State v. Thomas

1999 UT Utah, Appellee, Plaintiff and

STATE THOMAS,

William M. Defendant Appellant.

No. 970068.

Supreme Court Utah.

Jan. early

taking “advantage” his in cousins (Thomas’s July visiting M. while Valene grandmother) in Hurri- girls’ the aunt and Utah, cane, re- his mother. Thomas in instances which he counted several “raped he and that “play with” his cousins daughter youngest three times in one the night.” turned the letter over His mother police. days telephone later in a the Several in with his mother which she conversation letter had turned over told him that the been police, the admitted the events Thomas Graham, Gen., Att’y Dupaix, Laura Jan letter, going greater in into described Gen., George, plaintiff. Att’y St. Ass’t the circumstances and detail about both Combs, George, for L. defen- Kenneth St. specific acts involved. dant. M. to 3 His mother then called Valene her that Thomas had admitted sexual- tell HOWE, Chief Justice: ly abusing girls. confirmed S.M. ap- M. Thomas 1 Defendant William mother, abuse, telling grandmother, her her child, rape a a convictions for peals from sexually police that Thomas had abused and § degree felony Ann. 76-5- first Code first, At not confirm her. C.M. would (“Count I”) 402.1) aggravated sexual However, in inter- a second abuse. child, felony degree first of a a abuse later, responded ques- view a week C.M. II”). 76-5-404.1) (“Count § Ann. Code by pointing to a dia- tions about abuse he makes assignments of error are three body, indicating a gram of human where by find- its discretion the trial court abused her, part and with what Thomas had touched testify as a ing “unavailable” to a child victim body police his he had touched her.1 A admitting a video- into evidence witness and a officer and social worker with Division victim; (2) the taped the child interview with Family conducted this second Services permitting in the State trial court erred a hidden camera in interview before video concerning the con- Thomas cross-examine Washington County Depart- Sheriffs him, by allegedly written of a letter tents ment. furnished to copy had been when trial, mother, 4 At Thom- children’s during discovery; required trial counsel as mother, as’s and Valene M. all testified that denying in trial court erred had been M.’s home with Valene motion for directed verdict where Thomas’s question his mother the dates II mis- information as Count the State’s stayed at and S.M. had Valene both C.M. ele- law and the enhancement stated the during time well. Thom- M.’s house in the information were not ments contained that Thomas could as’s mother confirmed subsequently proven the State. during have had access the children this ¶2 May in- In while Thomas was Furthermore, period. the children’s mother County Lake Jail on carcerated the Salt the time the inci- testified that soon after charges, he a letter to his unrelated wrote occurred, allegedly physician dents treated letter”) (the he “confession mother unexplained for an redness and sore- C.M. sexually abusing young confessed to several vaginal ness to her area. including five-year-old girls, his four-and S.M., (hereafter seven-year-old respec- time “C.M.” and “S.M.” cousins letter, had tively). testified that Thomas touched In this Thomas admitted point- Previously, interviewing "placed an 'X' on the crotch area and then officer showed body diagram part body C.M. human establish ed to it to indicate the of her body, knowledge parts of several part [Thomas's] touched and the [Thomas] “specifically swimming covers the where suit body used to [he] touch her.” body.” questioning, response In C.M. vaginal night when her area one both she defense with the letter’s existence. The staying grandmoth- were at her given and Thomas maintained it had Thomas’s Although pinpoint letter, er’s house. she prior copy could September counsel a date, did remember that her the exact she although there was no record of the letter sister, C.M., younger was also when file, the defense that asserted the letter C.M., touching years six occurred. old at part case-in-chief, was not of the State’s respond time of the to would merely purposes. used for rebuttal by questioning court. basic the trial The ¶8 The trial court overruled Thomas’s court, attempt following an to extended objection allowed the por- State use questions, evoke answers to basic found C.M. September impeach tions of the letter to him. acknowledge unable to do much more than having Septem- Thomas denied ever seen leading questions largely with nonverbal re- letter, having ber let alone it. written Thom- sponses. that her Concerned nonverbal re- explained he had discussed his extended record, sponses would not be reflected family with great length. fellow inmates at C.M., potential as well as strain the court suggested He that the confession letter was objection ruled over Thomas’s that C.M. was inmates, possibly by written these who hated purposes “unavailable” for of direct testimo- him, probably and who used details about his ny. result, As a the court admitted the family during which were disclosed these videotape of the second interview into evi- talks to lend credence to the confes- 15.5(l)(h) dence under Utah Rules sion. Procedure, requires of Criminal which ¶ admitted, case, At for recorded testimonies to be 9 the conclusion of the State’s child is either “available to and to the court denied Thomas’s motion for di- jury cross-examined at trial” or that “the court rected verdict. The returned verdicts counts, child on guilty determines is unavailable as a both and he was sentenced jury then witness.” The viewed the video- years terms ten consecutive to life and conjunction tape police life, with the officer’s years respectively. ap- five He now testimony. The peals court offered Thomas the from these convictions. C.M.,

