State v. ShaferState v. Shafer
¶ 1 Stoney Shafer was convicted of rape of a child in the first degree. At trial, certain statements that the alleged child victim made to her mother and another person were admitted pursuant to
¶ 2 On September 20, 2003, three-year-old T.C. spent a few hours at the home of her aunt Dionne Alston. Stoney Shafer, Alston‘s boyfriend, was present at Alston‘s home during T.C.‘s visit to her aunt‘s home. At approximately 11:35 p.m. that night, T.C.‘s mother retrieved T.C. from Alston‘s house and returned home with the child. T.C. was asleep when her mother collected her, and she slept until the next morning.
¶ 3 Shortly after T.C. awoke, she told her mother that “Uncle touched my privates.”1 Verbatim Report of Proceedings (May 5, 2004) at 312. T.C.‘s mother then telephoned Dionne Alston and attempted to determine whether Shafer had spent any time alone with T.C. After this conversation, T.C.‘s mother asked T.C. if she wanted to talk further. T.C. responded by telling her mother “that Uncle had touched her privates like this (gesturing)2 and that Uncle licked her privates like this (indicating).”3 Id. at 317. She also indicated that “Uncle had told her to kiss his privates like a sucker and that he made a mess on the bed with his pee-pee.” Id. T.C.‘s mother went on to describe their conversation:
After [T.C.] had got done telling me that, I just asked her “Uncle who?” to make sure that she was talking about who I thought she was talking about, and she said “Junior‘s dad.”4 And then I asked her where my sister was at. “Where was Auntie Dionne at?” She said “Auntie Dionne was in the yard,” I believe, I think she said.
Id. T.C.‘s mother indicated that T.C. had no previous exposure to sexually explicit material.
¶ 4 Following her conversation with T.C., T.C.‘s mother took the child to a hospital for an examination. Washington State Patrol lab technicians later examined the swabs taken from T.C.‘s vagina and mouth during the examination. They also examined clothing that the child was wearing at the time of the alleged sexual contact. Although the oral and vaginal swabs did not, according to the technicians, turn up any relevant evidence, semen was detected on the cuff of T.C.‘s sleeve. Shafer was then arrested.
¶ 5 Approximately a week after Shafer‘s arrest, T.C. was at the home of Victoria Doroshenko, a family friend. Doroshenko had a history of acting as a confidential informant for law enforcement agencies. She was also aware that Shafer had been arrested for allegedly raping T.C. While there, T.C. talked to Doroshenko‘s daughter, Haley, about her encounter with Shafer. Haley relayed the information that she obtained from T.C. to Doroshenko. Doroshenko described the events that then took place:
After Haley told me this, I brought [T.C.] over and asked what they were talking about, and [T.C.] told me boys have pee-pees and girls have privates. And I said, “Well, what about them?” and she made a comment to it being “like a sucker,” and, you know, making the gesture with her little cheek.
....
.... And she said, “But it tasted bad,” or— she said “But it tasted bad.” “Yuck.” Like that. And I said “Oh really?” and she said— she said “Yeah, and then stuff shooted [sic] out of it.” And I said, “Really? Well, then what happened?” and she said “Then it fall down.”
¶ 6 Doroshenko then videotaped another interview with T.C. The record reveals that although Doroshenko had acted as a confidential informant for law enforcement organizations, she was not, at this time, acting for any law enforcement agency.
¶ 7 The Pierce County prosecuting attorney charged Shafer with one count of rape of a child in the first degree. Prior to trial, the
¶ 8 Shafer moved to exclude T.C.‘s hearsay statements, claiming that
¶ 9 The trial court thereafter applied the so called “Ryan factors” to determine if T.C.‘s statements were reliable for purposes of
[1] There is no apparent motive for T.C. to lie; [2] T.C. appears to be a “normal” child, one who does not have a negative character or any tendency to lie; [3] T.C. made statements about this incident to [her mother] and Ms. Doroshenko at different times, with similar content; [4] T.C.‘s statements were spontaneous as defined by case law, in that she made the statements in her own words even when she was responding to a question; [5] T.C.‘s statements to [her mother] were made the morning after the incident, and her statements to M[s]. Doroshenko were made within a week or so of the incident, so T.C. was still able to accurately recall what happened; [6] n/a; [7] n/a; [8] the possibility of T.C.‘s recollection being faulty is remote because of the timing of those statements in relation to the incident; and [9] the overall circumstances surrounding the statements T.C. made to [her mother] and Ms. Doroshenko demonstrate reliability, especially considered in conjunction with the hand and mouth movements T.C. made and accepting the State‘s offer of proof that a semen stain was found on her shirt sleeve.
