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State v. Elliott

The Court of Appeals of Washington, Division Two
Dec 24, 2007
142 Wn. App. 1015 (Wash. Ct. App. 2007)

Opinion

No. 33257-4-II.

December 24, 2007.

Appeal from a judgment of the Superior Court for Pierce County, No. 01-1-02108-9, D. Gary Steiner and John A. McCarthy, JJ., entered May 12, 2005.


Affirmed by unpublished opinion per Armstrong, J., concurred in by Van Deren, A.C.J., and Hunt, J.


Brian Howard Elliott appeals his conviction for first degree child rape. He argues that the trial court erred (1) in admitting the State's polygraph test results while excluding defense polygraph test results, (2) by denying Elliott's motion to exclude child hearsay statements, and (3) in finding that the child victim was competent to testify. Elliott further argues that the prosecutor elicited improper opinion testimony concerning the credibility of the child witness and that cumulative error deprived him of a fair trial. Finding no error, we affirm.

FACTS I. Background

This appeal follows Elliott's second trial, which, in turn, follows our reversal of his 2001 convictions on two counts of first degree child rape. State v. Elliott, 121 Wn. App. 404, 88 P.3d 435 (2004). There, we held that the trial court erred in preventing Elliott from challenging the reliability and validity of the State's polygraph test on foundational grounds and in refusing to allow Elliott's expert to testify about his interpretation of it. Elliott, 121 Wn. App. at 409-10. Following a second trial, the jury convicted Elliott of one count of first degree child rape.

M.J. is the granddaughter of Elliott's wife, Martha. In August 2000, when M.J. was five years old, she and her mother were reading a bedtime story when M.J. pointed to her vagina and stated, "Well, Brian just doesn't understand when I tell him he can't touch me there." Report of Proceedings (RP) (Jan. 31, 2005) at 233-34. M.J. said that Elliott had put "his vagina in her vagina," that he had licked her vagina, and that he had taken pictures while she touched her vagina. RP (Jan. 31, 2005) at 238. M.J. told her mother that this happened on Martha and Brian's bed.

M.J.'s parents took her to a medical clinic for an examination. Before examining M.J., pediatric nurse Michelle Breland asked M.J. if anything had ever happened to her body that she did not like. M.J. answered, "There was one time Brian hurt me on my vagina. Brian is my grandpa. He does bad stuff to me. He's not a nice guy." RP (Feb. 1, 2005) at 308-09. M.J. also told Breland that Elliott had "been licking me and making milk." RP (Feb. 1, 2005) at 309. Breland asked what "making milk" meant, and M.J. replied, "By putting his vagina, I mean penis, into mine. I call it a penis." RP (Feb. 1, 2005) at 309. M.J. said that Elliott had hurt her vagina more than once and on "lots of different days" when she was five years old. RP (Feb. 1, 2005) at 311. Breland asked where Elliott had licked her, and M.J. pointed to her vaginal area and said, "[I]n here." RP (Feb. 1, 2005) at 311. M.J. said that she had seen Elliott's penis and described it as "big like a worm." RP (Feb. 1, 2005) at 312. M.J. also said that Elliott had taken pictures of her private area. M.J. told Breland, "The one time he put his penis in here it hurt. The one where he licks, it just tickles." RP (Feb. 1, 2005) at 315.

Christa Sommerfeld, a child interviewer for the Pierce County Prosecutor's Office, also interviewed M.J. M.J. told Sommerfeld that Elliott had licked her vagina when she was at his house watching cartoons. M.J. said it happened more than one time in Elliott's bedroom and on different days when she was between four and five years old. She also said that Elliott took pictures of her vaginal area. M.J. disclosed that one time Elliott had put his penis in her vagina and that it had hurt.

During the police investigation, Elliott stipulated to a polygraph examination administered by a police examiner. According to the stipulation, if Elliott passed the polygraph, the State would dismiss the charges against him. If Elliott failed the polygraph, the polygraph results would be admissible at trial. If inconclusive, the polygraph test and the results would not be admissible at trial. Additionally, if the polygraph was admitted, Elliott agreed that he would not call any witnesses to testify about the validity of polygraph testing in general or whether his results were reliable. Elliott also agreed not to mention the results of any other polygraph test that he might have taken.

