Opinion
No. 6152
03-04-2015
CHRISTOPHER LEIGH DUSHKIN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Margi Mock, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Court of Appeals No. A-11029
Trial Court No. 3AN-09-3950 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael Spaan, Judge. Appearances: Margi Mock, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Christopher Leigh Dushkin was convicted of three counts of first-degree sexual abuse of a minor for conduct involving his girlfriend's three-year-old daughter, L.H. Dushkin raises two claims in this appeal. First, he argues that the superior court's admission of L.H.'s recorded interview violated his right to confrontation because he claims that L.H. was not truly available for cross-examination. Second, he argues that the State failed to establish the corpus delicti for one of the sexual abuse counts because there was no independent evidence corroborating Dushkin's admission to the conduct underlying the charge.
For the reasons explained here, we conclude that L.H. was available for cross-examination at trial, and the superior court therefore did not violate Dushkin's right to confrontation. However, we also conclude that the State failed to satisfy the evidentiary requirements of the corpus delicti rule with respect to one of the three sexual abuse counts. Accordingly, we reverse Dushkin's conviction on that count but affirm the two other convictions.
Factual background
In the winter of 2009, Dushkin was living with his girlfriend and her three-year-old daughter, L.H. Sometime in February 2009, Dushkin lost his job and became L.H.'s primary caretaker while his girlfriend was at work.
In early April, L.H. told her great-grandmother that Dushkin "always licks my bottom." She also said that Dushkin asked her if she wanted to lick or kiss his "black yo-yo," but she said that she never did this.
These allegations were reported to L.H.'s mother, who confronted Dushkin. Dushkin admitted that one time when he was showering with L.H., she asked him about his penis, and he told her it was "like a lollipop." Dushkin also admitted to two other incidents on a couch, but he provided no details because L.H.'s mother did not want to hear them.
After L.H.'s family reported the allegations to the police, Detective Kimberley Trujillo scheduled an interview with L.H. at Alaska CARES, an outpatient clinic that conducts sexual abuse evaluations of children. During the interview, which was recorded, L.H. repeated her allegation that Dushkin "licks my bottom." She also said Dushkin would touch her with his tongue. But she denied that Dushkin had ever asked her to touch any of his body parts.
Following the interview, Trujillo obtained a Glass warrant and arranged a recorded phone call between L.H.'s mother and Dushkin. During this phone call, Dushkin again stated that on one occasion when he and L.H. were showering, L.H. had touched his penis, and he told her it was like a lollipop. Dushkin stated that on another occasion, he and L.H. were sitting on the couch, and Dushkin pulled L.H.'s pants down and licked her bottom. Dushkin also said that, on a third occasion, L.H. put her hand down his pants while he was on the couch and reached for his penis. Although Dushkin initially denied that L.H. had licked or touched his penis, he eventually told L.H.'s mother that L.H. licked his penis.
See State v. Glass, 583 P.2d 872, 881-82 (Alaska 1978) (holding that the Alaska Constitution requires the police to obtain judicial authorization before electronically monitoring or recording a person's private conversations), reh'g granted, 596 P.2d 10 (Alaska 1979).
The State charged Dushkin with three counts of first-degree sexual abuse of a minor: Count I alleged mouth-to-penis contact (based on the claim that L.H. licked Dushkin's penis on the couch); Count II alleged mouth-to-anus contact (based on the claim that Dushkin licked L.H.'s anus during a different couch incident); Count III alleged mouth-to-vagina contact (based on the claim that Dushkin licked L.H.'s vagina during the same couch incident as Count II).
AS 11.41.434(a)(1).
The State also charged Dushkin with one count of sexual abuse of a minor in the second degree (based on the claim that L.H. touched Dushkin's penis in the shower), but this charge was dismissed by the trial court on corpus delicti grounds because the only evidence supporting the charge was Dushkin's statement.
See Langevin v. State, 258 P.3d 866, 870 (Alaska App. 2011) (noting that under Alaska's corpus delicti doctrine, "a criminal conviction cannot rest on an uncorroborated confession").
