State v. C.J.

Sanders, J.

(dissenting) — Inexplicably, the trial court found B.K. incompetent to testify at trial because he could not understand the difference between truth and falsity while, at the same time, the court admitted as “reliable” earlier hearsay statements made by the same child when he was even younger. These hearsay declarations from an incompetent witness were used to convict a 13-year-old girl of first degree child molestation. The Court of Appeals saw something wrong with this picture, and so do I.

That court concluded the trial court should not have admitted the hearsay statements without first finding that when B.K. “made the statements, he understood the difference between a truthful statement and a false statement, or his obligation to speak truthfully about the incident,” and reversed. State v. C.J., 108 Wn. App. 790, 797, 32 P.3d 1051 (2001). It held: “before the court may admit a child’s hearsay statement for a witness who is -unavailable due to incompetency, the trial court must determine both whether the witness was able to comprehend and truthfully relate the events described in the statement and, whether the statement satisfies the reliability requirements of RCW 9A.44.120.” Id. at 796-97 (citing Jenkins v. Snohomish County Pub. Util. Dist. No. 1, 105 Wn.2d 99, 102, 713 P.2d 79 (1986); State v. Ryan, 103 Wn.2d 165, 173-74, 691 P.2d 197 (1984); State v. Karpenski, 94 Wn. App. 80, 112-13, 971 P.2d 553 (1999)).

But our majority reverses the Court of Appeals and reinstates the conviction of B.K’s 13-year-old female cousin. The majority concludes there is no need to show contemporaneous ability to comprehend or truthfully relate the events described in the statement to comply with RCW 9A.44.120, majority at 675-76, notwithstanding this statute expressly conditions admission of child hearsay statements on a threshold determination of reliability. The majority holds compliance with the statute does not require the hearsay declarant even be competent when the statement was made, nor that the declarant be able to distinguish between truth and lies, and appreciate the difference. See majority at 685. I find this logic a bit hard to fathom.

The majority treats the question before the court as merely a matter of divining legislative intent and then furthering it. But I see no evidence the legislature intended courts to admit hearsay declarations from an incompetent witness who cannot distinguish truth from fantasy. And if that was the legislature’s intent, the United States Constitution’s sixth amendment confrontation clause and article I, section 22⁴ of our state constitution may have something to say about it.

In pertinent part RCW 9A.44.120 provides:

A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, . . . not otherwise admissible by statute or court rule, is admissible in evidence in . . . criminal proceedings, including juvenile offense adjudications, in the courts of the state of Washington if:

(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and

(2) The child either:

(a) Testifies at the proceedings; or

(b) Is unavailable as a witness: PROVIDED, That when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

In sum, the necessary elements to prove as a condition precedent to admitting the hearsay declaration of a child under age 10 are: The statute’s elements track United States Supreme Court confrontation clause jurisprudence. See State v. Rohrich, 132 Wn.2d 472, 939 P.2d 697 (1997) (legislature intended the child hearsay statute to be constitutional and carefully drafted it to avoid any confrontation clause problems). Statutes should be construed consistently with the constitution when reasonable to do so. In re Pers. Restraint of Young, 122 Wn.2d 1, 41, 857 P.2d 989 (1993).

(1) the statement is reliable; and

(2) (a) the child testifies, or

(b) is unavailable, in which case there must be corroborative evidence of the act.

INDICIA OF RELIABILITY

Both RCW 9A.44.120(1) and the confrontation clause require the proponent of hearsay statements to show “sufficient indicia of reliability.” RCW 9A.44.120(1); Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). Roberts explained:

In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

Roberts, 448 U.S. at 66. The Court further noted that the indicia of reliability provided must be sufficient to “ ‘ “afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement.” ’ ” Id. at 65-66 (quoting Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S. Ct. 2308, 33 L. Ed. 2d 293 (1972) (quoting California v. Green, 399 U.S. 149, 161, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970))).

With respect to child hearsay, Idaho v. Wright, 497 U.S. 805, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990) holds that the showing of “ ‘particularized guarantees of trustworthiness’ ” must focus on circumstances surrounding the making of a hearsay statement which show the hearsay statement to be particularly worthy of belief. Id. at 819.