Detective Sergeant Keith Barnes of the Pierce County Sheriff's Department administered the polygraph test. According to Barnes, Elliott's denials to the question, "Is [M.J.'s] report about you sexually molesting her true?" and "Did you touch [M.J.'s] bare vagina with your tongue?" showed deception. RP (Feb. 3, 2005) at 827-33. The results were inconclusive to the question, "Did you put any part of your penis in [M.J.'s] vagina?" RP (Feb. 3, 2005) at 833. As agreed in the stipulation, the State charged Elliott with first degree child rape.

II. 2005 Trial

During pretrial motions, Elliott moved to reconsider the previous trial court's ruling admitting the hearsay testimony of M.J.'s mother, Breland, and Sommerfeld regarding M.J.'s previous statements. The trial court admitted the statements by "adopting Judge van Doorninck's ruling" from Elliott's first trial. RP (Jan. 26, 2005) at 371. Elliott did not object to the court's failure to hold another hearing on the issue.

The trial court also held a hearing to determine whether M.J. was competent to testify. There, the prosecutor asked M.J. if she knew "what it means to tell the truth." RP (Jan. 10, 2005) at 58. M.J. responded, "Not to tell a lie." RP (Jan. 10, 2005) at 58. When asked if she knew what it means to tell a lie, M.J. said, "No." RP (Jan. 10, 2005) at 58. Then the prosecutor asked her to identify a series of statements as being the truth or a lie, which M.J. did correctly. She identified the statement that the prosecutor's shirt was blue as true, the statement that the Washington State flag was bright red as a lie, and the statement that the judge's robe was black as true. M.J. then promised to tell the truth. In response to the prosecutor's questions, M.J. remembered the name of her teacher, the schools she went to the year before, and her teachers at those schools. She identified her second grade teacher's name as Mr. Bloomer and her first grade teacher as "Ms. Cake-e-bon (phonetic)." RP (Jan. 10, 2005) at 61-62. She described the places she had lived from age four to her current home. About her current apartment, she stated, "If you were to go diagonally, [our previous apartment is] just diagonal from our step." RP (Jan. 10, 2005) at 71.

In addition, M.J. testified about details of Elliott's house: it had "[a]bout three" TVs, one "in the living room" where she watched "Tom and Jerry;" it had a greenhouse where she had helped her grandmother plant plants; and Elliott's dogs were named "Lucky and Tray." RP (Jan. 10, 2005) at 66-68. M.J. also recounted the alleged abuse: "[s]omething bad happened to me" at Elliott's house; it had to do with her "private," pointing to her vaginal area; Brian did the bad thing, which was "hard to say;" he did it with his tongue, "[o]n my skin," and he did it more than once. RP (Jan. 10, 2005) at 72, 74-75. M.J. did not remember talking about the incident with anyone other than her mother, her father, and Clay (a prosecutor). She also did not remember going to Mary Bridge Children's Hospital. Based on this testimony and the previous trial court's competency ruling, the trial court found that M.J. was competent to testify.

At trial, M.J. maintained that Elliott licked her vagina with his tongue. In contradiction with her earlier statements, however, she stated that he always wore clothes, she did not see his penis, he never touched her with his penis, and he never put his penis in her vagina.

Breland, when asked about M.J.'s disclosure, testified that it "had a lot more detail in it than what most kids have, than many kids have." RP (Feb. 1, 2005) at 314. Breland testified that M.J.'s statements "are not what typical five year olds know. Five year olds don't typically know about penises and vaginas and licking vaginas and making milk. To me, that demonstrated an advanced knowledge of sexual activities which certainly raises the question: where does that come from?" RP (Feb. 1, 2005) at 348. Breland also testified that M.J.'s physical examination revealed only an inconclusive finding of hymen indentation.