Prior to trial, Superior Court Judge Michael Spaan held a hearing to determine whether L.H.'s recorded interview with Detective Trujillo would be admissible under Alaska Rule of Evidence 801(d)(3), which permits videotaped statements of child-sexual-abuse victims to be admitted at trial as non-hearsay provided that certain conditions are met. The court ruled that the video met the requirements for admission under Evidence Rule 801(d)(3) and would therefore be admissible at trial. The court also ruled, however, that before he would permit the video to be played, L.H. would have to show that she was available for cross-examination by the defense — which the court interpreted as meaning L.H. had to be willing to answer questions from both the State and the defense attorney.
The State called L.H. as a witness at trial. L.H. was five years old at the time. She testified that Dushkin had done "bad stuff" to her, but when the prosecutor pressed her for details, she said she could not remember. Continuing to press L.H., the prosecutor asked L.H. whether she really could not remember, or if the incidents were just "sad" to talk about. L.H. replied "It's just sad [to] talk about."
The prosecutor also asked L.H. additional questions about the specifics of Dushkin's alleged sexual abuse — including whether L.H. had ever reported that Dushkin had licked her bottom and whether Dushkin ever asked L.H. to "do anything to his private parts." In response, L.H. denied that she had ever reported any abuse to her mother or her great-grandmother. She also denied that Dushkin had ever licked her bottom or asked her to do anything to him. The prosecutor then ended her direct examination and asked L.H. if she was willing to talk to Dushkin's attorney. L.H. said she did not want to. The defense attorney indicated that he had no questions for L.H.
During a bench conference that followed, Dushkin's attorney argued that the State had failed to make L.H. available for cross-examination, and therefore the court should not permit the State to introduce L.H.'s recorded statement.
The prosecutor indicated that L.H. was willing to talk to the defense attorney, and she offered to get L.H. and put her back on the stand if the defense wanted to ask her any questions.
The defense attorney declined this offer, stating that he did not want to cross-examine L.H. for two reasons: first, because "you try talking to that young girl and not being hated by the jury in the process"; and second, because the prosecutor had not elicited anything inculpatory in L.H.'s direct examination. The defense attorney argued that it was the State's obligation to make L.H. available for cross-examination by forcing her to answer its questions on direct examination, even if answering those questions made L.H. "sad," and that it was unfair to make the defense elicit the incriminating evidence in order to cross-examine L.H. on that information.
The superior court found that L.H. was "available" for cross-examination for purposes of the confrontation clause and that the defense attorney had simply made a deliberate (and, in the court's view, not unreasonable) strategic decision not to cross-examine L.H. The court therefore overruled Dushkin's objection and admitted L.H.'s prior recorded statement from the Alaska CARES interview.
At the close of the State's case, Dushkin moved for a judgment of acquittal on Count I, the first-degree sexual abuse count alleging that L.H. had licked Dushkin's penis. Dushkin argued that, because the State had offered no evidence other than Dushkin's admission to prove that count, the corpus delicti of the offense had not been established. The superior court denied the motion.
The jury convicted Dushkin of all three counts of first-degree sexual abuse of a minor.
This appeal followed.
Why we conclude that L.H. was available for cross-examination at trial for purposes of the confrontation clause
Dushkin argues that the admission of L.H.'s statement from the Alaska CARES interview violated his constitutional right to confront L.H.
The Sixth Amendment to the United States Constitution guarantees that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." To protect this right, the United States Supreme Court held in Crawford v. Washington that the testimonial statements of a witness who does not appear at trial may not be admitted as evidence against the defendant unless the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness.
U.S. Const. amend VI.
Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
But, as the United States Supreme Court has also held, the confrontation clause only ensures a defendant the opportunity to confront the accuser. In United States v. Owens, the Supreme Court explained that a defendant is afforded this opportunity when the witness is "placed on the stand, under oath, and responds willingly to questions." Thus, as a general rule, unless a witness declines to answer a defense attorney's questions, the witness is considered "available" for cross-examination, even if the witness is forgetful, confused, or evasive during the State's direct examination — under the theory that the defense has "a full and fair opportunity to probe and expose these infirmities through cross-examination."
See United States v. Owens, 484 U.S. 554, 559 (1988) ("The Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.") (internal quotation marks and citations omitted).
Id. at 561.
Owens, 484 U.S. at 558 (quoting Delaware v. Fensterer, 474 U.S. 15, 21-22 (1985)); see also United States v. Kappell, 418 F.3d 550, 555-56 (6th Cir. 2005); Walters v. McCormick, 122 F.3d 1172, 1175 (9th Cir. 1997).
