LOKEN, Circuit Judge.
A jury convicted Anthony Charboneau of sexual abuse of a minor and abusive sexual contact in Indian country in violation of 18 U.S.C. §§ 2243(a), 2244(a)(3), and 1153. Charboneau appeals the conviction, arguing that the district court committed plain error when it permitted a government witness to violate Charboneau's Sixth Amendment rights by referring to a forensic interview and medical report of one of the child victims. As the child declarant testified at trial and the medical report was not introduced into evidence, the Confrontation Clause as construed in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and in cases applying Crawford was not implicated by this testimony. Accordingly, we affirm.
The HONORABLE PATRICK A. CONMY, United States District Judge for the District of North Dakota.
The government's first trial witness was FBI Special Agent Aaron Kellerman, who served as case agent for this investigation and prosecution. Agent Kellerman testified without objection that he had taken one of the victims, D.C., to the Red River Children's Advocacy Center for a forensic interview during which D.C. made "disclosures" and identified Anthony Charboneau as the "perpetrator." When the prosecutor pressed for details of the disclosures, the district court sustained defense counsel's hearsay objections, as well as unrelated hearsay objections by the prosecutor during defense counsel's cross examination of Agent Kellerman. At the end of his testimony, the district court explained its rulings to the jury:
And whenever there's a witness going to be called who has supposedly said it, let's hear it from the witness and not from someone who said they heard the witness say it. Simple as that.
D.C. and the other victim, J.B., who were thirteen and twenty years old at the time of trial, were the government's third and fourth trial witnesses.
On appeal, Charboneau argues that Agent Kellerman's testimony violated Charboneau's Sixth Amendment rights as construed in Crawford, which held that the Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination." 541 U.S. at .53-54, 124 S.Ct. 1354. Char-boneau correctly notes we have held that a child victim's statements during a forensic interview by a social worker may be "testimonial" under Crawford. Bobadilla v. Carlson, 575 F.3d 785, 791-93 (8th Cir. 2009), cert. denied, ___ U.S. ___, 130 S.Ct. 1081, ___ L.Ed.2d ___(2010). But the child victim did not testify in Bobadilla, whereas D.C. testified at Charboneau's trial. Crawford did not alter the principle that the Confrontation Clause "is satisfied when the hearsay declarants, here the alleged child victims, actually appear in court and testify in person." United States v. Spotted War Bonnet, 933 F.2d 1471, 1473 (8th Cir. 1991), cert. denied, 502 U.S. 1101, 112 S.Ct. 1187, 117 L.Ed.2d 429 (1992). Thus, as in United States v. Rodriguez, 484 F.3d 1006, 1013-14 (8th Cir.), cert. denied, 552 U.S. 890, 128 S.Ct. 316, 169 L.Ed.2d 152 (2007), there was no Confrontation Clause error, much less plain error. When a child victim testifies at trial, "Crawford is inapplicable." United States v. Wipf 397 F.3d 677, 682 n. 2 (8th Cir.), cert. denied, 546 U.S. 835, 126 S.Ct. 64, 163 L.Ed.2d 90 (2005).
When the government rested, Agent Kellerman was recalled by the defense. After Kellerman briefly testified concerning his conversation with D.C.'s mother after D.C.'s forensic interview, the prosecutor on cross examination asked him to describe the forensic interview process. Kellerman related that a medical examination sometimes follows the interview. When asked without objection if there was an exam after D.C.'s interview, he replied, "I think there was a follow-up medical exam, yes."
On appeal, Charboneau argues it was plain error to admit this testimony because the "veiled reference" to a medical report violated the Confrontation Clause as construed in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). That case held that sworn certificates showing the results of scientific drug tests were testimonial statements, and therefore the analysts were witnesses the defendant has a Sixth Amendment right to confront. Id. at 2532. However, even if medical reports could be testimonial under Melendez-Diaz, an issue we need not consider, neither the medical report nor any out-of-court statement by the examining physician wTas admitted into evidence. Thus, there was no Confrontation Clause error. See United States v. Tucker, 533 F.3d 711, 714 (8th Cir. 2008).
