of Social Services became involved in the matter in December of 2002, after it was informed that the child had gonorrhea. Department of Social Services arranged

for both defendant and mother to be tested for gonorrhea, but neither kept the appointments. 6 Mother was never tested for

gonorrhea.

Pursuant to a court order, defendant was tested on

15 March 2004 (approximately sixteen months after the event in question), and the results were negative for gonorrhea. Dr.

Lisa M. Johnson testified that if a person had been successfully treated for gonorrhea, any later test would be negative." 381-82. II. A. At trial, S.F. was called as a witness but was unable to respond in any meaningful manner to the questions posed to her. The trial court Among determined others, that she and was unavailable were as a as J.A

witness.

Meadows

Roberts

called

witnesses by the State.

They testified as to what S.F. had told

them, including testimony that Blount had sexually abused her. Blount argued in state court proceedings that allowing

Meadows and Roberts to testify as to what S.F. told them is a violation of his Sixth Amendment right of confrontation. Crawford v. Washington, 541 U.S. 36 (2004). 1 In See

analyzing

We granted a COA on "[w]hether Blount's Sixth Amendment right to confront witnesses against him, as articulated in Crawford . . . , was violated by the admission at trial of outof-court statements made by a child witness to therapists, who were under a known legal duty to report those statements to the state for possible use at trial." The government asks us to dismiss the COA as improvidently granted because the "legal duty to report" portion of the COA is raised for the first time before us and is therefore procedurally barred. At oral (Continued) 7

1

Blount's Crawford claim on direct appeal, the North Carolina Court of Appeals noted that "[f]ollowing Crawford, the

determinative question with respect to confrontation analysis is whether the challenged hearsay statement is testimonial." 383. court (internal of appeals citation further and quotation that marks "[t]he omitted). United J.A The States

observed

Supreme Court determined in Crawford that `at a minimum' the term testimonial applies to `prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.'" Id. (internal citation omitted)

(emphasis in original).

Finally the court of appeals stated:

[the North Carolina] Supreme Court has also recognized in Crawford an additional prong necessary to show that a statement is testimonial. This `additional prong of the analysis for determining whether a statement is `testimonial' is, considering the surrounding circumstances, whether a reasonable person in the declarant's position would know or should have known his or her statements would be used at a subsequent trial. This determination is to be measured by an objective, not subjective, standard.' Id. (citation omitted).

argument, Blount argued that the issue before us was the same Crawford claim that he raised in each proceeding below, and that the mandatory reporting requirement is not the issue he asked us to review, but rather was a small facet of his argument. We decline to dismiss the COA, and we address the claim as presented to us.

8

With this understanding of Crawford, the court of appeals reviewed the record regarding S.F.'s declarations to the

therapists.

The court of appeals stated that Meadows was in

private practice, never encouraged S.F. to disclose the abuse, and there was for no any evidence criminal that Meadows ever or discussed punishment the for

potential Blount.

consequences

See Id.

As for Roberts, the court of appeals observed

that she told S.F. that their sessions were confidential and that she would not disclose what S.F. said, and there was no evidence that S.F. was made aware that her statements could be used against Blount or that Roberts ever discussed any potential punishment 384. for Blount. See Id. at

Finally, the court of appeals held that In light of the fact that the young victim in the instant case was speaking with therapists, not police officers, and that the record is devoid of any evidence that she had the slightest inkling that defendant faced criminal charges, or even that she understood what criminal charges were, we hold that her statements to Meadows and Roberts were not A testimonial for Confrontation Clause purposes. reasonable three or four year old in the victim's situation would not have had any reason to know that her statements would be used at a subsequent trial.

Id. (emphasis in original). B. Blount arguing filed the his habeas petition in the of district Appeals court

that

North

Carolina

Court

applied

Crawford incorrectly.

In response, the state moved for summary 9

judgment

on

Blount's

claim.

The

district

court

granted

the

motion and dismissed Blount's habeas petition. We review the district court's dismissal of Blount's

petition de novo. See Tucker v. Ozmint, 350 F.3d 433, 438 (4th Cir. 2003). However, under 28 U.S.C. § 2254, "the scope of our Jackson v. Johnson, 523 F.3d

review is highly constrained." 273, 276 (4th Cir. 2008).

We may only grant Blount relief if

the state court's adjudication of his claim (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," 28 U.S.C.

§ 2254(d)(1); 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 proceeding," § 2254(d)(2).

28 U.S.C.

The "contrary to" and "unreasonable application" clauses of § 2254(d) have independent meanings. Tucker, 350 F.3d at 438.

