State v. Karpenski ( 1999 )

Armstrong, A.C.J.

(concurring in part, dissenting in part) — I concur in the majority’s conclusion that Z was not competent at the time of trial. Thus, Karpenski’s conviction must be reversed. But I disagree with the majority’s discussion and resolution of the issue of Z’s competence at the time of the out-of-court statements. I would remand and allow the parties to litigate this issue fully before the trial court. This would also require reexamination of the reliability of Z’s out-of-court statements under the Ryan factors.¹⁶⁸

Karpenski did not object to the out-of-court statements on the basis of Z’s competence at the time of making the statements. Rather, in its trial brief the State raised the issue of admissibility of the out-of-court statements under RCW 9A.44.120. Karpenski then raised the issue of Z’s competence in his trial brief, citing State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967), which dealt only with the competence of a witness at trial. And at the trial court hearing on competence and reliability of the statements, Karpenski made no specific objection to the admissibility of the statements on the basis of Z’s competence at the time of making the statements. Because of this, the trial court did not rule on Z’s competence at the time of the statements. Generally, on appeal a party may not challenge the admissibility of evidence on grounds not raised in the trial court. State v. Guloy, 104 Wn.2d 412, 705 P.2d 1182 (1985). In spite of this procedurally flawed record, the majority considers the question of Z’s competence at the time of the statements and then decides it on the record before us. This is inappropriate because the State has not had the opportunity to present evidence on the question.

I also disagree with the majority’s reasoning in resolving the issue of Z’s competence at the time of the out-of-court statements. The only question as to Z’s competence arises from his apparent inability to distinguish truth from falsity. The majority reasons that this is a result of “his youth and immaturity.”¹⁶⁹ The majority then concludes that Z was even more youthful and immature at the time of the statements and therefore he was incompetent then and presumably at all times before the trial. But no evidence supports the statement that Z’s incompetence resulted solely from his youth and immaturity. It is entirely conceivable that at least part of Z’s difficulty with truth and falsity results from the situation he is in at the time, for example the courtroom setting as opposed to meeting with a trusted adult. Further, Z’s difficulty with knowing the truth may be related to the emotional turmoil in his fife at the time. In short, Z may be competent at times and in certain settings and not competent at other times and in other settings.¹⁷⁰ We do not know because the State has not had the opportunity to fully develop and present evidence on the matter.

The majority supports its conclusion as to Z’s competence at the time of the statements by analyzing the statements themselves. But this does not supply the missing information. The statements are inconsistent, not unusual with young victims, and the circumstances suggest that much of the questioning of Z was leading and suggestive. But the critical question with Z is whether at the time of statements he knew the difference between truth and falsity. If he did, then he was competent at the time. And no amount of analysis of the statements in this record can answer this question. This, again, is because the issue was not fully litigated in the trial court.

Finally, because the Ryan factors overlap to some extent with the witness competence factors—particularly Z’s character for veracity and his ability to. understand truth and falsity—the trial court on remand should re-evaluate the statements reliability in light of the evidence produced to establish his competence.

168 State v. Ryan, 103 Wn.2d 165, 203, 691 P.2d 197 (1984).

169 See supra note 163 at 120.

170 The majority responds to this problem by arguing that the record does not support the conclusion that Z’s difficulty is situational. See supra note 163 at 120. I agree. But the record also does not support the majority’s conclusion that Z’s difficulty is due only to youth and immaturity. Again, this is because the State has not had the opportunity to present evidence on the cause of Z’s difficulty.