Wright specifically held the relevant circumstances do not include corroborative physical evidence such as medical evidence of abuse. Id. at 824. The Court noted, “[corroboration of a child’s allegations of sexual abuse by medical evidence of abuse, for example, sheds no light on the reliability of the child’s allegations regarding the identity of the abuser.” Id. We reached a similar conclusion in Ryan, holding “[ajdequate indicia of reliability must be found in reference to circumstances surrounding the making of the out-of-court statement, and not from subsequent corroboration of the criminal act.” Ryan, 103 Wn.2d at 174.

The emphasis in a reliability determination is on the truthfulness of the declarant: “[I]f the declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility, then the hearsay rule does not bar admission of the statement at trial.” Wright, 497 U.S. at 820 (citing 5 John Henry Wigmore, Evidence § 1420, at 251 (James H. Chadbourn rev. ed. 1974)). “[T]he unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.” Id. at 822. In short, the truthfulness and trustworthiness of the declarant must be shown to establish the hearsay is reliable.

This requirement is not met where a child is too young to appreciate the difference between truth and fantasy.⁵ The statements of children who are incompetent due to age to distinguish between truth and falsity are inherently unreliable. The Court of Appeals recognized this and correctly held it must be shown the child was able to distinguish truth and falsehood at the time the statement was made for it to be reliable. C.J., 108 Wn. App. at 796-97. To hold otherwise is to stray from the holdings of the United States Supreme Court and to weaken the protections afforded defendants by the confrontation clause and article I, section 22 of our state constitution.

More should be said about the majority’s misreading of State v. Ryan. The majority holds that no determinations about contemporaneous competency need be made under RCW 9A.44.120. See majority at 675. This is not only wrong on its face but directly contrary to our holding in Ryan. Ryan stated unequivocally, “If the declarant was not competent at the time of making the statements, the statements may not be introduced through hearsay repetition.” Ryan, 103 Wn.2d at 173 (citing 5 Wigmore, supra, § 1424, at 304).

The majority treats this as no more than dicta, arguing that Ryan never actually applied any competency standard. Majority at 683. But if dicta, it was well reasoned dicta. The Ryan court first discussed the requirement: “ ‘The better-reasoned cases seem to require that, with the exception of res gestae utterances, all hearsay statements introduced under any exception to the [hearsay] rule should be made by someone competent as a witness at the time the statement was made.’ ” 103 Wn.2d at 174 (quoting Charles F. Stafford, The Child as a Witness, 37 Wash. L. Rev. 303, 307 (1962)). The court also quoted Wigmore as support for the requirement:

“The hearsay rule is merely an additional test or safeguard to be applied to testimonial evidence otherwise admissible. The admission of hearsay statements, by way of exception to the rule, therefore presupposes that the assertor possessed the qualifications of a witness ... in regard to knowledge and the like.”

Id. at 173 (emphasis omitted) (quoting 5 Wigmore, supra, § 1424, at 255).⁶ Then the court applied the requirement: “The trial court did not determine whether the children were competent when they made the statements. If they were not, their statements must be excluded as being unreliable.” Ryan, 103 Wn.2d at 174. The rule was both expounded and applied, contrary to the majority’s assertion.

Several Court of Appeals, Division One opinions have suggested Ryan’s contemporary competency requirement has been called into question by State v. John Doe, 105 Wn.2d 889, 719 P.2d 554 (1986). See, e.g., State v. Hunt, 48 Wn. App. 840, 845-46, 741 P.2d 566 (1987); State v. Gribble, 60 Wn. App. 374, 382, 804 P.2d 634 (1991); In re Dependency of S.S., 61 Wn. App. 488, 495, 814 P.2d 204 (1991) (following Gribble). However, the suggestion that Doe undermines Ryan is mistaken. Doe held that lack of competency at trial did not foreclose admission of a hearsay statement. Doe, 105 Wn.2d at 896. We held that “Reliability does not depend on whether the child is competent to take the witness stand, but whether the [contents of] and circumstances surrounding the statement indicate it is reliable.” Doe, 105 Wn.2d at 896. Doe is consistent with Ryan. Both decisions recognize that reliability of a statement must be determined with respect to the time when the statement was made. Doe, 105 Wn.2d at 896; Ryan, 103 Wn.2d at 173.

