Opinion
No. 37508-7-II.
January 26, 2010.
Appeal from a judgment of the Superior Court for Lewis County, No. 07-1-00421-6, Nelson E. Hunt, J., entered March 14, 2008.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Quinn-Brintnall, J.; Hunt, J., dissenting.
Steven Beadle appeals two first degree child molestation convictions, arguing that the trial court erred by admitting (1) the child's hearsay statements, and (2) irrelevant and unfairly prejudicial testimony regarding the child's behavior at the first child hearsay hearing. We affirm.
FACTS
I. Background
In early 2006, then three-year-old BA drew something she referred to as a "tail." When her mother, Lisa Burgess, asked her about the drawing, BA told her that the "tail" was what Beadle, Burgess's ex-boyfriend, told her to call what she had drawn. BA then told Burgess that Beadle tried to put his "tail" inside her and that her "potty" hurt. Report of Proceedings (RP) (Jan. 30, 2008) at 40. Burgess later testified that BA used the term "potty" to refer to her vagina. According to Burgess, when she confronted him, Beadle cried and screamed at BA, telling her that he would go to prison for life if she said anything. Because Beadle was about to go to prison for an unrelated matter, Burgess put the incident "to the back of [her] mind." RP (Jan. 30, 2008) at 34.
According to her mother, BA had been drawing these "tails" on a weekly basis for approximately one year.
In February 2007, BA again drew a picture of a "tail" and showed it to Burgess's husband, Damon Burgess. When Damon asked BA whose "tail" it was, she responded that it was Beadle's "tail." Damon then asked whether BA had ever seen it. BA said yes and explained that Beadle had to help her wash her hands because they became sticky. According to Damon, when he held out his hand and asked BA to show him how she touched Beadle's "tail," BA stroked his finger. BA also told Damon that she did not want to get Beadle into trouble.
To avoid confusion, we refer to Damon Burgess as "Damon" throughout this opinion and mean no disrespect in doing so.
After Damon informed Burgess of his conversation with BA, Burgess asked BA if Beadle had ever helped her wash her hands. BA told her that she came into Burgess's and Beadle's bedroom once when they were sleeping and got into their bed. There, Beadle had her touch his "tail" and then helped her wash her hands because they became sticky. Burgess then asked BA about the first time she told Burgess her "potty [hurt]." RP (Jan. 30, 2008) at 47. BA responded that she had already told Burgess about it. BA then told Burgess that while she was touching Beadle, Beadle told her that he loved her and that she was a good girl. She also told Burgess that she had seen Damon's "tail" once by accident, but that Beadle's "tail" was different because it was strong and tough.
The following day, Burgess contacted law enforcement and arranged for Lewis County Detective Carl Buster to interview BA. On February 22, 2007, Buster interviewed BA with Child Protective Services (CPS) investigator Ronnie Jensen's assistance. Using a "narrative" interviewing style, Buster and Jensen asked BA open-ended questions and allowed her to respond in a manner and pace with which she appeared to feel comfortable. During the interview, BA pointed to the genital area of a stuffed bear and identified the location of Beadle's "tail." BA explained that this was where Beadle told her to touch him and that it got wet. BA told Buster and Jensen that she had to wash her hands after touching it as they had become slippery.
Subsequently, on April 13, 2007, Cascade Mental Health (CMH) clinician Carrie McAdams evaluated BA. When McAdams asked BA if she knew why she was visiting her, BA responded that it was because "Steve did things to me." RP (Jan. 30, 2008) at 80. BA told McAdams that Beadle helped her wash her hands, which had become sticky from his "tail." She also told McAdams that sometimes Beadle sat BA on a towel on his lap and made her touch his "tail." BA explained that this happened three times and that it made her "potty" hurt.
CMH therapist Margaret Heriot counseled BA. During their first session together, BA told Heriot that Beadle hurt her "potty." During their third session, BA removed clothes from a male doll and placed the doll in a sitting position with its legs out. She then removed the clothes from a baby doll and placed that doll on the lap of the male doll, facing it. BA told Heriot that it hurt. After that session, BA told Burgess that once when Burgess was not home, she sat on Beadle's lap on the floor, and that Beadle had needed a towel.
Beadle denied ever touching BA inappropriately or Burgess ever confronting him about touching BA. The State charged him by amended information with three counts of first degree child molestation.
