STATE of Minnesota, Respondent, v. David G. LANAM, Appellant.
No. C8-89-95.
Supreme Court of Minnesota.
Aug. 10, 1990.
Hubert H. Humphrey, III, Atty. Gen., Paul R. Kempainen, Asst. Atty. Gen., St. Paul, and Harris Darling, Nobles County Atty., Worthington, for respondent.
KEITH, Justice.
Defendant, David G. Lanam, was found guilty by a district court jury of two counts of criminal sexual conduct in the first degree,
The abuse occurred during the fall of 1987 but did not come to light until later, after the child, S, was removed from her mother‘s care and placed in foster care with a woman who had been providing daycare, Sharon Carlson. In response to a report that the child might have been sexually abused, Carlson read her the book Private Zones, a book aimed at teaching children the difference between “good touch” and “bad touch.” The following Monday, May 2, 1988, Carlson overheard S telling Carlson‘s own child that someone had touched her private zone. When Carlson questioned her, S said “David” had done it. She then related the details of what happened, saying he had touched her “in the hole” and had “peed” in her mouth and she had “spitted it out.” S said that when she had cried because it hurt, he had slapped and spanked her and told her not to tell anyone. S said that “David” did it while babysitting at her mother‘s house.
A police officer and a social worker met with her and, using anatomically correct dolls, S showed them what happened. A medical examination on May 3 confirmed that S had been sexually abused. The doctor noted scarring on S‘s hymen and an enlarged vaginal opening. She ruled out any disease or other condition as possible causes.
The only “David” whom Carlson knew was defendant, David Lanam, who on several occasions had picked up S and her siblings from Carlson‘s house when the children were there for daycare. When Carlson asked some questions to identify who “David” was, S described him as the “David” who worked for “Pizza Hut,” a generic term S used for all pizza places.
The key issue at defendant‘s trial was the issue of identity, with the defense claiming that S might have been referring to another “David” who had sat with her, David Richardson. Richardson testified, however, that he had babysat with the children only before mid-September—i.e., apparently before the abuse occurred—and that he had sat with the children only at his house in the presence of his sister and mother. Moreover, he neither worked for a pizza place nor lived near S‘s mother‘s house. S was declared incompetent to testify but her statements were admitted substantively under
1. The main issue which we address is whether the admission of S‘s out-of-court statements violated defendant‘s right of confrontation, guaranteed by both the Minnesota constitution and the federal constitution. Defendant contends that S‘s incompetence to testify is not equivalent to unavailability and that therefore her statements should not have been admitted against him without giving him a chance to cross-examine her. He also argues that even if she was unavailable, her statements were unreliable and should not have been admitted.
S‘s statements were admitted pursuant to
An out-of-court statement made by a child under the age of ten years * * * alleging, explaining, denying, or describing any act of sexual contact or penetration performed with or on the child or any act of physical abuse of the child * * * not otherwise admissible by statute or rule of evidence, is admissible as substantive evidence if:
(a) the court or person authorized to receive evidence finds, in a hearing conducted outside of the presence of the jury, that the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made provide sufficient indicia of reliability; and
(b) the child * * * either:
(i) testifies at the proceedings; or
(ii) is unavailable as a witness and there is corroborative evidence of the act; and
(c) the proponent of the statement notifies the adverse party of the proponent‘s intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence to provide the adverse party with a fair opportunity to prepare to meet the statement.
For purposes of this subdivision, an out-of-court statement includes video, audio, or other recorded statements. An unavailable witness includes an incompetent witness.
Although we have the primary responsibility under the separation of powers doctrine for the regulation of evidentiary matters, we have enforced reasonable statutory rules of evidence as a matter of comity if the rules are not in conflict with the Minnesota Rules of Evidence. State v. Dana, 422 N.W.2d 246, 249 (Minn.1988). Relevant cases of this court interpreting and applying the statute include: State v. Conklin, 444 N.W.2d 268 (Minn.1989); State v. Dana, 422 N.W.2d 246 (Minn.1988); State v. Burns, 394 N.W.2d 495 (Minn.1986).