A state court's decision is "contrary to" clearly established federal law under § 2254(d)(1) when it "applies a rule that contradicts the governing law set forth" by the United States Supreme Court, or "confronts a set of facts that are materially indistinguishable from a decision of . . . [the Supreme] Court and nevertheless arrives at a result different from . . . [that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). 10

A

state

court's of "if

decision

involves

an

"unreasonable law the under correct

application" § 2254(d)(1)

clearly the

established court

federal

state

identifies

governing legal rule from . . . [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." quite deferential: Williams, 529 U.S. at 407. "The state court's This standard is of clearly

application

established federal law must be `objectively unreasonable,' and `a federal habeas court may not issue the writ simply because that court concludes in its independent applied judgment clearly that the

relevant

state-court

decision

established

federal law erroneously or incorrectly.'"

Robinson v. Polk, 438

F.3d 350, 355 (4th Cir. 2006) (quoting Williams, 529 U.S. at 411). Moreover, when "assessing the reasonableness of the state

court's application of federal law, the federal courts are to review the result that the state court reached, not whether [its decision] [was] well reasoned." Wilson v. Ozmint, 352 F.3d 847,

855 (4th Cir. 2003) (quotation marks omitted). C. Blount argues that his Sixth Amendment right of

confrontation was violated when Meadows and Roberts, acting in an investigatory S.F. and had prosecutorial made, thereby role, making testified S.F.'s to the

statements

statements

"testimonial."

He therefore contends that he is entitled to 11

habeas relief. held that

In granting summary judgment, the district court to Petitioner's adjudication conclusion, of the the North

"[c]ontrary of

Carolina

Court

Appeals'

Confrontation

Clause issue is not contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States." J.A. 424. In holding

that Blount's claim lacks merit, the district court noted that Blount "has pointed to nothing in the evidence to show that the victim knew or had reason to know that her revelations to

Meadows and Roberts would be used against Petitioner at trial." Id. We agree with the district court that the North Carolina Court of Appeal's determination of this issue is not

unreasonable. 2

The state court properly analyzed this claim

under Crawford and concluded that S.F. could not have known that her statements to the therapists would be used at trial against Blount. Under our review, the North Carolina Court of Appeals'

conclusion that S.F.'s statements to her therapists were not "testimonial" is not contrary to or an unreasonable application of federal law. See e.g., United States v. Peneaux, 432 F.3d

We reasonably as here, a Yarborough

2

note that a state court is given more latitude to interpret federal law when the federal law involves, general standard set forth by the Supreme Court. See v. Alvarado, 541 U.S. 652, 664 (2004).

12

882, 896 (8th Cir. 2005) (holding the admission of statements to a physician by a child regarding physical abuse does not violate the Sixth Amendment right to confrontation); State v. Vaught, 682 N.W.2d 284, 293 (Neb. 2004) (holding the admission of a statement by a child victim to her physician that the defendant had sexually assaulted her was not testimonial). affirm the dismissal of Blount's habeas petition. Therefore, we

III. Based on the foregoing, we affirm the district court's

order dismissing Blount's habeas petition. AFFIRMED

13

MICHAEL, Circuit Judge, concurring: I concur in the court's opinion and in the conclusion that "the North Carolina Court of Appeal's determination . . . is not unreasonable" under current Supreme Court precedent. 12. Ante at

I write separately to express my concern about what I see

as a very troubling case that would have benefitted from clearer guidance as to how the Confrontation Clause applies to the outof-court statement of a child witness who is unavailable to

testify because of her very young age.

I. Donald Blount was convicted in North Carolina state court of the rape and sexual molestation of a child and sentenced to prison for 28 to 34 years. His conviction was based largely on

the hearsay testimony of two child therapists who assembled an account of events after multiple interviews with S.F., the

three- to four-year-old victim.

The victim was referred to the

first of these therapists by law enforcement and social services personnel evidence. the after their own interview failed to produce any

The state acknowledges that at least one purpose of was to obtain evidence against Blount. The

referral

therapists, of course, were under a legal duty to report any evidence of abuse they uncovered. 301, 302(e). At trial both See N.C. Gen. Stat. §§ 7Btherapists recounted S.F.'s

description of the assault from her therapy sessions.

At no

point did Blount have an opportunity to cross-examine S.F., the child declarant.

II. In Supreme Crawford Court v. Washington, that 541 U.S. 36, 68 (2004), is the at

held

"[w]here

testimonial

evidence

issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-

examination." day any

However, the Court explicitly "le[ft] for another to spell out a comprehensive definition of

effort

`testimonial.'" Id.

Instead, the Court held that "at a minimum"

the term "testimonial" covers police interrogations and "prior testimony at a preliminary hearing, before a grand jury, or at a former trial." Id. The Court also listed the following

formulations of the "core class of `testimonial statements'": [1] ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, [2] extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, [and] [3] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Id. at 51-52 (emphasis added) (internal citations omitted).

15

It

was

on

the

third,

most

general

formulation

that

the

North Carolina Court of Appeals based its conclusion that S.F.'s statements to her therapists were not testimonial. State v.