II. Pretrial Proceedings
The trial court held child hearsay hearings over the course of three days. During the first hearing, on November 16, 2007, Damon, Jensen, and Heriot testified regarding BA's statements to them. Jensen also testified that BA, who was not present in the courtroom, was lying in the fetal position in a corner of the courthouse. Jensen testified that after about twenty minutes, she and Burgess managed to get BA to play but that BA indicated she did not want to talk. Subsequently, the State informed the trial court that it did not look as though BA would be able to testify at the hearing. Shortly thereafter, the State indicated that BA was willing to enter the courtroom but did not indicate whether she would be willing to answer questions. Because the trial court had to address other preliminary matters, BA was not brought into the courtroom that day.
During the second hearing, on November 20, Burgess and Buster testified. At the conclusion of their testimony, the State once again informed the trial court, "[BA is] not willing to come into the courtroom, so the State has no further witnesses." RP (Nov. 20, 2007) at 46. McAdams testified during the final hearing. At the conclusion of the hearing, on December 19, the State requested that the trial court find BA unavailable to testify at trial based on "what happened when we tried to bring her in the courtroom and her age." RP (Dec. 19, 2007) at 18. The State argued, "To bring [BA] into court would obviously cause her a lot of trauma, and she doesn't want to come in, so I think that's a basis to find her unavailable." RP (Dec. 19, 2007) at 18.
The trial court ultimately found that BA was unavailable to testify, explaining:
The Court observed that when the child was here for the purpose of testifying, there was a substantial amount of crying and screaming coming from the public portion of the hallway outside the courtroom door, and [the State] at that time related to the court — and it was not disputed by [defense counsel] or Mr. Beadle — that this yelling and screaming that was coming in was coming from the child, and she was doing it in resisting her — any and all attempts to bring her into the courtroom. That was not remedied at any one of the three hearings that we've had with respect to the admissibility of this evidence. Consequently, as far as the Court's concerned, she's unavailable as a witness.
RP(Dec. 19, 2007) at 24 (emphasis added). The trial court also concluded that the evidence did not suggest that BA would be able to testify by use of a closed-circuit television under RCW 9A.44.150.
Under certain circumstances, on motion of the prosecuting attorney in a criminal proceeding, the trial court "may order that a child under the age of ten may testify in a room outside the presence of the defendant and the jury while one-way closed-circuit television equipment simultaneously projects the child's testimony into another room so the defendant and the jury can watch and hear the child testify[.]" RCW 9A.44.150(1).
Beadle then argued that BA's hearsay statements were unreliable or uncorroborated and that the statements she made to Buster and Jensen were testimonial and therefore inadmissible if BA did not testify at trial. The trial court ruled that because BA's statements were non-testimonial and were both reliable and corroborated, they were admissible under RCW 9A.44.120. The trial court also ruled that BA's statements to Burgess, Damon, Heriot, and McAdams were reliable, corroborated, and admissible under RCW 9A.44.120 and that her statements to Heriot and McAdams were also admissible under the medical exception to the hearsay rule.
III. Trial
Before trial began, the State moved to admit testimony regarding BA's behavior and initial refusal to testify at the first child hearsay hearing. Beadle objected, arguing that the evidence was too prejudicial. The trial court ruled that the State could present testimony that BA cried, became upset, and resisted attempts to get her to testify. At trial, Burgess testified that BA ran into a corner, cried for an hour, and refused to talk at the first hearing. Jensen also testified that BA assumed the fetal position and appeared upset.
A jury convicted Beadle of two counts of first degree child molestation. It also found that he abused his position of trust to facilitate crimes and that the crimes were part of an ongoing pattern of sexual of abuse. The trial court imposed an exceptional sentence, sentencing Beadle to a minimum term of 396 months' confinement and a maximum life term. Beadle now appeals.
ANALYSIS
I. BA's Hearsay Statements
A. Availability
Beadle first argues that the trial court erred by admitting BA's hearsay statements under RCW 9A.44.120 and violated his right to confrontation because it "erroneously concluded [that] BA was unavailable to testify at the trial and was likely unable to testify via closed-circuit television." Appellant's Br. at 14. The State responds that the trial court did not abuse its discretion by finding that BA was unavailable to testify. We agree.
Beadle argues that the trial court erred by admitting BA's statements to Burgess, Damon, Heriot, McAdams, Jensen, and Buster.
