Offor v. Scott

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-50057

NNAMDI GREGORY OFFOR,

Petitioner-Appellant,

versus

WAYNE SCOTT, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Texas

December 20, 1995

Before REAVLEY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:

For at least the third time in as many years, we pass upon a

case in which a Texas court convicted a defendant of molesting a

child after a trial in which the jury, over the defendant’s

objection, watched a videotaped interview of the victim describing

the alleged acts of sexual abuse, an interview at which no

representative of the defendant was present. See Shaw v. Collins,

5 F.3d 128 (5th Cir. 1993); Lowery v. Collins, 988 F.2d 1364,

modified by 996 F.2d 770 (5th Cir. 1993). We follow both of our

prior cases in holding that the admission of the videotape violated

the Confrontation Clause and did not constitute harmless error. We
reverse the district court’s judgment denying the petition for a

writ of habeas corpus and remand to that court with instructions.

I

A Texas jury convicted Nnamdi Gregory Offor of aggravated

sexual assault. Offor’s direct appeal of the conviction resulted

in a published opinion from the Court of Appeals of Texas, an

opinion including an extensive summary of the trial testimony in

this case. See Offor v. State, 749 S.W.2d 946, 947-50 (Tex. App.

-- Austin, 1988, pet. ref’d, untimely filed). We relate here only

those portions of the record not emphasized in that opinion.

Texas initially charged Offor with sexual assault of his

stepdaughter in 1983. At that time, Offor pled guilty to the

reduced charge of injury to a child. This case arose out of a

later indictment charging that Offor had again sexually assaulted

his stepdaughter in May of 1986.

At the trial, the state called the victim’s elementary school

teacher, an Austin Police Department officer, and a physician.

Together, these witnesses testified to the following events. In

May of 1986, the victim told her teacher that her “daddy,” the term

she used to describe Offor, had come into her bedroom and taken her

panties off. After further conversation, the teacher called the

school nurse. The school nurse questioned the child. In that

interview, the victim pointed to her pubic area and said that Offor

had touched her there and that this touching was at times painful.

The nurse called a caseworker from the Texas Department of Human

Services. After an initial consultation with the caseworker, the

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victim went to the Austin Police Department, where an officer

videotaped an interview of her. This tape was the first piece of

evidence that the jury saw at Offor’s trial.

In the videotape, the victim used anatomically correct dolls

to describe how Offor had put his penis inside her rectum. She did

so by placing the female doll, now disrobed, face down on her lap

and by putting the male doll on top of it such that the male doll’s

penis was inside of or very near the female’s rectum. She then

moved the male doll up and down in a motion suggesting anal

intercourse. Upon questioning from the officer, the victim said

that white material resembling pus came from Offor’s penis. Upon

further questioning from the officer, the victim stated that Offor

had put his mouth on her breasts. She later added that two to

three years ago Offor had engaged in vaginal intercourse with her,

but that he had stopped because she had told her mother. To

describe these acts, the victim used words like “ding-a-ling,”

“tee-tee,” “titties,” and “booty” that she had previously

identified as parts of dolls’ anatomies.

The narrative of the victim’s story was, as one would expect,

disjointed and wandering. At one point, she told the interviewer

that her sisters were asleep in the bed with her when the assault

occurred; at another point, she said that the sisters were not

present. The victim stated that Offor assaulted her on 28

occasions in an average month. There were references in rapid

succession to a check that did not arrive, a treat on “Cinco de

Mayo,” and that she never told her mother what happened. At the

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end of the interview, amid a discussion of the difference between

telling the truth and lying, the victim confirmed that she had

green ears and was four years older than she actually was.

Sometime after the interview with the police, a doctor

examined the victim. The physician found that the victim had no

appreciable hymen and a gaping vaginal aperture, characteristics

that the physician thought could only have been caused by repeated

penetration of some sort. In the consultation with the physician,

the victim again recounted the story of Offor’s entrance into her

bedroom. According to the doctor, the victim’s story did not

change with repetition.

