*1 Reversed and remanded.
Sweeney Kato, JJ., concur. February
[Nо. 21431-8-II. Division 1999.] Two. Respondent, v. R. Washington, The State Thomas Karpenski, Appellant.
Armstrong, J., part by separate opinion. dissents Nussbaum,
Lenell R. appellant. for and Barbara Attorney, Ladenburg, Prosecuting John W. for respondent. Deputy, L. Corey-Boulet, — his convic- Karpenski R. appeals J. Thomas Morgan, and first child degree a child degree rape tions for first incompetent that a was Holding molestation. child witness erroneously admit- was testify trial and ted, and remand. we reverse mother, MM, His was single born on June her Z’s maternal result,
and As employed. parents, him. grandparents, heavily raising been involved have here, Z imaginary At all times relevant told stories claimed, example, detail. He for containing falsely vivid uncle, mother that he had with his deceased that his spoken In $10,000, skydiving. and he had gone had won story, “he even had the colors of the skydiving parachute.”1 mother, went “for months According to sometimes 3According to his believing grandmother, his stories.”2 always always exaggerates. . . . He insists—that’s [H]e think more so than I would thing normal him. —Much I’ve years I care director for five day most kids. was six, I encoun never ages been around children one know—you mean, stories, you usually kids but tered—I tell they’ll accept that. can tell them that’s not real usually it.[3] accept does not *4 In May began dating Karpenski.
In Z’s mother (Oct. 1996). 1 Report Proceedings of at 37 1996). (Oct. 21, 2Report Proceedings of at 36 1996). (Oct. 22, 23, 3Report Proceedings at 9 1993, she became pregnant with child. In Karpenski’s April gave Matthew, she birth to Z’s half brother. 1994, MM,
In June Z and Karpens Matthew moved into ki’s slept house. Z in a bag living on the sleeping room couch “for like . . . two until nights,” his Matthew’s bedroom ready for occupancy.4
In July 1995, Oregon family with twin six-year-old sons was for week visiting in Karpenski’s neighborhood. Z and played the twins together day. afternoon, each One husband, the twins’ mother told her father, twins’ and Z twins were in the playing bushes their pants what, down. The record does if anything, not show actually mother saw the boys doing; three she never testi fied, father, and the twins’ did did testify, who not know whether his wife had actually seen what she was describi ng.5 event,
In any father reacted by calling the twins and asking inside what were they doing. said twins that was showing them “how to his in put pee-pee their Understandably disturbed, Z, bottom.” the father “caught walking by something,” he was or and asked “who showed first, him put pee-pee how bottom.”6 At Z said Then, “it didn’t Z said “he learned it from happen.” [the retorted, twins].”7 The father could “My boys not have they shown because don’t you know” about such things, (Oct. (Oct. 4Report Proceedings 1996); Report Proceedings at 41 at 40 1996). 22, 23, 5 Thefather testified: your [D]id have a did
Q: she conversation with two sons or she see what was going on? know, positive my if A: I’m not told sons her she saw. You she them saw big, huge hedge bushes back there. It’s bushes and the back boys they swinging playing, playing were around and were fort stuff. (Oct. 17, 1996); 170; Report Proceedings see Id. also Id. at 178. 6Id. at
7 Id.at 81. *5 point you Z again, At that did learn “How and asked it?”8 night boyfriend my spends finally “Well, mom’s said, my sleeping living my sleep room I mom’s house. my night bag, and tears in the middle of and he comes clothes off.”9 any pursue parents with the matter The did twins’ They boys. mother, to however, a letter Z’s did, write they Oregon they to Then returned had not met. whom with their children. parents’ letter, she mother received twins’
When Z’s no.”10 She “couldn’t true he Z “if this was and said asked they lady [the go letter], because to . . . the that wrote talk they Oregon gone Shе . . back to where were . neighbor lived.”11 played daughter Z, R, a often asked whose any play R R between the children. whether knew of sex say go to home not, did R had heard Z he did not want but linking Apparently the letter “because Tom was there.”12 say, [MM] [Z] to R to take to what she had heard “asked hospital get [Karpenski’s] him out of house.”13 grand comply, R MM not to called Z’s maternal chose so (CPS). Child mother and Protective Services grandmother by speaking with Z. reacted to call R’s testimony: According her later man [Z] had talked to a supposedly A: ... told me that [R] abusing twins, Tom him. neighbor, the father of the about man, me, no, he talked to . . Z told he didn’t talk A: . said, And he mommy. you And I “Did see man?” their said, “No.”
8 Id.
9Id. at 173. 1996). (Oct. 21, Proceedings Report See also Proceedings 10Report of at 37 me”). 1996) (MM (Oct. 17, it about denied [Z] at 32 “asked it 11 Id. at 47. 1996). (Oct. Proceedings
12Report of 13 Id.
Q: say And did he what he told the mother? boys A: He told the mother that little him, wanted twins, him play go wanted to the fort kissing play pee-pee time, the butt. And I . . him . asked at that said, “Did do I you “No, that?” And he went and talked to their mommy.” And then . . . him his mother called home.[14]
CPS reacted to R’s call MM requiring remove from Karpenski’s Thus, July 28, 1995, house. on or about *6 Z, MM, and Matthew moved to MM’s house. CPS parents’ also MM to Z required take to mental health counseling, which apparently lasted for few weeks.
In September started the grade. “[W]hen first his teacher asked him he vacation,” what did over summer said, mother, he to his that he and according his little Hawaii, brother “went to and the warm water was splash ing legs on his were . . . and.they eating and pineapple, in whispering trees were the wind and it so was warm . . . .”15 to According his grandmother, , told relayed also,
He us ... and he this to his teаcher that Hawaii, very vividly he had been to Hawaii, that he’d been to to down the fact that he described the feel of the water on his feet, smell, plane trip. plane. He’s never in been And very it was hard to him he convince that didn’t do that. riding ha[ve] There been car times we’ve been something, somewhere and he’ll insist that he’s ei done he’s plane whatever, ther been in a or off or jumped he’s a cliff and him, that, no, gets we’ve had to tell do you very didn’t and he angry says yes, did, just and it he’s done and we don’t it.[16:i remember
When the first teacher learned that Z had not actu- grade been ally Hawaii, she referred him to the school 1996). (Oct. 14Report 22, 23, Proceedings at (Oct. 1996). 15Report Proceedings at 16 Id. 129-30. health him to mental who turn referred
psychologist, until spring. lasted counseling apparently counseling. 14, 1995, grand mother and maternal Z’s On November an interview him the courthouse for county father took County Pierce by the employed with a child interviewer house, they Office. left the grandparents’ Prosecutor’s As him, her, somebody “that according mother told Z’s Tom,”17 “he asking to be him about going questions had to tell them the truth.”18 courthouse, the mother arriving
Upon with the child spent minutes conference grandfather the end separate in a room. At played while interviewer time, the mother of that the interviewer directed Z. she interviewed Dur- grandfather wait outside while interviewer, both conference, according child ing grandfather the mother and made it true, allegations were not very clear . . . that to them these kind they provided and the information me was neighbors up come background [Z’s about how some boyfriend and indicated that . . her at thе time was mother] . molester.[19] a child Z for about 35 minutes. No spoke
The interviewer interview, present. tape one else was She did *7 of her it, policy with a tape seek consent accordance destroyed after a typing office.20 She took notes that she of her office.21 in accordance a policy with report, again interview, the interviewer Near the beginning Z designed three show whether simple questions asked lie. The the difference the truth understood between if lying truth or telling was whether she would be first The boy. second was she were claim that she was Id. at 33. 18 Id. at 34.
