Opinion
No. 50866-1-I.
Filed: April 5, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 00-1-10489-4. Judgment or order under review. Date filed: 07/31/2002. Judge signing: Hon. James D Cayce.
Counsel for Appellant(s), Harlan Russell Dorfman, Attorney at Law, PO Box 75505, Seattle, WA 98175-0505.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Timothy McClanahan (Appearing Pro Se), Doc# 941287, Clallam Bay Corrections Center, Hc 63, Box 5000, Clallam Bay, WA 98331-9775.
Counsel for Respondent(s), Andrea Ruth Vitalich, King Co Pros Ofc/Appellate Unit, 1850 Key Tower, 700 5th Ave, Seattle, WA 98104.
Hearsay statements of child victims of sexual abuse are conditionally admissible in criminal trials under RCW 9A.44.120. The admission of a child's hearsay statement will not violate the confrontation clause if the declarant is a witness at trial, is asked about the event and the hearsay statement and the defendant is afforded an opportunity for full cross-examination. Here, the child victim testified to the incident of abuse, and while not having a perfect memory of the specific interview in question, demonstrated sufficient knowledge to satisfy the confrontation clause requirements. The conviction is affirmed.
FACTS
In June 1999, K's second-grade class learned about personal safety issues including `good and bad' touching. At the conclusion of the class, K approached her teacher, Ms. Bonnie Bly, and indicated that `it is happening to me.' K was nervous and agitated. She cried when she told Bly that her father, Tim McClanahan, sexually abused her. The principal's office was informed. The school in turn informed K's mother about what K disclosed.
In her disclosure to several people, K revealed that while visiting her father at her paternal grandmother's house, she and her father slept in the same bed and that he touched her in a way she didn't like. Specifically, she said that she woke up one night with her nightgown still on, but with her underwear removed. She said that McClanahan was naked and that he picked her up under her arms and placed her stomach onto his stomach, his `private' touching her `private.'
K's mother believed the episode occurred in October 1997, because K remembered it happened the same weekend her father fell down the stairs and blackened his eyes, possibly breaking his nose. This was also the last weekend K stayed with McClanahan before he moved away. After K told her mother about the incident, her mother contacted CPS to inquire about what she should do. Following the suggestions given, K's mother made appointments for K at the Providence Hospital Sexual Assault Center in Everett and contacted the Seattle Police Department, because the alleged abuse occurred in Seattle. The test findings at the sexual assault center were inconclusive for sexual abuse, but also were not normal for a girl of K's age. A nurse said that K told her that her daddy had touched her the wrong way by touching her in her private spot.
About 11 months after the disclosure to K's teacher, K's mother, and medical personnel, K was interviewed by Nicole Farrell, a child interview specialist for the Office of the King County Prosecutor. During that interview, K stated that one night while staying with her dad at her grandmother's house, she woke up without her underwear on and her dad picked her up and put her on top of him. She said her father was naked, that he put her on his stomach facing him, and that he put his private part to hers. K said that she didn't like it and that it felt gross. Farrell said that K stated that her father's private touched the outside of her private and that he moved it back and forth.
McClanahan was charged with one count of child molestation in the first degree pursuant to RCW 9A.44.083, for the incident involving his daughter. A pre-trial hearing was held to determine K's competency to testify and the admissibility of her hearsay statements.
RCW 9A.44.083(1) states:
A person is guilty of child molestation in the first degree when the person has, 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.
K testified twice at this pretrial hearing. Initially K said she did not remember the abuse or any of the statements she made to others. This testimony came on the day she first saw her father in court, nearly 5 years after the last time she saw him. The next day, however, K indicated she remembered the incident and that she'd been scared to talk the day before. She then described the incident in reasonable detail. However, K stated she did not remember an interview with Nicole Farrell, although she `sort of' remembered a tall blonde woman (Farrell). The trial court determined that K was competent to testify at trial, and after reviewing and reflecting on necessary legal factors, determined the child hearsay statements K made to her teacher, her mother and the child interview specialist bore sufficient indicia of reliability to be admissible at trial. Other statements K made were admitted as statements to medical professionals.
K testified at trial describing the abuse in some detail. K did not testify to any specifics of her father's private moving back and forth, but otherwise recounted the same story.
After the State rested, the defense indicated that McClanahan would testify and that evidence of good character might be entered in the defense case. The deputy prosecutor pointed out that if the defense placed McClanahan's character at issue there was a potential rebuttal witness named Doble who would testify that she had a sexual relationship with McClanahan when she was 13 or 14 years old. Additionally, the State noted the existence of McClanahan's prior convictions for crimes of dishonesty that it might use to impeach him.
