Blount v. Hardy

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-6366

DONALD ALLISON BLOUNT, JR.,

Petitioner – Appellant,

v.

JAMES HARDY,

Respondent – Appellee,

and

ROY COOPER; THEODIS BECK,

Respondents.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:07-hc-02071-H)

Argued: May 15, 2009 Decided: July 9, 2009

Before MICHAEL, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Michael and Judge Agee joined. Judge Michael
wrote a separate concurring opinion.

ARGUED: April M. Giancola, NORTH CAROLINA PRISONER LEGAL
SERVICES, INC., Raleigh, North Carolina, for Appellant. Mary
Carla Hollis, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee. ON BRIEF: Dawn N. Blagrove, Paul
Green, NORTH CAROLINA PRISONER LEGAL SERVICES, INC., Raleigh,
North Carolina, for Appellant. Roy Cooper, Attorney General of
North Carolina, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
SHEDD, Circuit Judge:

Donald Allison Blount, Jr., a North Carolina inmate,

appeals the dismissal of his petition for a writ of habeas

corpus. Blount was convicted by a North Carolina court of

first-degree rape of a child, first-degree sex offense, and

taking indecent liberties with a child. He was sentenced to a

range of 336 to 413 months imprisonment. We granted a

certificate of appealability (“COA”) to determine whether the

state trial court’s admission of out-of-court statements made by

the child victim to therapists violates the Sixth Amendment

right to confront witnesses. For the following reasons, we

affirm.

I.

We begin with a summary of the facts pertaining to the

underlying crime, as articulated by the North Carolina Court of

Appeals in an unpublished opinion in Blount’s direct appeal:

“S.F. (victim or child) was three years old when her mother

. . . began living with defendant (who is not the child's

father). Defendant and mother smoked marijuana and used cocaine

on a regular basis. In November of 2002 they were living with

defendant's mother because neither of them were employed.

Defendant and mother shared a bed, and the victim slept in a

child's bed in the same room.

3
 “One evening, about the sixteenth of November, 2002,

defendant and mother went to bed after using marijuana and

cocaine. The victim was already asleep in her bed. At trial,

mother testified that she awoke to see defendant standing at the

foot of the victim's bed. She saw defendant remove the victim's

clothes, remove his clothes, apply lotion to her and himself,

and briefly insert his penis into the child's vagina. Defendant

left the room, returned, re-dressed and returned to bed. Mother

went back to sleep without saying anything, because she feared

defendant.

“The victim eventually told what had happened to her to

four different people. The victim moved in with her maternal

grandmother . . . , because her mother and defendant had no

stable housing. Grandmother testified that though the victim

had been a happy-go-lucky child before, when she came to live

with her after 16 November 2002 she clung to the grandmother and

did not eat or sleep well. The victim complained of pain in her

vaginal area, which was red, and stated she was having

difficulty urinating.

“In December of 2002, grandmother took the child to a

pediatrician, who informed grandmother that the child had

gonorrhea. Grandmother did not know who had given the victim

gonorrhea, but on 25 January 2003 the child told her that she

had a secret. She climbed onto grandmother's lap, crying, and

4
told her that her mother had held her down while defendant

inserted a ‘black needle with white medicine’ into her vagina.

The victim then stated that her mother and defendant took her

into the bathroom and cleaned her up, that her vagina hurt and

bled a little, and that they told her what had happened was a

big secret and that she would have her toys taken away and be

punished if she told anyone.

“A friend (Lisa) was living with grandmother on 25 January

2003 when the victim told grandmother what had happened to her,

and she heard the conversation. Her account of what the victim

said that night was consistent with that of the grandmother.

“Wendy Meadows . . . was a counselor working for Kids First

child advocacy center in December 2002 when the victim was

referred to her by Department of Social Services. She testified

that the victim told her in their second session: ‘They gave me

candy and told me not to tell.’ In their third session, the

victim told Meadows that, while holding her legs, defendant put

a black needle with white medicine in her vagina, while her

mother held her down by the neck. Meadows had two sets of

anatomical dolls, one a white family and one a black family.

Meadows asked the victim to show her what had happened using the

dolls. The victim chose a girl doll and laid it on the table,

saying the doll was lying on a bed, she then chose an adult

female doll, indicated that it was her mother, and used the

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hands of that doll to press down on the neck of the girl doll.

