                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-1313
                                     ___________

Leonard Reed,                             *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the Southern
                                          * District of Iowa.
John Thalacker, Warden,                   *
and State of Iowa,                        *
                                          *
             Appellants.                  *
                                     ___________

                              Submitted: October 20, 1999

                                   Filed: December 30, 1999
                                    ___________

Before McMILLIAN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit
      Judges.
                          ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Leonard Reed was convicted in state court of second-degree sexual abuse and
child endangerment, and was sentenced to concurrent terms of twenty-five years and
two years. The district court1 granted Mr. Reed's petition under 28 U.S.C. § 2254(a),
holding that the admission of hearsay evidence at his trial violated Mr. Reed's rights to

      1
      The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
confrontation and to due process, and that the admission of the evidence was not
harmless. The state appeals. We affirm the district court's judgment.

                                           I.
        Mr. Reed and Mary Reed are the parents of three children including VR, who
was two years old at the time of the alleged assault. Mr. and Ms. Reed went through
an acrimonious divorce. Physical custody was awarded to Ms. Reed, and Mr. Reed
had overnight visitation rights with the children every other weekend. Ms. Reed
testified that on one occasion when VR returned from a weekend visit with Mr. Reed,
VR was "jittery" and complained of pain in her genital area. Ms. Reed noticed that
VR's genital area was red, irritated, and puffy. Ms. Reed testified that, while she was
changing VR's diapers, VR said that "Daddy hurt me down there." VR's babysitter
testified that VR made a similar statement to her later that day.

       VR spent another weekend with her father two weeks later, and again had an
inflamed genital area when she returned home. VR again told Ms. Reed that her father
had hurt her. After consulting with the babysitter, Ms. Reed took VR to the hospital,
where VR was given a medical examination. During the course of this examination,
VR refused to speak with the doctor, but Ms. Reed told the doctor that VR had said
that her father hurt her.

       At the subsequent criminal trial of Mr. Reed, the state prosecutor questioned
Ms. Reed and the babysitter about the alleged statements made by VR, over the
objection of defense counsel. The prosecutor also questioned the doctor who examined
VR about what Ms. Reed told him, and in particular about what she had heard from
VR. The trial court again overruled defense counsel's hearsay objection, but cautioned
the jury that the doctor's testimony regarding VR's statements to Ms. Reed were not
being offered for their truth, but rather to show how the doctor arrived at the conclusion
that VR had been sexually abused. After Mr. Reed's conviction, an evenly divided
Iowa Court of Appeals affirmed the conviction without opinion. The Iowa Supreme
Court declined further review.

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                                              II.
       The state first argues that the district court erred in concluding that the admission
of VR's statements to Ms. Reed and the babysitter violated Mr. Reed's sixth
amendment right to confront his accusers. The state contends that these statements
were within the excited utterance exception to the hearsay rule. A question of
"[w]hether admission of hearsay evidence violated a defendant's Sixth Amendment
right of confrontation is a mixed question of law and fact" that we review de novo.
Gochicoa v. Johnson, 118 F.3d 440, 445 (5th Cir. 1997), cert. denied, 118 S. Ct. 1063
(1998).

       The sixth amendment guarantees accused persons the right to be confronted with
the witnesses against them. Although the admission of hearsay statements implicates
the confrontation clause, it is satisfied "where proffered hearsay has sufficient
guarantees of reliability to come within a firmly rooted exception to the hearsay rule."
White v. Illinois, 502 U.S. 346, 356 (1992). One such category of exempt statements
is excited utterances, which are "statement[s] relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the event or
condition." Fed. R. Evid. 803(2). The rationale of the excited utterance exception is
that "the stress of nervous excitement or physical shock ' "stills the reflective
faculties, " ' thus removing an impediment to truthfulness." United States v. Sewell, 90
F.3d 326, 327 (8th Cir. 1996), cert. denied, 519 U.S. 1018 (1996), quoting United
States v. Elem, 845 F.2d 170, 174 (8th Cir. 1988), itself quoting 6 John Henry
Wigmore, Evidence § 1747, at 195 (James H. Chadbourn rev. 1976).