During presentation of the defense case, counsel called Erin Ehlert, the original deputy prosecutor assigned to the case, to testify about a letter she wrote following an interview with K. Ehlert wrote that she asked K to clarify what K meant by the term `sexually molested.' On cross-examination, Ehlert described her conversation with K. She testified that she had a concern about whether or not the child would talk about facts. But Ehlert indicated that once K started to disclose facts there was no need to push her into trying to find out every detail. Defense counsel objected, indicating that the characterization by Ehlert of things as Sfacts' was improper and that the characterization of the allegations as facts should be stricken from the record. The court overruled the objection.
McClanahan testified on his own behalf. He said he `would never hurt any little child, let alone my own child. I think that anybody that would do something like that would be a disgrace to society.'
Verbatim Report of Proceedings (VRP) (May 22, 2002) at 148.
The State sought to cross-examine McClanahan by using the information regarding Doble. The deputy prosecutor made a detailed offer of proof as to how the information came to light and what testimony Doble would give. The prosecutor believed Doble was willing to testify. The defense objected on grounds that it was improper impeachment via extrinsic evidence and because defense counsel's public defense firm represented Doble on a prior case that resulted in a conviction. Defense counsel noted that Doble had an outstanding bench warrant.
The trial court ruled that McClanahan opened the door to cross-examination by putting his character at issue and that the State had a good faith basis for questioning him about his relationship with Doble. The trial court indicated it would reserve ruling on the admissibility of the evidence from Doble until she was called. The trial court told counsel that if the State called Doble as a witness it would conduct a hearing to determine whether the testimony was admissible. Further, the trial court found there was no conflict of interest regarding the defense at that time because the witness had not yet been called to testify.
While being cross-examined, McClanahan admitted he met Doble at an AA meeting in 1991. He believed she was 16 at the time. McClanahan agreed that a 13- or 14-year-old is a child, but unequivocally denied having a sexual relationship with Doble. On redirect examination McClanahan admitted he had a sexual relationship with Doble, but claimed it did not begin until 1996. On recross-examination McClanahan indicated that Doble might have been younger than 16 when they first met in 1991.
After the defense rested its case, Doble failed to appear at trial. The deputy prosecutor explained that Doble changed her mind about testifying because she did not want to come in contact with McClanahan and because she was afraid of being arrested due to the outstanding bench warrant. The defense moved for a mistrial. The trial court denied the motion, reiterating there was a good faith basis for the prosecutor to question McClanahan about his relationship with Doble.
A jury found McClanahan guilty. He moved for a new trial pursuant to CrR 7.5. The motion for a new trial was denied. He was sentenced within the standard range. McClanahan appeals.
DECISION
McClanahan first challenges the trial court's admission of statements made by K to Nicole Farrell, the child interview specialist for the prosecutor's office. He claims the admission is a violation of his right to confrontation because K did not recall the interview with Farrell and was therefore `unavailable' as a witness.
In this appeal McClanahan does not challenge the trial court's decision that K was competent to testify or the court's application of the Ryan factors to admit the hearsay statements K made to most of the witnesses. McClanahan challenges only the admission of the hearsay statements K made to Nicole Farrell. McClanahan states that in order for counsel to conduct a constitutionally adequate cross-examination regarding the statements to Farrell, K must possess sufficient memory of her statements to answer questions about them. McClanahan cites the case of State v. Rohrich, to support his argument, asserting that `not only [must] the declarant have been generally subject to cross-examination; [s]he must also be subject to cross-examination concerning the out-of-court declaration.'
See State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984).
Farrell's testimony about what K said to her was the most detailed of all the witnesses. The testimony contained the only reference to the allegation that McClanahan moved his private back and forth on K's private, alleged by the appellant as the most powerful evidence in support of a sexual gratification inference.
State v. Rohrich, 132 Wn.2d 472, 478, 939 P.2d 697 (1997) (Rohrich I).
Rohrich, 132 Wn.2d at 478 (quoting United States v. West, 670 F.2d 675, 687 (7th Cir. 1982)).
We decline to extend the Rohrich I holding beyond its facts, noting that its facts are distinguishable from the case here. In Rohrich I, the State did not ask questions or seek testimony from the child about any alleged abuse. Defense counsel did not cross-examine the child. Here, K was asked and testified about the alleged abuse. The only part of the incident or process afterward that K failed to remember was the interview with Farrell and what K specifically told her. However, K did remember, was asked about, and testified about the incident of alleged abuse.