Clerk‘s Papers at 63. The trial court also found that T.C.‘s hand and mouth gestures and the semen found on her shirt were “sufficient corroboration for the admission of T.C.‘s statements” to her mother and Doroshenko. Id. Therefore, it concluded that T.C.‘s statements to her mother and Doroshenko, with the exception of the videotaped questioning, were admissible.
¶ 10 At trial, Shafer stipulated that sperm was present on T.C.‘s shirt and that it was his sperm. A jury found Shafer guilty. Shafer then petitioned this court for direct review and we granted his petition. Shafer has not assailed any of the trial court‘s findings of fact.
II
1. Whether
2. Whether
III
¶ 11 A statute is presumed to be constitutional. State v. Ward, 123 Wash.2d 488, 496, 869 P.2d 1062 (1994) (citing Diversified Inv. P‘ship v. Dep‘t of Soc. & Health Servs., 113 Wash.2d 19, 23, 775 P.2d 947 (1989); State v. Brayman, 110 Wash.2d 183, 193, 751 P.2d 294 (1988)). The party challenging it, therefore, has the burden to prove it is unconstitutional beyond a reasonable doubt. Id.
A
¶ 12 Shafer contends that
¶ 13 The confrontation clause of the Sixth Amendment provides that: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”
¶ 14 In 2004, the United States Supreme Court reexamined its decision in Roberts and departed from it, holding that “[w]here testimonial evidence is at issue ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68, 124 S.Ct. 1354 (emphasis added). It indicated further, however, that where nontestimonial statements are at issue, “it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law—as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.” Id. Thus, it follows that not all hearsay implicates the confrontation clause. Indeed, we so concluded in State v. Davis, 154 Wash.2d 291, 111 P.3d 844 (2005), a case in which we examined statements made during a 911 call in which a victim identified the defendant as her assailant. We said there that those statements were nontestimonial and, consequently, did not implicate Crawford. Id. at 305, ¶ 38, 111 P.3d 844.
¶ 15 We must, therefore, determine here if T.C.‘s statements to her mother and Doroshenko were “testimonial.” As we observed in Davis, the United States Supreme Court did not pronounce a comprehensive definition of testimonial in Crawford. Id. at 299, ¶ 18, 111 P.3d 844. It did indicate, however, that the term “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.” Crawford, 541 U.S. at 68, 124 S.Ct. 1354.6 Of the testimonial statements identified as such in Crawford, the common thread binding them together was some degree of involvement by a government official, whether that person was acting as a police officer, as a justice of the peace, or as an instrument of the court. Accord id. at 53, 124 S.Ct. 1354 The court in Crawford went on to say that casual remarks made to family, friends, and nongovernment agents are generally not testimonial statements because they were not made in contemplation of bearing formal witness against the accused. Id. at 51, 124 S.Ct. 1354; accord Davis, 154 Wash.2d at 304, 111 P.3d 844.7
¶ 16 In light of the Supreme Court‘s formulations of what is or is not “testimonial,” we first examine the statements T.C. made to her mother. These statements were not solicited by T.C.‘s mother. Without prompting, T.C. told her mother about her encounter with Shafer, and she did so upon awaking from sleep. T.C.‘s mother then responded in a manner that one would expect of a concerned parent under the circumstances—she inquired further. While T.C.‘s statements in response to her mother‘s questioning were not entirely spontaneous, they were not the result of leading questions or a structured interrogation. Furthermore, the police were not involved, and T.C. had no reason to expect that her statements would be used at a trial.8 For these reasons, we conclude that T.C.‘s statements to her mother were nontestimonial and, thus, do not run afoul of Crawford.
¶ 17 It is a closer question whether the statements T.C. made to Doroshenko were testimonial. On the one hand, Doroshenko had prior experience as an informant for law enforcement agencies, and her contact with T.C. occurred approximately a week after Shafer was arrested. On the other hand, Doroshenko was not acting for any law enforcement agency at the time she talked to T.C. and, again, T.C. had no reason to expect that her statements would later be used in court. Furthermore, the most questionable aspect of Doroshenko‘s contact with T.C., the videotaped interview of the child, was excluded from evidence by the trial court. On balance, we are of the view that T.C.‘s nonvideotaped statements to Doroshenko were not testimonial.