19 Id. 88. at 104; see id. at 109-10.
20Id. also at 104;
21Id. see also id. at 109-10. telling lying whether she would be the truth or if she told Z his hair was on fire. The third was whether truth or a lie responses record, better. Z’s are not in the but we as appropriately.22 sume he answered preliminaries, began After these the interviewer explore sexually questions Z had whether been abused. Her (1) and Z’s answers were as follows: The asked interviewer anything [Z] “if had ever made Z said, feel uncomfortable.” my my sleeping bag “One time when I was in bed in got my [bottom] wiped home, I wet Tom came in and my [bottom].”23 explained, terms, Z in child’s that he had neglected defecated, anus, to clean his and awakened while Karpenski wiping paper “was him with toilet underneath (2) clothing.”24 The did not interviewer consider this “something “press[ed] nature,” sexual so Z she further” by asking anything “if Tom had ever done to make him (3) answered, feel unsafe.”25 Z “That’s all.”26 The inter “explained thought something viewer to Z that someone might happened have unsafe,” to make him feel and “asked they got right they got up.”27 if or if that mixed (4) responded, they talking “What were about?”28 [Z] anything I “told interviewer that meant him made unsafe,” feel “I said, it can’t remember all because (5) my only thing.”29 mom told me that one The interviewer happened “asked if his mom told him about what 22Id. “boobs,” explained Report 23Z used word but he meant his “bottom.” (Oct. (Oct. 1996). 17, 1996);
Proceedings Report Proceedings at 92-93 at 89 24Id. at 90. (Oct. 17, 1996);
25 Report Proceedings at 94 see also Id. at 116.
26 Id.at 94.
27 Id.
28 Id.at 95.
29 Id. go.”30 [when we] about to “Yes, Z were Tom,” said, and talking Clarifying, Zif about interviewer asked meaning day “today, said, Z interview,” and of the (6) couldn’t if Z “had said he The asked interviewer “Yes.”31 things happened Tom,” with and that remember all (7) replied, The “No, Z remember all of them.”32 he can’t thing,”33 if Z tell her “about one asked would interviewer just thing,” adding, “Only “I Z one can’t said, and that (8) Z them.”34 The “told that remember all of interviewer things thought other he told them about some someone they got right happened Tom,” if that and “asked that (9) they “Right.”35 up.” said, Z The or if mixed were said, Z else Tom did.” “That’s interviewer asked “what ”36(io) anyone Z if told else The interviewer “asked (11) things did,” said, Z “No.”37 The Tom and about thought Z he told them “told that someone interviewer things happened with Tom thé they about some that without right paper,” they got if “asked if toilet (12) up.” Z said, were mixed “Yes.”38 interviewer thing. said, He did,” Tom “One “asked what else my private put it in He made me took his area and butt. thing upset. That’s one he did.”39 Immediately following response, the inter- this twelfth alleged began question and how the about when viewer 30Id. interviewer, saying according be point, she understood Z to 31Id. At this him,” something had done to mom had told him about what Tom “that his day prior coming to the interview.” Id. at him that
that “she had said 95-96. 32/d.
33 Id.
34 Id.
35Id.
36Id. at 97.
37/d.
38Id. “by trying abuse occurred. She started if ascertain” *9 paper day “the toilet . incident . . same or was a day.” [the abuse] Z different “said was after Tom had paper.” flushed the toilet He on to “went describe that he living sitting was in the room still and that Tom was a apparently laying put chair he and that was down and he private [Z] his in his When the interviewer “asked butt.”40 explain happened,” get how that Z “demonstrated ting laying, moving down and forward off the chair and putting basically laying both hands on either of Z side and wearing over him.”41 Z said “that Tom was robe at that private [Tom’s] up [Z’s] time, and that his went inside his body stayed and it still.”42 When the asked interviewer happened “whether this had on one or more than occasion sought Z once,” said, “One When the interviewer time.”43 general frame,” to establish a “kind of however, time Z indicated that it had happened more than one time. He happened described that it had when grade he was first first grade. and before And he said that he was five it happened. He anything also—when I him if hap- asked pened kindergarten, he no. said Q: you he indicating Was that it had happened more than just time
one one time? HeA: said one time. His answer would would always—usually
say thing more than one like first and grade before first grade, impression one, and more was than but when I time.[44] asked him he said one Inexplicably, “Tonight Z occurred, also said the had abuse after school.”45
Attempting obtain details, more the interviewer asked (Oct. 1996). Proceedings 40Report at 98 41Id. ' 42Id.
43 Id.at
44Id. (Oct. 1996). 121; Report Proceedings
45Id. at 112-13 any “private” Karpenski to touch had used his whether part anything Z said “butt,” “never than his of other having private his private.”46 Tom’s touch about [Z] Karpenski touched “ever asked whether interviewer Karpen anything private,” and Z said besides no,47 Lastly, kept the interviewer at his his hands ski sides.48 Karpenski’s “private stick” hard like a was asked whether med said, “Hard, kind of worm,” or “soft like ium.”49 videotaped, record not
Because the interview was actually depict Ac Z’s nonverbal manifestations. does cording testimony, “body oral Z’s interviewer’s “during talking language” changed the time that coloring” stopped “[H]e about event with Tom.”50 very portion of tears of that “he was near most *10 crying, spoke “[H]e he interview . . . .”51 never started but very end, he “kind of said that he had Near the softly.”52 “mov[ing] grandpar solution,” to his found the which was happen ents’ so it couldn’t again.”53 grandfather interview, MM, Z’s returned Z, After the and According grandparents’ grandmother, to the to the house. Z home, night he at when I say anything
didn’t came but I him. after read our put always him to bed read to And we said, story, you they he “Do to know what asked me ... want said, “Well, said, they I he said Tom today?” And “No.” And been said, you? I “Did Tom hurt Has he ever hurt me.” ever 46 Id. at 118. (Oct. 1996); 17, Proceedings 47Report Proceedings Report of of
(Oct. 1996). 21, (Oct. 1996); 17, Report Proceedings 48Report Proceedings at 116 of of (Oct. 1996). 21, 1996). (Oct. Proceedings 21, 49Report at 97 (Oct. 1996). Proceedings 50Report at 99 51Id. at 100.
52Id. (Oct. 1996). Proceedings
53Report at 98-99 you?” said, “Well, mean I happened?” “Well, “No.” what pepper my said, touched me and then he I put ear.” And your said, “Yeah, “Pepper ear?” And he red pepper my of, I just ear.” And at him okay, dropped looked kind said.[54] it. And that was all On November MM took Z to a sexual assault physical spoke center for Z examination. The doctor asking alone, after MM to wait outside. When the doctor anyone asked Z if had ever touched him or him made feel yes, uncomfortable, Z head then shook his said “Tom.”55 When Z, the doctor asked Tom done Z said, what had “He touched me.”56When the doctor asked when Tom had long ago.”57 Z “A him, said, touched time When the doctor feeling yes now, asked if Z was safe he shook his head grandma’s.”58 said, “Yes, I’m at asked When doctor Tom whether had touched him one time or than more one time, Z one said time.59When the doctor asked Tom where pointed him, had touched Z to his bottom.60When the doc touching tor felt, asked how the had Z it said felt “uncomf ortable.”61 When hurt, the doctor asked whether it had Z again said it “was uncomfortable.” When the doctor asked if Tom him clothes, touched on his Z had skin or his my touching said, “On skin.” When if the doctor asked body inside, occurred on the or outside said inside.62When the asked if doctor knew what had him, touched he said he couldn’t tell. When the doctor anyone asked whether else had ever touched him made (Oct. 1996). 54Report Proceedings at 130-31 *11 (Oct. 1996). 21, 55 Report Proceedings at 56 Id.