opportunity to cross-examine but he opportunity. did avail himself of that I. UNAVAILABILITY OF WITNESS ¶ presented 6 State The an edited AND THE ADMISSIBILITY photocopy of the confession letter to the VIDEOTAPED OF TESTIMONY jury.2 examination, On direct Thomas de- addressing major 10 Before issues writing implied nied the confession letter and appeal, note his brief to this that his mother’s identification his hand- court Thomas that the trial contends court writing in the letter incorrect. He fur- right violated his to confront and cross-exam- implied something ther his mother had I, ine witnesses under article section 12 of him, against saying that like “[s]he-would by admitting the Utah Constitution a video- [Thomas] see behind bars.” tape evi- of C.M.’s out-of-court interview into cross-examination, again 7 On Thomas argument dence. His constitutional contains having denied written the confession letter. only supporting authority, one citation sev- prosecution impeach- then offered assertions, analysis. eral and little purposes “Septem- ment a second [the letter “ letter”], purportedly reviewing ‘[A] ber written 11 is entitled Thomas mother, clearly perti “con- which indicated that the have the issues defined with authority simply fession letter was lie and that he had nent cited and is not depository appealing party may written it [his mother] see which the give police.” objected it dump argument to the re burden ” letter, 439, September asserting Bishop, use of the v. search.’ State (Utah 1988) pursuant (quoting that the had not it v. Opsahl, State disclosed Williamson discovery thereby request, surprising Ill.App.3d 48 Ill.Dec. 2. This edited version the letter omitted all references to other victims. (other 1981)) Unavailability A. (Ill.App.Ct. N.E.2d omitted). Furthermore, is well “[i]t citations to Thomas’s contention 14 We turn now appellate court will de that an established rideotape that the trial court admitted party argument that a cline to consider into evidence out-of-court interview v. adequately brief.” Valcarce failed to determining properly her una- first without (Utah 1998) 305, 313

Fitzgerald, 961 P.2d vailability. admit such an inter- In order to (citations omitted); see also State Cabutu evidence, com- trial court must into view 1993); tan, requirements forth under ply set (Utah 1989); Wareham, Code, section 76-5-411 of Amicone, provides: 1984). (1) evidence, any of Notwithstanding rule party determining whether 12 When statement re- a child victim’s out-of-court issue, court adequately an this briefed has of that child is admis- garding sexual abuse Appel- of 24 of the Utah Rules to rule looks although qual- as evidence it does not sible Thomas, late Procedure. State ify existing hearsay exception, if: under an 1998). prescribes rule This (a) testify to child is available the appellant’s “shall arguments in an brief that 15.5(2) (3), under Rule or Utah court or and reasons of the the contentions contain Procedure; Rules of Criminal present- respect to issues appellant with the ed, reviewing any including grounds the (b) testify not available to the child is court, with in the trial preserved 15.5(2) not (3), issue in court or under Rule or authorities, statutes, and the citations to Procedure, Rules of there Criminal R.App. parts relied on.” Utah of the record is other corroborative evidence 24(a)(9). P. abuse; or (c) qualifies for admission the statement As another court stated: 15.5(1), under Rule Utah Rules of Crimi- appellant of contain the “The brief should nal Procedure. points ...