RCW 9A.44.120 provides that 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, describing any attempted act of sexual contact with or on the child by another, or describing any act of physical abuse of the child by another that results in substantial bodily harm as defined by RCW 9A.04.110, not otherwise admissible by statute or court rule, is admissible in criminal proceedings . . . 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 [.]
We review the trial court's decision to admit child hearsay evidence for an abuse of discretion. State v. Borboa, 157 Wn.2d 108, 121, 135 P.3d 469 (2006) (citing State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003)). A trial court abuses its discretion "only when its decision is manifestly unreasonable or is based on untenable reasons or grounds." Borboa, 157 Wn.2d at 121 (quoting C.J., 148 Wn.2d at 686).
The Sixth Amendment to the United States Constitution provides, "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." Article 1, section 22 of the Washington State Constitution also provides, "In criminal prosecutions the accused shall have the right . . . to meet the witnesses against him face to face." Neither clause has been read literally, for to do so would result in eliminating all exceptions to the hearsay rule. State v. Ryan, 103 Wn.2d 165, 169, 691 P.2d 197 (1984) (citing Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980)).
The Sixth Amendment requires a demonstration of unavailability when the declarant witness is not produced. Ryan, 103 Wn.2d at 170 (citing Roberts, 448 U.S. at 65)). "Unavailability" means that the proponent is not presently able to obtain a confrontable witness's testimony. Ryan, 103 Wn.2d at 171. It is usually based on the physical absence of the witness, but it may also arise when the witness has asserted a privilege, refuses to testify, or claims a lack of memory. Ryan, 103 Wn.2d at 170 (citing ER 804(a); 5A K. Tegland, Wash. Practice: Evidence Law and Practice § 393 (2nd ed. 1982)). Unavailability in the constitutional sense additionally requires the prosecutor to make a good faith effort to obtain the witness's presence at trial. Ryan, 103 Wn.2d at 171 (citing Roberts, 448 U.S. at 74). With respect to RCW 9A.44.120, our legislature has clearly established prerequisites for allowing child hearsay in a criminal trial at which the child does not testify. State v. Hopkins, 137 Wn. App. 441, 451, 154 P.3d 250 (2007). "A primary prerequisite is that the trial court must conduct a hearing and find that a child witness is unavailable to testify." Hopkins, 137 Wn. App. at 451 (citing RCW 9A.44.120(1) and (2)(b)).
In this case, the trial court conducted three child hearsay hearings and, after the final hearing, determined that BA was unavailable to testify. At the first hearing, Jensen explained that BA did not want to come into the courtroom, had assumed the fetal position, and was virtually nonresponsive when she arrived at the courthouse. During the second hearing, the State again explained that BA was unwilling to testify. At the conclusion of the third hearing, the trial court concluded that BA was unavailable to testify. It subsequently made the following finding:
On November 16, 2007, at the time of the Child Hearsay Hearing, the State attempted to bring [BA] into the courtroom to testify; [BA] then began crying loudly, crawled into a corner of the hallway wall on the floor outside the courtroom, and hid her face from view; Lisa Burgess, Roni Jensen, Carl Buster, and Margaret Heriot all attempted to reassure and coax [her] to come out of the corner; [BA] did not leave her spot in the corner for over an hour[.]
Clerk's Papers (CP) at 42. It then concluded that BA was unavailable to testify as a witness at trial and that the evidence did not suggest that she would be able to testify by the use of closed-circuit television.
It also found that Heriot believed that BA exhibited behavior consistent with a history of sexual abuse and consistent with the diagnoses of Post-Traumatic Stress Disorder and Sexual Abuse of a Child.
Beadle appears to suggest that because BA may have been willing to testify for a brief period during the first hearing, the trial court's ruling constituted an abuse of discretion. The record demonstrates, however, that the State (as well four others involved in BA's case) attempted to persuade BA to testify on more than one occasion. The record clearly indicates that the State made a good faith effort to obtain her presence at trial. After hearing testimony regarding BA's behavior at the first hearing and her unwillingness to testify again at the second hearing, the trial court determined that she would not be available to testify at trial.
