### The Honorable Henry L. Jones, United States Magistrate 1 

### Judge for the Eastern District of Arkansas, sitting by consent of the parties pursuant to 28 U.S.C. § 636(c). _____________ No. 95-1334

_____________ Joe Henry Johnson, * * Plaintiff-Appellant, * Appeal from the United States * District Court for the v. * Eastern District of Arkansas. * A. L. Lockhart, Director, * Arkansas Department of * Correction, * * Defendant-Appellee. *

_____________ Submitted: September 15, 1995 Filed: December 11, 1995

_____________ Be fore RICHARD S. ARNOLD, Chief Judge, McMILLIAN and HANSEN , Circuit Judges.

_____________ HANSEN, Circuit Judge.

Joe Henry Johnson appeals from the judgment of the district court 1 dismissing his petition for habeas corpus relief under 28 U.S.C. § 2254. Johnson argues that his Sixth Amendment Confrontation Clause rights were viol ated when the state trial court permitted a physician to testif y regarding certain out -of-court statements made by the alleged victim. We affirm.

### -2- Johnson was charged with rape under Arkansas law and a jury late r found him guilty of the charge. The Supreme Court of Arkansas reversed th e conviction. Johnson v. State , 732 S.W.2d 817 (Ark. 1987). Upon retrial, a jury again found Jo hnson guilty of rape. The Supreme Court of Arkansas affirmed. Johnson v. State , 770 S.W.2d 128 (Ark. 1989). The Arkansa s courts subsequently denied Johnson postconviction relief. Johnson v
. State , No. RC 91-15, 1991 WL 95721 (Ark. June 3, 1991).
The facts underlying Johnson's conviction occurred on April 27, 1985. On that day, Dr. Charles Kemp, a pediatrician, w as called to the emergency
roomat St. Bernard's Regional Medical Center in Jonesboro, Arkansas, to examine the alleged victim, Jason Keiffer, who was nine years of age at th e time. Dr. Kemp had never met Jason prior to the examination. Dr. Kemp testif ied at Johnson's second trial that Jason stated during th e examination that Johnson had forced him to have anal intercourse on severa l occasions. At the time, Johnson was living with Jason's mother and Jason. Dr. Ke mp undertook a complete physical examination of Jason, includin g Jason's rectal area, and found no evidence of sexual abuse.

Jason tes tified on Johnson's behalf at the second trial. Jaso n testifi ed at length that the statements that he made to Dr. Kemp at th e hospital were not tru e. He stated that he lied because he was angry with Johnson because Johns on had reneged on a promise to take him fishing that day. Jason also test ified that subsequent, similar statements he made to
a police officer, social worker, and deputy prosecutor had likewise been untrue.
Johnson filed the instant habeas petition alleging, inter alia , that the State violated hi s Confrontation Clause rights by the introduction of Dr . Kemp's testimony regarding Jason's out-of-court statements. Th e district court denied relief.

### The district court's disposition of Johnson's other habeas 2 

### claims is not challenged on appeal. -3- On appeal, Johnson renews his Confrontation Clause claim. Johnson 2 clai ms that this right was violated regardless of whether Dr. Kemp' s testimony was admitted under Arkansas Rule of Ev idence 803(4), as found by the district court, or under Rule 803(25), as implicitly held by th e Supreme Court of Arkansas on direct appeal.

We need not determine the evidentiary rule under which the stat e tr ial court admitted Dr. Kemp's testimony in order to decide th e Confrontation Clause issue, for we believe that the outcome of this case is governed by our holding in United States v. Spotted War Bonnet , 933 F.2 d 1471 (8th Cir. 1991), cert. denied , 502 U.S. 1101 (1992). In Spotted War Bonnet , the issue was whether testimony given by a social worker and a cl inical psychologist concerning out-of-court statements made by th e alleged victims violated the defendant's Confron tation Clause rights. Id. at 1472. We concluded that no Confrontation Clause violation occurre d because "[t]he Clause is satisfied when the hearsay declarants, here the all eged child victims, actually appear in court and testify in person. " Id. at 1473. However , we also held that this rule was subject to certain limitations, such as when the declarant was too young or frightened to be meaningfully cross-ex amined. Id. at 1474. Accordingly, we fashioned the following test: [W]henthe contention is made that the live testimony of a given witness satisfies Confrontation Claus e con cerns as to the admissibility of out-of-cour t state ments made by the same witness, the question i s whethe r there is "an opportunity for effective crossexamination, not cross-examination that is effectiv e in wh atever way, and to whatever extent, the defens e might wish."
Id. at 1474 (quoting Delaware v. Fensterer , 474 U.S. 15, 20 (1985)). See also United States v. Juvenile NB , 59 F.3d 771, 775 (8th Cir. 1995) ("In sum, when the child whose hearsay testimony is

### -4-

admitted also testifi es himself or herself, the only Confrontation Clause issue is whether the trial provided an opportunity for effective cros s examination.") (internal quotations omitted); Dolny v. Erickson , 32 F.3d 381, 385 (8th Cir. 1994) (same), cert. denied , 115 S. Ct. 902 (1995).

In this case, the out-of-court declarant, Jason, testified a t Johnson's trial. Although Spotted War Bonnet is not on all fours with thi s case because Johnson called Jason to the stand, we find this distinction analytically insignificant. Spotted War Bonnet and its progeny make clear that the dispositive point is that Johnson was a fforded the opportunity to effectively examine Jason under oath and in fron t of a jury about the outof-cou rt statements, not that the examination must occur during th e prosecution's case.

Johnson claims that Spotted War Bonnet is not controlling her e becaus e if Dr. Kemp had not testified regarding Jason's out-of-cour t statements, it is doubtful that Jason would have been called to testify at all. This argument is unpersuasive. To reiterate, our cases make clear that w hen the out-of-court declarant testifies at trial, the onl y Confrontation Clause issue which remains is whet her the declarant could be effectively examined about the out-of-court statements. It is only when the declarant is too young or too frightened when he does appear in court to be meaningfully examined about the out-of-court statements attributed to him that the Confrontation Clause remains uns atisfied, and the analysis then turns to whether the admitted statements bear sufficient indicia of reliab ility to withstand Confrontation Clause scrutiny. See Idaho v
. Wright , 497 U.S. 805, 816 (1990). Johnson does not claim, and afte r conducting our own independent review we do not find, that Jason was too young or frightened to be meaningfully examined about his out-of-cour t statements. Therefore, we conclude that Johnson's Sixth Amendmen t Confrontation Clause rights were not violated by

### Given this disposition, we decline to address the State's 3 

### argument that Johnson's Confrontation Clause claim is procedurally defaulted. -5- the adm ission of Dr. Kemp's testimony concerning Jason's out-of-cour t statements. 3
Accordingly, we affirm the judgment of the district court.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.