Courts in some jurisdictions have recognized that there are situations in which a child witness who appears at trial is nevertheless unavailable for cross-examination for purposes of the confrontation clause, owing to the child's inability or unwillingness to answer questions. Other courts have held that the defendant's confrontation rights may be violated if the prosecutor avoids asking the witness about his or her prior allegations or expressly informs the witness that he or she may decline to respond to specific questions.
See People v. Learn, 919 N.E.2d 1042, 1046-50 (Ill. App. 2009); see also United States v. Spotted War Bonnet, 933 F.2d 1471, 1474 (8th Cir. 1991); State v. Blue, 717 N.W.2d 558, 566 (N.D. 2006).
See State v. Rohrich, 939 P.2d 697, 702-03 (Wash. 1997); In re Pers Restraint of Grasso, 84 P.3d 859, at 863, 868 (Wash. 2004); State v. Pollock, 284 P.3d 1222, 1224 n.3 (Or. App. 2012).
The Washington Supreme Court addressed the issue of whether a defendant's rights are violated if the defendant is placed in a position where he or she must elicit incriminating testimony in order to cross-examine a witness in State v. Rohrich. In Rohrich the prosecutor called the complaining witness to the stand but did not question the child about the alleged sexual abuse or any of her prior statements about the abuse, instead asking the child irrelevant questions about her school and hobbies. The prosecutor then proceeded to prove the elements of the crime solely with the child's hearsay statements to her mother, a police officer, a psychologist, and a counselor. The Washington Supreme Court reversed Rohrich's conviction, holding that the admission of these statements violated the defendant's right to confrontation. The court reasoned that, because the State had failed to elicit damaging testimony from the child witness before introducing the hearsay statements, the defense did not have the opportunity for cross-examination required by the confrontation clause. The court explained that the "State's failure to adequately draw out testimony from the child witness before admitting the child's hearsay put[] the defendant in 'a constitutionally impermissible Catch-22' of calling the child for direct or waiving his confrontation rights."
Id. at 699.
Id.
Id. at 702-03.
Id. at 700-01.
Id. at 701 (quoting Lowery v. Collins, 996 F.2d 770, 771-72 (5th Cir.1993) (using the term "a constitutionally unacceptable Catch-22")).
We do not need to decide whether this same reasoning has any force under Alaska law because we disagree with Dushkin that his case presents similar circumstances. In Rohrich, the prosecutor declined to ask the child victim any questions about the defendant's conduct, instead electing to prove its case with the child's prior statements. As a result, the defense attorney had no pertinent testimony on which to cross-examine the child.
Here, by contrast, the prosecutor questioned L.H. about Dushkin's conduct and her prior statements. L.H. testified that "bad stuff" happened, but when the prosecutor tried to elicit further details, L.H. either said she did not remember the details or that she did not want to talk about them. L.H.'s claims of forgetfulness (and her unwillingness to describe the prior events) were proper subjects of cross-examination and did not, by themselves, make her unavailable for cross-examination for purposes of the confrontation clause.
See United States v. Owens, 484 U.S. 554, 560, 562 (1988).
Dushkin also contends that the prosecutor intentionally "shielded" L.H. from testifying about her sexual abuse by suggesting that the events were too "sad" to talk about. But we are not convinced that is what happened in this case. We note that when L.H. stated that it was "just sad [to] talk about," the prosecutor continued to press L.H., albeit unsuccessfully, for further details about Dushkin's conduct and L.H.'s prior statements about the abuse.
Moreover, when the prosecutor offered to recall L.H. to the stand, the defense attorney declined the offer; the attorney did not demand that the prosecutor continue to press L.H. to answer the earlier questions. Nor did the attorney request a ruling from the court regarding the prosecutor's alleged "shielding" of the victim. Instead, the attorney acknowledged that his decision not to cross-examine L.H. was, in part, a strategic choice related to his view that questioning the five-year-old child would not help the defendant's case and would only succeed in making the jury hate him and the defendant.
We conclude that, given these circumstances, the superior court did not err in ruling that L.H. was available for cross-examination for purposes of the confrontation clause in this case.
