THE STATE OF WASHINGTON, Respondent, v. JOHN T. RYAN, Appellant.
No. 50216-1
Supreme Court of Washington
November 26, 1984
After modification, further reconsideration denied December 13, 1984.
103 Wn.2d 165
We hold that
WILLIAMS, C.J., ROSELLINI, UTTER, BRACHTENBACH, DOLLIVER, DIMMICK, and PEARSON, JJ., and CUNNINGHAM, J. Pro Tem., concur.
After modification, further reconsideration denied December 13, 1984.
Douglas S. Boole, Prosecuting Attorney, for respondent.
James E. Lobsenz of Washington Appellate Defender Association, amicus curiae for appellant.
WILLIAMS, C.J.—Hearsay statements of child victims of sexual abuse are conditionally admissible in criminal trials under
Count 1 charged that the defendant committed indecent liberties upon 4 1/2-year-old boy “M” on or about June 25, 1982, and count 2 charged the same conduct with a 5-year-old boy “J“, on or about June 1, 1982. At trial, in September 1982, neither child testified. Both parties stipulated that the boys were incompetent. The basis for the defendant‘s stipulation is not apparent, but the State argued that the boys were “statutorily incompetent“. Report of Proceedings, vol. II, at 17-18. The State further argued that the children‘s incompetency rendered them unavailable.1
Out-of-court statements made by the two children were offered through the testimony of M‘s mother and aunt, and J‘s mother. This hearsay testimony, the State argued, was permitted by
A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings in the courts of the state of Washington if:
(1) The court finds, in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and
(2) The child either:
(a) Testifies at the proceedings; or
(b) Is unavailable as a witness: Provided, That when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.
The trial court accepted the State‘s argument that the children were statutorily incompetent, and also unavailable. In satisfaction of the corroboration requirement, the trial court found that the defendant‘s knowing and voluntary confession established corroboration. The record reveals that the defendant admitted the charged conduct regarding M to M‘s mother, and later to a police officer. The record does not disclose an admission of the charged misconduct in regard to J.
The following circumstances surrounded the making of the children‘s statements: On June 25, 1982, M‘s aunt, while babysitting, questioned M about the source of some candy he brought to her house. M initially indicated that a person across the street had given it to him, but later said that “John would give it to him” if he permitted certain sexual contact. Report of Proceedings, vol. II, at 10. M‘s aunt reported these statements to M‘s mother who again questioned M. M told his mother the same story. M‘s mother also testified that she had forbidden M to accept candy.
M‘s mother reported what she had been told to J‘s mother. On June 27, 1982, J‘s mother questioned her son, and he told his mother substantially the same thing M had
Defendant challenges his conviction on several theories: (1) He contends that
I
CONFRONTATION
The
The general approach employed by the Supreme Court to test hearsay admissions against confrontation rights requires: (1) Either the production of the out-of-court declarant or a demonstration of unavailability, and (2) assurances of reliability of the statement. Roberts, at 66. “Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” (Footnote omitted.) Roberts, at 66.
The requirements for admission under
A
UNAVAILABILITY
The
The State accounted for the children‘s absence by saying they were not subpoenaed. Report of Proceedings, vol. II, at 17. Apparently, they were not subpoenaed because the prosecutor believed they were “statutorily incompetent“, and hence unavailable. Report of Proceedings, vol. II, at 18. The State‘s equation of unavailability and incompetency is faulty in several respects. First, incompetency and unavailability serve separate purposes, and mean different things. Second, as the discussion on reliability below indicates, a resolution that a witness is incompetent precludes most hearsay statements of that witness whether available or not. Third, the State has misconstrued the statutory definition of incompetency.
Unavailability means that the proponent is not presently able to obtain a confrontable witness’ testimony. It is usually based on the physical absence of the witness, but may also arise when the witness has asserted a privilege, refuses to testify, or claims a lack of memory. See
Competency, on the other hand, means that the witness “has sufficient mental capacity to understand the nature and obligation of an oath and possessed of sufficient mind and memory to observe, recollect, and narrate the things he has seen or heard.” State v. Moorison, 43 Wn.2d 23, 28-29, 259 P.2d 1105 (1953). The statutory categories of persons who are incompetent to testify illustrate its meaning:
(1) Those who are of unsound mind, or intoxicated at the time of their production for examination, and
(2) Children under ten years of age, who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly.
Stipulated incompetency based on an erroneous understanding of statutory incompetency 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. Roberts recognized that the good faith effort incumbent on the State to produce the witness does not require a futile act. “But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation.” Roberts, at 74. The unexplained failure of the State to produce the children exemplifies the fears of one commentator that
RELIABILITY
One of the reasons for finding a child incompetent is inability to receive just impressions of the facts concerning the event.
The declarant‘s competency is a precondition to admission of his hearsay statements as are other testimonial qualifications.