Most recently, in State v. Larson, 453 N.W.2d 42 (Minn.1990), we chose not to
In this case the defendant concedes that the statements were admissible under the statute but contends that S‘s incompetence as a witness is not the equivalent of unavailability for the purpose of confrontation clause analysis. He also contends that the statements were unreliable. We see no point in discussing whether a demonstration of unavailability was required in this case, as defendant argues. Suffice it to say, although unavailability is not always prerequisite to the admission of hearsay in a criminal case, it seems clear that the United States Supreme Court is willing to admit any kind of hearsay statement despite the confrontation clause if the declarant is unavailable and the statement is sufficiently reliable. Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); 4 J. Weinstein & M. Berger, Weinstein‘s Evidence 800[04] (1988) (interpreting Ohio v. Roberts, 448 U.S. 56, 65-66 (1980)). A witness’ testimony may be unavailable at trial for many reasons, including “incompetence, the * * * Rules of Evidence grounds for unavailability, the danger of severe psychological injury to a child victim from testifying, and an unwillingness or inability to testify.” M. Graham, The Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship, 72 Minn.L.Rev. 523, 554 (1988). See
A witness is not “unavailable” under Roberts unless the prosecutor has made a “good faith effort” to produce the witness. Ohio v. Roberts, 448 U.S. at 74-75. In this case the prosecutor clearly wanted to use S‘s testimony at trial and produced S at the required competency hearing. When the trial court ruled S incompetеnt, the prosecutor differed with the trial court as to the meaning of S‘s responses, apparently in an effort to persuade the court that she was competent. The defense, on the other hand, did not object to the determination that she was incompetent. Under these circumstances and based on the record and all the other facts, we conclude that S was unavailable for the purpose of confrontation clause analysis. In other words, to use the words of the United States Supreme Court in Idaho v. Wright, 110 S.Ct. 3139, 3147 (1990), without deciding that the general requirement of unavailability applies, “to the extent the unavailability requirement applies in this case, [the child] was an unavailable witness within the meaning of the Confrontation Clause.”
We also reject defendant‘s argument that S‘s out-of-court statements were unreliable. Specifically, defendant argues that S‘s incomрetence to testify concerning the abuse indicates that her out-of-court statements concerning the abuse were of questionable reliability.
In determining competency of a child, the trial court must determine whether the child understands the nature and obligations of an oath and whether the child has “the capacity to remember or to relate truthfully facts respecting which the child is examined.”
In concluding that S was incompetent, the trial court made certain statements which defendant argues cast doubt on the reliability of S‘s out-of-court statements describing the abuse. In support of this argument, defendant relies on State v. Ryan, 103 Wash.2d 165, 173, 691 P.2d 197, 203 (1984), but Ryan indicates that out-of-court statements by a child later determined to be incompetent to testify are unreliable only if the child was also incompetent at the time the stаtements were made. Id. Here, the trial court did not determine that S was incompetent at the time she made her statements about the abuse.
Whether or not a child‘s statement is sufficiently reliable under
[T]he court must consider, among other things, the spontaneity of the statements, the consistency of the statements, the knowledge of the declarants, the motives of the declarant and witnesses to speak truthfully and the proximity in time between the statement and the events described. * * * The court also should consider possible suggestiveness created by leading questions, particularly by a parent or close authority figure; and should evaluate corroborating factors, such as whether the declarant has recanted or reaffirmed the statement and also any corroborating physical evidence.
Subsequent to our decision in Conklin, the United States Supreme Court in two recent cases has dealt with important confrontation clause issues in the context оf prosecutions for child abuse. In Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), a prosecution of a defendant for sexually abusing a 6-year-old child, the Court upheld the use of a closed-circuit television procedure to facilitate the child‘s testimony after the trial court made a case-specific determination that the use of the procedure was necessary to protect the child from the emotional trauma of testifying in the defendant‘s presence. Accord State v. Conklin, 444 N.W.2d 268, 272-74 (Minn.1989). More directly relevant to this case is the Court‘s recent decision in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). In Wright, the Court dealt with the issue of the admission pursuant to Idaho‘s residual exception to the hearsay rule of out-of-court statements by a 2½-year-old child sex abuse victim who was ruled incompetent to testify at trial because she was not capable of
We believe that the trial court‘s determination of reliability in this case was justified. S made her initial statement regarding the abuse spontaneously to other children in the foster home. Then, when questioned by her foster mother and others, she consistently described the abuse and said that “David” did it. Details varied, as did statements regarding exactly when the abuse happened, but the basic story remained unchanged. Carlson, the foster mother, had several children of her own, had been a foster mother for 20 years, and had no motive to falsely implicate defendant. When Carlson questioned S in a nonleading way, S said “David” had done it and described him as the “David” who worked for “Pizza Hut,” a generic term S used for all pizza places. S also said “David” lived near her house and often sat with her at her mother‘s house. As we said earlier, S subsequently pointed out defendant‘s house one day as they drove by it. She also identified defendant as the “David” when she saw him accidentally in the hall at the courthouse on the day of a hearing. Significantly, S had no apparent motive to fabricate. Further, the statements were not the type of statements one would expect a child of S‘s age to fabricate. Considering the totality of the circumstances relating to the making of the statements, we conclude that the state‘s evidence established that the child‘s statements were sufficiently reliable for confrontation clause purposes.