points upon relied and these supported by If authorities.... (2) should be Prior to admission of statement are of questions involved in case the section, judge into evidence under this the asking justify to this importance sufficient the shall determine whether interest of them, they worthy are of court decide to by justice best served admission of will pre of the careful consideration counsel making this that statement. In determina- duty senting It the of attor them.... is age shall the and tion consider to neys practicing in this court child, maturity the nature and dura- supporting court the then- authorities abuse, relationship of tion in reaching views and to assist offender, reliability child correct conclusion.” the assertion child. Kunz, 7 Ill.App.3d In re Estate (3) under this sec- A statement admitted (Ill.App.Ct.1972) (quoting N.E.2d to the tion shall be made available adverse Kelley Kelley, Ill. 147 N.E. 659 sufficiently in of the trial or party advance (1925)). agree. As court has said this provide oppor- proceeding, to him with an lawyers past, imperative is that Utah “[i]t tunity prepare to meet it. brief this on relevant state constitu Court section, purposes this child is For Earl, questions.” tional age years. person under the 1986) omitted). (citation comply The trial court must also with the contains no substantive exam Thomas’s brief requirements There ination of his contention. is su testify cursory and to be perficial authority the child available citation of person argument is hurried at at either oí- legal analysis; his cross-examined (3), by or or the slap-dash provided as Subsection best—perfunctory and at worst. unavail- reasons, that the child is this court determines Por these we decline address testify at trial under able a witness issue. pur- the Utah Rules Evidence. For ... their available because of lack of maturi- ty.” poses argues of this subsection “unavailable” in- Id. at 873. Thomas determination, cludes a based on medical trial court based its on these same points, psychological expert namely, or memory or evidence testi- lack of and immatu- mony, rity. interprets child suffer serious He Seale to hold “mere non-responsiveness, if required emotional or mental strain at least the level tolerat- case, trial. ed the trial court in the instant enough unavailability.” to find 15.5(l)(h). Utah R.Crim. P. Thomas con- cedes that “the Court considered all the re- inapposite 17 Our decision in Seale is quirements except for the one contained in the instant case. Seale dealt eleven- 15.5(l)(h),” availability concerning of year-old responded child witness who Specifically, the child victim. Thomas ob- questioning relevant abuse jects videotaped to the admission of the testi- remember”; with “I don’t the instant case mony ground on the that the court did not six-year-old deals with a witness who would unavailability ruling on base its “medical or verbally respond degree. even to that psychological expert testimony,” or evidence trial court Seale at least able merely upon observation of court’s responses question evince sufficient to the witness. memory responsiveness; here, witness’s the trial court was unable even reach the ¶ it 15 While is true rule point memory questioned. where could be 15.5(l)(h) may specifies a court use “medical psychological expert evidence or testimo ¶ in pointing 18 Thomas is correct 15.5(l)(h) ny” availability, to determine rule “children, out that Seale held that if even specifies an additional determination present, may found be [not] be constitu Thus, “under Utah of Rules Evidence.” tionally any readily unavailable more than limiting rather than the definition of unavail However, passage adults.” Id. this in Seale 15.5(l)(h) ability, expands rule on face its prohibition is not an absolute a court definition to include the of definitions una basing finding unavailability of on a of lack vailability set forth under rule 804 of the Seale, maturity; pointed in we out that a Utah Rules of Evidence. of Because this finding generally that children were unavail expansive language, trial courts are allowed a maturity of at able due lack odds with finding in wider discretion witness unavail Webb, language in 15.5(l)(h). able under rule Trial courts are (Utah 1989) J.). Zimmerman, (opinion In of using psychological not limited to “medical or Webb, judge oppor the trial neither took the expert testimony” except evidence or in those tunity to interview the child nor heard potential eases when determination of expert capability as to the child’s necessary. strain to the witness is The trial testify. Justice Zimmerman wrote: “It is its of court based determination C.M.’s una enough general assump