Finally, Charboneau argues that his trial attorneys provided ineffective assistance when they permitted "multiple references to a forensic interview which were meant to bolster the heavily impeached testimony of D.C." As in most cases, we conclude that the record is not sufficiently developed to take up this issue on direct appeal. See United States v. Lee, 374 F.3d 637, 654 (8th Cir. 2004), cert. denied, 545 U.S. 1141, 125 S.Ct. 2962, 162 L.Ed.2d 892 (2005).
The judgment of the district court is affirmed.
d the case's relationship to the Government's overall enforcement plan[, which] are not readily susceptible to the kind of analysis the courts are competent to undertake."
Wayte, 470 U.S. at 607.
The presumption of regularity supports prosecutorial decisions, and in the absence of clear evidence to the contrary, courts presume that prosecutors have properly discharged their official duties. Gales II. In order to dispel this presumption, a criminal defendant must present clear evidence to the contrary. Id. Such evidence is completely lacking here; thus, Sandoval's claim fails.
17. INEFFECTIVE ASSISTANCE OF COUNSEL
Sandoval alleges that his trial counsel provided ineffective assistance with respect to several aspects of his case, including seeking a psychiatric evaluation, allowing speculative testimony from a witness, failing to call a forensic pathologist in rebuttal, and failing to adduce prior consistent statements.
(a) Standard of Review
To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense. State v. Hudson, 277 Neb. 182, 761 N.W.2d 536 (2009).
Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland, an appellate court reviews such legal determinations independently of the lower court's decision. See Gales II.
(b) Analysis (i) Psychiatric Evaluation
Sandoval alleges that he received ineffective assistance of counsel because his trial counsel recommended to the trial court that Sandoval be examined by a court-appointed psychiatrist to determine if Sandoval was competent to proceed pro se. He claims his attorney's action in asking the court to appoint a psychiatrist to determine Sandoval's competency provided the psychiatrist with the ability to be a damaging witness for the State at the mitigation phase of the trial. Sandoval also claims that the trial court erred in receiving the testimony of the psychiatrist at the mitigation phase of the trial and that his counsel provided ineffective assistance in failing to preserve a proper objection to the testimony. Finally, he alleges ineffective assistance because his counsel did not object to the testimony of the psychiatrist when he testified about Sandoval's propensity for truthfulness.
The facts Sandoval claims support his assertions are contradicted by the record. On February 20, 2003, Sandoval's trial counsel filed a motion to withdraw pursuant to Sandoval's request to proceed pro se. In the motion, Sandoval's counsel advised the court that he felt he had a duty to inform the court that he had a material concern that Sandoval may not be competent. Following his oral advisement to the court regarding this concern, the State, and not Sandoval's counsel, recommended that the court appoint a psychiatrist to evaluate Sandoval's competency. The court asked Sandoval if he had any objection to being examined by a professional, and Sandoval replied that he did not.
During the psychiatrist's testimony in the mitigation phase, Sandoval's counsel objected no fewer than 10 times and the court gave his counsel continuing objections to every subject of the psychiatrist's testimony. When the psychiatrist stepped down from the witness stand, the court sustained Sandoval's counsel's objection to all of the psychiatrist's testimony except for general testimony regarding traits of personality disorders. Sandoval's attorney diligently objected to testimony and succeeded in excluding all of the testimony derived from the court-ordered interview. As such, the record does not reveal any deficiencies in Sandoval's attorney's performance.
Also, there is no evidence that Sandoval suffered any prejudice from the psychiatrist's testimony. In its order, the sentencing panel specifically stated that it did not consider any of the psychiatrist's testimony that was derived from his court-ordered interview of Sandoval. Therefore, we do not consider whether the psychiatrist's testimony was proper, because the sentencing panel did not consider the testimony in reaching its determination. Further, it is presumed that judges disregard evidence which should not have been admitted. State v. Joubert, 235 Neb. 230, 455 N.W.2d 117 (1990). Sandoval did not suffer prejudice from the psychiatrist's testimony.
