Walters
Walters v. McCormick
Opinion
Lead Opinion
Farris, J.
Opinion by Judge FARRIS; Dissent by Judge NOONAN.
INTRODUCTION
George Ronald Walters appeals the denial of his habeas corpus petition. Walters was convicted by a jury of sexual assault and of sexual intercourse without consent. He challenges: (1) the admission at trial of the videotaped testimony of the victim, then four years old; and (2) the trial court’s refusal to permit certain cross-examination of the victim’s mother. 1 We affirm.
*1175 I.
Admission of the testimony of the child victim, K.C., is an evidentiary issue that the Montana trial court addressed under Montana law. We do not review the admission for error; “we may only consider whether [Walters’s] conviction violated constitutional norms.” Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.1991).
Walters argues that K.C. was incompetent to testify, and that admitting her testimony therefore violated his rights to confrontation of witnesses and due process. Walters directs the court to the trial transcript, noting correctly that the child’s testimony was riddled with inconsistencies and did not comprise a clear, unequivocal narration of events. Walters also observes that KC.’s responses to questions in her…
Dissenting Opinion
Noonan, J.
dissenting:
The first question presented on this appeal of the district court’s denial on the merits of Ron Walters’ petition for habeas corpus is whether he was denied rights secured by the Fourteenth Amendment and by the Sixth Amendment as incorporated by the Fourteenth Amendment when the prosecutor was permitted to present to the jury the videotaped testimony of a child who Walters contended was incompetent to be a witness. I quote relevant portions of the voir dire in which the court attempted to determine this competency:
The Court: Do you know what it means to tell the truth?
KC: (Witness shakes head in a negative manner)
The Court: Do you know what a lie is?
KC: (Witness shakes head in a negative manner)
The Court: How will I get at whether she does know the difference between truth and a lie. Do you believe in God, do you know what God is?
KC: (Witness nods head in an affirmative manner)
The Court: You believe there is a God?
KC: And Santa gave the guy a dollar at my house
The Court: Do you know when you say something that happened when it’s true?
KC: (Witness shakes head in a negative manner)
The Court: When you say something that didn’t happen?
KC: No.