Federal Circuits, 7th Cir. (July 16, 1992)
Docket number: 91-3257
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U.S. Supreme Court - Harris v. Reed, 489 U.S. 255 (1989)
U.S. Supreme Court - Delaware v. Van Arsdall, 475 U.S. 673 (1986)
U.S. Supreme Court - Sumner v. Mata, 449 U.S. 539 (1981)
U.S. Supreme Court - Blockburger v. United States, 284 U.S. 299 (1931)
Before BAUER, and Chief Judge, FLAUM, and RIPPLE, Circuit Judges.
ORDERPetitioner Richard Davis appeals the district court's denial of a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. We affirm.An Indiana jury convicted Mr. Davis of two counts of child molesting/intercourse, Ind.Code. § 35-42-4-3(c) and one count of child molesting/touching or fondling, Ind.Code. § 35-42-4-3(d). The trial court sentenced him to eight years' imprisonment on each intercourse count and four years' imprisonment on the fondling count, all to be served consecutively. The Indiana Appellate Court summarized the facts, which we do not restate.1 Instead, we turn immediately to Mr. Davis' contentions that his convictions violate the Double Jeopardy Clause of the Fifth Amendment and that the trial court violated the Confrontation Clause of the Sixth Amendment (both amendments are applicable to Indiana via the Fourteenth Amendment) when it limited defense counsel's cross-examination of two prosecution witnesses.A jury found that on May 5, 1984 Mr. Davis performed sexual intercourse with M.H., a thirteen year old girl, and fondled her with the intent of sexual gratification. Mr. Davis argues that his convictions and consecutive sentences for child molesting/sexual intercourse and child molesting/touching or fondling, violate the Fifth Amendment's prohibition against double jeopardy because they arose out of the same criminal episode.2 In support of his argument, Mr. Davis contends that it is absurd to separate the intercourse from the touching or fondling into two separate criminal acts for purposes of sentencing because "it is impossible to perform intercourse without fondling the other person."Mr. Davis' contention is without merit. It is firmly established that a single course of conduct may give rise to more than one conviction without contravening the prohibition against double jeopardy. United States v. Dunigan, 884 F.2d 1010, 1015 (7th Cir.1989); United States v. Allen, 798 F.2d 985, 1000 (7th Cir.1986). Furthermore, the proof required for each of Mr. Davis' convictions meets the test set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932), for determining whether two separate statutory violations arising out of the same course of conduct amount to different offenses for the purpose of double jeopardy. "[T]he test to be applied is whether each provision requires proof of a fact which the other does not." Id. at 304. Each of the crimes Mr. Davis was convicted of requires proof of elements that the other does not. Child molesting/sexual intercourse requires proof that a defendant, over 16 years old, performed sexual intercourse with a child under 16 years of age, Ind.Code § 35-42-4-3(c), while child molesting/touching or fondling requires proof that a defendant over the age of 16 touched or fondled a child under the age of 16 for sexual gratification. See Buck v. State, 453 N.E.2d 993, 997 (Ind.1983) (distinguishing child molesting/sexual intercourse and child molesting/fondling or touching for purposes of double jeopardy). As such, we reject Davis' double jeopardy claim and his contention that the trial court's imposition of consecutive sentences for his two child molesting convictions constituted multiple punishments for the same offense. See United States v. McKinney, 919 F.2d 405, 416 (7th Cir.1990) (no violation of double jeopardy when district court imposed consecutive sentences on two offenses arising out of the same course of conduct because the two offenses consisted of distinct elements).Next, Mr. Davis challenges the trial court's limitation of cross-examination of two prosecution witnesses. A federal court may only issue a writ of habeas corpus for violations of federal law. Martinez v. McCaughtry, 951 F.2d 130, 133 (7th Cir.1991). State court evidentiary rulings, because they are the business of state law, seldomly serve as grounds for granting a writ of habeas corpus. Haas v. Abrahamson, 910 F.2d 384, 389 (7th Cir.1990). Thus, the question is not whether the trial court properly limited cross-examination under Indiana evidentiary rules, but whether the limitations imposed by the trial court resulted in the denial of a particular constitutional right. Stomner v. Kolb, 903 F.2d 1123, 1128 (7th Cir.1990).Mr. Davis contends that the trial court's ruling limiting the cross-examination of prosecution witness William Cook, a psychiatric counselor who treated the victim, violated his Sixth Amendment right to confrontation. At trial, Cook testified as to the general factors or verifiers accepted in the psychiatric field which indicate that a child alleging molestation is being truthful, M.H.'s narration of the event, and the application of the verifiers to M.H.'s behavior. He further testified that when M.H. told him about the molestation "she told it in a way that was extremely believable."On cross-examination defense counsel attempted to question Cook about other clinicians' observations of M.H., which were noted in his (Cook's) files. The State objected on the ground of hearsay. The trial court sustained the State's objection and ruled that defense counsel could not ask Cook about other clinicians' observations of M.H. because Cook had not relied on those observations in testifying. See Sills v. State, 463 N.E.2d 228, 234 (Ind.1984) (records which usually constitute inadmissible hearsay may be admitted into evidence if it can be shown that testifying expert relied on the information contained in the records in formulating her opinion or testimony).The defendant's right to cross-examination is secured by the Confrontation Clause. Steele v. Perez, 827 F.2d 190, 193 (7th Cir.1987). This right, however, is not unlimited. Id. The Sixth Amendment allows a state to impose reasonable restrictions on cross-examination in order to diminish "harassment, prejudice, confusion of the issues, the witness' safety or interrogation that is repetitive or only marginally relevant." Delaware v. Arsdall, 475 U.S. 673, 679 (1986). Mr. Davis wanted to place before the jury other clinicians' observations of M.H.. The Indiana trial and appellate courts specifically found that Cook did not rely on the other clinicians' observations during his testimony; we are bound by this determination. Sumner, 449 U.S. at 545-47. Furthermore, the trial court did not completely restrict defense counsel's use of the notes in Cook's files. Rather, it allowed defense counsel to use Cook's notes for impeachment purposes should inconsistencies emerge. See Davis v. Alaska,Try vLex for FREE for 3 days
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