Webb

Opinion by Judge NOONAN; Dissent by Judge T.G. NELSON.

ORDER

The opinion filed August 24, 1994, 33 F.3d 1079 , and amended October 13, 1994 has been amended as fohows:

Shp opinion p. 12581, ¶ 2, hne 6 [at p. 1084] strike “In this case” after “the hearsay”. Insert: “We are not bound by the dictum in Swan, supra at 1391 interpreting Wright as suggesting the contrary. While the evidence here is not essential to our holding,”

OPINION

Terry L. Webb appeals the denial by the district court of a writ of habeas corpus freeing him from imprisonment by the state of Arizona. Holding that there has been a gross denial by Arizona of a right secured to Webb under the Confrontation Clause of the United States Constitution, we reverse the judgment of the district court and direct the issuance of the writ.

FACTS AND PROCEEDINGS

In the summer of 1986 Leslie Morton was separated from her husband and living in a trailer park with her two children, David, age 10, and Heather, age 2% She worked the night shift at the Little Brown Jug, finishing around midnight or in the small hours of the morning.

Because of her work, Leslie Morton had to find babysitters for her children. She usually left…

dissenting:

Although I agree with the majority that the videotaped interview between Proctor and Heather was not admissible pursuant to the medical diagnosis exception, I dissent from the majority’s conclusion that Heather’s videotaped statements were not admissible pursuant to the residual exception because they lacked particularized guarantees of trustworthiness.

The Supreme Court has held that particularized guarantees of trustworthiness are to be determined from “the totality of circum *1394 stances that surround the making of the statement and that render the declarant particularly worthy of belief.” Idaho v. Wright, 497 U.S. 805, 820 , 110 S.Ct. 3139, 3149 , 111 L.Ed.2d 638 (1990). The Court concluded there is no exclusive set of factors to be evaluated to determine the trustworthiness of a statement. Consequently, it advised that courts are to be given “considerable leeway in their consideration of appropriate factors.” Id. at 822 , 110 S.Ct. at 3150 .

In this case, the majority reviews the facts surrounding Heather’s statements and holds that the only possible conclusion to be drawn from Heather’s use of age-appropriate language and the spontaneity of her statements is…