The Hunt opinion also found that Ryan intended competency to be understood as only a showing the declarant was able to receive just impressions of the facts. Hunt, 48 Wn. App. at 844. This narrow reading is not supported. Ryan said that inability to receive just impressions of the facts was “[o]ne of the reasons for finding a child incompetent . . . .” 103 Wn.2d at 173. The court defined competency more broadly: “Competency . . . means that the witness ‘has sufficient mental capacity to understand the nature and obligation of an oath and possessed of sufficient mind and memory to observe, recollect, and narrate the things he has seen or heard.’ ” Id. at 171 (quoting State v. Moorison, 43 Wn.2d 23, 28-29, 259 P.2d 1105 (1953)). Ryan was very clear that its reasoning applied to competence as a witness: “ ‘The better-reasoned cases seem to require .. . hearsay statements introduced under any exception to the rule should be made by someone competent as a witness at the time the statement was made.’ ” Ryan, 103 Wn.2d at 174 (quoting Stafford, supra, at 307). Thus, these departures from our holding in Ryan are not justified by Ryan itself or by State v. John Doe⁷

AVAILABILITY

In addition to reliability, both RCW 9A.44.120(2) and the confrontation clause require a declarant either testify or be “unavailable” before his or her hearsay statements may be admitted. Roberts, 448 U.S. at 65. However, the meaning of “unavailable” is not equivalent under the confrontation clause and ER 804. The confrontation clause requires that “the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” Roberts, 448 U.S. at 65. RCW 9A.44.120(2) similarly states that “[t]he child either: (a) Testifies at the proceedings; or (b) Is unavailable as a witness . . . .” Although the language of the statute is suggestive of the requirement under Roberts, this court has linked the meaning of “unavailable” under the statute with the meaning of “unavailable” under ER 804(a). See Doe, 105 Wn.2d at 895; Ryan, 103 Wn.2d at 171; State v. Young, 50 Wn. App. 107, 113, 747 P.2d 486 (1987).

It has been suggested that “unavailability” under the confrontation clause is not identical to that under ER 804(a), but we have not as yet articulated the distinction. See State v. Whisler, 61 Wn. App. 126, 133, 810 P.2d 540 (1991); see also Robert H. Aronson, The Law of Evidence in Washington 804-11 (3d ed. 1998); 5C Karl B. Tegland, Evidence: Law and Practice § 1300.12, at 353 (4th ed. 1999). The distinction arises because the Supreme Court confrontation clause jurisprudence appears to make availability contingent only on presence and not on competency. See Barber v. Page, 390 U.S. 719, 724-25, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968) (“witness is not ‘unavailable’. .. unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial”); Ryan, 103 Wn.2d at 171. The Supreme Court’s decision in California v. Green articulates that the reasons for finding a witness unavailable under ER 804, such as privilege, refusal to testify, or lack of memory,⁸ are not reasons relevant to “unavailability” under the confrontation clause. Indeed, a person who would be unavailable under ER 804 may still be available for purposes of the confrontation clause:

[T]he State here has made every effort to introduce its evidence through the live testimony of the witness; it produced Porter at trial, swore him as a witness, and tendered him for cross-examination. Whether Porter then testified in a manner consistent or inconsistent with his preliminary hearing testimony, claimed a loss of memory, claimed his privilege against compulsory self-incrimination, or simply refused to answer, nothing in the Confrontation Clause prohibited the State from also relying on his prior testimony to prove its case against Green.

Green, 399 U.S. at 167-68.

Because competency is apparently not a requirement for availability under the confrontation clause, it may be unwarranted to assume that because a child is incompetent to testify at trial he was also “unavailable” to testify for confrontation clause purposes. See majority at 675. Although we held an incompetent child who is unable to take the stand is “unavailable” in Doe, 105 Wn.2d 889, the decision was clearly interpreting the meaning of “unavailability” under ER 804, not the confrontation clause. Doe, 105 Wn.2d at 895.