To satisfy the confrontation clause at the time of admitting hearsay statements under the child hearsay statute, when the child is available to testify, the child either has to take the stand and testify about the abuse, or if the child does not remember the events [s]he described in the hearsay statements or has recanted, the State must ask the child about the events and statements and the defendant must have an opportunity to cross-examine the child about the statements. In Kilgore, this court noted that the Supreme Court in Clark backed away from the analysis it made in Rohrich I. A child who testifies concerning the act of abuse, but whose memory may be imperfect, is not `unavailable' as a witness for the purposes of the confrontation clause.
It has been held that the child need not go into great detail about the event. State v. Montgomery, 95 Wn. App. 192, 199, 974 P.2d 904 (1999).
State v. Kilgore, 107 Wn. App. 160, 174, 26 P.3d 308 (2001), aff'd 147 Wn.2d 288, 53 P.3d 974 (2002) (citing State v. Clark, 139 Wn.2d 152, 159, 985 P.2d 377 (1999)).
Kilgore, 107 Wn. App. at 174, 174 n. 6 (discussing Clark, 139 Wn.2d at 159-60).
State v. Bishop, 63 Wn. App. 15, 21-23, 816 P.2d 738 (1991).
Here, unlike in Rohrich I, the deputy prosecutor asked K about the event that took place at her grandmother's house with her father. K testified in detail about the incident, albeit omitting anything about any physical back and forth motion by her father. K was available at trial and testified generally about the incident and McClanahan had a full opportunity to cross-examine K about the incident and her statements to a number of people. The defense could cross-examine K about the Farrell interview, even though K's memory about Farrell was imperfect. K testified as required by the confrontation clause and McClanahan's argument fails.
McClanahan submitted a statement of additional authority citing the recent United States Supreme Court opinion of Crawford v. Washington, U.S., 124 S.Ct. 1354, L. Ed.3d (2004). Under the facts of this case there is no Crawford confrontation issue regarding the admission of the child hearsay statement because the declarant was a witness at trial and McClanahan was afforded the opportunity to cross-examine. Further, the proscriptions contained in Crawford were applied to testimonial statements. As noted hereafter, the impeachment of McClanahan's evidence of good character was not testimonial in nature.
McClanahan next alleges the trial court abused its discretion by permitting impeachment of McClanahan that violated his right of confrontation and denied his right to conflict-free counsel.
A defendant who testifies on his own behalf regarding traits of his character opens the door for cross-examination about his character through use of specific acts of misconduct unrelated to the crime charged. Even though McClanahan concedes his claim that he would never hurt a child opened the door to questioning on cross-examination, he argues the trial court abused its discretion by allowing the deputy prosecutor to cross-examine him regarding his prior sexual relationship with Doble without first holding a hearing regarding the underlying truth of the evidence. McClanahan claims his right of confrontation was violated when Doble refused to testify as a rebuttal witness.
State v. Avendano-Lopez, 79 Wn. App. 706, 716, 904 P.2d 324 (1995) (citing State v. Brush, 32 Wn. App. 445, 450, 648 P.2d 897 (1982)).
The scope of questioning and the admission of evidence are matters within the broad discretion of the trial court, and the court's decision is reviewed only for manifest abuse of that discretion. General case authority approves of cross-examination alone as the appropriate impeachment tool in circumstances similar to those here.
State v. Gallagher, 112 Wn. App. 601, 609, 51 P.3d 100 (2992), review denied, 148 Wn.2d 1023 (2003).
Brush, 32 Wn. App. at 448-51; see also State v. Renneberg, 83 Wn.2d 735, 738, 522 P.2d 835 (1974); State v. Emmanuel, 42 Wn.2d 1, 14, 253 P.2d 386 (1959).
Further, ER 608(b) provides that, for purposes of attacking a witness' credibility, in the discretion of the court specific instances of conduct may be inquired into on cross-examination if probative of truthfulness or untruthfulness. Generally courts require that the prosecutor has a good faith belief or a reasonable basis for believing that the defendant committed the uncharged misconduct. There must be some proof of the underlying misconduct to avoid a confrontation problem under ER 608. Thus, the State's burden below was to demonstrate a good faith belief that the incident about which the deputy prosecutor inquired actually occurred.
See State v. Johnson, 90 Wn. App. 54, 71, 950 P.2d 981 (1998).
Here, the deputy prosecutor gave notice before the defense put on its case that Doble had been interviewed by a detective and that she alleged that McClanahan had sex with her when she was 13 or 14 years of age. The prosecutor told the court that Doble said she was available to testify and that the State would seek to use the evidence if McClanahan put his character in issue. Based on the record before it, the trial court was within its discretion in ruling that the prosecutor had a good faith basis to cross-examine McClanahan about his relationship with Doble. The trial court did not abuse its discretion in finding a good faith basis, especially in light of the fact that McClanahan admitted his sexual relationship with Doble, even conceding that she may have been younger than he initially thought she was.
