State v. Eldredge , 101 Utah Adv. Rep. 15 ( 1989 )

HOWE, Associate Chief Justice

(dissenting):

I dissent on the ground that the trial court committed reversible error in failing to make the determination required by Utah Code Ann. § 76-5-411(2) (Supp.1988) that “the interest of justice will best be served by admission” of out-of-court statements made by the child victim regarding sexual abuse.

Six days prior to trial, the prosecutor served on defendant’s counsel written notice of the State’s intent to use hearsay testimony at the trial. That notice specifically stated that it was given pursuant to section 76-5-411 and advised defendant’s counsel that the child’s mother, his grandmother, and Thomas Harrison would testify concerning statements made to them by the child regarding sexual abuse. In response, defendant’s counsel the following day filed his written “Motion to Limit Testimony.” In that motion, he moved the trial court for a pretrial order limiting the use of hearsay testimony to which the State had given him notice. The first three grounds for the motion were:

1. The proposed hearsay is inconsistent with the child’s testimony at the preliminary hearing.

2. There is not corroborative evidence of the child’s statements and the alleged hearsay statements contradict the child’s testimony.

3.Because of the age of the child at the time of the alleged offense the alleged statements are unreliable.

(Emphasis added.) Three other grounds were also stated: that the use of the hearsay statements would deny defendant his right of confrontation under the United States and Utah Constitutions; that section 76-5-410, which makes the child a competent witness, violates those constitutions since the child is an incompetent witness; and that sections -409 and -410 should not be relied upon in this action since the alleged offenses took place before their enactment and the admission of the child’s testimony would be ex post facto and violate the United States and Utah Constitutions.

The first three grounds of the motion quoted above were clearly based on the provision in section 76-5-411(2) which provides that in determining whether to admit the out-of-court statements of the child,

The judge shall consider the age and maturity of the child, the nature and duration of the abuse, the relationship of the child to the offender, and the reliability of the assertion and of the child.

(Emphasis added.)

The motion was heard the morning of the first day of trial. Much of the argument made by defense counsel and by the prosecutor centered around whether the changes effected by sections 76-5-410 and -411 were ex post facto. Defense counsel also sought to have the court examine the child victim in chambers to determine his competency to be a witness and to restrict the use of leading questions to him. While these arguments did not focus on the requirements of section 76-5-411(2) set forth above, other argument did specifically focus on the admissibility of the hearsay statements made by the child and the effect of section -411. At one point, defense counsel said:

I have filed a pretrial motion to limit them from using hearsay, as soon as I received their notice to intend to use the hearsay.

Later, the prosecutor said:

I would state, your honor, it is clear that this hearsay is applicable to our sitúation. I would also add that it is clear that the legislature intended that cases be handled in this manner and I think in drafting the present statute, the legislature was taking into account the reliability, the inherent source of reliability that there is in these sort of hearsay statements, where a child will say to his mother after something has happened to him something like in this case.... I would indicate to the court that there is a certain inherent believability, reliability, if you will, about this hearsay testimony that makes it similar to the other hearsay exceptions. And I believe this is why it has been treated differently and I would suggest to the court that that is the intention.

In response, defense counsel stated:

What they [the prosecution] are attempting to use here is a complete change in the rules. Under this section 411, it talks about hearsay. If you read that section of the law, it is such a drastic change, they had to enact certain procedures about the Judge’s findings. It is such a change against the traditional laws about using out-of-court hearsay statements in situations such as this....

At the close of counsel’s argument, the court ruled that “they can use the hearsay testimony.... The court is going to grant to the defense the objection at the outset, a continuing objection as to any hearsay questions which do come in throughout the course of the examination of the child.” At trial, defense counsel on at least two occasions objected to the admission of out-of-court statements made by the child, and in each case, the court overruled the objection based on its earlier pretrial ruling.

In light of the above, I conclude that the trial court should have been alerted to its duty to make the reliability determination required by section 76-5-411(2). The court had before it defendant’s written motion to limit testimony, which was filed in response to the State's notice of intent to use hearsay statements made by the child. Three of the grounds of defendant’s motion were that the child’s statements were unreliable. Defendant’s written motion, together with the argument of both the prosecutor and defense counsel set out above, should have alerted the trial court to the necessity of making the determination required by section -411(2). As was pointed out in State v. Nelson, 725 P.2d 1353 (Utah 1986), the admission of a child victim’s hearsay statements constitutes a drastic departure from our rules of evidence, and the legislature intended that those statements be admissible only after a very careful screening made by the trial court to determine, among other things, their reliability. I agree with the majority that because our decision in State v. Nelson had not then been handed down, the trial court may not have realized the necessity of making written findings. However, a casual reading of section -411 makes it clear that the court should make a determination of the reliability of the child victim’s testimony. I find nothing in the record where the trial court did so. The State concedes that the trial court did not rule on the reliability of the child’s statements. The hearsay statements were admitted without any screening to determine if the “interests of justice will best be served” by their admission. I strongly disagree with the majority that defense counsel did not focus the trial court’s attention to reliability. Having made a written motion to exclude the hearsay statements and having referred the court to section -411 in his argument on that motion, it is difficult for me to understand what more he could have done to exact a reliability determination from the trial court. Our rules do not require counsel to object to the denial of a motion by the court in order to preserve the point on appeal, as the majority seems to require.

Even if it is conceded that defendant did not sharply focus the trial court’s attention to the requirements of section -411(2), I would hold that the error was plain error and that we should reach it in this appeal. I believe that it was plain error because the trial court had its attention called to sections -410 and -411, and it is inconceivable to me that a child abuse case, with its radical departure from the rules of evidence, could be tried without giving those sections notice. Even the most cursory glance at section -411 would alert the trial court to the necessity of determining the reliability of the child’s out-of-court statements.