Beadle cites State v. Smith, 148 Wn.2d 122, 59 P.3d 74 (2002), in support of his argument that the trial court erred by concluding that the evidence did not suggest that BA would be willing to testify by the use of closed-circuit television pursuant to RCW 9A.44.150. Smith, however, is distinguishable from the present case. In that case, the defendant sought reversal of his first degree rape of a child conviction, arguing that the trial court violated his state and federal confrontation clause rights when it ruled that the child victim was unavailable to testify under the child hearsay statute without first requiring the State to show that the child could not testify via closed-circuit television. Smith, 148 Wn.2d at 126. Below, the child's social worker had testified that she might be able to testify under certain circumstances (i.e. in chambers) and that she might be able to tolerate a courtroom setting if she were not exposed to the perpetrator; the social worker also indicated that given time to prepare, the child's ability to testify would improve. The child's therapist also testified that she might be able to testify via video, but "probably not." Smith, 148 Wn.2d at 127-28. We affirmed the trial court's ruling in a split decision. Smith, 148 Wn.2d at 129.
Our Supreme Court subsequently reversed and vacated Smith's conviction, holding that before a court can find a child victim unavailable for the purpose of admitting her hearsay statements, "it must consider the use of closed-circuit television pursuant to RCW 9A.44.150 if there is evidence that the child victim may be able to testify in an alternative setting." Smith, 148 Wn.2d at 139. The court limited its holding, however, "to situations in which evidence is presented that the child victim may be able to testify through alternative means." Smith, 148 Wn.2d at 137.
Unlike Smith, in this case there was no "evidence that the child victim [would have been] able to testify in an alternative setting." Smith, 148 Wn.2d at 139. The only indication that BA was willing to talk about the incidents at all was that, at one point, she was at least willing to come into the courtroom. But even then BA gave no indication that she was actually willing to speak. The fact that BA talked with Buster, Jensen and various therapists on earlier occasions is not dispositive because her interactions with them were intimate, conversational, and relatively brief. Additionally, obtaining formal, and likely lengthy, testimony from BA via one-way closed-circuit television would have necessarily involved multiple participants (at a minimum, counsel, court reporter, and, in most cases, the trial judge).
This case is also unlike Smith because the trial court affirmatively considered whether BA could testify by one-way closed-circuit television. In doing so, the court considered BA's repeated refusals to come into the courtroom. The trial court also considered the strength of four year old BA's emotional refusals, including unresponsiveness, kicking, crying and screaming for prolonged periods in the court's hearing, and lying in a fetal position in the corner of a room outside the courtroom. Despite the passage of time, the past is often the best indicator of the future; BA's unwillingness to testify two months prior to trial indicated that subsequent attempts to obtain testimony from her would have been fruitless, as well as potentially traumatizing. The trial court had more than sufficient evidence to conclude that BA would also be unwilling to testify via closed-circuit television. Where such evidence of unwillingness exists, RCW 9A.44.150 does not require the trial court to document a child's unwillingness by forcing the child to appear on closed-circuit television as a prerequisite to finding that the child is unavailable to testify. Beadle has failed to demonstrate that the trial court abused its discretion by ruling that BA was unavailable and subsequently admitting her hearsay statements at trial.
The trial court properly considered and made findings regarding the reliability and corroboration of BA's statements before admitting them. RCW 9A.44.120(1)(b).
B. Testimonial Statements
Beadle next argues that the trial court violated his right to confrontation by admitting BA's testimonial statements to Buster and Jensen. He contends that because her statements were made "in response to questions during a police interview conducted to gather evidence in anticipation of a possible trial[,]" they were inadmissible. Appellant's Br. at 24. The State responds that BA's statements were non-testimonial and therefore admissible. The State's argument is persuasive.
We review the trial court's decision to admit evidence for an abuse of discretion. State v. Thomas, 150 Wn.2d 821, 856, 83 P.3d 970 (2004). A trial court abuses its discretion "only when its decision is manifestly unreasonable or is based on untenable reasons or grounds." Borboa, 157 Wn.2d at 121 (quoting C.J., 148 Wn.2d at 686). Both parties rely on our Supreme Court's decision in State v. Shafer, 156 Wn.2d 381, 128 P.3d 87 (2006), in support of their respective positions. Furthermore, the State argues that we recently "employed reasoning that does not square with Shafer" in Hopkins, 137 Wn. App. 441. It "respectfully suggests that the ruling in Shafer must control this Court's analysis in cases such as this where the declarant is a child of tender years." Resp't's Br. at 17. We are not persuaded that BA's statements were testimonial under Shafer or Hopkins or that the trial court abused its discretion by admitting them. In any case, any error was harmless.