Why we conclude that the State failed to satisfy the evidentiary requirements of the corpus delicti rule with regard to Count I of the indictment
Count I of the State's indictment charged Dushkin with first-degree sexual abuse of a minor for causing L.H. to lick his penis. Dushkin argues that the State failed to satisfy the corpus delicti rule because it offered no independent evidence to corroborate the trustworthiness of this admission.
Under the corpus delicti rule, a criminal conviction cannot rest solely on the statements of the accused. Rather, Alaska law requires "the prosecution [to] introduce 'substantial independent evidence which would tend to establish the trustworthiness of the [defendant's] statement.'" Although the evidence need not independently prove commission of the crime, it must substantially corroborate the defendant's account of it.
Armstrong v. State, 502 P.2d 440, 447 (Alaska 1972) (quoting Opper v. United States, 348 U.S. 84, 93 (1954)).
See Armstrong, 502 P.2d at 447; Langevin, 258 P.3d at 871.
At Dushkin's trial, L.H.'s out-of-court statements that Dushkin "lick[ed] my bottom" corroborated Dushkin's admissions regarding two of the sexual abuse counts (the counts alleging that Dushkin licked L.H.'s anus and penetrated her genitals with his tongue). The question is whether these statements by L.H. were also sufficient to establish the trustworthiness of Dushkin's admission that L.H. licked his penis.
To support its claim that the evidence was sufficient to satisfy the corpus delicti rule, the State relies on Drumbarger v. State. In Drumbarger, the defendant's wife, Lynette, saw Drumbarger standing next to a bed with his pants unzipped; his daughter, T.D., was lying on the bed with her underpants off and semen on her abdomen. Drumbarger admitted to sexual contact with T.D., and he later told the police that there had been two earlier incidents. He said on all three occasions he had T.D. perform fellatio on him, and then he rubbed his penis on her abdomen until he ejaculated. The episode Lynette described was the last of the sexual assaults, all of which took place between April and June of 1983.
716 P.2d 6 (Alaska App. 1986).
Id. at 9.
Id.
Id.
Id.
This Court found that the corpus delicti rule had been easily met for the last incident of sexual assault because it was "obvious that T.D. had just been sexually assaulted by her father" and Lynette's observation confirmed Drumbarger's description of the abuse. We also held that Lynette's observations were sufficient to corroborate Drumbarger's statements regarding the two earlier assaults because "the ... separate crimes discussed in Drumbarger's confession [were] closely allied in time and circumstance, and Lynette Drumbarger's observations [were] of such significant corroborative force, that the trustworthiness of Drumbarger's confession as a whole was sufficiently established." But we also expressly noted that "it [was] not difficult to envision situations in which the corpus delicti rule might require that a confession encompassing multiple crimes be corroborated by independent evidence relating to each offense."
Id. at 12.
Id.
Id.
This case presents such a situation because the kinds of factors that corroborated the trustworthiness of Drumbarger's confession are not present. In Drumbarger, the conduct underlying the three assaults was "virtually identical." Moreover, the victim's mother witnessed the end of the third assault, and Drumbarger's daughter had made a statement confirming that she had performed fellatio on her father.
Id.
Id. at 9.
Here, L.H.'s statements corroborated that Dushkin "licked her bottom." But that conduct is significantly different from Dushkin's admission that L.H. licked his penis. There were no witnesses to corroborate that this happened. And L.H. never said she licked Dushkin's penis. Although L.H. told her great-grandmother that Dushkin asked her to lick his "black yo-yo", L.H. said she never had. In her interview with the police, and in her testimony at trial, L.H. denied that Dushkin had asked her to do anything to him.
Accordingly, we conclude that Drumbarger does not govern this case and that the State failed to establish the corpus delicti for Count I. We therefore reverse Dushkin's conviction on that count. We note that double jeopardy does not attach to this reversal and the State is entitled to retry Dushkin on this count if it can otherwise establish the corpus delicti of the crime.
See Langevin v. State, 258 P.3d 866, 873-74 (Alaska App. 2011) ("Because a corpus delicti objection does not challenge the sufficiency of the State's proof, but rather the admissibility of a portion of the State's evidence, when a defendant loses a corpus delicti objection at trial and then successfully pursues the issue on appeal, the defendant's remedy is not a judgement of acquittal. Instead, the defendant's remedy is a new trial.").
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Conclusion
We REVERSE Dushkin's conviction on Count I. In all other respects, the judgment of the superior court is AFFIRMED.