57 Id.
58 Id.
59Id.
60Id.
61Id. .
62Id. at 145-46. Overall, Z doctor uncomfortable, said no. him feel had touching happened Z be “that saying perceived it skin, he didn’t what bottom, and that know on his done touching.”63 that had was for the physical had MM return to the room The doctor Z’s The doctor concluded that of the examination. portion actually normal, and that was “[i]t were genitals anus trial, however, exam.”64 She testified at normal pretty examination is “not inconsistent” physical normal “even anal inter intercourse, anal and that after with course, are very findings.”65 there few MM and Mat- early
In late December November Z to five back to house. continued Karpenski’s thew moved grandparents. with his maternal 18, 1996, the with January charged Karpenski
On State rape one count of first of a child violation of RCW degree 9A.44.073. health
Around at the of Z’s mеntal April suggestion MM Z. counselor, began “reality checking” According MM, Z we do with he’s this involved “exercises telling story really us a and we’re not sure.”66 8, 1996, the child deputy
On October interviewer again prep interviewed Z. This interview was prosecutor trial, aration which on October begin was MM Once directed to remain outside.67 After again, simple answer some deputy prosecutor questions lie, he the truth and a about the difference between Ac touching that happened.” [Z] about “questioned before, interviewer, start, as he had cording to the did 63Id. at 146. 1996). (Oct.
64Report Proceedings at 147 65Id. at 148. (Oct. 1996).
66Report Proceedings at 37 Z, being put “felt questions and she she could overhear 67 MMlater testified 1996). (Oct. 17, they Report Proceedings Accord suggestive.” were later, her, say, anything,” “I ing do and then also heard Z “Tom didn’t she Id. at don’t remember.” 59-60. *12 by saying contrary, he could not remember.68On the “actu ally, he described an incident Tom’s hands on his private”69; specifically, claimed, more he now for the first private, time, “that Tom’s had his hands touched private, genital indicated front his area.”70 Z Because expressly happened”71 during had “said that never the “fo deputy rensic earlier, interview” held eleven months prosecutor up “ask[ing] questions followed him some touching.”72 responded, about other kinds of “I don’t prompted know,” which child interviewer to intervene things and ask “if he told me about some other that happened.”73 yes, Z said but that he did want to talk things.74 again Soon, however, about those he described an rape—although differently anal much from before. When prosecutor your [Tom] asked, did “What touch back private your hanger” butt said, with?” Z coat “With a “felt cold.”75 day 16, 1996,
On Octоber before was to start, trial charging the State amended the information to add a count degree first child molestation. The count was new based on allegation fondling had first made in the October 8 interview. morning
On 17, 1996, of October the trial court held competency hearing. only brief witness, Z was the and he dispute. was not asked about the He events answered appropriately it when asked whether would be the truth or say donkey, a lie to was a whether it would be say pink elephant truth or a lie to inwas the back of the (Oct. 1996). Proceedings 68Report of at 122-24 69Id. at 122.
70 Id.at 123.
71 Id.
72Id. at 124.
73Id. at 125.
74Id. (Oct. 1996). 75Report Proceedings at to tell the truth without He expressly promised courtroom. follows: stories, but then testified as making up old; is that Q: [Z], years right? you you said were seven A. Yeah. brother, Matthew, born?
Q. your youDo remember when *13 I he was A. can’t remember when born.
Q. youDo remember when— me, right He same time. A. was born after Q. you At same time as were born? I then second.
A. was first and he was time, Well, you Q. Okay. you say the same what do mean? uhm, and, ‘69, as
A. same time I was born Q. brother, your How old is Matthew?
A. Two.
Q. you’re seven, If two and can he be born at he’s how
some time? Well, my—because of us A. because—because there was two my mommy’s tummy, separate—we
and—in but we were my up were I separate, because was hooked this side Matthew] mommy’s tummy Chewy [Z’s nickname for up mommy’s tummy. was hooked this side Q. talking And we’re about Matthew? Uh-huh,
A. and me. you some Q. Okay. you’re And born at the sure were time? out, stitch Uh-huh, they got they me had to
A. because after Chewy was part I out and then—and then where came me, all off they after because had drain out the blood me cord. and cut umbilical Q. you he taken out? long How after were out was Well, my A. mommy push my then baby—and
then Tom’s little baby came out.
Q. And that’s Matthew? Yep.
A. Q. But you dо know how long you after were out that hap-
pened? A. How long Uhm, was I out? they dry had to my off blood they then put had to case, me this little this little
bed in a thing. And after, then—and that, then after after Chewy born, then my mommy came over to me and holes, them little put she her hands in the holes and she my rubbed forehead.
Q. And you that’s when just were a tiny little baby? A. IYep. was about long. (Indicating) Q. You’re like an ant there. Yeah,
A. I know.
Q. pretty That’s small.
A. Yep.
Q. you Yeah. Do any have other brothers or sisters? I just him, A. have I just Matthew. have Matthew.
Q. youDo live with right Matthew now? A. No. He—he lives with Tom and mommy, I and live with
my pa grandma and and [aunt]. Q. Right, okay, you’re And sure that’s— A. Uh-huh.
Q. your brother, —as far as Matthew, being born— Yeah, A. uh-huh.
Q. —you’re sure he was born the way you just described? A. Right Uh-huh. after I was.
Q. Okay.[76:i hearing, competency the trial court end At the confusing opinion in which it oral rendered somewhat entirety, opinion competent. that oral Quoted its found as follows: was not
Well, testify possibly an event that he could [Z] did as to mean, understanding, as far as I’m beyond I it’s have.recalled. concerned, he in the room his little that would be same when brother, Matthew, to recall impossible was It is him born. he like and what when was born what he looked occurred. apparent testifying regarding It is to me was here [Z] reality. versus And I testifying this that he was as dream enough I that confused and don’t think he old think was confusion, reality from fact. separate be able testify demon- However, competency far as as questions regard- memory a sufficient and to understand strate event, event, ing an an actual that has been demonstrated here. testify.[77] finding competent
I’m to make a that he is going only opinion oral This is our indication trial court’s reasoning, findings for it сhose to enter of fact. written
Following competency hearing, the trial held a court gener- hearsay hearing testified, at which several witnesses ally Karpenski’s ruled, as set forth above. The court over objection, admissible. that Z’s statements were
Following hearsay hearing, court commenced jury oath trial. After took the was first witness. responded preliminaries, he what was asked various happened. replied, “I He He can’t remember.”78 coming he remembered to the court then asked whether replied talking He house and to the child interviewer. *15 1996). (Oct. 17, 76Report Proceedings at 21-24 Id. at 31. 78d. at did,
he that and “front Karpenski’s private” touched skin,” his “front private,” “the while he was out of his bag with his on.79 sleeping clothes The then prosecutor him reminded that when he had talked to the child interviewer, “she your that his touched thought private back Did she private. get right get that or did she that mixed Z up?”80 replied “got right,” she and that that that his “back had been touched private” Karpenski’s “front said private.” He that had been Karpenski’s “private” “soft as a worm” at the it had time; “inside”; that and gone that it had still” “stayed rather than moving around.81 This had occurred during night, while he was “still asleep,” not just asleep.82 to be The next pretending morning, said, he had informed mother of what had happened.
The MM, other witnesses trial were Z’s maternal grandmother, R, interviewer, the child the doctor who had performed physical, counselor, Z’s mental health Karpenski. Karpenski testified that he had not Z in abused any The way. mental health counselor said that he had not asked Z that abuse; about sexual he had not heard men- abuse; tion had, sexual but that he during therapy ses- sions, could tell the difference between thought reality The fantasy. essentially other witnesses testified as set forth The added Z had grandmother above. lived full- 1995; worker, time with her since care July day as a she signs was trained look for of sexual abuse chil- dren; and that she had with Z. any not seen such signs convicted on both counts. jury According Karpen- ski, he could not a SSOSA qualify for sentence because he
79 Id. at 194-95.
80Id.