In Hopkins, we held that statements a child made during a second interview with a CPS investigator were testimonial under [ Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)], and therefore inadmissible. 137 Wn. App. at 458. In that case, we focused on the fact that (1) there was no longer an ongoing emergency at the time of the interview, and (2) the investigator was acting in a governmental capacity for CPS, and, in that capacity, she obtained statements from the child that the State used to prosecute the defendant. Hopkins, 137 Wn. App. at 458. We did not, however, explore the issue of intent in that case.
Confrontation clause errors may be harmless. State v. Mason, 160 Wn.2d 910, 927, 162 P.3d 396 (2007) (citing State v. Davis, 154 Wn.2d 291, 304, 111 P.3d 844 (2005)). Under the "overwhelming untainted evidence" test, if the untainted evidence is overwhelming, the error is deemed harmless. Mason, 160 Wn.2d at 927 (citing Davis, 154 Wn.2d at 305). If there is no "reasonable probability that the outcome of the trial would have been different had the error not occurred," the error is harmless. Mason, 160 Wn.2d at 927 (quoting State v. Powell, 126 Wn.2d 244, 267, 893 P.2d 615 (1995)). In addition to BA's statements to Buster and Jensen, the trial court admitted statements BA made to several other adult family members and mental health professionals and pictures she drew depicting Beadle's "tail." The jury weighed this evidence and determined that it was more credible than Beadle's testimony denying the abuse. Credibility determinations are for the trier of fact and are not subject to review on appeal. Thomas, 150 Wn.2d at 874 (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)). The evidence independent of BA's statements to Buster and Jensen against Beadle was overwhelming; therefore, any error in this case was harmless.
II. Testimony Regarding BA's Behavior
Beadle next argues that the trial court erred by admitting testimony regarding BA's behavior and refusal to testify at the first child hearsay hearing, as this evidence was both irrelevant and unfairly prejudicial. The State fails to address whether this evidence was in fact relevant, but it responds that the trial court did not abuse its discretion by allowing this non-prejudicial and "limited testimony." Resp't's Br. at 23. Although Beadle's argument that the trial court should not have admitted this evidence is persuasive, any error was harmless.
Again, we review the trial court's decision to admit evidence for an abuse of discretion. Thomas, 150 Wn.2d at 856. ER 402 provides: "All relevant evidence is admissible, except as limited by constitutional requirements or as otherwise provided by statute, by these rules, or by other rules or regulations applicable in the courts of this state." Evidence that is not relevant is not admissible. ER 402. "Relevant evidence" means "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." ER 403.
This evidence did not have any tendency to make the existence of any fact that was of consequence to the determination of the action more probable or less probable than it would have been without the evidence. ER 401. The only potential relevance of this testimony was to inform the jury that BA was unavailable to testify for either side at trial; the reason for her unavailability, however, was clearly irrelevant. That the trial court may have limited the scope of this testimony has no bearing on its relevance in the present case. Moreover, even if this evidence had been relevant, the danger of unfair prejudice would have substantially outweighed its probative value. The image of BA curled up in fetal position on the courthouse floor, crying and non-responsive, likely generated speculation amongst the jurors regarding the reasons for BA's extreme behavior and related absence. Therefore, the trial court erred by admitting this prejudicial testimony.
The trial court ruled, "I don't want an extended presentation [of what happened] . . . just that she resisted coming into the courtroom . . . that she went off to a corner and for an hour couldn't be coaxed out." RP (Jan. 30, 2008) at 15-16. Had the trial court done no more than inform the jury that BA was unavailable to testify, the State's concerns could have been addressed without any potential prejudice to Beadle.
The State's argument that any error was harmless, however, is also persuasive. If there is no "reasonable probability that the outcome of the trial would have been different had the error not occurred," the error is harmless. Mason, 160 Wn.2d at 927 (quoting Powell, 126 Wn.2d at 267). Beadle argues that "[i]t is likely the jurors decided BA was the more credible because they inferred she could not testify in front of [him] because he traumatized her and she was afraid of him." Appellant's Reply Br. at 11. Furthermore, he contends, this testimony "inflamed the passions and sympathy of the jury." Appellant's Reply Br. at 11. The record demonstrates, however, that the trial outcome would not have differed had the trial court not admitted this evidence. BA told several different (non law enforcement) persons that Beadle interacted with her sexually. Furthermore, she drew explicit pictures of Beadle's "tail" on more than one occasion. Beadle has failed to demonstrate that the jury would not have convicted him had it not heard the testimony regarding BA's pretrial behavior. His argument that this evidence made BA's version of events more credible is without merit.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, J., concur.