¶ 18 In light of the foregoing, we conclude that, where nontestimonial hearsay statements of a child are at issue, the statements are admissible if there is compliance with
¶ 19 Shafer contends, additionally, that the confrontation clause contained in
¶ 20
¶ 21 While Shafer correctly observes that an independent analysis of
IV
¶ 22 We conclude that
C. JOHNSON, MADSEN, OWENS, FAIRHURST and BRIDGE, JJ. concur.
CHAMBERS, J. (concurring).
¶ 23 The text of Washington‘s confrontation clause, article I, section 22, is strikingly different from its federal Sixth Amendment counterpart. Under our state constitution, the “accused shall have the right ... to meet the witnesses against him face to face.”
¶ 24 As the majority correctly observes, a majority of the divided court in State v. Foster, 135 Wash.2d 441, 957 P.2d 712 (1998), concluded that
¶ 25 I am also reluctant to rely upon State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 (1984), for any independent interpretation of
¶ 26 However, as the majority of this court in Foster observed, “face to face” and “confront” are consonant terms. My review
¶ 27 I also agree with the majority today that the admission of the testimony of Victoria Doroshenko is a close question. Majority at 92. I part company with the majority in its heavy reliance on the fact that Doroshenko was not a law enforcement officer. The fact that a statement is given to a government official is only one factor to be considered when determining whether evidence is “testimonial” for the purposes of the
¶ 28 Because I believe what is and is not testimonial under Crawford will be a thorny and difficult issue for trial judges, I offer my own observations. First, while Crawford declines to articulate a comprehensive definition of “testimonial,” it did provide several examples of what the core class of testimonial statements might be, including:
[1] ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; [2] extrajudicial statements ... contained in formalized testimonial material, such as affidavit, depositions, prior testimony, or confessions; [and 3] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for the use at a later trial.
Id. at 51-52, 124 S.Ct. 1354 (citations omitted) (internal quotations marks omitted).
¶ 29 The last category, statements made under circumstances that would lead an objective witness to believe the statements would be available for use later at trial, will be the most difficult. Obviously the Crawford court intended an “objective” test with respect to whether or not a statement would be available for use at trial at a later time. Objectively, I would conclude the statements made to Doroshenko were testimonial. While Doroshenko was not a law enforcement officer, she was also not merely a friend of the family. She testified that she had over 10 years’ experience as a volunteer investigator and confidential informant for the Federal Bureau of Investigation, United States Secret Service, Sumner Police Department, Tacoma Police Department, and various drug and gang task forces. Doroshenko‘s first interview with T.C. took place approximately one week after Shafer had been arrested, and Doroshenko was aware that Shafer had been arrested and suspected of raping T.C. Doroshenko solicited statements from T.C. rather than T.C. making statements spontaneously. While the fact Doroshenko was a family friend tends to weigh in the opposite direction, in my view, an objective witness would understand from the totality of the circumstances that T.C.‘s statements made to Doroshenko would be used at trial.
¶ 30 Second, we should apply an abuse of discretion standard to the admission or nonadmission of such statements, since whether or not they are testimonial is essentially a factual determination. E.g., State v. Davis, 154 Wash.2d 291, 301, 111 P.3d 844, cert. granted, ___ U.S. ___, 126 S.Ct. 547, 163 L.Ed.2d 458 (2005). In short, the trial court would not abuse its discretion in either admitting or excluding Doroshenko‘s testimony.
J.M. JOHNSON, J., concurs.
SANDERS, J. (dissenting).
¶ 32 The confrontation clause guarantees a criminal defendant the right “to be confronted with the witnesses against him.”
I. T.C.‘S STATEMENTS WERE TESTIMONIAL BECAUSE A REASONABLE PERSON WOULD EXPECT THE STATE TO USE THEM IN AN INVESTIGATION OR PROSECUTION
¶ 33 Whether or not a particular statement is testimonial is indeed a fact-specific question courts must answer on a case-by-case basis. See State v. Davis, 154 Wash.2d 291, 295, 111 P.3d 844, cert. granted, ___ U.S. ___, 126 S.Ct. 547, 163 L.Ed.2d 458 (2005). The police didn‘t solicit T.C.‘s statements. And she certainly didn‘t have any expectations concerning their use. Majority at 91-92. Both are relevant facts. But neither is dispositive. The majority incorrectly assumes that the question at issue is whether the speaker knew the police would use the statement. In fact, it is whether a reasonable person would expect the police to use the statement. See Commonwealth v. Gonsalves, 445 Mass. 1, 833 N.E.2d 549, 557 (2005); United States v. Brito, 427 F.3d 53 (1st Cir.2005). And whether or not T.C. expected the police to use her statements, a reasonable person certainly would.