McClanahan sought to avoid having Doble testify until it became apparent that she made herself unavailable to do so. It was only at that point that he demanded she testify. But the trial court reserved ruling on whether Doble would be allowed to testify even if she appeared. There is no violation of the confrontation clause.
McClanahan claims the cross-examination also deprived him of his right to conflict-free counsel. Under the facts here, we disagree. Under Rule 1.9 of the Rules of Professional Conduct, an attorney who has formerly represented a client may not represent another person in a substantially related matter if that person's interests are adverse to those of the former client, or use confidences to the disadvantage of the former client. But if the former representation is unrelated to the current matter, and impeachment of the former client involves matters of public record, no conflict of interest occurs. The Hunsaker case is directly on point. There, this court found that no conflict of interest existed because prior representation of a witness and the current representation of the defendant were unrelated. Here, defense counsel's public defense firm formerly represented Doble in a theft case wholly unrelated to the charges at issue here. Her conviction and the bench warrant are matters of public record. Even if Doble testified, defense counsel could have cross-examined Doble about the conviction and the warrant without breaching any confidences. No conflict would have existed as the matters were not substantially related. Because Doble did not testify, any conflict claim is even less compelling. There was no error.
Teja v. Saran, 68 Wn. App. 793, 796-97, 846 P.2d 1375 (1993) (citing RPC 1.9).
State v. Hunsaker, 74 Wn. App. 38, 873 P.2d 540 (1994).
McClanahan alleges reversible error occurred when the trial court overruled his objection to answers given by Erin Ehlert, a deputy prosecutor formerly assigned to the case. Ehlert was called as a witness by the defense. In describing a prior conversation between K and Ehlert, Ehlert explained her concern about K's ability to talk about the facts of the case. Defense counsel objected to the characterization of `things' as facts, stating, `These are allegations, not facts.' The court used one word after counsel stated his objection: `Overruled.' McClanahan claims the trial court commented on the evidence by overruling the objection. We disagree.
VRP (May 22, 2002) at 20.
Rulings required in the course of a trial, including matters involving proof and probative value of evidence, are within the sound discretion of the trial court and will be overturned only for an abuse of that discretion. Trial court judges are forbidden from commenting upon the evidence presented at trial. To fall within the constitutional ban of a comment on the evidence, a judge's statement must suggest his or her personal opinion or view as to the credibility, weight, or sufficiency of the evidence.
State v. Putnam, 31 Wn. App. 156, 164, 639 P.2d 858 (1982).
State v. Woods, 143 Wn.2d 561, 590-91, 23 P.3d 1046 (2001) (citing Wash. Const. art. IV, sec. 16).
Contrary to McClanahan's argument, when viewed overall Ehlert's testimony did not assert that K's statements were `fact.' Ehlert was concerned whether K would be able to recount the disclosed incident in court at all. McClanahan presents a strained inference that is not supported by an overall view of Ehlert's testimony. McClanahan fails to show that the trial court commented on the evidence or abused its discretion by ruling on the objection.
Further, the trial court instructed the jury that it was their duty to determine the facts of the case, and that they were to disregard any perceived comment on the evidence by the court. There was no error.
Instruction 1.
McClanahan claims that, even if the asserted errors do not warrant reversal individually, the cumulative effect deprived him of a fair trial. An accumulation of non-reversible errors may deny a defendant a fair trial. But reversals due to cumulative error occur only in extraordinary cases, and this is not one of them. None of the alleged errors are errors, and McClanahan was not deprived of a fair trial.
State v. Perrett, 86 Wn. App. 312, 322, 936 P.2d 426 (1997) (citing State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984)).
Finally, McClanahan claims at sentencing the trial court improperly ordered incorrect or ambiguous terms of community custody. The State concedes the judgment and sentence contains conflicting or ambiguous terms of community custody. The charging period for this crime is October of 1997. The case falls under the community custody provisions of RCW 9.94A.710 (sex crimes committed after June 6, 1996 and before July 1, 2000). The statute provides that the term of community custody shall be for a term of the longer of either 36 months or the period of early release. The 36 to 48 month term ordered in one portion of the judgment and sentence by the court was entered in error. The case is remanded with directions to amend the judgment and sentence to provide the correct community custody term consistent with the statute.
The conviction is affirmed but the case is remanded to the trial court to amend the judgment and sentence to set the correct term of community custody.
ELLINGTON and AGID, JJ., concur.