State v. Price

Alexander, C.J.

(dissenting) — I disagree with the majority’s conclusion that R.T. was available as a witness for purposes of the confrontation clause. A witness who testifies only that she cannot remember the contents of her hearsay statements or the acts described in those statements cannot be fully and effectively cross-examined. Thus, admission of those hearsay statements, if they are testimonial, violates the defendant’s right to confrontation, afforded by the Sixth Amendment to the United States Constitution. Because the majority holds that R.T. was available and her testimony satisfied the requirements of the confrontation clause, I respectfully dissent.

¶36 As the majority notes, the confrontation clause precludes the admission of prior statements only if the declarant is unavailable at trial. Thus, the central issue here is whether R.T. was available at trial, for purposes of the confrontation clause. In State v. Rohrich, 132 Wn.2d 472, 939 P.2d 697 (1997), we laid out the test for availability of an alleged victim of child molestation who takes the stand at trial, holding that she must “give testimony describing the acts of sexual contact alleged in the hearsay.” Id. at 474. The majority applies a more limited test because it considers the lack of prosecutorial shielding in this case to distinguish it from Rohrich.

¶37 I disagree with the majority’s determination that “the key to the Rohrich case” was “prosecutorial shielding.” Majority at 648. Our holding in Rohrich was clear: “We conclude a child does not ‘testify’... when she does not give testimony describing the acts of sexual contact alleged in the hearsay.” Rohrich, 132 Wn.2d at 474. We further explained, “The opportunity to cross-examine means more than affording the defendant the opportunity to hail the witness to court for examination. It requires the State to elicit the damaging testimony from the witness so the defendant may cross-examine if he so chooses.” Id. at 478 (footnote omitted). The decision focused not on whether the prosecution had actively shielded the witness from cross-examination, but rather on whether the witness had actively testified about the hearsay statements and the acts on which they were based. When a witness fails to do so, it prevents the defendant from fully exercising his or her right to cross-examine the witness. Id. at 478-79.

¶38 In State v. Clark, 139 Wn.2d 152, 985 P.2d 377 (1999), I dissented because I felt the majority incorrectly applied Rohrich. In my dissent, I concluded that a child witness who took the stand and denied her prior hearsay statements did not testify for purposes of the confrontation clause because she did not describe the events forming the basis for those statements. For that reason, I found that admission of her statements violated the defendant’s right to confrontation. I still believe that this is the proper interpretation of our holding in Rohrich. To satisfy the confrontation clause, a witness must “describe [ ] the acts of sexual contact alleged in the hearsay” or the hearsay cannot be admitted. Rohrich, 132 Wn.2d at 481.

¶39 Here, even more than in Clark, the child witness, R.T., failed to meet this requirement. As Judge David H. Armstrong explained in his dissent below:

Although the State technically asked about the alleged abuse and her hearsay statements, R.I.T.’s responses provided no information on which she could be effectively cross-examined. Unlike the victim in Clark, R.I.T. did not say that her statements were lies; she gave no information at all. Accordingly, she was insulated from any meaningful cross-examination on bias, motive, or her ability to accurately relate what happened. In fact, cross-examining R.I.T. would likely produce testimony incriminating Price ....

State v. Price, 127 Wn. App. 193, 209, 110 P.3d 1171 (2005) (Armstrong, J., dissenting) (citation omitted). This put petitioner in precisely the same impermissible position we described in Rohrich: having to call R.T. as his own witness or waive his right to confrontation.

¶40 Since we decided Clark, the United States Supreme Court reiterated the centrality of the opportunity to cross-examine witnesses in a confrontation clause analysis. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The Court held in Crawford that testimonial hearsay by a declarant absent from trial can be admitted only if the declarant is unavailable and the defendant had an opportunity to cross-examine the declarant. Id. at 54.

¶41 The majority points to a footnote in Crawford that says there is no confrontation clause problem with admitting testimonial hearsay if “ ‘the declarant appears for cross-examination at trial.’ ” Majority at 647 (quoting Crawford, 541 U.S. at 59 n.9). The majority believes that this case is the sort envisioned by that note. But Crawford requires more than mere physical presence of a declarant; it declares that the confrontation clause requires an opportunity to cross-examine a witness. Although a defendant is not guaranteed “cross-examination that is effective in whatever way, and to whatever extent” he or she wants, Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985), the opportunity for cross-examination must be more than a mere sham. The Crawford decision refers us to California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970), which held that hearsay statements are only admissible where the declarant is “subject to full and effective cross-examination.” R.T. was not subject to effective cross-examination because she did not describe the acts alleged in her prior statements, swear that the statements were truthful when made, or even affirm having made the particular statements at issue. In short, R.T.’s testimony provided no information on which she could be effectively cross-examined.

¶42 However, under Crawford, petitioner’s right to confrontation was violated only if R.T.’s prior statements that were admitted amounted to testimonial hearsay. The second question in this case therefore — one that the majority does not reach — is whether R.T.’s prior statements were testimonial hearsay. R.T. made separate statements to her mother and to a detective, which we must look at independently.

¶43 In State v. Shafer, 156 Wn.2d 381, 128 P.3d 87 (2006), we held statements made to a mother by a child victim of molestation were nontestimonial. In that case police were not involved, the statements were essentially spontaneous, and the child “had no reason to expect that her statements would be used at a trial.” Id. at 390. We also noted that Crawford categorized “casual remarks made to family, friends, and nongovernment agents” as generally nontestimonial. Id. at 389.

¶44 As in Shafer, R.T.’s statement to her mother was made spontaneously and outside the presence of police. R.T. was evidently complaining to her mother of pain, in her home one night before bed. In such a context, neither R.T. nor a reasonable person in her position would have had any reason to expect her statement to be used in a trial. Thus, R.T.’s statement to her mother was nontestimonial, and its admission did not implicate petitioner’s right to confrontation.

¶45 However, R.T.’s statement to the detective falls squarely within the Supreme Court’s minimal definition of testimonial hearsay. “Whatever else the term covers,” the Court stated, “it applies at a minimum to prior testimony ... and to police interrogations.” Crawford, 541 U.S. at 68. R.T.’s statement to the detective was made in response to the detective’s questions during an interview conducted in anticipation of a potential trial. Thus, it falls within the category of police interrogations and constitutes testimonial hearsay.

¶46 Since R.T.’s statement to the detective was testimonial hearsay, it should have been admitted only if R.T. were “subject to full and effective cross-examination,” Green, 399 U.S. at 158, or if R.T. were unavailable and petitioner had a prior opportunity to effectively cross-examine her. Because I find that R.T. was never subject to full and effective cross-examination, I would hold that admission of her statement to the detective and the tape of that interview violated petitioner’s constitutional right to confrontation. Accordingly, I would reverse the Court of Appeals as to the statements made to the detective and remand for a new trial.

C. Johnson and Chambers, JJ., concur with Alexander, C. J.