81 Id. at 195-96.
82Id. at 197.
99 relinquish The innocence. trial court not his claim of would years.83 prison half him to for seven and one committed major appeal. Karpenski first, In makes two claims by admitting argues Z’s trial court erred he tried testimony, incompetent In be a witness. because was by argues admit- he that the trial court erred second, they ting statements, because were Z’s various out-of-court hearsay. each thus consider inadmissible We unreliable separately. claim COMPETENCY
I. just Karpenski’s noted, claim that the trial As first is testify by finding competent at trial. We court erred agree.
Every person
competent
“except
is
to be a
as
witness
by
provided
otherwise
statute or
court rule.”84
competency
statutes,
in various
rules
cases formulate
ways.
provides
person
One
that a
not be
formulation
“shall
testify”
incapable
competent
“appear[s]
if he
or she
receiving just
[he
impressions
respecting
facts,
which
truly.”85
[such facts]
relating
is]
A
examined,
or
or of
she
provides
second, similar formulation
that a child shall not
competent
testify
“do[es]
if he
not
be
or she
have
just
capacity
receiving
impressions of the facts about
do[es]
[he
is]
. . .
have the
or she
examined or
which
II, to run
90
I and 68 months оn count
83The sentence was months on count
concurrently.
significantly
Rule
ER 601
84ER 601.
rule
from Federal
601.”
This
“differs
Washington
cmt.; see
Judicial Council
also 5C
B.
Tegland,
Karl
Practice: Courtroom
(“Rule
(1999)
Washington
fundamentally differ-
255
is
Handbook on
Evidence
rule.”).
result,
competency
corresponding
federal
cases
ent from the
federal
As
Washington.
limited
are of
value
5.60.050(2).
208,
See,
A.E.P.,
223,
e.g.,
Dependency
135 Wn.2d
85RCW
In re
(1998);
County
No.
P.2d 297
Snohomish
PUD
105 Wn.2d
Jenkins v.
(1986);
Pham,
The test of competency young true the of a child as witness (1) following: of the consists an the understanding obliga (2) speak stand; tion to the truth on the the witness mental at the capacity time of the occurrence which concerning he is (3) to to testify, it; receive an accurate impression of memory to sufficient retain an independent recollection of the occur (4) rence; the to in capacity express memory words his of the (5) occurrence; capacity simple ques to understand it.[90] tions about formulations, any
Under
of these
competenсy
6.12(c). See, e.g.,
638, 641,
873,
Stange,
App.
86 CrR
State v.
53
769 P.2d
Wn.
denied,
(1989);
661,
Przybylski,
App.
664,
review
113 Wn.2d
State
1007
v.
48 Wn.
(1987).
the so-called of “abuse discretion” standard.94 We can apply (A) if that standard rationally only we first understand (B) nature trial court’s discretion and the nature of our Thus, own discretion.95 we begin with those matters.
A.
judge
trial
decides preliminary
questions of
104(a).96
fact
doing so,
under ER
In
he or she does not
always exercise the same kind of discretion. When dealing
preliminary
some
questions,
judge inquires
whether
the evidence is sufficient
to support
finding
the needed
When dealing
fact.97
with other such questions,
judge
inquires whether
evidence
preponderates
favor
the needed fact.98 The
important
difference
Although
only question concerning
states that the
Z’s
concurrence/dissent
competence
apparent inability
distinguish
at trial
from
arises
truth from
falsity,
suggests
concerning
aspects
competency,
the record
serious doubt
all
of Z’s
including perception, recollection, and narration. We limit our discussion to Z’s
ability
distinguish
falsity
enough
truth from
because that is
resolve
this
mean, however,
aspects
competency
case. That does not
other
of Z’s
are
question.
not in
94 Watkins,
Avila,
App.
731, 735,
App.
71 Wn.
at 170. See also State v.
78 Wn.
(1995);
Johnson,
11
App. 459,
(1981),
899 P.2d
v.
State
Wn.
28
103 reject judge may inferences whether the it controls because inquir- may judge proponent; not when to the favorable may judge ing sufficient, is but the evidence whether preponderates. inquiring the evidence whether judge question then, faced here, whether a trial One is preliminary competency-related question fact of with a inquires (a) support a is sufficient the evidence whether (b) preponder finding fact, the evidence or whether that Borland,99 Division fact. In State v. ates in favor of that question. stated: One that It addressed discretion must be judge’s of the trial Although the exercise to select entire the court is entitled testimony, based on the greater persuasive on the portions value which have it is probably no area of law where ultimate issue. There is necessary great reliance on the trial court’s place more assessing competency than in a child witness. judgment body language, judge position The trial is a to assess the thereof, and all the speaking, lack the manner of hesitation or significant but are not intangibles that are evaluation record.[100] reflected in a written judge’s trial ask are not with a These remarks ing consistent asking judge sufficient, is for the evidence whether portions [of not “entitled which the evi to select greater persuasive dence] have value.”101These remarks asking judge’s the evi are a trial whether consistent with judge asking preponderates, “entitled to for a that is dence portions greater persuasive value.” have the select which judge Accordingly, addresses conclude that when a trial we preliminary competency-related question fact, he or (1998); methodology underlying is reliable novel scientific evidence whether the Dow, n.10, admission, enough 509 113 S. Ct. Daubert v. Merrell U.S. 592 questions prelimi (1993), privilege-related L. Ed. 2d 469 125 most United, Zolin, 554, 566, 104(a); nary 109 S. Ct. 491 U.S. fact. See ER States v. (1989). L. Ed. 2d 469 denied, App. 786 P.2d review Wn.2d
99 57Wn.
100Borland, 10-11. determining say judge way stating idea is to the same 101Another may reject evidence or inferences favorable is sufficient whether the evidence proponent. to the she has inquire discretion to whether the evidence prepon- derates favor of that fact.
B. identify To the of nature the trial court’s discre not, course, tion is identify to the nature of our own on discretion appeal. When trial function is to judge’s decide whether the is evidence sufficient to find support a ing, reviewing court’s function will be the same.102When a trial function judge’s is to decide whether the evidence preponderates, a reviewing may may court’s function or be not the same. If the court’s information is as reviewing good court’s, better than the trial the court reviewing will sometimes be its permitted view, substitute own court103; the without deference to trial but if reviewing the good court’s information is not the court’s, as as trial the reviewing court will limit to deciding itself whether the ev idence is support sufficient what the trial court did.104 here,
Another question
then,
an appellate
is whether
charged
sufficiency
determining
102The
a trial
is
reason
court
with
is
that it
so
fact-finding
jury.
will not
on the
encroach
function of
If
trial court
the
the
should
is
encroach,
appellate
Thus,
the
court
not
should
either.
when the trial
court
deciding sufficiency,
appellate
Perhaps
limited to
court should
also.
be
example
reasoning
summary judgment process,
most common
is
this
where
appellate
perform
trial
function—deciding sufficiency.
both
See,
courts
the same
Pharm.,
e.g.,
Inc.,
Young Key
216, 226,
(1989);
v.