not to make some 15.5(l)(h)’s vailability upon rule reference to age; tions about all children this the trial of Thus, of we Rules Evidence. find particu court must determine whether this properly interpreted that the trial court constitutionally lar child is unavailable.” Id. plain language of the rule. added). (emphasis at 1114 Justice Zimmer However, man, referring declaring Thomas further contends a statute all vic expert testimony competent that even if such or evi- tims of child abuse to be witnesses case, unnecessary in regardless age, § dence were this the trial Ann. 76- of see Utah Code finding still in un erred C.M. unavailable. further stated that “it is hard to 5— support argument, upon To he relies our how the court could all derstand find Seale, age decision in State v. 853 P.2d 862 children victim 1993). and, reason, case, testify persuaded incompetent In that we were not for that argument Webb, appellant’s child “was unavailable.” 779 P.2d at n. 7 added). agree (emphasis unavailable because her ‘total failure of We with these statements; children, age recollection at trial’ ... of a certain [and] all children might even at be un- cannot and found unavailable found should be (em- specific a witness’ includes situations-” Id. age in the absence on the basis added). phasis Rule 804 does not limit the to the findings by trial court as individu- may found testify situations in which witness be inability because of imma- al child’s Rather, it common instanc- Seale, unavailable. lists In the turity. See may unavailability in which occur. See case, es specific record contains find- instant Boyce, L. & N. inability Edward Kimball Ronald testify. The ings to C.M.’s (1996). Law art. at 75 questioned re- Utah Evidence judge personally C.M. and peatedly voiced his concerns about a broad 20 Trial courts have discretion inability testify. proceedings dealing with the in matters general particular and with be- witnesses above, rule As indicated they position cause from their are able to 15.5(l)(h) unavailability to de- does not limit information, special assess such as nonverbal pendency upon “medical or evi- psychological cues, impossible' which is difficult—not testimony,” —for expert allows a dence or but also reviewing glean courts to from record. unavailability under rule determination of stress, however, that this discretion does Evidence, of the Utah Rules allowing trial courts to unre- extend part: pertinent reads in servedly unhesitatingly accept entertain and (a) unavailability. “Unavaila- Definition unavailability. all claims of witness While bility as a witness” includes situations be nonex- we find the 804 definition to which the declarant: clusive, significant should shown caution by ruling exempted of the court on finding additional circumstances warrant- ground privilege testifying from ing unavailability. a grant of subject concerning the matter of the de- case, In the instant the trial statement; or clarant’s variety questions designed used a of direct persists refusing to con- memory at put ease and to test her and C.M. subject cerning matter the declar- cognitive ability. questions He asked her despite an of the statement order ant’s about courtroom and various items of so; court to do or dress, robe, clothing (including her and a (3) memory to a lack of the testifies uniform). police spe- He officer’s asked her subject matter of the state- declarant’s school, pets, her questions cific about her and ment; or toys. her all of doll and other To these to to is unable or occasionally questions, responded with C.M. hearing or at the because of death then answers, usually either one-or two-word existing physical or mental or illness head, just nodded her both the affirmative infirmity; or negative, response gave and in the or no hearing is absent from the and The on all. even allowed C.M. to sit proponent of the declarant’s statement lap her mother’s stand in an witness procure to has been unable declar- reply. It attempt to elicit a substantive is by process ant’s attendance or other rea- difficult determine from the record the sonable means. judge spent waiting amount of time for a reply questions; impossible to his it A is not unavailable as a witness declarant refusal, gauge responses body exemption, claim nonverbal or of lack however, memory, inability, language. judge, The all or due had absence is wrongdoing propo- spent this information at hand and a consid- procurement or of the explaining erable amount of time his con- nent of the declarant’s statement for the reasoning attorneys purpose preventing cerns and in- the witness from attending testifying. or volved. 804(a). recognize light ftxregoing analysis, 22 In

