The opinion of the court was delivered by: LUDWIG
On March 7, 1986 defendant was convicted by a jury of assault with the intent to commit rape, 18 U.S.C. § 113(a); assault by indecent contact, 18 U.S.C. § 113(e); corruption of the morals of a minor, 18 U.S.C. § 13; and false statement, 18 U.S.C. § 1001. After denying his motion for a new trial, I sentenced him on April 17, 1986.
The motion for new trial does not contest the conviction of false statement.
The assault and corruption charges arose from events that occurred on October 17, 1984
between defendant and Nicole Brooks, then age 3, at The Philadelphia Naval Station child care center where defendant worked as an aide. Nicole Brooks testified that, while they were in a bathroom, he smacked her face, removed her clothes and his pants, placed her on the floor and put his body on top of hers. He let her go when two of her girlfriends, having heard her crying, came to rescue her.
Defendant testified that he found the three girls playing in the bathroom, sent two of them out and smacked Nicole on the bottom for making a mess. He admitted lying to the police the next day when he denied having been in the bathroom with Nicole.
Defendant's new trial motion raises the correctness of two sets of trial rulings. The first concerns the admission of out-of-court declarations by Nicole as to the assault; the second, the exclusion of evidence offered by defendant to discredit the testimony of the victim, her mother, and her girlfriends.
Four declarations were received over defendant's objection.
The first statement was Nicole's initial report of the incident, which was given to her 14 year old sister upon Nicole's return home from school that day. The second was her account to her mother later in the afternoon. The third was given to a naval shipyard security officer who came to her home about seven p.m. that evening. The fourth was made to a Philadelphia detective on the following day. Considered as a group, each of these declarations contained variations and discrepancies and ranged from a vaguely described manual touching of the genital area to an explicit forcible rape. All of them, however, conveyed the allegation that a sexual assault of some type had been sustained by the child, and this point was corroborated by the opinions of two physicians who said her accounts to them and their findings upon examination were consistent with an occurrence of child sex abuse.
At trial, defendant challenged Nicole's competency to testify because, inter alia, of the time interval following the incident, nearly a year and a half, arguing that the child lacked the power of recollection over that lengthy time period.
Defendant asserts in his motion for a new trial that the admission of the statements violated the Confrontation Clause of the United States Constitution and was improper under Federal Rule of Evidence 803(24). Since Nicole confronted the defendant at trial and repeated her story and was questioned at length about her prior statements, the Confrontation Clause objection is unfounded. California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970); United States v. Cuyler, 548 F.2d 460 (3d Cir. 1977). The admissibility of the statements under the hearsay catchall of 803(24) as substantive evidence is a more difficult issue.
I deferred ruling on the proffer of the declarations until after Nicole testified, at which point, in overruling the objection, I noted:
There are five elements necessary to qualify such statements and I find that the statements . . . meet those requirements. . . . the circumstantial guarantees of trustworthiness equivalent to the other exceptions to 803 in that these were alleged to have been made close in time to the incident. They were made to people to whom Nicole would naturally have made the statements and I've also considered her very young age as a factor on credibility.
Secondly, the statements are offered as evidence of material facts.
They are, thirdly, more probative on the point . . . than any other evidence that the Government can procure . . . and [fourthly] under the circumstances of the case, and the nature of the charges, the interest of justice [is] best served by the admission of the statements into evidence and the purposes of the rules of evidence are served.
The last element, that is, the proponent must give the adverse party notice sufficient to have an opportunity to meet the statements. I've considered the fact that all of the four statements were provided some time ago to the defendant and I have not heard any specific point made that such notice, and furthermore, the formal notice given ...