There is no evidence that Sandoval's counsel's performance was defective or that Sandoval suffered prejudice from the psychiatrist's testimony. The trial court did not err in receiving the testimony, and Sandoval's counsel did not provide ineffective assistance. These assignments of error are without merit.
(ii) Testimony of Todd Uhlir
Sandoval claims that his trial counsel was ineffective because he elicited speculative testimony from Todd Uhlir regarding a bullet's trajectory. During the aggravation phase of the trial, the State called Uhlir, the director of operations for the fast-food restaurant located across the street from the bank. On direct examination, Uhlir testified that a bullet from the robbery hit the glass of the drive-through window. He drew a diagram of the restaurant and indicated where employees are located on a typical morning.
Sandoval's counsel objected on the grounds that Uhlir was not at the restaurant at the time of the shootings, so he did not know where the employees were actually standing. In a sidebar, Sandoval's counsel explained that he was concerned the jurors would be misled by Uhlir's testimony and diagram, because they might think that was where people were actually standing when the bullet hit the window.
On cross-examination, Sandoval's counsel asked Uhlir questions to clarify that he was not at the restaurant during the robbery; that the bullet did not go through the glass; and that due to the angle at which the bullet was fired, it would have likely lodged in a wall and not traveled into the kitchen portion of the restaurant. Taken as a whole, the testimony elicited seems to be part of a deliberate trial strategy of showing the jurors that the likelihood of an employee's being hit by the stray bullet was low.
Trial counsel is afforded due deference to formulate trial strategy and tactics. State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008). As such, when reviewing an ineffective assistance of counsel claim, the court will not second-guess reasonable strategic decisions made by counsel. Id. Sandoval's counsel's cross-examination of Uhlir was not deficient and did not prejudice Sandoval. This assignment of error is without merit.
(iii) Failure to Call Forensic Pathologist
Sandoval claims that he received ineffective assistance because his trial counsel did not call a forensic pathologist as a witness to rebut the testimony of Dr. Jerry Jones. Jones testified concerning how long each of the victims had lived after being shot and the manner in which each ultimately had died.
During the guilt portion of the trial, Jones told the jury that Sun died from asphyxiation from bleeding in his air passages and extensive blood loss, Tuttle died from bone fragment disruption in her brain and bleeding around her brain stem, Bryant died from asphyxiation due to bleeding in her air passages, Elwood died from extensive bleeding in both chest cavities, and Mausbach died from asphyxiation due to blood filling her air passages.
Jones explained that when a person's air passages fill with blood, the person has difficulty breathing. He or she would gasp to breathe, and cough, snort, or spit to try to get the blood out of his or her mouth. As an example, Jones explained that the blood on the wall near Mausbach was from her coughing blood in an attempt to breathe.
At the aggravation phase of the trial, Jones testified that when the victims asphyxiated, they were consciously attempting to expel blood from their airways and were essentially drowning in their own blood. He testified that it could take 1 to 2 minutes before a person became unconscious and 4 to 5 minutes before the person actually suffocated and died. Jones explained that although the person is gasping for air, the person is conscious, alert, and aware that he or she is dying. He characterized it as a "very agonizing" death. Jones also testified that although not as agonizing as asphyxiation, death by exsanguination — or blood loss — is not a pleasant way to die because blood loss leads to anxiety, apprehension, an impending sense of doom, and shortness of breath.
On cross-examination, Sandoval's attorney attempted to clarify the length of time that each victim was conscious after the shooting. He also asked Jones to confirm that it appeared that the gunshot wounds were intended to cause death and not to prolong the suffering. During the cross-examination, Jones also stated that he thought suffocation from blood was one of the worst ways to die. He stated that each second feels like "an eternity until the person dies."