Utah R. Evid. While we “ability part “age” testify” that neither nor find no error on the of the trial court in exercising as a basis for unavail- its discretion and that C.M. specifically delineated 804, ability under rule we note that the lan- was unavailable on these bases. unavail- “ hastily guage ‘[ujnavailability ability ruling un- of the rule is that was made or culpatory informedly; any rate, after considerable effort and in nature. At the State concern, long “open policy” the court came to a reasonable con- has pursuant had an file upon uniquely pur- facts in its generally clusion based documents and evidence are given Accordingly, videotaped view. out-of- to defense counsel soon after the State See, Carter, properly e.g., was admitted into receives them. State v. 1995) (Utah pursuant (stating par- evidence to rule 15.5 section 76-5-411. ticular evidence State’s files available to through “open policy”); defendant file State’s Barnes, II. POTENTIAL DISCOVERY Parsons 871 P.2d 1994) AND POSSIBLE VIOLATION (stating prosecutor’s “open that under ERROR policy,” file defense received all evidence and simultaneously prosecutor documents ¶23 turn next to Thomas’s second receiving it); Archuleta, 850 P.2d at 1243 appeal: issue on whether the trial court (State provided copies defense with of evi- in permitting erred the State to cross-exam- pursuant “open dence policy”); file using allegedly ine letter Thomas withheld Worthen, State v. from the defense violation of Thomas’s 1988) (Howe, J., (“Prosecutors dissenting) discovery request. complains generally open their files defense counsel improperly Sep- the trial court ruled discovery.”). September Whether impeachment tember letter could be used for letter exculpatory inculpatory na- erroneously purposes Thom- overruled ture, it should have been turned over to objections surprise as’s lack of discov- At Thomas. pro- State insisted it ery. prior vided Thomas’s counsel with “at least ... possessed the disclosure that the State Discovery A. [September] strongly letter” and believed past, 24 In the we have stressed the copy September State sent a letter importance recognizing prosecu- that “the well, although his former counsel as no duty tion provide discovery materi- Despite record existed the file. request.” Hay, als the defense on State’s beliefs and its insistence to the con- (Utah 1993) (citing trary, documentary we have no evidence be- 16(a); Archuleta, R.Crim. P. fore us that indicates Thomas’s defense coun- (Utah 1993)). 1242-43 Further- past sel—either received —ever more, 3.8(d) of the Rules of Professional September the letter. We therefore find prosecutor that Conduct dictates shall that the improperly State acted in not fur- timely “[m]ake disclosure to the defense of nishing copy of the letter to Thomas’s all evidence or information known to the subsequent counsel. prosecutor negate guilt that tends to the of mitigates the accused or the offense.”3 The Allowing B. the Use the at duty Letter Trial State’s to make such “ex- disclosures of unrequested