112 Wn.2d
App. the child’s manner at 537 the trial witnessed of her answers, position he in a than we are to make determination is better (1987); Justiniano, P.2d competency.”); State v. 48 Wn. Przybylski, App. at 665. State v. reasonably likely find it to be more true than not true that capable distinguishing falsity? Z was truth from
C. competency The answer no. is At outset of the hear ing, solemnly “promised Z took the oath and to tell the everything promised truth about that He also happened.”108 up any stories.”109 “make later, Moments he was describing younger in vivid detail he and how his brother ap had been born same time. theAs State notes on peal, impossible “This is because Z is seven his little “impos noted, brother is As the trial court this is two.”110 “beyond understanding” sible” because is it Z that was in sug the room when his little brother was No one born.111 gests intentionally lying; Z that was it seems he that actu ally saying, merely believed what he and that he was manifesting long-standing, inability often-observed distinguish what was true from what was not. The trial expressly “testifying] court found Z that was as anto event possibly he could not recalled”; have that he was regarding reality”; “confused” “dream versus enough separate was “not old to be able to that confu Inexplicably, however, sion.” competent it then concluded Z that was testify. opinion only is our It that the reason expressed by able view record is the this one the trial capacity distinguish Z court—that lacked the truth from Accordingly, we falsehood. hold that the evidence insuf support finding capable ficient to that was distin falsity, guishing incompetent truth from that was testify.
n. HEARSAY Karpenski’s hearsay second claim is that Z’s statements (Oct. 1996). 17, Proceedings 108Report of at 17 109id. Resp’t
110Br.of at 14. (Oct. 1996). 17, 111Report Proceedings of at 31
107 child interviewer 1995, to the July in the father twins’ on 1995, deputy prosecutor the 14, and to on November RCW 9A.44.120112 under 8, were inadmissible October 1996 true, he This is clause. federal confrontation and the hearsay renders “Z’s contends, incompetence because unreliable,”113 Ryan the so-called and because statements To these the State. understand by not shown factors were hearsay contentions, exceptions understand we must first in general. confronta of and the federal
Under the rules evidence to admit a clause, who wants proponent tion of reliability.”114 indicia statement must show “sufficient totality such indicia from the may derive proponent making “that of state of circumstances surround worthy of ment that render the declarant particularly belief,”115 contents of statement including provides: 9A.44.120 112RCW any age describing by ten act A made a child when under the of statement another, by . performed child . . otherwise of contact with or sexual rule, dependency or court is admissible evidence admissible statute proceedings
proceedings 13 and criminal ... the courts under Title RCW Washington if: of the of state (1) finds, hearing presence in a conducted outside The court time, content, provide jury, suf- and circumstances the statement reliability; indicia ficient
(2) The child either:
(a) proceedings; at the Testifies (b) PROVIDED, child is un- as a witness: That when the Is unavailable witness, may only as a be admitted if there is corrob- available such statement of the act. orative evidence Appellant 113Br. at 37. 2d Wright, 110 Ct. 111 L. Ed. 638 v. S. 114 Idaho U.S. (1990); Ryan, 708, 715,
(1990);
Whelchel,
P.2d
State v.
State v.
Wn.2d
(1984);
801-05.
itself.116 The not proponent may derive such indicia from circumstances that were not at the existence time and of the place making statement, for that would allow hearsay unreliable be “by statement admitted merely on the bootstrapping trustworthiness of at other evidence trial.”117 In short, the proponent must produce only hearsay itself, statement but also reliability indicia of show, as the time made, the statement was its probable of reliability.
Every hearsay of exception recognized the law evidence describes indicate, circumstances thought part, that a hearsay statement probably reliable when made.118The be description may specific119 but general,120 it invariably involves circumstances that surround the mak- specific hearsay of exceptions trustworthiness on which the various to the rule are based are those that existed at the time the statement was made and do may. by using hindsight.”
not include those that
be added
Ryan,
(quoting
Corp.,
286,
119ER
for
“the
stress
excitement.”
Washington,
example,
requires
120In
RCW 9A.44.120
“sufficient indicia
(FRE)
(not
reliability.”
system,
adopted
In the federal
Fed. R. Evid.
807
Washington) similarly requires
guarantees
“circumstantial
of trustworthiness.”
prohibit
generalized provisions.
The federal confrontation clause does not
these
170;
Wright,
820-21; Ryan,
Griffith,
U.S.
103 Wn.2d at
State v.
Wn.
728, 737,
P.2d 247
is
general,
If the description
statement.121
ing
circum
by listing
specific
to make it more
may try
courts
RCW
reliability.
example,
For
to bear
thought
stances
content,
circum
time,
only
states
“that
9A.44.120
indicia
relia
the statement
sufficient
provide
stances of
v.
Ryan,123
in State
Washington
So,
Supreme
bility.”122
RCW
applying
a trial
court
Court held that when
*24
circumstances:
9A.44.120,
it
consider nine specific
should
(2)
(1)
lie;
a motive to
the child’s
whether
the child had
(3)
one
more than
veracity;
character
for
whether
general
(4)
statements124;
the
the
whether
person heard
child’s
(5)
timing
made
the
spontaneously;
child’s statements were
the declar
relationship
of
declaration and the
between
the
(6)
witness;
the statement contains
ant and the
whether
(7)
fact125;
examina-
assertion of
whether cross
express
past
121 See,
exceptions
example,
codified in ER 803-04.
for
part
Ryan,
passing
103
at 177.
note in
that this
of RCW
122 Seealso
Wn.2d
We
Wright,
U.S.
by the federal
clause.
497
9A.44.120 is mandated
confrontation
(“[U]nless
reason, arising from the circumstances under
821
an affirmative
made,
rebutting
presumption
provides
which the
a basis
statement
trial,
worthy
hearsay
is not
of reliance at
the Confrontation
that a
Clause
statement
statement.”).
requires
of the
exclusion
out-of-court
(1984).
165, 175-76,
123 103
111
are of doubtful val
Several
nonessential.130
exclusive129
case;
of
this
purposes
is not
important
but that
idity,131
here.
them,
reach the same result
we would
or without
reliability
of
that
the indicia
general,
or
specific
Whether
or
are
hearsay
a
exemption
exception
on the face of
appear
rule,
a
such
by
general
themselves. As
rarely “sufficiеnt”
that
the declar
by
showing
be
a
accompanied
indicia must
made,
the statement was
knowledge
ant had
when
personal
child not shown
and,
young
at
when the declarant
least
trial,
the declarant
showing
be
at
competent
turn,
We
statement was
competent
made.132
in the context
then,
knowledge
personal
competence
hearsáy.
criteria
statement
satisfies the
though
hearsay
Even
or
it
hearsay exemption
exception,
set forth on the face of a
made,
if, at
time it was
the declarant
cannot be reliable
Generally,
or
without personal knowledge.
wrote
spoke
then,
show that
the circumstances
sur-
must
proponent
statement,
with the contents
rounding
coupled
against
penal
recounting
be
the child’s
sexual abuse will never
court statement
interest”).
Dependencyof S.S.,
App. at
61
See also
Wn.
176;
(requiring
guarantees
129Ryan,
Wright,
at
Wn.2d at
see also
497 U.S.
820
103
totality
“particularized
of circumstances demonstrate
trustworthiness”);
of A.E.P,
Dependency
Wn.2d at 230-31 some reliability.”); Dependency being unhelpful determining as been criticized S.S., unhelpful App. (criticizing either all four Dutton factors as Wn. 497-99 (Dutton factors); Borland, App. encompassed factors in Parris 57 Wn. 16-20 determining under statements are admissible ROW are not useful which (1987) n.5, 9A.44.120); (Dutton Henderson, App. 740 P.2d v. 48 Wn. State very reliability helpful assessing state child factors (Dutton cases); Frey, factors do ments in most sexual abuse factors). reliability firmly “as as” Parris not indicate *26 language comрetent trial” is taken from Jenkins “not to be at 132The shown (1986). 99, 100, 1, County P.2d See also PUD 105 713 79 v. Snohomish No. Wn.2d (where children Ryan, did not determine whether Wn.2d at 174 trial court 103 testify trial, chil competent required “determine whether the it was to were statements”). they competent made the dren were when 112 itself, give
statement rise an inference of personal knowle dge.133
Even
a
though
hearsay statement
falls
a hearsay
within
exemption
if,
it cannot be
exception,
reliable
when it
made,
the declarant was
incompetent.134
compe
tency of most
issue,
declarants will not be in
just as the
of most trial
is
competency
witnesses
not
issue. But when
competency
issue—as,
of a
declarant
for example,
a
child is not
young
shown
be
trial
competent at
and the
a
opponent
proper objection
voices
to the child’s
hearsay
pretrial
statement—the
demon
proponent must
strate
only
not
circumstances
described
the face of a
hearsay
but also
exception,
showing
circumstances
that at
of the hearsay statement
the child was describing
time
event
child had the
capacity
accurately
perceive;
accurately recall; and to accurately relate.