The hearsay rule is merely an additional test or safeguard to be applied to testimonial evidence otherwise admissible. The admission of hearsay statements, by way of exception to the rule, therefore presupposes that the assertor possessed the qualifications of a witness ... in regard to knowledge and the like.
(Footnote omitted.) 5 J. Wigmore, Evidence § 1424, at 255 (rev. 1974).
If the declarant was not competent at the time of making the statements, the statements may not be introduced through hearsay repetition. 5 J. Wigmore, at 304. The exceptions to this general rule are res gestae utterances or fresh complaints.3 State v. Lounsbery, 74 Wn.2d 659, 661, 445 P.2d 1017 (1968); State v. Murley, 35 Wn.2d 233, 236-37, 212 P.2d 801 (1949); State v. Beaudin, 76 Wash. 306, 307, 136 P. 137 (1913). See also 4 J. Weinstein & M. Berger, Evidence ¶ 804(a)[01], at 804-40 (1981). Exceptions to the general rule are based on the historically established trustworthiness of the statement.
A review of the subject indicates that cases involving an indecent assault upon a child seem to receive rather special treatment. The courts quite frequently have admitted hearsay statements of a child tending to incriminate the defendant. Usually such statements are
Adequate indicia of reliability must be found in reference to circumstances surrounding the making of the out-of-court statement, and not from subsequent corroboration of the criminal act. “The circumstantial guarantees of trustworthiness on which the various specific exceptions to the hearsay rule are based are those that existed at the time the statement was made and do not include those that may be added by using hindsight.” Huff v. White Motor Corp., 609 F.2d 286, 292 (7th Cir. 1979). The trial court stated that it found reliability in the time, content, and circumstances of the statement, but in so finding indicated only one factor—the defendant‘s confessions. The trial court was apparently persuaded that the statements of the children must be reliable, if, in hindsight, they prove to be true.
The statute requires separate determinations of reliability and corroboration when the child is unavailable. The word “and” is conjunctive. State v. Carr, 97 Wn.2d 436, 439, 645 P.2d 1098 (1982). The Legislature would have used the word “or” had it intended the disjunctive. Childers v. Childers, 89 Wn.2d 592, 575 P.2d 201 (1978); State v. Dixon, 78 Wn.2d 796, 479 P.2d 931 (1971). Although defendant‘s confession was offered as corroboration, wholly absent are the requisite circumstantial guaranties of reliability.
The purpose and reason of the hearsay rule is the key to the exceptions to it.
The theory of the hearsay rule ... is that the many possible sources of inaccuracy and untrustworthiness which may lie underneath the bare untested assertion of a witness can best be brought to light and exposed, if they exist, by the test of cross-examination. But this test or security may in a given instance be superfluous; it may be sufficiently clear, in that instance, that the statement offered is free enough from the risk of inaccuracy and untrustworthiness, so that the test of cross-examination would be a work of supererogation.
5 J. Wigmore, Evidence § 1420, at 251 (rev. 1974). Any statement offered as an exception to the hearsay rule must be made under circumstances comparable in their inherent trustworthiness to serve as a substitute for cross examination.
Where cross examination would be superfluous, the right of confrontation is not offended. Where cross examination would serve to expose untrustworthiness or inaccuracy, denial of confrontation “““would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.“...‘” (Citation omitted.) Davis v. Alaska, 415 U.S. 308, 318, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974) (citing Smith v. Illinois, 390 U.S. 129, 131, 19 L. Ed. 2d 956, 88 S. Ct. 748 (1968)).
Recently this court adopted a set of factors applicable to determining the reliability of out-of-court declarations. State v. Parris, 98 Wn.2d 140, 654 P.2d 77 (1982). Those factors are: “(1) whether there is an apparent motive to lie; (2) the general character of the declarant; (3) whether more
Applying the Parris factors to the circumstances of the present case, the statements cannot be deemed sufficiently trustworthy to deprive the defendant of his right of confrontation. First, there was a motive to lie, and each child initially told a different version of the source of the candy they were not supposed to have. Second, all the record reveals about the character of the children is the parties’ stipulation that the children were incompetent witnesses due to their tender years. Third, the initial statements of the children were made to one person, although subsequent repetitions were heard by others. Fourth, the statements were not made spontaneously, but in response to questioning. Fifth, as regards timing, both mothers had been told of the strong likelihood that the defendant had committed indecent liberties upon their children before the mothers questioned their children. They were arguably predisposed to confirm what they had been told. Their relationship to their children is understandably of a character which makes their objectivity questionable.
The reliability of the statements does not fare better under the Dutton factors. The statements were undeniably assertions of past facts. While the defendant admitted to misconduct with M, he denied any wrongdoing as to J. Cross examination was appropriate regarding this dispute.