This is a close case. I respectfully dissent. I agree with the majority that the record fully supports the trial court's ruling that the child victim was unavailable to testify in open court. But I disagree that the State met its burden to show that another alternative, such as closed-circuit television, would not make the child victim, BA, available for live testimony and cross-examination by Beadle. In my view, our Supreme Court's decision in State v. Smith, 148 Wn.2d 122, 59 P.3d 74 (2002), requires such a showing.
As the Supreme Court noted in Smith:
Where the out-of-court statement does not fall under one of the firmly rooted hearsay exceptions, the confrontation clause requires the proponent of the statement to demonstrate that the declarant is unavailable and that the statement "bears adequate `indicia of reliability.'" . . . A witness may not be considered unavailable unless the State has made a "good faith effort to obtain the witness' presence at trial." . . . The State is not required to perform a "futile act," but "`if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation.'"
Smith, 148 Wn.2d at 132-33 (citations omitted). At issue here is application of the last sentence in this quote: Did the State explore the possibility of attempting to make the child victim declarant "available" by video conferencing, even though the potential success of this alternative might have seemed "remote"?
I do not question the trial court's assumption that the screaming child victim, curled in a fetal position outside the courtroom, refusing to enter, would likely react similarly to the prospect of testifying remotely by video conference from some other setting. Nevertheless, the record does not actually show, or even suggest, that attempting to obtain BA's testimony remotely in an alternative setting would have been a "futile act." Therefore, the record is not sufficiently developed to meet the Smith standard requiring actual exploration of an alternative before rejecting it. For example, the State offered no testimony that BA would similarly be unwilling, unable, and unavailable to testify by closed-circuit television from a remote location, away from the courtroom setting, which was clearly stressful to her. On the contrary, the record shows only that she was "not willing to come into the courtroom." Report of Proceedings (RP) (Nov. 20, 2007) at 46.
On the contrary, the record shows that apparently on the first day of the originally scheduled trial, the child was eventually coaxed into agreeing to enter the courtroom. But by that point, the trial court had other matters to handle and could not take the child's testimony.
Furthermore, the State specifically asked the trial court to find BA unavailable to testify at trial based on " what happened when we tried to bring her in the courtroom and her age." RP (Dec. 19, 2007) at 18 (emphasis added). Consequently, in finding BA "unavailable" to testify, the trial court relied solely on her behavior outside the courtroom: "[T]his yelling and screaming that was coming in was coming from the child, and she was doing it in resisting her — any and all attempts to bring her into the courtroom." RP (Dec. 19, 2007) at 24 (emphasis added).
The majority here notes: "The trial court also concluded that the evidence did not suggest that BA would be able to testify by use of a closed-circuit television under RCW 9A.44.150." Majority at 5. This evidence, however, showed only BA's reaction to entering the courtroom; there was no evidence of what her reaction might have been in response to a non-courtroom alternative, such as testifying remotely by closed-circuit television.
The majority distinguishes the facts here from those in Smith by noting that in Smith,
[T]he child's social worker had testified that she might be able to testify under certain circumstances (i.e. in chambers) and that she might be able to tolerate a courtroom setting if she were not exposed to the perpetrator; the social worker also indicated that given time to prepare, the child's ability to testify would improve. The child's therapist also testified that she might be able to testify via video, but "probably not." Smith, 148 Wn.2d at 127-28.
Majority at 9. The majority here further notes, "Unlike Smith, there was no evidence that BA would have been able to testify through alternative means." Majority at 10.
In my view, the majority misapplies the Smith test. The State does not meet the Smith test for unavailability of a witness with a mere lack of evidence of the child's ability to testify through alternative means. Rather, under Smith, as the proponent of the child's hearsay testimony, it is the State's burden to show that it has explored alternative measures to obtain the witness's testimony but that such measures would be futile. Smith, 148 Wn.2d at 132-33. Mere speculation about the futility of an alternative forum does not suffice.