It
matters little whether
these capacity-related circumstances
Dye,
1, 9-10,
1113,
(1939);
133 Beckv.
92 P.2d
200 Wash.
At the least young hearsay not of a child shown that the statement competent fails rehable if the record at trial cannot be be hearsay competent the the to show that declarant was case, v. Snohom made. In the first Jenkins statement was age County seven, Jenkins, was I,135 ish PUD No. Jonathan injured by electricity Sinka, Lance friend, after he and a power age In six, the fence of a substation. climbed over year deposition gave a later, Lance bizarre inconsis had done—so tent account of what he and Jonathan bizarre [then] that he “did not and inconsistent as to demonstrate memory independent sufficient to retain an recollec have convened, occurrence.”136When trial Lance was tion the give testimony, court in-court and the trial unavailable objection. deposition plaintiffs’ over On admitted the the though appeal, Supreme however, Even the Court reversed. hearsay deposition requirements of the the met the facial usually exception nonparty depositions,137 for Lance used capacity deposition, lacked, at the time of the accurately recall the at issue the case. events Ryan,138 young children case,
In the second
State v.
two
hearsay
alleging
the de-
made
statements
sexual abuse
(1986).
135 105
P.2d 79
Wn.2d
136 Jenkins,
hearsay deposition be as provides face excluded It on its that a will use. against testify party hearsay at “the if declarant unavailable to trial and is opportunity testimony . . . and similar motive to is had an whom now offered nonparty develop testimony . . The in Jenkins offered Lance’s . .” defendant thus, therein; deposition deposition prove the of the matters asserted truth 804(b)(1) opinion hearsay play. The that Lance was ER came into states was plaintiffs had testify opinion аt The does not state that unavailable to trial. they examine, it opportunity but seems obvious that an and similar motive infer, then, deposition. competent We Lance time did—if Lance’s 804(b)(1). requirements of ER deposition met facial 165, 173, 138 103 691 P.2d Wn.2d
fendant. trial, Neither testified neither was shown to be competent trial. the trial court Although admitted statements, the Supreme Court reversed for failure to determine the declarants’ at the time the competency state- (with ments were made. The court said our interpretations brackets): The competency [at declarant’s his or time of her hearsay precondition statement] is a to admission of his hearsay statements as are other qualifications testimonial [ap- parently referring knowledge]. to personal merely rule safeguard additional test or
to be to applied testimonial evidence otherwise admissible. hearsay statements, The admission of of way exception rule, to the therefore assertor presupposes pos- sessed qualifications a witness regard ... to of knowledge and the like. (Footnote omitted.) (rev. § 5 J. at 255 Wigmore, Evidence 1974).
If the declarant of competent making the time statements, may the statements not be through introduced hearsay repetition.^139
Furthermore, the court applied holding by saying: its
The trial court did not determine whether the children were competent when made they they not, the statements. If were [140 their being statements must be excluded as unreliable. The court then remanded further proceedings.141 State v. case,
In a
Hunt,142
third
Division
recognized
One
Jenkins,
found in
Ryan
concepts
but did not
fully
them
to
due
It said:
apply
inadequate challenge bеlow.
139Ryan,
140Ryan, 103 Wn.2d (“On Jackson, retrial, App. 141See v. also State Wn. at 368 n.6 the trial competency court must determine the child’s be a trial and her witness at competency made.”); Frey, App. at the time the statements were at 611 n.9. 142 48 741 P.2d Wn. generally guaranties of circumstaiitial trustworthiness
The presup reliability hearsay of statements analyze the used to instances, possessed declarant hearsay that the pose, in most throughout the relevant degree capacity certain of mental lacking, the requisite capacity If mental time period. manner, the state time, making of and circumstances reliability to a determination of may ment well be irrelevant however, accurate Here, capacity S’s mental receive .... accurately relate of the occurrence and to them impressions below; challenged do never nor the time of statement was chall any support record to such a we find evidence enge.[143] injected Jenkins nor new Ryan anything
Neither noted, Ryan of As the court into the law evidence. startling Wigmore long ago: said hearsay safeguard
The an additional test or merely rule is evidence otherwise admissible. applied be testimonial statements, of hearsay by way exception admission rule, presupposes possessed therefore the assertor knowledge and the qualifications regard a witness ... likeJ1443 for the Rules Similarly, Advisory Committee Federal situation, is, “In a declarant said, Evidence has nor Rule 804 course, witness, and neither [Rule 803] dispenses requirement knowledge.”145 with the firsthand *29 not underlying The ideas are that the should forward judge use, any rationally jury jury tо the statement the could not (citation omitted). 143Hunt, App. 48 Wn. at 844-45 (James 1424, 144Ryan (quoting § at 5 John 255 Henry Wigmore, at 173 Evidence 1974)). ed., H. Chadboum 803, 183, 303; 145Advisory Advi- FRE F.R.D. see also Committee’s Note to 56 (“The 183, 806, a sory 329 declarant of Committee’s to FRE 56 F.R.D. Note witness”); Advisory hearsay is is in effect a statement which admitted evidence § (quoting at 19 Note to FRE 56 F.R.D. 197 Committee’s McCormick, (“In appears had hearsay, enough, [has] ‘so far as the it is if the declarant case ”). hearsay is a wit- opportunity the declarant to observe fact declared.’ purpose as offered for the same ness his or her out-of-court statement because prove truth of the matter asserted. statement: to the an in-court witness’ in-court 803 and 804 cat- a witness that ER 806 exists. Rules It is because the declarant is hearsay exceptions. alogue of the most 116 jury rationally
and that the could use the statement of spoke knowledge personal a who declarant without or while incompetent—regardless of whether the declarant speaking deposition, excited, in a or within some other hearsay exception.146
Nothing hearsay we have said means statement young merely of a child is inadmissible because the child is incompetent testify young at trial.147 A child who lacks capacity to remember from the time of event (often years) period may time of trial a of months or none capacity theless have to remember from the time (often hearsay of event to the time of his or her statement period young a of minutes or A child who lacks hours).148 capacity to relate in the the event formal courtroom setting may capacity nonetheless have had the relate hearsay young event in an informal But a child setting.149 capacity distinguish who at lacks trial the truth from probably capacity falsehood when, also lacked that at an age, younger even a she made statement; capacity perceive and a child who lacked the the event when it cannot later occurred make reliable statement it, short, about whether in court or In outside court. incompetence reliability upon effect of at trial of a Wash, Dye, v. at 146 SeeBeck 200 9-10. 652; 147 Swan, Doe, 896; Dependency S.S., 114 Wn.2d at at 105 Wn.2d 495; 381-82; Gribble, Hunt, App. App. App. 61 Wn. at 60 Wn. at 48 Wn. at 845 (“We incompetency trial] therefore believe that a [at determination of would not unreliable.”); necessarily [hearsay] Przybylski, App. make the statements 48 Wn. (“We 664; Justiniano, App. inability at 48 at 578 Wn. conclude of a child testify witness to at trial not render earlier does inadmissible child’s out-of- long competent court so statement as the child was then to make such statement satisfied.”); requirements Griffith, and the been other of RCW 9A.44.120 have 45 733; App. Frey, App.