She then chose a black doll, and indicated it was defendant.

She first had the male doll touch the girl doll in the area of

its vagina, then she told Meadows that defendant put a needle in

her. When asked to show how defendant did this, the child ‘took

the black adult male doll and laid it on top of the girl doll

that was lying on the table.’ Finally, the victim told Meadows

that ‘it hurt, and I cried.’

“The victim was referred to another counselor, Kelly

Roberts . . . . According to Roberts' testimony, on their sixth

session, the victim told Roberts the same story she had told the

other women: her mother held her down by the neck and arms,

while defendant first touched her vagina then inserted a black

needle with white medicine into her. After her first revelation

to Roberts, the victim repeatedly said, ‘[Mother] and

[defendant] hurt me.’ The victim repeated this story multiple

times in following sessions, and her story remained consistent.

The victim also drew pictures depicting the events she had

described . . . .

“Dare County Department of Social Services became involved

in the matter in December of 2002, after it was informed that

the child had gonorrhea. Department of Social Services arranged

for both defendant and mother to be tested for gonorrhea, but

neither kept the appointments. Mother was never tested for

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gonorrhea. Pursuant to a court order, defendant was tested on

15 March 2004 (approximately sixteen months after the event in

question), and the results were negative for gonorrhea. Dr.

Lisa M. Johnson testified that if a person had been successfully

treated for gonorrhea, any later test would be negative.” J.A

381-82.

II.

A.

At trial, S.F. was called as a witness but was unable to

respond in any meaningful manner to the questions posed to her.

The trial court determined that she was unavailable as a

witness. Among others, Meadows and Roberts were called as

witnesses by the State. They testified as to what S.F. had told

them, including testimony that Blount had sexually abused her.

Blount argued in state court proceedings that allowing

Meadows and Roberts to testify as to what S.F. told them is a

violation of his Sixth Amendment right of confrontation. See

Crawford v. Washington, 541 U.S. 36 (2004). 1 In analyzing

1
We granted a COA on “[w]hether Blount’s Sixth Amendment
right to confront witnesses against him, as articulated in
Crawford . . . , was violated by the admission at trial of out-
of-court statements made by a child witness to therapists, who
were under a known legal duty to report those statements to the
state for possible use at trial.” The government asks us to
dismiss the COA as improvidently granted because the “legal duty
to report” portion of the COA is raised for the first time
before us and is therefore procedurally barred. At oral
(Continued)
7
Blount’s Crawford claim on direct appeal, the North Carolina

Court of Appeals noted that “[f]ollowing Crawford, the

determinative question with respect to confrontation analysis is

whether the challenged hearsay statement is testimonial.” J.A

383. (internal citation and quotation marks omitted). The

court of appeals further observed that “[t]he United States

Supreme Court determined in Crawford that ‘at a minimum’ the

term testimonial applies to ‘prior testimony at a preliminary

hearing, before a grand jury, or at a former trial; and to

police interrogations.’” Id. (internal citation omitted)

(emphasis in original). Finally the court of appeals stated:

[the North Carolina] Supreme Court has also recognized
in Crawford an additional prong necessary to show that
a statement is testimonial. This ‘additional prong of
the analysis for determining whether a statement is
‘testimonial’ is, considering the surrounding
circumstances, whether a reasonable person in the
declarant's position would know or should have known
his or her statements would be used at a subsequent
trial. This determination is to be measured by an
objective, not subjective, standard.’

Id. (citation omitted).

argument, Blount argued that the issue before us was the same
Crawford claim that he raised in each proceeding below, and that
the mandatory reporting requirement is not the issue he asked us
to review, but rather was a small facet of his argument. We
decline to dismiss the COA, and we address the claim as
presented to us.