tends to information that is or ¶ 26 Thomas further contends may exculpatory.” Hay, be 859 P.2d at 7 that trial the court committed reversible er (citations omitted). ror September when it allowed the letter to ¶25 Thomas also asserts that the upon be used at trial. concept Based nature, exculpatory letter complaining was that court is best situated deter what, the State was able any, to transform an impact mine error “exculpatory “impeachment letter” proceedings, into an will have on the see State v. Harmon, simply by “concealing” (Utah 1998); device” the letter un 956 P.2d 276 testimony. unclear, 6; Gardner, til after Hay, Thomas’s It is 859 P.2d at v. State 789 however, (Utah clearly 1989); whether this letter was ex- Speer, P.2d State emphasize unique responsibility gations wish to to see that the defendant is accorded prosecutor. prosecutor responsi- procedural justice guilt of upon "A has the and that is decided bility justice simply of a minister of and not the basis of sufficient evidence.” Utah R. Prof. [including] specific of an advocate ... obli- Conduct 3.8 cmt. (Utah IN STATE’S 1988), III. ERROR we re- will 750 P.2d INFORMATION prejudicial an error so only where verse error, that, it is absent the so substantial Finally, Thomas contends the result would reasonably probable that denying motion erred in his the trial court for defendant. more favorable have been verdict, asserting that for directed 276; Harmon, Hay, P.2d at See “incorrectly set out the information State’s 287; Gardner, 7; P.2d at State at regarding II the offense law on Count 1989); (Utah Speer, Lamper, 779 P.2d 1125 of a Child.” He Aggravated Abuse Sexual words, the “mere In other at 190. prove failed “the State asserts that since occurring outcome possibility” of a different information, every element of its each and instead, enough; not the evidence without contained in specifically those elements as must a different outcome “the likelihood 5—404.1(3)(F) (g) the Utah [of & section 76— sufficiently high to undermine confidence Code],” granted have the trial court should Knight, 734 P.2d State v. the verdict” for verdict. his directed motion added). 1987) (emphasis ¶29 However, we find that Thomas did ¶27 Here, September letter II, verdict on request a directed Count proving the factor in State’s not a critical was motion, I. only This denied on Count case; even was not apparently court, follows: the trial was worded as hearing using the letter before planning on Honor, could, I If Your would move jury testimony. The heard Thomas’s specifical- verdict the Court for directed regarding the ex testimony of both victims Honor, I ly, in that think the State Your abuse and identi manner of the tent and prove, elements of has failed to as far as jury heard the The ty of their abuser. prove I on or Count ... failed to regarding mother testimony of Thomas’s own 1995[,] ... July, the element about signature in confes handwriting Honor, date, July, I 4th Your believe as her concern sion letter well they failed to do that. to her. Addi ing confession Thomas’s oral tionally, suggest in what does unsuccessful, motion, though dealt had he way may he have altered defense alone; I there was no elements Count letter, possessed the save known the State any objections to elements mention made of By testify testified. that he would not have II. that this of Count “Absent indication story present an ing, he able to alternate it cannot be consid issue was raised presented jury, to to the rebut the evidence appeal.” ered the first time on him, jury against to allow 1986) (ci Nelson, 1353, 1357 credibility Further the evidence. omitted); Carver, see also Monson v. tations more, September letter itself was not (Utah 1996) (“We decline evidence; jury heard into admitted these additional claims because address the confession letter that the letter claimed not raised at general our rule that ‘issues solely to determine was lie and was written argued for the first time on trial cannot be turn the confes whether his mother would ” (quoting Lopez, appeal.’ State v. 886 P.2d light the police. the In of sion letter over to 1994))). presented overwhelming evidence amount of ¶ Furthermore, have jury, 30 we re is little likelihood that there object any peatedly held that “failure to at trial case have been outcome of the alleged consti Sep defects in the information to Thomas absent the more favorable challenge letter; opportunity in the verdict tutes of tember our confidence waiver John, v. appeal.” State its contents on not undermined. therefore conclude is (Utah 1989); 994, pro accord State v. prosecutor’s failure to that neither the (Utah 1985); Smith, 1106, or 700 P.2d copy of letter defense counsel vide Lairby, 699 P.2d cross-examining de State v. in his use of letter Marcum, 1984); prejudicial, see also State fendant was but instead amount (Utah 1988) (finding claim waiver of ed to harmless error. conviction, prejudicial of majority’s variance between information rush to affirm the object significant and evidence when defendant did not unjustified creates a trial). loophole against hearsay the rules evi- dence, utterly legislative policy subverts the ¶ reasons, foregoing 31 For the 15.5(l)(h), seriously embodied Rule any dealing not issue waived with questions the right of confrontation under grant court’s failure a directed Const, the Utah Constitution. See Utah art. regarding alleged verdict errors in Count II I, 12; § Lenaburg, information, any of the but has also waived (Utah 1989); Mannion, 434-36 dealing issue defects in the in- (1899). 512-13, 57 P. formation. We therefore decline to address majority’s opinion this issue. 35 The result of the that, future, is in the Rule 15.5 and safe- its light foregoing analysis, In of guards absolutely will have no effect because reject Thomas’s contentions and affirm the prosecutors and trial can admit courts child judgment and conviction. hearsay irrespective evidence of that rule. Nevertheless, agree I the conviction ¶ 33 Associate Chief Justice DURHAM affirmed, should be not because the trial was and Justice RUSSON concur Chief Justice error-free, holds, as majority but be- opinion. HOWE’s cause, end, in the the error did not affect the STEWART, Justice, concurring in the outcome of the trial.