Wn. 43 at 611 at Wn. n.9. Hunt, S.S., App. 493; 148Dependency App. at Wn. at (“even 652; 149Swan, Justiniano, though Wn. Wn.2d setting express the child the mem- witness courtroom is unable words occurrence, trial, ory testify of the and is unable to the child thus nevertheless may competent previous be found to have been made a she out-of-court if, proper showing, capable statement court is satisfied that the child is receiving just impressions truly”). inquiry relating facts them under *30 the for in- to reason the hearsay according statement varies at trial. competence a must means that proponent wе have said
Nothing
statement,
hearsay
show,
admitting
before
a child’s
always
the
at the time of that statement.
competent
child was
is that
in which the child is
only
case we consider
do
any
at trial. We
not consider
competent
shown to be
in
the child is
case,
including
other kind of
which
trial,150
at
and that
testify
found competent
properly
is
or
statement
testimony
hearsay
the child’s trial
which
from the
objection
opponent.151
admitted
specific
without
in
have
a trial
to make
requires
judge
we
said
Nothing
normally
more difficult than
he or
makes.
quiries
those
she
any
To
a declarant meets
terms of
decide whether
the
had
hearsay
example, whether
the declarant
exception—for
lie or
for
general
purposes
motive to
character
good
9A.44.120,
RCW
or
the declarant
excited for
whether
was
803(2),
ER
the
an
purposes of
or whether
declarant was
801(d)(2)(iii),
for
of ER
or
agent
purposes
whether
duty
declarant acted under a business
for
of RCW
purposes
judge
5.45.020—the
must examine the circumstances
sur
statement.
To decide whether
rounding
hearsay
declarant
that he or she
describing
event
had
relate,
recall,
likewise
capacity
perceive,
judge
hearsay
must examine the
surrounding
circumstances
circumstances,
In
statement.152
such
examining
judge
evidence,
re
not bound
rules of
those
except
competence
150Arguably,
may
a determination of
at trial
mean that
the child
hearsay
competent,
probably competent,
also was
or
least
at the time of the
capacity
accurately perceive,
capacity
he had that
statement. If а child
hearsay purposes.
capacity
If
has the
for both trial and
trial,
a child
remember
trial,
capacities
probably
same
time of
and to relate at
had those
the earlier
statement.
object
right
object.
151Arguably,
a failure to
waives the
(1987),
Hunt,
App.
v.
Although Washington cases accord with what said, we of have two Court cases Appeals’ warrant further attention. They are State v. and Dependency of Gribble154 reasons, several For we find them unpersuasive. S.S.155
First, Gribble and S.S.
Ryan.
expressly
contravene
Each
noted
“that
Ryan’s holding
hearsay
the child
declarant
must be shown to be
the
competent at
time the [hearsay]
are
Each
statements
then concluded the exact op
made.”156
“that a
posite:
of
the
finding
reliability through
Ryan
use of
factors is
of
sufficient assurance
trustworthiness
to make
unnecessary an
into
inquiry
competence
testimonial
at the
time
hearsаy
the
statements
are made.”157
This conclusion
itself,
Ryan
defies
held that a
Ryan
trial court must
the Ryan
consider both
factors and the declarant’s compe-
(7th
Franco,
Bros.,
1989);
Simp-
States v.
874 F.2d
1139
Cir.
Condon
Inc. v.
(1998).
Co.,
275, 286-87,
App.
son Timber
92 Wn.
by provisions making to the of In its determina- section except respect priv- tion it is bound the Rules Evidence those with ileges. personal knowledge, As to a declarant’s see ER 602. (1991). App. 374,
154 60Wn. 804 P.2d634 App. 155 61 Wn. P.2d S.S., 495; 156 Dependency App. Gribble, App. Wn. 61 Wn. see also at (“we 383; Gribble, 157 Gribble, App. App. 60 Wn. see also 60 Wn. at 382 hold reliability
that once the trial court has found sufficient indicia of make the admissible, hearsay necessary finding it statements is not to also make competence made”); Dependency testimonial S.S., at the time the statements are (Gribble “rejected at 495 that the trial Hunt notion court, finding hearsay statements, reliability of after sufficient indicia of the child How, finding separate competency.”) inquire, must also make a of testimonial we hearsay considering can a court find that a statement reliable child’s without competent whether the child was at the time? ignores It also tence at the time of statement. factors, Ryan ef- nature of the sketchy incomplete aids into a kind of them from flawed fectively transmuting clear, Ryan fac- Ryan As itself makes mantra or chant. exclusive, they do not intended be tors were never its all factors that duty relieve a trial court of consider statement, including beаr on at the time reliability recall, ability perceive, limited to the declarant’s but not and relate. fundamental and S.S. misunderstood the
Second, Gribble RCW exceptions, including most hearsay náture noting holding After court’s “that Ryan 9A.44.120. hearsay competent child declarant must be shown be made,” are and S.S. the time statements Gribble is no in the child requirement “[t]here observe such statute,”158 and a reason not to follow hearsay use as witness, Ryan. Because the declarant effect *32 exactly however,159 hearsay require most what exceptions held: cannot be reliable Ryan hearsay that statement the declarant the enough possessed admission unless the the of a witness at time statement was qualifications made.160
Third, holding Gribble and S.S. misconstrued the State S.S., v. Doe.161 to Gribble and the Doe court held According factors, it that once a trial court has the need applied Ryan not on the consider additional factors that bear whether hearsay declarant was at the time of the statem competent ent.162 held that a trial actuality, only In Doe court duty court not be relieved of its to consider whether would reliable, statement because hearsay merely was trial. The Doe court incompetent testify declarant was to at 495; Gribble, S.S., App. 158 Dependency App. 60 Wn. at 382. 61 Wn. at above, prove hearsay is 159 Asnoted the statement of a declarant offered In of an witness. truth of matter So is the statement in-court asserted. also effect, then, is a the declarant witness. Wash, 160 See,e.g., Dye, Beck v. at 9-10. P.2d 554
161 105Wn.2d 495; Gribble, S.S., App. 162 Dependency at 382. at Wn. did not a trial address factors that court should exam- ine discharging duty. when that mind,
With these in we turn principles facts of trial, this case. in I, At the time of the as section discussed Z lacked capacity distinguish truth from falsehood. At the hearsay statements, time of his he younger was and less he Thus, mature than was at the time of trial. the only reasonable inference available from this record that Z’s lack of at trial capacity also existed when he made his vari ous statements.163
We confirm this logic by examining Z’s various
state
ments,
using
and
them
a basis
as
from which
infer his
level of mental
the time
functioning at
he made each par
ticular
spoke
statement.164 When Z
to the
father,
twins’
he
denied
then
on
any improper activity,
twins,
blamed it
then alleged that
Karpenski
“comes
the middle of the
night
my
and
tears
clothes off.” When
to the child
spoke
interviewer,
responses
he made eleven
that
not
did
implicate
Karpenski
did;
before
that
making one
elaborating
on
did,
the one that
he
he had
said
not been fondled by
hands.