       For the excited utterance exception to apply, the declarant's condition at the time
of making the statement must be such that "the statement was spontaneous, excited or
impulsive rather than the product of reflection and deliberation." United States v. Iron
Shell, 633 F.2d 77, 86 (8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981). We have
held that to determine whether a declarant was still under the stress of excitement when
he or she made a statement, we may consider the lapse of time between the startling
event and the statement, whether the statement was made in response to an inquiry, the

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age of the declarant, the physical and mental condition of the declarant, the
characteristics of the event, and the subject matter of the statement. United States v.
Moses, 15 F.3d 774, 777-78 (8th Cir. 1994), cert. denied, 512 U.S. 1212 (1994). The
state has the burden of demonstrating that a hearsay exception is applicable. See Idaho
v. Wright, 497 U.S. 805, 816 (1990).

       The difficulty for the state in this case is that the record fails to establish that
VR's statements to her mother and the babysitter occurred while VR was under the
continuing stress of the alleged sexual assault. Most important, the record does not
reveal how much time elapsed between the alleged assaults and VR's statements. On
both weekends in question, VR stayed with her father for two full days before returning
home. The alleged assault could have occurred at any time in the 48 hours prior to
VR's statements. Indeed, the record shows that VR had been having difficulties with
genital rashes for five months prior to the two weekends in question. The assault to
which VR refers in her alleged statement could therefore have occurred months before
the relevant weekends.

       We recognize that the lapse of time between the startling event and the statement
is not always dispositive in determining whether testimony should be admitted under
the excited utterance exception. See Iron Shell, 633 F.2d at 85. We are aware, too,
that some state courts have found statements to be excited utterances even though the
statements were made by young alleged victims of sexual abuse as much as two or
three days after the events at issue. See, e.g., State v. Smith, 909 P.2d 236, 241 (Utah
1995) (38 hours); State v. Plant, 461 N.W.2d 253, 264 (Neb. 1990) (two days); State
v. Galvan, 287 N.W.2d 344, 347 (Iowa 1980) (two days); State v. Rogers, 428 S.E.2d
220, 226 (N.C. Ct. App. 1993), cert. denied, 511 U.S. 1008 (1994) (three days); and
State v. Padilla, 329 N.W.2d 263, 265, 267 (Wis. Ct. App. 1982) (three days).

       These courts have emphasized that in the case of young children, the "lack of
capacity to fabricate rather than the lack of time to fabricate," Plant, 461 N.W.2d at 264
(internal citations omitted), is the dispositive consideration in the application of the

                                           -4-
exception. It is supposed that children in their tender years are less likely to fabricate
a claim of sexual abuse because of their unfamiliarity with the subject matter, and their
limited capacity for conscious reflection motivated by self-interest. See, e.g., id. at
264-65.

       Frankly, we are not as sanguine as these courts about the incapacity of children
to fabricate or "recall" imaginary events. In any case, we believe that the days or even
months that could have elapsed between the events in question and VR's alleged
statement render the excited utterance exception inapplicable. Even if it were true that
infants are less likely to utter a lie borne of self-interest, which we doubt, it seems to
us that infants are also significantly more likely to deliver a distorted recollection. Such
distortions can occur through deliberate coaching, inadvertent suggestion, confusion of
fact and fantasy, or a simple defect in memory. See Maryland v. Craig, 497 U.S. 836,
868 (1990) (Scalia, J., dissenting); see also John R. Christiansen, The Testimony of
Child Witnesses: Fact, Fantasy, and the Influence of Pretrial Interviews, 62 Wash. L.
Rev. 705, 709-11 (1987).

       We cannot see how a two year-old's "excited" recollection of an event that
happened days or even months earlier can be considered so inherently trustworthy that
no opportunity for cross-examination is needed to satisfy the constitutional right of
confrontation. We therefore agree with the district court that, because the trial court
admitted VR's statements into evidence without developing an adequate record
regarding its trustworthiness, its decision was "an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding," see 28 U.S.C.
§ 2254(d)(2).