result: § 36 Utah Ann. Code 76-5-411 states majority 34 The holds that C.M.’s child “a victim’s out-of-court statement” videotaped pretrial testimony may was admissible be admitted in three instances in sexual though cases, hearsay at trial even it though was and even hearsay.4 abuse even it is physically though 76-5-411(l)(c),5 § C.M. majority available testi- relies on 15.5(l)(h) fy. Rule permits of the Utah Rules of the admission aof child’s out-of- Criminal videotaped Procedure allows testi- it requirements declaration if meets 15.5(1) mony of child sex abuse victims limited of Rule Utah Rules of Criminal requirements But permits circumstances. of that Procedure. That rule the admission complied majority rule were not videotaped recording with.—as the of a of the (h) admits —so C.M.’s out-of-court accusations child sex victim. abuse Subsection 15.5(1) were admissible under that permits rule. Never- Rule the admission of such theless, the Court holds that the evidence evidence if the child is “unavailable” 804(a) entirely and, was admissible under an by new term is defined Rule of the Utah view, my inappropriate However, 15.5(l)(h) construction Rule Rules of Evidence. Rule 804(a) of the Utah In provides Rules of Evidence. its an additional instance “una- Ann.§ Utah Code 76-5-411 states: best be served admission that statement. making In this determination the shall evidence, Notwithstanding rule of child, maturity age and consider the regarding child victim’s out-of-court statement abuse, nature and duration the relation- sexual abuse of that child admissible as offender, ship of the child to the and the relia- although qualify evidence it does under an bility of the assertion and of the child. existing hearsay exception, if: (3) A statement admitted under this section (a) child available in court or party shall made available to adverse (3), 15.5(2) under Rule Utah Rules of sufficiently proceed- in advance trial or Procedure; Criminal ing, provide opportunity to him an to (b) testify if the child is not available to prepare to meet it. 15.5(2) (3), court or under Rule or Utah (4) section, purposes For of this is a child Procedure, Rules of Criminal is there other person age years. under the of 14 abuse; corroborative (c) or evidence qualifies the statement for admission un- majority 15.5(1), rely 5. on The does not and cannot sub- der Rule Utah Rules of Criminal 15.5, (2) (3) or of Rule nor sections does it assert Procedure. (2) any that evidence was an Prior to admission of statement corroborative essential as- into section, pect majority judge evidence under this shall of defendant's conviction. The 15.5(l)(h). justice opinion determine whether the interest of will refers Rule may the situations in which wit A does not limit vailability” abuse cases. child in child unavailable,” finds, may that be found if trial court ness also be unavailable evidence statements were admissible. psychological or therefore C.M.’s “based on medical ruling simply contrary to testimony, the child would This is where expert or narrowly or mental strain have serious emotional law is. Courts construed if suffer testify (Emphasis “unavailable,” add- limiting appli at trial.” required to its definition ed.) specifically to the five listed Rule cation 804(a) Johnson, People See situations. directs the trial specifically The 517 N.E.2d Ill.2d 115 Ill.Dec. unavailability judge under to determine (1987); advisory com Fed.R.Evid. 804 15.5(l)(h) or “based on medical Rule test rules, proposed on Note to mittee’s notes testimony.” expert or psychological evidence (“Five (a) instances of unavaila Subdivision qualified to some evidence from one Absent bility specified_”); Jo Ellen are S. detrimental emotional comment on child’s Comment, McComb, Unavailability and Ad by testifying, or mental strain caused missibility: Are a Child’s Out-of-Court child unavailable judge not rule a should About Sexual Abuse Admissible Statements 15.5(l)(h). State v. Matsa Rule under Cf. Trial?, Testify at the Child Does Not 1991). mas, There if Ky. (1987) (“[Unavailability] L.J. The trial no evidence this case. was such strictly according been construed defi not offered that “the State has