A. Statements Made to Nongovernment Agents May Be Testimonial
¶ 34 Statements made to the police are indeed generally testimonial. Crawford specifies that the term testimonial “applies at a minimum” to statements made to government agents. Crawford, 541 U.S. at 68, 124 S.Ct. 1354 (emphasis added). A statement “knowingly given in response to structured police questioning” is testimonial under “any conceivable definition.” Id. at 53 n. 4, 124 S.Ct. 1354. See also Davis, 154 Wash.2d at 301, 111 P.3d 844 (finding testimonial 911 calls “generated by a desire to bear witness“); State v. Walker, 129 Wash.App. 258, 261, 118 P.3d 935 (2005) (finding testimonial any statement “elicited in response to structured police questioning in the course of a police investigation“).
¶ 35 But a statement made to a private individual may also be testimonial. In re E.H., 355 Ill.App.3d 564, 823 N.E.2d 1029, 1037, 291 Ill.Dec. 443 (holding “it is the nature of the testimony rather than the official or unofficial nature of the person testifying that determines the applicability of Crawford and the confrontation clause“), appeal granted,
B. Crawford Requires an Objective Test
¶ 36 An interpretation of “testimonial” focusing on the intent of the declarant “is unduly narrow, does not fully comport with the thrust of Crawford, is inconsistent with the trend in other jurisdictions, and is more difficult to apply than the approach adopted in other jurisdictions.” Aronson, supra, § 804.04[1][c], at 804-23. Rather, a statement is testimonial if it provides “the functional equivalent of uncross-examined, in-court testimony.” Davis, 154 Wash.2d at 301, 111 P.3d 844. See also Friedman, Grappling with the Meaning of “Testimonial,” supra, at 249 (suggesting statement testimonial if it “performs the function of testimony“). So, the appropriate inquiry is whether a statement serves the function of testimony. And a statement can function as testimony whether or not the speaker actually expects the State to use it. See In re E.H., 291 Ill.Dec. 443, 823 N.E.2d at 1037 (holding “the declarant‘s state of mind is hardly a consideration when determining whether there has been a confrontation violation“). The actual intentions of the person who made the statement are irrelevant.
¶ 37 Thus, as I emphasized in Davis, the logic of Crawford demands “an objective evaluation of whether a reasonable person would know that his statements could be used to prosecute.” Davis, 154 Wash.2d at 307, 111 P.3d 844 (Sanders, J., dissenting). See also Chris Hutton, Sir Walter Raleigh Revived: The Supreme Court Re-Vamps Two Decades of Confrontation Clause Precedent in Crawford v. Washington, 50 S.D. L. REV. 41, 71 (2005) (noting “the subjective standard has been overwhelmed by the objective standard“). Crawford didn‘t “spell out a comprehensive definition of `testimonial,‘” 541 U.S. at 68, 124 S.Ct. 1354. But it did offer several helpful “formulations” of the “core class of `testimonial’ statements.” Id. at 51, 124 S.Ct. 1354. These include “`pretrial statements that declarants would reasonably expect to be used prosecutorially‘” and “`statements that were made under circumstances which would lead an objective witness reasonably to believe the statement would be available for use at a later trial.‘” Id. at 51-52, 124 S.Ct. 1354 (emphasis added) (quoting briefs).
¶ 38 This language—reasonable, objective—inescapably implies that objective criteria distinguish testimonial and nontestimonial statements. “The proper inquiry is whether a reasonable person in the declarant‘s position would anticipate the statement‘s being used against the accused in investigating and prosecuting a crime.” Gonsalves, 833 N.E.2d at 558. See also Brito, 427 F.3d at 61 (“The testimonial hearsay inquiry focuses on whether a reasonable declarant, similarly situated ... would have had the capacity to appreciate the legal ramifications of her statement.“); Horton v. Allen, 370 F.3d 75, 84 (1st Cir.2004) (finding statement nontestimonial because not made “under circumstances
¶ 39 Apparently, the majority is unfamiliar with the vagaries of the apocryphal “reasonable person.” It actually concedes that a statement is testimonial if “a reasonable person in the declarant‘s position would anticipate his or her statement being used against the accused in investigating and prosecuting the alleged crime.” Majority at 92. But inexplicably, it proceeds to premise its conclusions on the expectations of a “reasonable three-year-old child.” Id. And of course, a “reasonable person” cannot have the subjective expectations of a three-year-old child.” Certainly, the “circumstances” surrounding a statement are relevant. But they cannot include the competence of the speaker. An “objective” test that considers subjective characteristics is no objective test at all.