Offor defended on several grounds. First, he called the

victim’s mother (his wife) and his sister (the victim’s step-aunt)

to testify that the child had not been in the house on the night of

the assault; rather the victim had stayed overnight at the aunt’s

house, where she had been living. Second, the defense sought to

convince the jury that those investigating the allegations of abuse

had been predisposed to find abuse. Third, the defense attempted

to show that the victim was an extraordinarily troubled child who

was desperate for attention and who made repeated accusations of

sexual abuse against adults who disciplined her. The testimony

regarding this latter point focused on two incidents. We recount

these incidents in greater detail because the opinion of the Court

of Appeals of Texas, upon which we rely as providing a detailed

summary of the trial testimony in published form, makes no mention

of them. The jury heard about both incidents from the victim’s

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mother, who testified on Offor’s behalf; witness Irma Moffet, who

was involved in the second incident, corroborated the mother’s

story.

In the first incident, the victim stayed with a Ms. Sanders

for several days. Ms. Sanders became displeased with the victim

because of certain behavior, the nature of which is not described

in the trial testimony. Upon being returned to her mother, the

victim told the mother that Ms. Sanders had been “digging into” the

victim’s vagina. In the second incident, the victim spent a day

with a next door neighbor, a Ms. Moffet. During the day, Ms.

Moffet discovered the victim astride Ms. Moffet’s four-year-old

son. Ms. Moffet informed the victim that such activity was not

appropriate. Later, the victim told her mother that the boy had

gotten on top of the victim, and that Ms. Moffet had slapped the

victim and used foul language.

The defense sought to bolster these examples with testimony

from other witnesses. In particular, a physician who had counseled

the Offor family testified that, in his presence, the victim had

made accusations of sexual abuse against adults only to admit,

after further questioning, that the accusations were false. At

least one such fabrication took the form of a story that Offor

entered her bedroom to fondle her.

The prosecution responded to this portion of the defendant’s

case in part by attacking the credibility of the victim’s mother

and Offor’s sister. Through various witnesses, including the

caseworker, the prosecution sought to show that the two women lied

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when they testified that the victim was not in the Offor household

on the night that Offor had entered her bedroom. The prosecution

further sought to show that portions of the mother’s testimony

contradicted earlier statements made to police. Finally, the

prosecution called a child psychologist, who testified that in his

interview with the victim he observed patterns of behavior

consistent with a prolonged history of sexual abuse.

II

The jury convicted Offor of aggravated sexual assault. After

some further proceedings in the trial court, Offor received a

sentence of 85 years imprisonment. On direct appeal, the Court of

Appeals of Texas affirmed the conviction. It held that any error

in allowing the jury to see the tape was harmless because “[t]he

body of evidence outside the videotape was sufficient in our view

to permit the trier of fact reasonably to find, beyond a reasonable

doubt, that Offor penetrated the child’s sexual organ with his own

within five years of the indictment.” 749 S.W.2d at 950.

After two unsuccessful petitions for state habeas relief,

Offor brought a pro se action under 28 U.S.C. § 2254 alleging

numerous constitutional errors in his state court trial. The

district court referred the case to a magistrate judge, who

recommended denying the writ. The magistrate agreed that the

videotape’s admission was harmless because “the body of evidence

outside the videotape was sufficient to permit the trier of fact to

find, beyond a reasonable doubt, that Petitioner penetrated the

child’s sexual organ with his own within five years of the

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indictment.” The district court overruled Offor’s objections and

adopted the magistrate judge’s recommendation in its entirety.

Before this court, the state does not address whether the

admission of the videotape violated the Confrontation Clause, but

seeks to preserve the conviction on the grounds of harmless error.