Because S‘s testimony was unavailable and because her out-of-court statements were sufficiently reliable, we conclude that the trial court properly admitted her statements pursuant to the statute and that defendant‘s right of confrontation, guaran-
2. Defendant‘s only other contention is that the evidence was insufficient to support his convictions. The only real issue at the trial was whether it was defendant or the other “David” who committed the abuse. The foster mother, Carlson, believed that the “David” S was referring to was defendant because defendant had come to the house and picked up S and her siblings when the children were there for daycare. Other evidence was admitted showing that defendant, and not David Richardson, fit the description provided by S: (a) defendant worked at Domino‘s Pizza, and S called all pizza places “Pizza Hut,” (b) defendant lived near S‘s mother‘s house, (c) only defendant, and not David Richardson, sat with S at her mother‘s house, and (d) S identified defendant upon seeing him in the halls of the courthouse. Viewing the evidence in the light most favorable to the verdict and assuming the jury believed the witnesses for the state and disbelieved any contrary evidence, State v. Bias, 419 N.W.2d 480, 484 (Minn.1988), we conclude that the evidence was sufficient. The jury could give substantive effect to the statements of S and could believe Carlson‘s testimony, the medical testimony, and Richardson‘s testimony. The jury was free to disbelieve the testimony of defendant and S‘s mоther.
Affirmed.
KELLEY, Justice (dissenting).
I respectfully dissent. Because ordinarily the alleged molestation has occurred in secret, and because the child victim is usually the only eyewitness, successful prosecution of a criminal complaint of child sexual abuse often hinges on overcoming difficult problems of proof. See In re Nicole V., 71 N.Y.2d 112, 117, 518 N.E.2d 914, 915, 524 N.Y.S.2d 19, 22 (1987) cited in Myers, Bays, Becker, Berliner, Corwin & Saywitz, Expert Testimony in Child Sexual Abuse Litigation, 68 Neb.L.Rev. 1, 3 (1989) [hereinafter Myers]. Not infrequently, the charge is lodged against a trusted custodial adult for sexually assaulting or abusing his (usually) vulnerable victim, almost always in a setting devoid of other witnesses. From this circumstance, the inability to overcome those proof problems occasionally results in findings of exculpability. Understandably, those charged with protecting children seek a method more likely to result in punishment or treatment for those who actually have committed such reprehensible acts of depravity, which often bear sequelae not only of permanent damage to the victim, but also, even more remotely, to the lives of others who later may be victimized by the child-scarred victim. See, e.g., Myers, 68 Neb.L.Rev. at 139 (citing Berger, The Child Abusing Family, 8 Am.J.Fam.Therapy 53, 55 (1980); Jayartne, Child Abusers as Parents and Children: A Review, 22 Soc. Work 5 (1977)). Consequently, legislatures have enacted statutes containing procedures designed to ease the prosecutors’ proof problems, and courts, as the majority of this court today does, on various grounds, try to sustain those procedures against constitutional challenge. I, too, would be inclined to join in that laudable effort were it not for what I consider to be the constitutional mandate that one accused of any crime, no matter how heinous, has certain constitutional rights which neither the legislature nor the courts may limit or abrogate. Legislatures and courts are both restrained in what actions they may take to ease a prosecutor‘s burden by the Sixth Amendment to the United States Constitution and by
The majority opinion, it seems to me, employs an analysis focusing upon the Sixth Amendment to the United States Constitution and federal court cases arising thereunder to conclude that admission of hearsay testimony of this minor who, it should be kept in mind, was ruled to be incompetent to testify in court, did not violate the accused‘s constitutional confronta-
Because in past cases on occasion we have seemingly relied upon federal cases addressing the scope of the Sixth Amendment‘s confrontation clause, see, e.g., State v. Hansen, 312 N.W.2d 96 (Minn.1981), an argument can be made that at least sub silentio, we have opted to construe the confrontation clause of
In fact, it is only since Pointer v. Texas, 380 U.S. 400 (1965), that the Sixth Amendment has been applied to the states through the Fourteenth Amendment. That is not to say that the history and origins of the right of confrontation under the Sixth Amendment to the federal constitution are of no import to the analysis of our own confrontation clause. To the contrary, the drafters of the Minnesota Bill of Rights deliberately borrowed the words of the Sixth Amendment to the federal constitution in structuring our own confrontation clause. Debates and Proceedings of the Constitutional Convention for the Territory of Minnesota 104 (1857) (Republican Convention). Even so, an accused‘s right to confrontation of his accuser under the Minnesota Constitution does have a history independent of the Sixth Amendment in cases purporting to construe it.2
In California v. Green, 399 U.S. 149, 174 (1970) (Harlan, J., concurring), a case invоlving the breadth of the Sixth Amendment confrontation clause, Justice Harlan of the United States Supreme Court opined that “[h]istory seems to give us very little insight into the intended scope of the Sixth Amendment Confrontation Clause.” Id. With all due respect I differ from the learned justice‘s comment. While the complete history of the right of an accused to confront his accuser is not totally known, the right itself certainly is not of recent vintage. The right to confrontation and the resultant right to cross-examination, as a corollary, are part of our tradition of fair play and a means of reaching the truth in the trial. They are nothing new.