8
 With this understanding of Crawford, the court of appeals

reviewed the record regarding S.F.’s declarations to the

therapists. The court of appeals stated that Meadows was in

private practice, never encouraged S.F. to disclose the abuse,

and there was no evidence that Meadows ever discussed the

potential for any criminal consequences or punishment for

Blount. See Id. As for Roberts, the court of appeals observed

that she told S.F. that their sessions were confidential and

that she would not disclose what S.F. said, and there was no

evidence that S.F. was made aware that her statements could be

used against Blount or that Roberts ever discussed any potential

punishment for Blount. See Id. at

384. Finally, the court of appeals held that

In light of the fact that the young victim in the
instant case was speaking with therapists, not police
officers, and that the record is devoid of any
evidence that she had the slightest inkling that
defendant faced criminal charges, or even that she
understood what criminal charges were, we hold that
her statements to Meadows and Roberts were not
testimonial for Confrontation Clause purposes. A
reasonable three or four year old in the victim's
situation would not have had any reason to know that
her statements would be used at a subsequent trial.

Id. (emphasis in original).

B.

Blount filed his habeas petition in the district court

arguing that the North Carolina Court of Appeals applied

Crawford incorrectly. In response, the state moved for summary

9
judgment on Blount’s claim. The district court granted the

motion and dismissed Blount’s habeas petition.

We review the district court’s dismissal of Blount’s

petition de novo. See Tucker v. Ozmint, 350 F.3d 433, 438 (4th

Cir. 2003). However, under 28 U.S.C. § 2254, “the scope of our

review is highly constrained.” Jackson v. Johnson, 523 F.3d

273, 276 (4th Cir. 2008). We may only grant Blount relief if

the state court’s adjudication of his claim (1) “resulted in a

decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States,” 28 U.S.C.

§ 2254(d)(1); or (2) “resulted in a decision that was based on

an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding,” 28 U.S.C.

§ 2254(d)(2).

The “contrary to” and “unreasonable application” clauses of

§ 2254(d) have independent meanings. Tucker, 350 F.3d at 438.

A state court’s decision is “contrary to” clearly established

federal law under § 2254(d)(1) when it “applies a rule that

contradicts the governing law set forth” by the United States

Supreme Court, or “confronts a set of facts that are materially

indistinguishable from a decision of . . . [the Supreme] Court

and nevertheless arrives at a result different from . . . [that]

precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

10
 A state court’s decision involves an “unreasonable

application” of clearly established federal law under

§ 2254(d)(1) “if the state court identifies the correct

governing legal rule from . . . [the Supreme] Court’s cases but

unreasonably applies it to the facts of the particular state

prisoner’s case.” Williams, 529 U.S. at 407. This standard is

quite deferential: “The state court’s application of clearly

established federal law must be ‘objectively unreasonable,’ and

‘a federal habeas court may not issue the writ simply because

that court concludes in its independent judgment that the

relevant state-court decision applied clearly established

federal law erroneously or incorrectly.’” Robinson v. Polk, 438

F.3d 350, 355 (4th Cir. 2006) (quoting Williams, 529 U.S. at

411). Moreover, when “assessing the reasonableness of the state

court’s application of federal law, the federal courts are to

review the result that the state court reached, not whether [its

decision] [was] well reasoned.” Wilson v. Ozmint, 352 F.3d 847,

855 (4th Cir. 2003) (quotation marks omitted).

C.

Blount argues that his Sixth Amendment right of

confrontation was violated when Meadows and Roberts, acting in

an investigatory and prosecutorial role, testified to the

statements S.F. had made, thereby making S.F.’s statements

“testimonial.” He therefore contends that he is entitled to

11
habeas relief. In granting summary judgment, the district court

held that “[c]ontrary to Petitioner’s conclusion, the North

Carolina Court of Appeals’ adjudication of the Confrontation

Clause issue is not contrary to, or involved an unreasonable

application of clearly established federal law as determined by

the Supreme Court of the United States.” J.A. 424. In holding

that Blount’s claim lacks merit, the district court noted that

Blount “has pointed to nothing in the evidence to show that the

victim knew or had reason to know that her revelations to

Meadows and Roberts would be used against Petitioner at trial.”

Id.

We agree with the district court that the North Carolina

Court of Appeal’s determination of this issue is not

unreasonable. 2 The state court properly analyzed this claim

under Crawford and concluded that S.F. could not have known that

her statements to the therapists would be used at trial against

Blount. Under our review, the North Carolina Court of Appeals’

conclusion that S.F.’s statements to her therapists were not

“testimonial” is not contrary to or an unreasonable application

of federal law. See e.g., United States v. Peneaux, 432 F.3d

2
We note that a state court is given more latitude to
reasonably interpret federal law when the federal law involves,
as here, a general standard set forth by the Supreme Court. See
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

12
882, 896 (8th Cir. 2005) (holding the admission of statements to

a physician by a child regarding physical abuse does not violate

the Sixth Amendment right to confrontation); State v. Vaught,

682 N.W.2d 284, 293 (Neb. 2004) (holding the admission of a

statement by a child victim to her physician that the defendant

had sexually assaulted her was not testimonial). Therefore, we

affirm the dismissal of Blount’s habeas petition.