Karpenski’s
spoke
When he
to his
he
grandmother,
said that
hurt him
Karpenski
or been mean to
163 Although
agrees
ability
lacked the
concurrence/dissent
distinguish
falsity
trial,
ability may
truth from
it asserts that
Z’s lack
have
youth
immaturity—for example,
been due to a cause other than
setting
however,
undisputed,
courtroom
or transient emotional turmoil. It is
statements,
elaborate, many
spanning
Z made false
some of them
occasions
period
example,
home;
the entire
at issue here—for
to his mother at
to his
home;
grandmother
grade
school;
to his
first
teacher
to the twins’ father ei
implicated Karpenski;
ther before or
courthouse;
to the child interviewer at the
deрuty prosecutor
the courthouse. These facts will not
support
inability
setting.
an inference that Z’s
due to the
was
courtroom
Nor will
they support
inability
an inference that Z’s
to tell the truth
due to mental ill
*33
merely
remaining
ness or some other cause that was
transient. The
inference is
distinguish
falsity
inability
the one in the text: that Z’s
truth from
was a result
(in
words,
youth
immaturity
young
yet
his
and
he
other
that he was so
had not
truth).
learned
what it was
tell the
Wright,
repetition”
164See
U.S. at
which notes that “consistent
is a
surrounding
place
making
particular hearsay
factor
statement. The
the time and
aof
reasoning, apparently,
comparison
that a
the various
state
by
light
functioning
ments made
a
often will
mental
declarant
shed
his
her
Williams,
21, 26,
particular
at the time of a
Z’s statement twins’ Ryan It came time Z’s character factors. at a truth-telling questionable It came after best. hardly knew, an adult he and who had been accosted just involving highly upsetting told about conduct his been question had asked a twins. It came after the adult own (“who may no seen showed that assumed a fact adult have bottom”).165 [your] [you] put pee-pee in came af It how deny way by claiming essentially out, ter Z had tried to (Oct. 1996). Proceedings 165 Report *34 occurred, by conduct had not then it on blaming sum, twins. In it general came when Z’s character for truth- (and he had telling poor; every was motive to lie did so, in statements); at least two his three of when he was (he not acting spontaneously had time to fabricate at least two of his three inconsistent when he was responses); heard (the one by only person father); twins’ when he was expressly facts; and when the likelihood asserting past faulty recollection or misrepresentation was extreme. None reliability, factors indicates Ryan Z’s statement to the twins’ father was not admissible under RCW 9A.44.120.
Z’s the child statements interviewer and deputy prosecutor satisfy Ryan also fail to Each faсtors. state- ment was made at a time when Z’s character for truth- telling questionable was best. statement interviewer was several months after alleged made incident, and the statement to the was made prosecutor over a later. made in year Each statement was an investiga- context, tory for forensic Each purposes. statement was only indeed, heard one person; grandfa- the mother and ther were made to Neither wait hall. statement was recorded, and at with one least statement the interviewer’s original destroyed. notes were came Each statement after each equivocal responses, numerous statement was ac- companied by highly responses inconsistent demonstrating state extremely confused of mind. Each shows an in- relate ability six-year-old even basic facts that a usually would know—for whether example, alleged sexual on one more than happened abuse one occasion. Neither each spontaneous; statement was as- expressly facts; serted past faulty and the likelihood recollection or misrepresentation was extreme. None factors Ryan reliability, indicates and Z’s statements to the interviewer prosecutor RCW under were not admissible 9A.44.120.166
III. MISCELLANEOUS admissibility Z’s not covered herein One matter assigned error is to the doctor. No statement objection appear specific that, and does not it *35 objection following proper remand, at If made made trial. capacity to Z the whether the trial court shall consider distinguish spoke at time he from truth falsehood speaking medi doctor, wаs aware was whether diagnosis treatment, and and all other circumstances cal reliability affecting of the it was the statement’s as time made.167 assignments
Karpenski’s remaining error merit of lack again. will not arise Reversed and remanded. J.,
Houghton, concurs. part) (concurring part, dissenting in in Armstrong, A.C.J. — majority’s not I concur in the that was conclusion Karpenski’s competent Thus, the time of trial. convic- at disagree majority’s I tion must be reversed. But with the competence at of the of Z’s discussion and resolution issue I remand the time of the out-of-court statements. would fully parties litigate before and allow the this issue specific Karpenski that failed to make a 166The asserts concurrence/dissent litigate competency objection, opportunity depriving the an thus State of Z’s however, expressly specifically Karpenski, the time of his statements. objection objected hearsay. to cast on Z’s as One effect of that was statements by “suf- showing Z’s were the State the burden of that statements surrounded or, terms, reliability,” at the that Z reliable indicia in alternative ficient of that, failed do even See 9A.44.120. The State time of statements. RCW hearing very purpose. Accordingly, it cannot though pretrial was held for objection, lacked Karpenski proper or that failed to make a the State be said reliability opportunity Z’s at the time of the statements. to establish (1997); 803(4); M.D., App. ER v. 89 Wn. P.2d 837 167 See State Carol (1994). Florczak, P.2d 199 v. State require court. trial This would also of the reexamination reliability Ryan of Z’s out-of-court statements under the factors.168
Karpenski
object
did not
to the out-of-court statements
cоmpetence
making
on
basis of Z’s
at the time of
Rather,
statements.
its trial brief the State
the is
raised
admissibility
sue of
of the out-of-court statements under
Karpenski
RCW 9A.44.120.
competence
then raised the
of
issue
Z’s
citing
brief,
Allen,
his trial
v.
Wn.2d
State
(1967),
only
692, 424
P.2d 1021
dealt
which
with the
competence of a
And at
witness
trial.
the trial court
hearing
reliability
competence
on
statements,
Karpenski
specific objection
admissibility
made
no
competence
the statements on the basis of Z’s
at the time
making
this,
the statements.
Because
the trial court
competence
not
did
rule on Z’s
the time
of the state
Generally,
may
appeal party
challenge
ments.
admissibility
on
not
grounds
evidence
raised
the trial
Guloy,
court. State v.
104 Wn.2d
I also in with competence the issue of Z’s at the of the time out-of-court question only competence statements. The as Z’s arises inability falsity. apparent distinguish from his truth from majority youth The that this is a and reasons result “his immaturity.”169 majority The then concludes Z that was youthful more and immature the time of state even incompetent presum and ments therefore was then and ably supports at all times before the trial. no evidence But incompetence solely the statement that Z’s resulted from youth immaturity. entirely his and It is conceivable that Ryan, 168 Statev. 691 P.2d 103 Wn.2d supra 169 See note 163 at 120. falsity difficulty part results Z’s with truth and
least example the time, in at the for from the situation he is setting meeting opposed a trusted as with courtroom may difficulty knowing the Further, Z’s truth adult. with in fife time. his at the be related to emotional turmoil may competent in In be at times and certain set short, tings competent in not times and other sett and other ings.170 do not has not had the know because State We fully develop present opportunity to evidence on the and matter. majority supports compe- Z’s
The its conclusion as to by analyzing tence at time of the statements the state- missing supply the in- ments themselves. But this does not inconsistent, not formation. statements are unusual suggest young victims, and the circumstances with questioning leading suggestive. much of of Z was question at the But critical is whether time statements he knew the difference between truth and falsity. competent did, And If he then he was at the time. analysis no of the this record can amount statements question. again, This, answer this because issue fully litigated trial not court. Ryan overlap
Finally, extent because the factors some competence factors—particularly Z’s with the witness ability veracity truth understand character to. falsity—the court on remand re-evaluate trial should produced reliability light the statements evidence competence. to establish his responds problem by arguing majority the record does 170The to this difficulty supra support note 163 at that Z’s is situational. See the conclusion majority’s agree. support that Z’s does not conclusion
I But the record also *37 youth immaturity. Again, difficulty only the State this because is due difficulty. present of Z’s opportunity on the cause has not had the evidence