More than 2,000 years ago Festus reported to King Agrippa that his predecessor Felix had bequeathed to him a Roman prisoner named Paul and that upon his arrival in Jerusalem the high priest and the chief of Jews informed him against Paul, and besought him. Festus answerеd: “It is not the manner of the Romans to deliver any man to die, before that he which is accused have the accusers face to face, and have license to answer for himself concerning the crime laid against him.” Pollitt, The Right of Confrontation: Its History and Modern Dress, 8 J.Pub.L. 381, 384 (1959) (quoting Acts 25:16). As the author of that article points out, there are many other instances of the right to confrontation in Biblical and Roman history. The author also demonstrates that whether adopted from the Romans or not, the right to confrontation existed in England even before the right to trial by jury, and was clearly established in England by the year 1200. Id. at 384-85. By the sixteenth century, various statutes required the evidence of at least two witnesses for conviction. Even in cases where there was only one witness, the court gave great weight to the character of the evidence and the character of the witness offering it, a necessary consequence of which was the right to confront and cross-examine the witness to test credibility. Id. at 386-88. Without question, the right to confront adverse witnesses and cross-examine them was clearly established in the English common law more than 400 years ago (approximately 200 years before the Congress passed and the states ratified the Sixth Amendment to the United States Constitution, and 250 years before
Backlash to the trial of Sir Walter Raleigh in 1603 is often marked as a precipitating event leading to the inclusion of the Sixth Amendment into the United States Constitution. Raleigh had been accused of treason and a confession of his alleged co-conspirator, Lord Cobham—which had been obtained through torture—was used against him. Cobham later repudiated the confession in a letter to Raleigh. Although Raleigh demanded Cobham‘s presence at his trial, the court refused the request and Raleigh was lаter executed. Id. at 389.
Apparently the right to confront one‘s accuser existed long before the trial of Raleigh, and even before the right to trial by jury, under English common law. But the right of political prisoners—such as Raleigh—to confront or cross-examine adverse witnesses was not established until the 1600‘s. In 1637, Quaker Minister John Lilburne, or “Freedom John,” was accused of illegally importing into the country
By 1778 this important right was so universally recognized in colonial America that through the Sixth Amendment it became an integral part of the freedoms guaranteed to the national citizens by the Bill of Rights. It has ever since been recognized as necessary to protect “the right physically to face those who testify against him and the right to conduct cross-examination.” Coy v. Iowa, 487 U.S. 1012, 1017 (1988) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987)). It likewise intends to “‘ensur[e] the integrity of the factfinding process.‘” Id. at 1020 (quoting Kentucky v. Stincer, 482 U.S. 730, 736 (1987)). Only when a hearsay statement is established as necessary—ordinarily when the declarant is unavailable to testify—and then only if the hearsay statement bears strong evidence of reliability is it admissible. See State v. Hansen, 312 N.W.2d at 102-03 (Minn.1984).
Reported debates of each “wing” of the Minnesota constitutional convention do not specifically refer to the foregoing history of this long established recognition of the fundamental importance of the right to confront and cross-examine the accuser. Nonetheless, it appears clear that the delegates were not unaware of the importance and necessity of this right to a citizen accused of having committed a crime. During the constitutional convention, the provision respecting confrontation which eventually became
I refer here again to the Constitution of the United States, framed by wiser heads than ours, and I find the language there used the same as that proposed * * * ‘to be confronted with the witnesses against him.’ What does that mean? It means that when a charge is made against any person, he may demand that the government shall bring the witnesses before his face, and that they shall there, in his presence and under his eye, make the charge against him.