The state argues that “the district court below properly found that

the admission of the videotape interview of the victim was harmless

because there was sufficient evidence of guilt admitted at trial,

apart from the videotape of the victim, to render the video

duplicative.”

III

We hold that the admission of the videotape violated the

Confrontation Clause. See Lowery v. Collins, 996 F.2d 770 (5th

Cir. 1993), supplementing Lowery v. Collins, 988 F.2d 1364 (5th

Cir. 1993). The state does not dispute this point, and we will not

belabor it. Nor is it an answer that the defendant might have

called the child in order to cross-examine. Id. at 771. We

further hold that the tape’s admission was not harmless error. We

therefore reverse the judgment below and remand with instructions

that the district court grant the writ.

In Lowery, this court acknowledged that the proper test for

harmless error in the habeas setting is whether the error “`had

substantial and injurious effect or influence in determining the

jury’s verdict.’” 996 F.2d at 772 (quoting Kotteakos v. United

States, 328 U.S. 750, 776 (1946)); accord, Shaw v. Collins, 5 F.3d

128, 132 (5th Cir. 1993). We warned that Supreme Court precedent

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prevented a court from labeling error harmless just because “`it

thinks the petitioner would have been convicted even if the

constitutional error had not taken place.’” 996 F.2d at 773

(quoting Brecht v. Abrahamson, 113 S. Ct. 1710, 1734 (1993)

(Stevens, J., concurring)). Under Kotteakos and Lowery, the

sufficiency of the non-tainted evidence, or the duplicative nature

of the tainted evidence, is simply not the issue.

The video does not meet this test for harmlessness. The video

was the victim speaking. It was direct evidence of Offor’s guilt.

It showed the narrative of a ten-year-old girl using anatomically

correct dolls to describe a sexual assault. The narrative included

all of the tangents and inconsistencies that one might expect when

a little girl relates a story. The emotional appeal of this

evidence was powerful.

In the version of Lowery decided before Brecht v. Abrahamson,

113 S. Ct. 1710 (1993), we observed that “[t]he tainted evidence

had to have had a tremendous impact in the jury -- it was, after

all, a videotaped interview in which a little boy described and

demonstrated with anatomically correct dolls the selfsame acts of

molestation that Lowery was alleged to have perpetrated on the

child.” 988 F.2d 1373. We concluded with the observation that the

power of the tainted evidence was clear “when that evidence is

compared to the only other basis for the conviction: physical

evidence not tied to the defendant except by hearsay testimony.”

988 F.2d at 1373. The jury may have heard more evidence of Offor’s

guilt in this case, but not so much more as to allow us to find

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that the tape had no substantial and injurious influence upon the

jury’s verdict.

The Confrontation Clause exists in part to keep criminal

proceedings fair, and the admission of the videotape casts serious

doubts on the fairness of Offor’s trial. The jury heard evidence

from defense witnesses that the victim was a troubled child,

desperate for attention, who had previously fabricated allegations

of sexual abuse against adults disciplining her. The jury was

entitled to find this evidence unworthy of credence. That the

state’s purpose in using the videotape rather than a live witness

was to protect the child does not change its effect. This evidence

showed that the state ran at least two risks in calling the victim

to the stand. The victim might change or alter her story, or

concede that she had fabricated the entire incident.

Alternatively, the victim might testify to incidents of sexual

abuse so great in number and under such impossible circumstances so

as to undermine her credibility to the jury. The videotape allowed

the state to solve these problems neatly. The state succeeded in

having the jury hear its version of the victim’s story without

running the risk that she might later undermine that version. The

Confrontation Clause does not allow such neat solutions. Rather,

it assures that cross-examination permits the kind of probing and

testing that makes oral testimony reliable.

The judgment of the district court denying the writ is

reversed. The case is remanded to that court with instructions

that it order the state of Texas to release the petitioner unless

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the state has commenced a new trial within a reasonable time from

the date the mandate of this court has issued.

REVERSED and REMANDED with instructions.

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