The record contains no showing that the State explored any such alternative measures here. Instead, the record contains speculation, based on BA's reaction to testifying in the courtroom, that she would be unlikely to testify in an alternative setting. That these speculative conclusions may ultimately prove to be correct does not remedy the lack of supporting evidence in the record presently before us on appeal. See, e.g., Smith, 148 Wn.2d at 135-38, where the Supreme Court rejected Smith's argument and our court's majority holding that the State had met its burden to use "all available means" to procure the child victim's testimony, even though the State had not pursued the video conference alternative.
I agree with the majority that, unlike Smith, the record here does not show that BA might have been amenable to testifying by alternative means such as video conferencing. I acknowledge that the following excerpt from Smith is unclear about who bears the burden of producing evidence that the child victim might be able to testify by alternative means:
In determining whether a witness is unavailable, under the good faith requirement, a court should consider what options are available to the State in securing the child victim's testimony. See, e.g., Barber, 390 U.S. at 723-24 [ 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968)]; Goddard, 38 Wn. App. at 513 n. 2 [, 685 P.2d 674 (1984)]. This would include the use of RCW 9A.44.150 where there is evidence that the child victim may be able to testify by alternative means.
Smith, 148 Wn.2d at 136 (emphasis added). This language supports the majority's factual distinction of Smith based on the lack of affirmative evidence that BA might have been able to testify using closed-circuit television.
Nevertheless, earlier language in this same Supreme Court opinion suggests that, as the child hearsay proponent, it is the State's burden to produce such evidence for the trial court to consider in rendering its decision on the availability of the child victim whose hearsay statements the State seeks to substitute for the child's live testimony, subject to cross-examination, at trial:
Where the State wishes to introduce hearsay statements against a criminal defendant, the confrontation clause requires that it show the unavailability of the declarant or that the "out-of-court statement is inherently more reliable than any live in-court repetition would be." Rohrich, 132 Wn.2d at 479, 939 P.2d 697 [(1997)].
Smith, 148 Wn.2d at 132 (emphasis added). Further,
Where the out-of-court statement does not fall under one of the firmly rooted hearsay exceptions, the confrontation clause requires the proponent of the statement to demonstrate that the declarant is unavailable and that the statement "bears adequate `indicia of reliability.'" Ohio v. Roberts, U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980).
Smith, 148 Wn.2d at 132 (emphasis added). I read these earlier passages of Smith as requiring the State to make some affirmative effort to produce such evidence and that mere silence on this point is not sufficient.
For example, the State might try setting up a remote "dummy" conferencing room with a television and attempt to coax the child into a practice testimony session. If BA similarly vehemently protested, as she had done in response to efforts to coax her into the courtroom, then the record would support a finding of unavailability. Here, however, no such efforts were made. And neither we nor the trial court can know with reasonable certainty how BA might have responded.
I agree with the majority that "RCW 9A.44.150 does not require the trial court to document a child's unwillingness by forcing the child to appear on closed-circuit television as a prerequisite to finding that the child is unavailable to testify." Majority Opinion at 10 (emphasis added).
The Supreme Court in Smith noted my dissent when the case had been before us:
Dissenting, Judge Hunt disagreed that J.S. was unavailable for purposes of RCW 9A.44.120 and that the hearsay statements were corroborated by independent evidence. Relying on the Washington Rules of Evidence (ER), Rule 804(a)(4), she reasoned that a witness should not be considered unavailable unless the proponent of the hearsay statements shows that it has been unable to procure the testimony by "`other reasonable means.'" Because the record did not show that the State attempted, but was unable to procure, a closed-circuit television system, it had not met its burden. She also concluded that the State's failure to make such a showing as well as its failure to show that J.S. could not have testified by such methods violated Smith's confrontation rights under both the state and federal constitutions.
Smith, 148 Wn.2d at 130 (footnotes omitted; emphasis added). This reciting of my Smith dissent rationale also supports my conclusion that the State bears the burden of making some affirmative showing that the child victim is actually unavailable to testify by some alternative means before the trial court can conclude that the child witness is "unavailable" to testify, thereby allowing the child hearsay statements in lieu of live testimony and extinguishing the defendant's right to confront and to cross-examine the witness.
I would reverse and remand for a new trial, including, if necessary, a new child hearsay "unavailability" determination that meets the requirements of Smith and ER 804(a)(4).