Bear Stops v. United StatesBear Stops v. United States
- Reporters:
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- Before:
- Hansen, Richard S. Arnold, Bye
Kermit Oris Bear Stops appeals the denial of his motion to vacate, set aside, or correct his sentence pursuant to
I.
The facts of this case are fully set out in our prior opinion in Bear Stops’ direct appeal. See United States v. Bear Stops, 997 F.2d 451 (8th Cir. 1993). Bear Stops had an unstable relationship with a woman we refer to as T.M. From 1984 through 1990, Bear Stops periodically lived with T.M. and her children, including sons P.M. and B.B. B.B. was born during this period, and Bear Stops assumed that B.B. was his son. When they were no longer living with Bear Stops, P.M. and B.B. individually accused Bear Stops of having sexually abused them. Ultimately, Bear Stops was convicted of knowingly engaging in a sexual act with P.M. when P.M. was six years old (Count I), knowingly engaging in a sexual act with B.B. when B.B. was approximately four years old (Count II), and knowingly causing B.B. to engage in sexual contact (Count III). See
In Bear Stops’ direct appeal, we reversed the conviction on Count I relating to P.M. but affirmed the convictions on Counts II and III relating to B.B. Bear Stops, 997 F.2d at 459. We reversed Count I because the prior district court had overly restricted Bear Stops’ attempt to offer uncontroverted evidence of an incident of abuse by someone else that had occurred during the same time period as the conduct alleged in Count I. P.M. had been sexually assaulted by three older boys in the same manner alleged against Bear Stops–anal penetration by the penis. This evidence would have provided a potential alternative explanation for P.M.‘s behavior, which the government demonstrated was consistent with behavior frequently observed in sexually abused children, and a potential alternative explanation for P.M.‘s bloody underwear, which was the only physical evidence of abuse. We concluded that “[w]ithout sufficient information to determine whether a potential alternative
Bear Stops filed a
II.
A.
Bear Stops first contends that his counsel on direct appeal provided ineffective assistance by failing to raise and present the issue of whether the Confrontation Clause violation that invalidated his conviction on Count I spilled over and infected the convictions on Count II and Count III. We review de novo the district court‘s denial of a
To establish a claim of ineffective assistance of counsel, Bear Stops must demonstrate (1) that his attorney‘s performance was deficient and outside the range
Bear Stops argues that his appellate counsel failed to raise the spillover issue. He states that his counsel “did not even attack the convictions on the counts involving B.B. on appeal.” (Appellant‘s Br. at 16.) To the contrary, however, his counsel did raise this issue and we explicitly rejected it in the opinion. We stated as follows:
Finally, Bear Stops argues that the alleged evidentiary errors directly pertaining to count I involving P.M. as the victim “spilled-over” to infect counts II and III, the counts involving the younger child, B.B. Because Bear Stops denies that he sexually abused either P.M. or B.B., his credibility is involved in all three counts. Therefore, Bear Stops asserts that the alleged errors directly involving count I also affect counts II and III because his credibility was impeached. We disagree.
Bear Stops, 997 F.2d at 459. The opinion continues by setting forth more specifically our reasons for rejecting the claim, noting that the evidentiary issues were unique to the case involving P.M. and that those issues did not impact the case involving B.B. beyond the general credibility of Bear Stops. We found that the counts and evidence involving B.B. presented a much stronger case, and we refused to presume that the jury did not properly consider each count independently. Id.
Bear Stops now argues that the evidence pertaining to the constitutionally invalid conviction on Count I worked to artificially bolster the credibility of B.B. on Count II and Count III. While Bear Stops might be putting a new spin on the argument, we are satisfied that we sufficiently addressed and rejected the spillover
There is no basis on which to conclude that Bear Stops’ counsel did not raise the spillover issue in his direct appeal. We find no error or deficiency in counsel‘s performance, and thus counsel‘s performance could not have prejudiced the defense. “It is well settled that claims which were raised and decided on direct appeal cannot be relitigated on a motion to vacate pursuant to
B.