I conclude that this error was prejudicial. The child at the time the alleged offenses occurred was only two years of age. He was only five years of age at the time of trial. Thus, in his testimony at trial, he was recalling incidents which occurred between two and three years earlier. A few months before the child turned three, his mother brought a petition to modify the decree of divorce to limit defendant’s visitation rights with the child. Even though her testimony at trial in the instant case placed three of the alleged sexual abuse incidents prior to the filing of her petition, nothing was mentioned or suggested in the petition about sexual abuse. Most importantly, however, the child’s testimony continually changed, and he contradicted himself to the point of even denying that any abuse ever took place. There was no independent evidence which corroborated that sexual abuse ever took place other than statements the child allegedly made to his mother, his grandmother, and Mr. Harrison. In view of these circumstances, the section -411 determination as to the reliability of the child’s out-of-court statements was imperative.

STEWART, J., concurs in the dissenting opinion of HOWE, Associate C.J.

STEWART, Justice

(dissenting):

I concur with Associate Chief Justice Howe’s dissenting opinion. I write separately because I disagree with the majority’s discussion of the plain error rule. The majority states that the standard for determining whether there is plain or manifest error is “from our examination of the record, we must be able to say that it should have been obvious to a trial court that it was committing error.” The requirement that the error be plain to the trial court arises from the majority’s concern that, while the ends of justice should “not be lost sight of in the pursuit of procedural regularity,” nevertheless, the trial court should “legitimately be said to have had a reasonable opportunity to address and correct it, even in the absence of an objection.”

The majority opinion quite properly points out that the fundamental fairness of a trial may not be sacrificed to procedural technicalities based upon a defendant’s failure to object in the trial court. However, if the majority's language is to be taken at face value, the implication of the majority rule is that plain error — no matter how egregious — cannot be noticed and acted upon by this Court if the trial court would not have recognized the error as being plain.¹ In truth, this Court has never adopted such a stingy application of the plain error doctrine. It is also clear that we have never indicated that we would search the record for error. It can hardly be maintained that an appellate court in the proper conduct of its business can, or should, spend the time searching for error in a case and in effect re-lawyer the entire matter from the ground up. Quite clearly, we have on a number of occasions noticed plain error and reversed trial court rulings when it was perfectly obvious that the error was not plain to the trial court. Indeed, in State v. Wood, 648 P.2d 71 (Utah), cert. denied, 459 U.S. 988,103 S.Ct. 341, 74 L.Ed.2d 383 (1982), we reversed the trial court’s standards for determining when the death penalty should be applied even though the trial court thought that it was carrying out the prior opinions of this Court. Indeed, the trial court’s position in that case was not without foundation. And in State v. Stenback, 78 Utah 350, 365, 2 P.2d 1050, 1056 (1931), this Court addressed a point that had not been raised or argued on appeal, even though an objection had been made in the trial court and improperly sustained. Thus, the error, from the point of view of plain error analysis, was counsel’s failure to raise on appeal the trial court’s error. Counsel’s error would not, and could not, have been known by the trial court.

As far as plain error is concerned, the doctrine clearly goes beyond the scope of rules of procedure. It is a doctrine which goes to the very heart of the adjudicatory process and therefore involves, at least in most cases, fundamental constitutional questions. All that our cases have required by way of standards for invoking the doctrine is the rather general requirement that the error must be palpable and “made to appear on the face of the record and to the manifest prejudice of the accused....” State v. Cobo, 90 Utah 89, 102, 60 P.2d 952, 958 (1936).

If the standard is drawn too narrowly, we simply put off consideration of reversible error until the case returns on a writ of habeas corpus. At that time, under the standards which we employ in those cases, we would then be compelled to entertain the question of whether the trial was fundamentally fair, irrespective of whether there were appropriate objections. See, e.g., Chess v. Smith, 617 P.2d 341 (Utah 1980). There simply is no reason for delaying such an inquiry; indeed, the whole thrust of criminal procedure in the area of appellate review of criminal convictions has been to try to avoid, where possible, collateral attacks on criminal convictions. For that reason, it makes sense to address at the earliest possible stage errors which might lead to reversals.

Furthermore, from the point of view of the liberty of individuals involved, it is intolerable to tell those persons who are imprisoned as a result of legal error that a procedural error on the part of their attorney has resulted in the forfeiture of rights, simply because the error, manifest though it may be, was not plain to the trial judge. I certainly cannot embrace that concept; I doubt that the majority embraces it, but it seems to me that the effect of the majority opinion is to reach that result.

1 . It is true that the majority attempts to hedge its rule by declaring that the obviousness and harmfulness standards are related and by stating that "an error may be so harmful that we should exercise our discretion to correct it regardless of the lack of either an objection or objective obviousness.” Majority opinion at note 11. Despite the majority’s protestations that it is merely attempting to articulate a test and "spell out the considerations that will guide our discretion in determining whether to review a harmful error,” the majority opinion does not clarify the standard of review to be applied in such cases for either members of the bar or this Court. In fact, the majority opinion sets one standard in the text and then retreats from that standard in footnotes.

Furthermore, the standard articulated in the text by the majority erects an artificial barrier before defendants raising an issue on the basis of plain error. In my view, the Court should not in the future use the majority’s procedural barrier to justify not reaching issues which should be reached on the basis of plain error simply because a majority of the Court cannot agree that the error was or should have been obvious to the trial court.