* * * * * *
The provision proposed, cuts off the right of introducing depositions upon criminal trials. In civil cases it is well known, that if the attendance of witnesses is inconvenient, their depositions can be taken, under certain restrictions of law. But the provision that he shall be confronted with the witnesses against him, compels the government to bring the witnesses bodily into the presence of the accused.
Debates and Proceedings of the Constitutional Convention 102-03 (1857) (Republican Convention).
Thus, whatever the confrontation clause under the Sixth Amendment may mean, it seems clear that the Minnesota provision gives strong preference to face-to-face confrontation. Minnesota cases prior to Pointer v. Texas demonstrate this preference. In State v. Hunter, this court stated:
[T]hat hearsay evidence is inadmissible in a court of justice, is a rule of fundamental law. It is a rule of the common law, supported * * * by the constitutional guaranty that the accused is entitled to be confronted with the witnesses against him. The wisdom of the rule is not to be questioned or its importance minimized, for its observance is necessary to the protection of litigants and the orderly administration of the law upon the basis of truth, as disclosed by the testimony of living witnesses, and from first rather than second hand evidence.
State v. Hunter, 131 Minn. 252, 256, 154 N.W. 1083, 1084-85 (1915) (upheld admission of hearsay evidence under res gestae exception).
In State v. Allison, 175 Minn. 218, 220 N.W. 563 (1928), this court reversed a conviction because, although there was sufficient evidence of guilt, hearsay evidence was admitted in violation of the defendant‘s right to confrontation. Id. at 222, 220 N.W. at 565. This court continued to recognize the right to confrontation under the Minnesota Constitution up to the time the Sixth Amendment was applied to the states, see State v. Hines, 270 Minn. 30, 41-42, 133 N.W.2d 371, 379 (1964), and when improperly denied, it is almost never harmless error. See State v. Hansen, 312 N.W.2d at 105; State v. Shotley, 305 Minn. 384, 386-87, 233 N.W.2d 755, 758 (1975).3
testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.
Id. (quoting Mattox v. United States, 156 U.S. 237, 242-43 (1895)).
It seems clear to me from the discussion at the constitutional convention and the case law interpreting
Only in certain limited circumstances, may hearsay evidence be admitted without violating an accused‘s right to confrontation and cross examination.
I do not suggest that in this case S, the incompetent child accuser, was deliberately lying nor that the out of court interrogations were anything but well intentioned. However, the child‘s only statement about the identity of her abuser was made to her foster parent who, so far as the record is concerned, was not an expert in the field of interrogation of young children. The record providеs us with no way to judge the suggestive nature or accuracy of the questioning by the foster mother. The foster mother maintains she did not lead S, but she may be unaware that her own actions or wording prompted the child to identify the perpetrator. This is particularly critical because the hearsay testimony was crucial evidence of identification, and was uncorroborated by any other source.
Under these circumstances, mindful of the strong prejudice against hearsay evidence under the Minnesota Constitution, I must conclude that the defendant‘s right of confrontation was violated. Stipulated incompetency—or even a court finding of incompetency, when based on an erroneous understanding of statutory incompetence “is too uncertain a basis to find unavailability. To excuse production of a witness whose testimony is offered against a criminal defendant through hearsay repetition, a more certain showing is required.” State v. Ryan, 103 Wash.2d 165, 172, 691 P.2d
Recognizing on the one hand the childish disposition to weave romances and to treat imagination for verity, and on the other the rooted ingenuousness of children and their tendency to speak straightforwardly what is in their minds, it must be concluded that the sensible way is to put the child upon the stand to give testimony for what it may seem to be worth. 2 J. Wigmore, Wigmore on Evidence, § 509 at 719 (Chadbourn rev. 1979). Stated another way, to protect a defеndant‘s constitutional right to confrontation, the term ‘incompetent witness’ should be interpreted to include only child witnesses who do not have the ability to currently recall and relate facts in issue, rather than child witnesses who do not adequately understand the responsibility to tell the truth when testifying. In this way, the out-of-court statements made by the child can be judged in the light of the child‘s in-court testimony and demeanor.
I am not unmindful of the frustration of a society attendant to a court decision which, if wrong, has great potential to revictimize or traumatize a small child. I recognize that in enacting
Because the constitutional debates make clear the founders meant what they said in
POPOVICH, Chief Justice (dissenting).
I join in the dissent of Justice Kelley. See State v. Conklin also.
YETKA, Justice (dissenting).
I join in the dissent of Justice Kelley by reason of this court‘s decision in State v. Conklin as well.