Blount, No. COA05-134, 2005 N.C. App. LEXIS 2606, slip op. at 13-14 (2005) (unpublished) ("A reasonable three or four year old in the victim's situation would not have had any reason to know that her statements would be used at a subsequent trial."). In

light of the lack of specificity of the third-formulation in Crawford, I agree with my colleagues that the North Carolina Court of Appeals' decision is not an unreasonable one. However,

had the North Carolina court reached the opposite conclusion, a federal habeas court could easily have held that to be

reasonable as well.

See United States v. Bordeaux, 400 F.3d

548, 556 (8th Cir. 2005) (concluding that a child's statements during a "forensic interview" were testimonial because the

purpose of the interview was "to collect information for law enforcement" about the alleged sexual abuse); Anderson v. State, 833 N.E.2d 119, 125 (Ind. Ct. App. 2005) (investigative intent of questioner rendered child's statements testimonial). This

opposite conclusion is reasonable because Crawford's imprecise rule provides little guidance for applying the Confrontation

Clause in the specific case of a child declarant's statement to therapists enforcement. serving an investigative function for law

Cf. Crawford, 541 U.S. at 52 ("Statements taken by 16

police

officers

in

the

course

of

interrogations

are

also

testimonial under even a narrow standard."). Furthermore, provided by the the limited amount of additional Crawford direction does not

Supreme

Court

since

necessarily cut in favor of the North Carolina Court of Appeal's decision. In Davis v. Washington, 547 U.S. 813 (2006), the

Court held that statements to law enforcement personnel were not testimonial when "circumstances objectively indicat[e] that the primary purpose of the interrogation is to enable police

assistance to meet an ongoing emergency," but are testimonial when "the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the

interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Id. at 822. The Court

thus held that statements made in a 911 call during an ongoing domestic made to disturbance police were not testimonial, a no domestic whereas statements were In

officers there

after was

disturbance danger.

testimonial

because

immediate

distinguishing the questioning during the event in the 911 call from that in Crawford (post-event), the Court noted several

factors it considered important. events "as they were

First, the 911 call described happening, rather than

actually

`describ[ing] past events.'"

Id. at 827 (emphasis in original).

Second, statements made in the 911 call were made while the 17

declarant

was

"facing

an

ongoing

emergency,"

rather

than Third,

"report[ing] a crime absent any imminent danger." Id.

the questions asked by the 911 operator were "necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past." (emphasis in original). Id.

Finally, there was a "difference in the Id. When the

level of formality between the two interviews."

Davis factors are applied to S.F.'s statements in this case, it would be reasonable to conclude that they are testimonial. Her

statements described past events and were not made during an ongoing emergency. The therapists' questions, meanwhile, were

asked in a formal environment (a medical office) and for the (partial) purpose of learning about past abuse. Of course, neither Davis nor any other Supreme court case touches child's directly on the to issue presented who here ­whether to a

statements are

therapists

will

report the

law

enforcement

testimonial.

Moreover,

purposeful

generality of Davis and Crawford leaves us without answers to crucial questions. For instance, it is unclear whether the

declarant's age should be taken into account (as it was in this case) in an objective The three or analysis of whether may statements be whether that are a her

testimonial. "reasonable

appropriate four year

question old"

would

believe

therapists were gathering evidence for a possible trial, see 18

State v. Blount, No. COA05-134, slip op. at 13-14, or it may be whether an objective, competent witness would reasonably believe that to be the case, see Crawford, 541 U.S. at 53. In addition,

Crawford and Davis fail to provide guidance as to the weight to be given to the interrogator's purpose in conducting an

interview. Because Crawford and Davis provide only generalized

guidance for situations beyond their specific facts, the North Carolina Court of Appeals' decision is reasonable essentially by default. especially But the specific question facts and of this case why present the an

close

demonstrate

inferior

courts, including this one, are in need of additional guidance. S.F., a threeor four-year-old child, was interviewed on

several occasions by therapists who served, at least in part, as proxies for law enforcement. The first of these therapists was

solicited by law enforcement, and both were expected to relay any description by S.F. of Blount's alleged assault to the

Department of Social Services, which, in turn, would relay it to the District Attorney's Office. of At the trial both as therapists of the

recounted

S.F.'s

description

assault

part

state's case-in-chief. S.F's treated Appeals. therapists as and

Yet, despite this close link between law enforcement, by the her statements were of

non-testimonial

North

Carolina

Court

19

On

the

one

hand,

we

must

be

mindful

of

the

practical

challenges facing a court presented with the proffered (out-ofcourt) statement of a very young child who is allegedly the victim of a heinous crime. On the other, we must be mindful of

the consequences of vitiating the Confrontation Clause right in any case involving the statement of a child deemed too young to understand the criminal justice system. The latest signal from

the Supreme Court suggests that the Sixth Amendment right to confrontation remains a powerful one. See Melendez-Diaz v.

Massachusetts, No. 07-591 (U.S. June 25, 2009).

Nevertheless,

the lack of direction for dealing with today's facts leaves us without leeway to disagree with the North Carolina court and recognize the right.

20