Thus it may be that B.K. was “available” for confrontation clause purposes, and therefore admission of his hearsay declarations would require B.K. to be called to the stand in addition to finding his declarations reliable. See State v. Smith, 148 Wn.2d 122, 140, 59 P.3d 74 (2002) (Sanders, J., concurring). Were the declarations first determined “reliable,” the prosecutor would still need to call B.K. to testify and question him about the materially damaging aspects of the hearsay declarations. See State v. Rohrich, 132 Wn.2d 472, 478, 939 P.2d 697 (1997). But here, since the prosecutor chose not to put B.K. on the stand, the confrontation clause might require exclusion of his hearsay statements whether these statements were reliable or not. But the authorities on this point are not definitive, and I would not make a definitive holding on this point absent further briefing and argument.

CORROBORATION

The statute additionally requires the proponent of hearsay statements made by an “unavailable” declarant to introduce “corroborative evidence of the act.” RCW 9A.44.120(2)(b). The trial court’s determination of the corroborative nature of the evidence is reviewed for abuse of discretion. State v. Jones, 112 Wn.2d 488, 496 n.7, 772 P.2d 496 (1989). As the majority notes, the corroboration requirement is independent of the indicia of reliability requirement. Majority at 687. The relevant question then becomes whether there was sufficient evidence to corroborate the claim of first degree child molestation. Proof of first degree child molestation requires the State to prove a person ‘lias, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.” RCW 9A.44.083(1).

The primary evidence offered as corroboration is the physical evidence of injury to B.K.’s penis described as “consistent with rubbing or masturbation.” C.J., 108 Wn. App. at 793; majority at 688. In addition, the majority relies on B.K’s doctor’s testimony that the injury was apparently not caused by infections or similar medical causes but that the injury was consistent with masturbation or rubbing, though the doctor noted that in his experience three-year-olds do not spontaneously begin masturbating unless someone teaches them. Verbatim Report of Proceedings (RP) at 118-24. Based on this evidence the majority finds the trial court did not abuse its discretion when it found this evidence adequately corroborative. Majority at 688.

But the suggestion that the harm to B.K’s penis corroborates the child molestation is specious. It is developmentally normal and even common for children of B.K.’s age to engage in self-stimulation or masturbation, which could have resulted in the same physical condition observed. 1 John E.B. Myers, Evidence in Child Abuse and Neglect Cases § 5.31, at 517 (3d ed. 1997) (citing Martin A. Pinkel & Allan R. De Jong, Medical Findings in Child Sexual Abuse, in Child Abuse: Medical Diagnosis and Management 185-247, at 186 (Robert M. Reece ed., 1994)). One study of children in day care found 30 percent were occasionally observed to engage in masturbation during nap time. Myers, supra, § 5.31, at 520 (citing Susan Phipps-Yonas et al., Sexuality in Early Childhood, 23 CURA Reporter 1-5 (May 1993) (published by the University of Minnesota, Center for Urban and Regional Affairs)). Moreover, at least some children who masturbate do so to the point of self-injury. Myers, supra, at 521 n.588.

Admittedly, this court has taken a liberal approach toward corroborative evidence, stating “[t]he statute’s essential purposes should not be defeated by a stubborn insistence on corroboration that is impossible to obtain.” Jones, 112 Wn.2d at 496. Jones noted that “the determination of corroboration under RCW 9A.44.120 requires an evaluation of the particular circumstances [present] in each case.” Id. at 498.

But still, corroboration requires enough evidence to “ ‘support a logical and reasonable inference that the act of abuse described in the hearsay statement occurred.’ ” In re Dependency of A.E.P., 135 Wn.2d 208, 232, 956 P.2d 297 (1998) (quoting State v. Swan, 114 Wn.2d 613, 622, 790 P.2d 610 (1990)). The situation presented in Dependency of A.E.P. is similar to the present case in that corroboration of abuse rested in part on an inconclusive physical exam. In A. E.P. we concluded such evidence was not corroborative under RCW 9A.44.120(2)(b); “A.E.P’s physical exams were inconclusive. While an inconclusive exam does not rule out the possibility of abuse, neither does it corroborate the hearsay statements.” A.E.P., 135 Wn.2d at 232. It is neither logical nor reasonable to infer based on this evidence that B. K. was molested by his female cousin.