Sandoval's trial counsel did not have an expert witness rebut Jones' testimony. Sandoval raised the issue at a hearing on his motion for substitute counsel, and Sandoval's attorney testified regarding the issue. He testified that in reaching the decision not to call a rebuttal witness, he considered whether arguments over the length of time the victims suffered before death would have a negative influence on the jury, whether additional gruesome testimony would have a favorable effect on the jury, and whether he wanted to give the State the opportunity to have Jones recalled to the stand to reiterate the suffering that the victims endured before they died. These reasons indicate that the decision not to call a forensic pathologist to rebut Jones' testimony was carefully made and was part of a trial strategy which we will not second-guess. State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008). Accordingly, Sandoval's trial counsel was not deficient.
Furthermore, there is no evidence that Sandoval suffered any prejudice due to the fact that a doctor did not testify on his behalf. As his counsel noted, it is likely that an argument among experts over the precise number of seconds a victim suffered before he or she expired would not be well received by the jury. This assignment of error is without merit.
(iv) Failure to Adduce Prior Consistent Statements
Sandoval next argues that his trial counsel provided ineffective assistance because he did not adduce evidence of an alleged prior consistent statement made by Sandoval regarding his claim that he used LSD on the day of the murders. Sandoval alleges that during the mitigation phase of the trial, the State mentioned in its closing argument two statements Sandoval made about using LSD. Sandoval argues that his counsel should have offered the statements as mitigating evidence that Sandoval had not changed his story about using LSD. We conclude that Sandoval was not prejudiced by the failure to offer his prior consistent statement regarding his use of LSD on the day of the murders. Therefore, this assignment of error is without merit.
18. INDEPENDENT PROPORTIONALITY REVIEW
Under Neb. Rev. Stat. § 29-2521.03 (Reissue 2008), the Nebraska Supreme Court is required, upon appeal, to determine the propriety of a death sentence by conducting a proportionality review. State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010); State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008). This review requires us to compare the aggravating and mitigating circumstances with those present in other cases in which a district court imposed the death penalty. Id. The purpose of this review is to ensure that the sentences imposed in this case are no greater than those imposed in other cases with the same or similar circumstances. Id.
In conducting our independent proportionality review, we reviewed our relevant decisions on direct appeal from other cases in which aggravating circumstances were found and the death penalty was imposed. See, Vela, supra; State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009); Mata, supra; State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007); Gales I (and cases noted therein). Particularly, we take note of State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982), in which we affirmed a sentence of death for the defendant's convictions of two counts of first degree murder for the murder of two cabdrivers during a robbery.
The cases of Vela and Galindo, Sandoval's coconspirators, are most comparable. Vela, supra; Galindo, supra. As in Vela and Galindo, the murders in this case were committed in an effort to conceal the identity of the perpetrator, multiple murders were committed, and there was a great risk of death to more than two persons. Also comparable to Galindo, the sentencing panel found that no statutory mitigating circumstances existed and that one nonstatutory mitigating circumstance existed to which it gave little weight. Although the sentencing panel in Vela found three nonstatutory mitigating factors, it nevertheless concluded that the death penalty was not disproportionate or excessive.
Sandoval planned an armed bank robbery, recruited participants, and carried out the plan, which resulted in five murders. Based on our independent review, we find that the imposition of the death penalty for each of the five counts of first degree murder is proportional to the sentence imposed in the same or similar circumstances.
V. CONCLUSION
The trial court erred in instructing the jury on aggravator (1)(d); however, the error was harmless. Except for Sandoval's challenge of electrocution as the method of death, Sandoval's other assignments of error do not have merit. We conclude the evidence was sufficient to sustain the convictions and the sentences. Therefore, we affirm the convictions; affirm the panel's sentences of death for the first degree murders of Elwood, Sun, Bryant, Mausbach, and Tuttle; and affirm the sentences imposed for use of a weapon to commit a felony.
AFFIRMED.
HEAVICAN, C.J., not participating.