III.

Based on the foregoing, we affirm the district court’s

order dismissing Blount’s habeas petition.

AFFIRMED

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MICHAEL, Circuit Judge, concurring:

I concur in the court’s opinion and in the conclusion that

“the North Carolina Court of Appeal’s determination . . . is not

unreasonable” under current Supreme Court precedent. Ante at

12. I write separately to express my concern about what I see

as a very troubling case that would have benefitted from clearer

guidance as to how the Confrontation Clause applies to the out-

of-court statement of a child witness who is unavailable to

testify because of her very young age.

I.

Donald Blount was convicted in North Carolina state court

of the rape and sexual molestation of a child and sentenced to

prison for 28 to 34 years. His conviction was based largely on

the hearsay testimony of two child therapists who assembled an

account of events after multiple interviews with S.F., the

three- to four-year-old victim. The victim was referred to the

first of these therapists by law enforcement and social services

personnel after their own interview failed to produce any

evidence. The state acknowledges that at least one purpose of

the referral was to obtain evidence against Blount. The

therapists, of course, were under a legal duty to report any

evidence of abuse they uncovered. See N.C. Gen. Stat. §§ 7B-

301, 302(e). At trial both therapists recounted S.F.’s
description of the assault from her therapy sessions. At no

point did Blount have an opportunity to cross-examine S.F., the

child declarant.

II.

In Crawford v. Washington, 541 U.S. 36, 68 (2004), the

Supreme Court held that “[w]here testimonial evidence is at

issue . . . the Sixth Amendment demands what the common law

required: unavailability and a prior opportunity for cross-

examination.” However, the Court explicitly “le[ft] for another

day any effort to spell out a comprehensive definition of

‘testimonial.’” Id. Instead, the Court held that “at a minimum”

the term “testimonial” covers police interrogations and “prior

testimony at a preliminary hearing, before a grand jury, or at a

former trial.” Id. The Court also listed the following

formulations of the “core class of ‘testimonial statements’”:

[1] ex parte in-court testimony or its functional
equivalent--that is, material such as affidavits,
custodial examinations, prior testimony that the
defendant was unable to cross-examine, or similar
pretrial statements that declarants would reasonably
expect to be used prosecutorially, [2] extrajudicial
statements . . . contained in formalized testimonial
materials, such as affidavits, depositions, prior
testimony, or confessions, [and] [3] statements that
were made under circumstances which would lead an
objective witness reasonably to believe that the
statement would be available for use at a later trial.

Id. at 51-52 (emphasis added) (internal citations omitted).

15
 It was on the third, most general formulation that the

North Carolina Court of Appeals based its conclusion that S.F.’s

statements to her therapists were not testimonial. State v.

Blount, No. COA05-134, 2005 N.C. App. LEXIS 2606, slip op. at

13-14 (2005) (unpublished) (“A reasonable three or four year old

in the victim's situation would not have had any reason to know

that her statements would be used at a subsequent trial.”). In

light of the lack of specificity of the third-formulation in

Crawford, I agree with my colleagues that the North Carolina

Court of Appeals’ decision is not an unreasonable one. However,

had the North Carolina court reached the opposite conclusion, a

federal habeas court could easily have held that to be

reasonable as well. See United States v. Bordeaux, 400 F.3d

548, 556 (8th Cir. 2005) (concluding that a child’s statements

during a “forensic interview” were testimonial because the

purpose of the interview was “to collect information for law

enforcement” about the alleged sexual abuse); Anderson v. State,

833 N.E.2d 119, 125 (Ind. Ct. App. 2005) (investigative intent

of questioner rendered child’s statements testimonial). This

opposite conclusion is reasonable because Crawford’s imprecise

rule provides little guidance for applying the Confrontation

Clause in the specific case of a child declarant’s statement to

therapists serving an investigative function for law

enforcement. Cf. Crawford, 541 U.S. at 52 (“Statements taken by

16
police officers in the course of interrogations are also

testimonial under even a narrow standard.”).