stated 804(a).” (footnotes nition in Rule Federal any psychological evidence or ex medical or omitted)). But see Edward L. Kimball & testimony would suffer seri pert [C.M.] Boyce, N. Utah Evidence Law art. Ronald required to ous emotional or mental strain (1996).6 Additionally, the hear when candidly acknowledged testify at He trial.” say testimony person of an unavailable “my ruling unavailable] her [for bases defendant, against a criminal courts used my of [her]” on own observation have been “unavailability” typically apply the stan on going “I’m to have walk out and that stringently any impingement dard avoid that I’m thin ice there to the extent not sure rights. on the Sixth Amendment defendant’s competent that I even need medical testimo Weissenberger, Federal Rule See Glen ny tell me that this child would be harmed 80 n : From Hearsay Evidence Admissible by competent A of una examination.” Declarant, 55 U. Cin. L.Rev. Unavailable 15.5(l)(h), vailability ab under Rule (1987) cases). 1079,1082,1087-88 (citing Ac evidence, error, as ma sence of such I cordingly, limit the of “un definition jority recognizes. indeed 804(a) speci under Rule five available” Furthermore, C.M. was unavail- fied situations. 804(a) Rule Rules of able under sum, 40 In C.M. was not unavailable to five did fit Evidence. She 804(a) testify at trial under Rule of the Utah hearsay in which a declarant circumstances 15.5(l)(h) Rules of Evidence or Rule Rule may be found be unavailable. Under I submit Utah Rules of Criminal Procedure. 804(a), may “unavailable” witness be found majority finding that the errs in that C.M. (1) invoking the witness’ based on videotaped “unavailable” and that her was (2) privilege, evidentiary of an refusal pretrial could be used at trial. (4) memory, testify, lack death or infirmity, inability compel the or the error, Nevertheless, view, my witness’ attendance. harmless, and Thomas’ conviction should ¶39 majority properly therefore be affirmed. “'Harmless’ errors holds 15.5(1) which, permit although properly pre- are Rule did not admission ‘errors then, presented hearsay, justify appeal, below and are admission served statements, sufficiently inconsequential holds for that we conclude C.M.’s out-of-court history no the first time our that “Rule 804 there is reasonable likelihood that However, 804(a) Boyce offer is nonexclusive. Professors Kimball and support no at all for their assertion that Rule proceed error affected the outcome 1999 UT 8 ” Hamilton, ings.’ Utah, STATE of Appellee, Plaintiff and (Utah 1992) Verde, (quoting (Utah 1989)); R. see Evid. “ 30(a). 103(a); Utah R.Crim. P. ‘For an PLIEGO, Robert Daniel Defendant require reversal, error likelihood of a Appellant. sufficiently high different outcome must be ” undermine confidence in the verdict.’ No. 970289. Hamilton, 827 P.2d at 240 (quoting State v. Supreme Court of Utah. (Utah 1987)). Knight, 734 P.2d supporting verdict, “The more evidence Jan. likely the less there was harmful error.” Id.

¶42 supporting Because the evidence case, in say

conviction this I cannot that the in court’s error C.M. unavailable admitting videotaped testimony her “un-

dermines confidence in the verdict.” Al-

though disputed, prosecution put forward

strong evidence that Thomas had confessed

twice to the sexual assault —both in a written phone

letter and conversation S.M., sister,

mother. C.M.’s older testified

that C.M. was night the room the S.M., putting assaulted both the ac- physical proximity

cused and the victim in Further, night question. moth- C.M.’s that, assault, shortly

er testified after the she unexplained

had taken to a C.M. doctor for

pain C.M. suffered when she urinated and genital

redness her area. Even without videotaped testimony, is suffi- there verdict, support jury’s

cient evidence evidentiary

and the court’s error does not

undermine confidence that verdict.

¶43 It follows the conviction should be

affirmed.

¶ 44 Justice ZIMMERMAN concurs in concurring

Justice STEWART’s in the result

opinion.

Case Details

Case Name: State v. Thomas

Court Name: Utah Supreme Court

Date Published: Jan 12, 1999

Citation: 974 P.2d 269

Docket Number: 970068

Court Abbreviation: Utah