ABUSE OF DISCRETION

A trial court’s decision to admit hearsay statements under RCW 9A.44.120 is reviewed for abuse of discretion. State v. Hirschfield, 99 Wn. App. 1, 3, 987 P.2d 99 (1999). However, “[w]hen a trial court’s exercise of its discretion is manifestly unreasonable or based upon untenable grounds or reasons, an abuse of discretion exists.” State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997) (citing State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995)). Here, the trial court concluded that B.K. was incompetent at trial but his hearsay declarations were nevertheless reliable. Since competence includes the ability to distinguish truth from falsehood, in this sense competence of a hearsay declarant at the time of the declaration is essential to reliability. See RCW 5.60.050(2) (“Those who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly.” (emphasis added)). The Court of Appeals was thus entirely correct when it concluded the trial court abused its discretion.

CONCLUSION

The Court of Appeals opinion is supported both by our decision in Ryan, which calls for exclusion of hearsay statements made by a declarant who was not competent when the statement was made, as well as by the confrontation clause as interpreted by Roberts and Wright. Moreover, the declarant’s “unavailability” is questionable and the corroborative evidence necessary to admit the declaration of a truly unavailable declarant is missing.

I dissent.

Johnson, J., concurs with Sanders, J.

4 It is possible article I, section 22 of our state constitution provides greater protection in this arena than does the sixth amendment to the federal constitution, based on the different language in the two provisions. See, e.g., State v. Foster, 135 Wn.2d 441, 957 P.2d 712 (1998); compare Wash. Const, art. I, § 22 (“In criminal prosecutions the accused shall have the right... to meet the witnesses against him face to face ....”) with U.S. Const, amend. VI (“In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him ... .”). That was the conclusion of five justices in Foster, albeit on a different issue. Foster, 135 Wn.2d at 473 (Alexander, J., concurring in part, dissenting in part); id. at 481 (Johnson, J., dissenting). The issue in Foster was whether RCW 9A.44.150 violates the confrontation clause since it permits child witnesses to testify via one-way, closed-circuit television. See Foster, 135 Wn.2d at 450. However, we need not address that issue here, particularly since neither party has raised the issue let alone conducted a formal Gunwall analysis. State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).

5 Children’s understanding of the obligation to tell the truth is not well developed for children four and under. One commentator explained:

Study of Lickona’s six stages of moral reasoning ... suggests that when children are asked to speak truthfully about events, their responses sometimes depend upon their age and moral frame of reference. Remember that children in stage 1 of moral development (ages four and younger) tend to believe that it is right that they get their own way. They are motivated by rewards and punishments. Their concepts of good and bad are not yet well defined, and they may more easily be persuaded to stray from the truth, believing, perhaps, that such action fits as easily into the good as the bad category. At this level, truth can mean what is most advantageous for the child.

Nancy W. Perry, Child and Adolescent Development: A Psycholegal Perspective, in John E.B. Myers, Child Witness Law and Practice 459, 485 (1987).

6 While Wigmore’s treatise is certainly not binding precedent, it was cited with approval by the Supreme Court in Wright in the context of confrontation clause limitations on hearsay. Wright, 497 U.S. at 819.

7 On the other hand, both Divisions Two and Three of the Court of Appeals appropriately continue to adhere to Ryan’s requirement. See, e.g., State v. C.J., 108 Wn. App. 790, 32 P.3d 1051 (2001) (Div. Three); State v. Karpenski, 94 Wn. App. 80, 112, 971 P.2d 553 (1999) (Div. Two).

8 ER 804 provides in relevant part:

(a) Definition of Unavailability. “Unavailability as a witness” includes situations in which the declarant:

(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or

(2) Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or

(3) Testifies to a lack of memory of the subject matter of the declarant’s statement....