                                           III.
        Having found that the admission of the hearsay testimony of Ms. Reed and the
babysitter was impermissible, we consider now whether Mr. Reed is entitled to any
relief. In most habeas corpus cases we review the record to decide "whether the error
'had substantial and injurious effect or influence in determining the jury's verdict,' "

                                            -5-
Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1722, 123 L. Ed. 2d 353
(1993), quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253,
90 L. Ed. 1557 (1946). In this case, however, because the state courts did not review
the admission of the hearsay testimony for harmless error, we apply the more exacting
standard of review set forth in Chapman v. California, 386 U.S. 18, 24 (1967). See
Richardson v. Bowersox, 188 F.3d 973, 978-79 (8th Cir. 1999); see also Beets v. Iowa
Department of Corrections Services, 164 F.3d 1131, 1134-35 n.3 (8th Cir. 1999), cert.
denied, 120 S. Ct. 75 (1999). Under Chapman, 386 U.S. at 24, 87 S. Ct. at 828, an
error is harmless only if there could be no reasonable doubt that the error's admission
failed to contribute to the jury's verdict. We note, too, that the state acknowledges in
its brief that Chapman is the appropriate standard of review.

      Although the state presented medical evidence suggesting that VR was sexually
abused, there was almost no evidence other than the hearsay statements discussed
above that identified Mr. Reed as the abuser. Although the doctor's testimony included
VR's statement to her mother, this testimony was not admitted for its truth, and thus can
do nothing to make the improper admission of VR's statements harmless. We note,
contrary to the state's suggestion, that the doctor's testimony could not have been
admitted under the medical diagnosis exception. The testimony of the doctor contained
double hearsay: the doctor was relating what Ms. Reed told him about what VR told
Ms. Reed. As the internal hearsay (what VR told Ms. Reed) was inadmissible, the
doctor's testimony was also inadmissible, even if the medical diagnosis exception
covers what Ms. Reed told the doctor (which is questionable, since Ms. Reed was not
the doctor's patient).

      The only direct evidence of Mr. Reed's guilt that we discern, other than the
improperly admitted hearsay, is the testimony of Shane Reed, the son of Mr. Reed, that
VR told Shane that her daddy had hurt her. Although defense counsel consistently
objected to earlier attempts to introduce similar hearsay testimony through Ms. Reed,
the babysitter, and the doctor, no objection was made to this particular testimony. It
might be that defense counsel's continuous objections to similar hearsay testimony

                                          -6-
constituted a standing objection to the hearsay and preserved this issue for appeal. If
so, we would conclude that Shane's hearsay testimony was inadmissible for the reasons
given above.

       Even assuming arguendo, however, that Shane's testimony may be considered
in determining whether the admission of the other evidence was harmless, we do not
believe it to be so strong that the improperly admitted hearsay statements are merely
cumulative to it. It seems to us that Shane's credibility was highly questionable. There
is significant evidence that Shane had a contentious relationship with his father. Shane
admitted to removing property from Mr. Reed's house without permission, and
Mr. Reed had a confrontation with Shane which led to child endangerment charges
being filed against Mr. Reed.

       We note that even if Shane was perfectly reliable, moreover, the statement made
to him by VR was not. There was no indication as to when VR made her statement to
Shane, what her condition was at the time of making the statement, and how much time
elapsed since any alleged assault when VR made her statement. It seems to us
therefore that there was a reasonable possibility that the jury, even if allowed to
consider Shane's testimony, would not have convicted Mr. Reed if it had not heard the
improperly admitted hearsay. We conclude, accordingly, that the admission of the
hearsay testimony of Ms. Reed and the babysitter was not harmless. Indeed, given the
very damaging nature of the improper testimony in this case, we believe that even if the
less exacting scrutiny of Brecht were the applicable standard, reversal of Mr. Reed's
conviction would still be appropriate.

                                        IV.
      For the foregoing reasons the decision of the district court is affirmed.




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A true copy.

      Attest:

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




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