C. Under an Objective Test T.C.‘s Statements were Clearly Testimonial
¶ 40 Essentially, the majority holds that the State can use hearsay evidence of T.C.‘s statements as testimony because she cannot testify herself. But hearsay evidence of an out-of-court statement is simply a “`weaker substitute for live testimony.‘” State v. Rohrich, 132 Wash.2d 472, 480, 939 P.2d 697 (1997) (quoting United States v. Inadi, 475 U.S. 387, 394, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986)). The confrontation clause prohibits the introduction of hearsay evidence of a child‘s out-of-court statement after the child testifies. Rohrich, 132 Wash.2d 472, 939 P.2d 697. Perversely, the majority permits it when the child never testifies at all. T.C. said out-of-court exactly what the State would expect her to say on the stand. And if a statement is testimonial in court, it‘s testimonial at home, too. Cf. Friedman & McCormack, 150 U. PA. L. REV., supra, at 1242 (suggesting “if any significant time has passed since the events it describes, the statement is probably testimonial“).
¶ 41 Obviously, an incompetent child witness like T.C. can‘t herself form subjective expectations regarding the future use of her statements. But the “intent of the declarant” cannot determine whether a statement is testimonial because “the Confrontation Clause was intended to protect the defendant‘s right to cross-examine witnesses whose statements may lead to his conviction.” Aronson, supra, § 804.04[1][c], at 804-24. So we must evaluate her statements from an objective perspective. They are testimonial if a reasonable, competent person in a similar position would expect the State to use them in investigating or prosecuting a crime. See Hutton, 50 S.D. L. REV., supra, at 70 (noting that in child witness cases, “courts focus on whether an objective witness would view the statements as designed for prosecutorial purposes“). Such a statement is objectively testimonial because the State could use it in place of testimony.
¶ 42 While a statement “generated by a desire to bear witness” is testimonial, a “call for help to be rescued from peril” is not. Davis, 154 Wash.2d at 301, 111 P.3d 844. But how to distinguish one from another? The answer is elementary. “Any assertion, taken as the basis of an inference to the existence of the matter asserted, is testimony, whether made in court or not.” 2 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 479, at 640 (James H. Chadbourn rev. ed., 1979), quoted
¶ 43 Of course, some casual, incidental statements are nontestimonial. See Crawford, 541 U.S. at 51, 124 S.Ct. 1354. A reasonable, competent person expects a statement to “be available for use at a later trial” only if there‘s reason to believe it concerns a criminal violation. And a seemingly innocuous statement may ultimately prove relevant to a criminal charge. But an allegation of sexual assault is never “a casual remark to an acquaintance” or an “off-hand, overheard remark.” Id. at 51, 124 S.Ct. 1354. It simply beggars belief to suggest that a reasonable, competent person would not expect the police to use an allegation of sexual assault in investigating and prosecuting a crime.
¶ 44 A crime report is a testimonial statement, but an “excited utterance ... `made without reflection or deliberation‘” is not. Davis, 154 Wash.2d at 301, 111 P.3d 844 (quoting People v. Corella, 122 Cal.App.4th 461, 18 Cal.Rptr.3d 770, 776 (2004)). But T.C. wasn‘t in danger when she made the statements to her mother and Doroshenko. She didn‘t make an “excited utterance.” She reported an alleged crime as best she was able, by telling her mother it took place. See Friedman, Grappling with the Meaning of “Testimonial“, supra, at 21 (noting that “narrative statements by victims of completed crimes almost certainly are made with anticipation of prosecutorial use“). T.C. may not have understood the gravity of her statements. But a reasonable, competent person in her position certainly would. Her allegations of sexual assault were testimonial because a reasonable person would expect them to function as testimony. Therefore, the court should not have admitted hearsay evidence of them.
¶ 45 Consequently, I dissent.