The second question that the district court certified for appeal is somewhat ambiguous. The certificate states that there is an appealable issue “as it relates to the claimed ineffective assistance of appellate counsel” in failing to raise the spillover issue “and the issue of the admission of certain hearsay statements made by B.B. identifying the petitioner as his abuser.” (Appellant‘s Add. B at 2.) Bear Stops’ attorney represented at oral argument that he understood the district court‘s certification order to permit him in this appeal to address only the question of a direct evidentiary error in the admission of the hearsay statements and not an ineffective assistance of counsel claim. We believe that the certificate can also be read in such a manner that the phrase “ineffective assistance of appellate counsel” modifies the second issue as well as the first, requiring the alleged evidentiary error to be considered in the context of an ineffective assistance of appellate counsel claim. Our reading of the certificate is supported by the fact that the district court‘s order disposing of the
Additionally, as Bear Stops has briefed the stand-alone evidentiary issue, he has not demonstrated or even alleged the violation of any constitutional right. To prevail on a
We will consider this issue in the context of a claim of ineffective assistance of appellate counsel, as did the district court. Again, to prevail on a Sixth Amendment ineffective assistance of counsel claim, the defendant must demonstrate that counsel‘s performance was deficient and that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. To establish prejudice, the petitioner must demonstrate a reasonable probability that the result of the proceedings would have been different absent counsel‘s error. Id. at 694.
We first conclude that there was no Confrontation Clause violation through the admission of the alleged hearsay testimony. The hearsay rule is a rule of evidence designed to protect the constitutional right to confront witnesses, but not every violation of the hearsay rule amounts to a violation of the Confrontation Clause. Mann v. Thalacker, 246 F.3d 1092, 1100 (8th Cir.), cert. denied, 534 U.S. 1018 (2001). The Confrontation Clause is satisfied when the hearsay evidence falls within a firmly rooted exception to the hearsay rule or is supported by facts that otherwise demonstrate the statement‘s reliability; the Confrontation Clause is alternatively
In this case, both of the child witnesses testified at trial and were available for cross-examination. We have specifically held that “[t]he Clause is satisfied when the hearsay declarants, here the alleged child victims, actually appear in court and testify in person.” United States v. Spotted War Bonnet, 933 F.2d 1471, 1473 (8th Cir. 1991), cert. denied, 502 U.S. 1101 (1992). We cautioned in Spotted War Bonnet that all Confrontation Clause concerns cannot be eliminated by simply placing a child on the stand without regard for the child‘s mental maturity. Id. at 1474. Here, however, there is no assertion that the child witnesses were lacking the maturity to communicate effectively with counsel or the jury. When a defendant has had ample opportunity to cross-examine a witness and discredit the witness‘s testimony, there is no Confrontation Clause violation. Loeblein v. Dormire, 229 F.3d 724, 729 (8th Cir. 2000), cert. denied, 532 U.S. 982 (2001). Because Bear Stops had the opportunity to cross-examine the child witnesses, there is no Confrontation Clause violation from the admission of the alleged hearsay evidence, and we find it unnecessary to consider whether the statements fell within any recognized hearsay exception. Absent a Confrontation Clause violation, there could be no prejudice from Bear Stops’ appellate counsel‘s failure to raise the issue on appeal. Id.
In addition, the inclusion of any hearsay evidence in this case was not so prejudicial that it would have changed the results of the proceedings. See Strickland, 466 U.S. at 694. In the direct appeal, we noted that “the case against Bear Stops” on the counts involving B.B. was “much stronger” than the case against the older boy. Bear Stops, 997 F.2d at 459. We stated as follows: “There appeared to be no question that B.B. was able to identify his father with whom he had lived for approximately the first five years of his life. B.B.‘s description of the alleged
III.
Accordingly, we affirm the district court‘s judgment denying Bear Stops’
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CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.