The State argues that the factors used to test reliability in United States v. Nick, 604 F.2d 1199 (9th Cir. 1979) are more appropriate because that case involved the out-of-court statements of a young child victim of sexual abuse. Nick, however, is a very different case from the present one. There, the statements fell into two well recognized hearsay exceptions—excited utterances and statements made to a physician for purpose of diagnosis.
The most important distinction between Nick and the case before us is the hearsay statements offered in Nick fell into existing hearsay exceptions grounded in reliability in the circumstances of their making.
II
CORPUS DELICTI
Defendant is correct in contending that a conviction cannot be sustained on a confession alone.
III
SEPARATION OF POWERS
Defendant argues that the enactment of
Where a rule of court is inconsistent with a procedural statute, the court‘s rulemaking power is supreme. Petrarca v. Halligan, 83 Wn.2d 773, 522 P.2d 827 (1974). Nonetheless, apparent conflicts between a court rule and a statutory provision should be harmonized, and both given effect if possible. Emwright v. King Cy., 96 Wn.2d 538, 543, 637 P.2d 656 (1981).
Legislative enactment of hearsay exceptions is specifically contemplated by the Rules of Evidence.
Defendant suggests that the statute is in conflict with court rules regarding competency. See
IV
SUFFICIENCY OF TITLE OF ACT
Defendant contends that the title of the act was insufficient to give notice of its contents as required by
The test of the title‘s sufficiency is whether it provides sufficient notice to lead an interested person to inquire into the bill‘s contents. State v. Lounsbery, 74 Wn.2d 659, 664-65, 445 P.2d 1017 (1968). The title of the present act was clearly sufficient to put the public on inquiry, and evidences a “rational unity” between the general subject and its contents. See Barde v. State, 90 Wn.2d 470, 584 P.2d 390 (1978).
V
EX POST FACTO APPLICATION
Defendant argues that the application of
CONCLUSION
We reverse and remand for further proceedings.
ROSELLINI, BRACHTENBACH, and PEARSON, JJ., and CUNNINGHAM, J. Pro Tem., concur.
DOLLIVER, J. (concurring)—I concur with the result reached by the majority. This concurrence is based solely on the fact the record does not disclose that in fact the prosecution made a “good faith effort” to obtain M‘s presence at the trial. See Barber v. Page, 390 U.S. 719, 20 L. Ed. 2d 255, 88 S. Ct. 1318 (1968). While I agree the parties and the court apparently misunderstood
There are two other items which I believe need comment: (1) Although in this case the parties and the court misconstrued the statute on competency,
(2) I disagree with the majority‘s finding that the statements of M did not contain sufficient indicia of reliability. Since the matter is to be reversed, no purpose would be gained by detailing the sordid record in this case. I believe the statements of M, however, had a ring of verity and that the trial court properly exercised its discretion in so finding. See United States v. Nick, 604 F.2d 1199 (9th Cir. 1979); Comment, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum. L. Rev. 1745 (1983); Comment, Sexual Abuse of Children—Washington‘s New Hearsay Exception, 58 Wash. L. Rev. 813 (1983). Compare
UTTER, DORE, and DIMMICK, JJ., concur with DOLLIVER, J.
[En Banc. December 6, 1984.]
DIMMICK, J. (concurring)—I concur with the majority. Reversal is appropriate under the circumstances of this case, in which the trial court made a legal error as to the competence and availability of child witnesses. Justice Dolliver‘s concurring opinion touches on issues that concern me, but does not reach all of them. While I agree with the majority‘s interpretation of the statute to conform with the federal and state constitutions, I would reverse solely on the basis of misinterpretation of the law on competency. In addition, I write to emphasize the distinction between the present and past competence of a child witness.
The statute in conformity with the confrontation clause dictates that a witness testify at trial unless unavailable.
The trial court and the parties erred in determining unavailability of the child witnesses on the basis of statutory incompetence. The judge had not examined the children and determined them to be incompetent. That is, he had not found them “incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly.”
I consider this to be the significance of the new statute
In this respect, I find the majority‘s opinion lacks clarity. It could be misconstrued as implying that present incompetence presumes incompetence or unreliability at the time the statement was made. But one does not necessarily follow from the other. Young children present special problems as witnesses because of their short memories and possible traumatic reaction as victims. The statute has been written to recognize the possible validity of a child‘s earlier statements (not unlike the hearsay exceptions allowed for excited utterances or present sense impressions).
Reliability may be indicated by the spontaneity of the out-of-court statement, a recitation of acts generally unknown to children, or other circumstances surrounding the statement. A finding of incompetence at time of trial
The accused is protected by the law‘s requirements that the hearsay statement be examined in a special hearing to determine its reliability. Additionally, the accused will have the opportunity to challenge the circumstances in which the statement was made, the possible motives of the recountal of the statement, and, finally, to confront any child witness determined to be competent to testify.
I would reverse on the basis of the faulty legal premise of incompetency leading to a faulty conclusion of unavailability. I form no conclusion as to the evidence of the children‘s reliability on retrial.