Furthermore, the limited amount of additional direction

provided by the Supreme Court since Crawford does not

necessarily cut in favor of the North Carolina Court of Appeal’s

decision. In Davis v. Washington, 547 U.S. 813 (2006), the

Court held that statements to law enforcement personnel were not

testimonial when “circumstances objectively indicat[e] that the

primary purpose of the interrogation is to enable police

assistance to meet an ongoing emergency,” but are testimonial

when “the circumstances objectively indicate that there is no

such ongoing emergency, and that the primary purpose of the

interrogation is to establish or prove past events potentially

relevant to later criminal prosecution.” Id. at 822. The Court

thus held that statements made in a 911 call during an ongoing

domestic disturbance were not testimonial, whereas statements

made to police officers after a domestic disturbance were

testimonial because there was no immediate danger. In

distinguishing the questioning during the event in the 911 call

from that in Crawford (post-event), the Court noted several

factors it considered important. First, the 911 call described

events “as they were actually happening, rather than

‘describ[ing] past events.’” Id. at 827 (emphasis in original).

Second, statements made in the 911 call were made while the

17
declarant was “facing an ongoing emergency,” rather than

“report[ing] a crime absent any imminent danger.” Id. Third,

the questions asked by the 911 operator were “necessary to be

able to resolve the present emergency, rather than simply to

learn (as in Crawford) what had happened in the past.” Id.

(emphasis in original). Finally, there was a “difference in the

level of formality between the two interviews.” Id. When the

Davis factors are applied to S.F.’s statements in this case, it

would be reasonable to conclude that they are testimonial. Her

statements described past events and were not made during an

ongoing emergency. The therapists’ questions, meanwhile, were

asked in a formal environment (a medical office) and for the

(partial) purpose of learning about past abuse.

Of course, neither Davis nor any other Supreme court case

touches directly on the issue presented here –- whether a

child’s statements to therapists who will report to law

enforcement are testimonial. Moreover, the purposeful

generality of Davis and Crawford leaves us without answers to

crucial questions. For instance, it is unclear whether the

declarant’s age should be taken into account (as it was in this

case) in an objective analysis of whether statements are

testimonial. The appropriate question may be whether a

“reasonable three or four year old” would believe that her

therapists were gathering evidence for a possible trial, see

18
State v. Blount, No. COA05-134, slip op. at 13-14, or it may be

whether an objective, competent witness would reasonably believe

that to be the case, see Crawford, 541 U.S. at 53. In addition,

Crawford and Davis fail to provide guidance as to the weight to

be given to the interrogator’s purpose in conducting an

interview.

Because Crawford and Davis provide only generalized

guidance for situations beyond their specific facts, the North

Carolina Court of Appeals’ decision is reasonable essentially by

default. But the specific facts of this case present an

especially close question and demonstrate why the inferior

courts, including this one, are in need of additional guidance.

S.F., a three- or four-year-old child, was interviewed on

several occasions by therapists who served, at least in part, as

proxies for law enforcement. The first of these therapists was

solicited by law enforcement, and both were expected to relay

any description by S.F. of Blount’s alleged assault to the

Department of Social Services, which, in turn, would relay it to

the District Attorney’s Office. At trial both therapists

recounted S.F.’s description of the assault as part of the

state’s case-in-chief. Yet, despite this close link between

S.F’s therapists and law enforcement, her statements were

treated as non-testimonial by the North Carolina Court of

Appeals.

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 On the one hand, we must be mindful of the practical

challenges facing a court presented with the proffered (out-of-

court) statement of a very young child who is allegedly the

victim of a heinous crime. On the other, we must be mindful of

the consequences of vitiating the Confrontation Clause right in

any case involving the statement of a child deemed too young to

understand the criminal justice system. The latest signal from

the Supreme Court suggests that the Sixth Amendment right to

confrontation remains a powerful one. See Melendez-Diaz v.

Massachusetts, No. 07-591 (U.S. June 25, 2009). Nevertheless,

the lack of direction for dealing with today’s facts leaves us

without leeway to disagree with the North Carolina court and

recognize the right.

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