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).

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No. 95-1334

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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. *

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Submitted: September 15, 1995

 Filed: December 11, 1995 

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Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN and HANSEN,

Circuit Judges.

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HANSEN, Circuit Judge.

Joe Henry Johnson appeals from the judgment of the district court1

dismissing his petition for habeas corpus relief under 28 U.S.C. § 2254.

Johnson argues that his Sixth Amendment Confrontation Clause rights were

violated when the state trial court permitted a physician to testify

regarding certain out-of-court statements made by the alleged victim. We

affirm.
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Johnson was charged with rape under Arkansas law and a jury later

found him guilty of the charge. The Supreme Court of Arkansas reversed the

conviction. Johnson v. State, 732 S.W.2d 817 (Ark. 1987). Upon retrial,

a jury again found Johnson guilty of rape. The Supreme Court of Arkansas

affirmed. Johnson v. State, 770 S.W.2d 128 (Ark. 1989). The Arkansas

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, was called to the emergency

room at St. Bernard's Regional Medical Center in Jonesboro, Arkansas, to

examine the alleged victim, Jason Keiffer, who was nine years of age at the

time. Dr. Kemp had never met Jason prior to the examination. Dr. Kemp

testified at Johnson's second trial that Jason stated during the

examination that Johnson had forced him to have anal intercourse on several

occasions. At the time, Johnson was living with Jason's mother and Jason.

Dr. Kemp undertook a complete physical examination of Jason, including

Jason's rectal area, and found no evidence of sexual abuse.

Jason testified on Johnson's behalf at the second trial. Jason

testified at length that the statements that he made to Dr. Kemp at the

hospital were not true. He stated that he lied because he was angry with

Johnson because Johnson had reneged on a promise to take him fishing that

day. Jason also testified 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 his Confrontation Clause rights by the introduction of

Dr. Kemp's testimony regarding Jason's out-of-court statements. The

district court denied relief.
 The district court's disposition of Johnson's other habeas 2

claims is not challenged on appeal.

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On appeal, Johnson renews his Confrontation Clause claim. Johnson 2

claims that this right was violated regardless of whether Dr. Kemp's

testimony was admitted under Arkansas Rule of Evidence 803(4), as found by

the district court, or under Rule 803(25), as implicitly held by the

Supreme Court of Arkansas on direct appeal.

We need not determine the evidentiary rule under which the state

trial court admitted Dr. Kemp's testimony in order to decide the

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.2d

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

clinical psychologist concerning out-of-court statements made by the

alleged victims violated the defendant's Confrontation Clause rights. Id.

at 1472. We concluded that no Confrontation Clause violation occurred

because "[t]he Clause is satisfied when the hearsay declarants, here the

alleged 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-examined. Id. at 1474. Accordingly, we fashioned the

following test:

[W]hen the contention is made that the live testimony

of a given witness satisfies Confrontation Clause

concerns as to the admissibility of out-of-court

statements made by the same witness, the question is

whether there is "an opportunity for effective crossexamination, not cross-examination that is effective

in whatever way, and to whatever extent, the defense

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
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admitted also testifies himself or herself, the only Confrontation Clause

issue is whether the trial provided an opportunity for effective cross

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 at

Johnson's trial. Although Spotted War Bonnet is not on all fours with this

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 afforded the opportunity to

effectively examine Jason under oath and in front of a jury about the outof-court statements, not that the examination must occur during the

prosecution's case.

Johnson claims that Spotted War Bonnet is not controlling here

because if Dr. Kemp had not testified regarding Jason's out-of-court

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 when the out-of-court declarant testifies at trial, the only

Confrontation Clause issue which remains is whether 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 unsatisfied, and the analysis

then turns to whether the admitted statements bear sufficient indicia of

reliability to withstand Confrontation Clause scrutiny. See Idaho v.

Wright, 497 U.S. 805, 816 (1990). Johnson does not claim, and after

conducting our own independent review we do not find, that Jason was too

young or frightened to be meaningfully examined about his out-of-court

statements. Therefore, we conclude that Johnson's Sixth Amendment

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.

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the admission of Dr. Kemp's testimony concerning Jason's out-of-court

statements.3

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

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