During Sommerfeld's testimony, the prosecutor questioned her about the protocol she uses with children who may be victims of a sexual assault. She testified:

[Sommerfeld]: . . . You start the interview making sure the child is — can tell you the difference between the truth and a lie. That's very essential to the process. Also, that they understood a few key terms such as inside and outside and on top and underneath. You need to make sure they understand those concepts. [Prosecutor:] Why do you cover those topics? [Sommerfeld:] Truth is very important. We make sure the child — the first question is, everything you say today needs to be the truth. That's very important.

We want a truthful interview. Then the other —

[Prosecutor:] Do you also indicate or tell the child [why] they are there?

[Sommerfeld:] They are told they're not in trouble. Let them know they're not in trouble today. Anything they say they won't be in trouble for. The important thing is to be honest and tell the truth. That's why you're trying to assess before you ask the questions do they understand the truth.

RP (Feb. 1, 2005) at 395.

Later, the prosecutor inquired further into the interview process:

[Prosecutor:] When you ask those questions, was [M.J.] able to distinguish between truth and a lie?

[Sommerfeld:] Yes.

. . .

[Prosecutor:] Tell us what question[s] you asked her.

[Sommerfeld:] The next question, which is standard for all interviewers is — do you want me to read it?

[Prosecutor:] Yes.

[Sommerfeld:] "Now, [M.J.], I have some different kinds of questions for you. I want you to know you're not in any trouble today. It is very important that everything you say be the truth. Do you promise to tell the truth today?"

[Prosecutor:] When you asked [M.J.] that question, what was her response?

[Sommerfeld:] She said, "Yes, it is just kind of scary."

RP (Feb. 1, 2005) at 403-04.

During the State's case, the trial court admitted Elliott's stipulated polygraph examination. The trial court allowed the defense attorney to cross-examine the administrator of the exam, Detective Barnes, and to call an expert witness, Steve Hamre, to interpret Barnes's findings. Hamre testified that he interpreted the polygraph as showing that Elliott had been truthful when he denied touching M.J.'s vagina with his penis or tongue. Hamre found the results inconclusive as to the question, "Is [M.J.'s] report about you sexually molesting her true?" RP (Feb. 7, 2005) at 1026.

Hamre had administered another polygraph exam, not stipulated to by the State, that showed that Elliott was truthful. The trial court excluded the results of this examination and precluded Elliott from asking Hamre or Barnes about it.

The jury convicted Elliott on the first count of first degree child rape (oral/vaginal intercourse) and acquitted him on the second count (penile/vaginal intercourse).

We heard oral argument on May 18, 2006, and then stayed the case pending the Supreme Court's determination of State v. Kirkman. The Supreme Court filed its decision on April 5, 2007. State v. Kirkman, 159 Wn.2d 918, 155 P.3d 125 (2007). After the Kirkman opinion became final, we lifted the stay in Elliott's case.

ANALYSIS I. Polygraph

A. Admission of the Stipulated Polygraph

Elliott argues that the trial court erred in admitting the stipulated polygraph results into evidence. He contends that polygraph results are inherently unreliable and should not be admitted into evidence because they pollute the fairness of the trial and impermissibly invade the province of the jury.

Generally, a court may admit polygraph test results only if the prosecutor and the defendant stipulate to their admission. Elliott, 121 Wn. App. at 407 (citing State v. Renfro, 96 Wn.2d 902, 905, 639 P.2d 737 (1982)). The stipulation must allow the opposing party to cross-examine the test examiner about his qualifications and training, the test conditions, the limitations of the test and potential for error, and any other matter the trial court deems pertinent. Elliott, 121 Wn. App. at 407 (citing Renfro, 96 Wn.2d at 907). But even with a proper stipulation, the trial court retains the power to reject evidence of the test results. Elliott, 121 Wn. App. at 407 (citing Renfro, 96 Wn.2d at 906-07).

Here, the trial court denied Elliott's motion to exclude the stipulated polygraph because it found that Barnes had the appropriate level of training to administer the test and that he did so appropriately. The trial court also allowed Elliott to cross-examine Barnes about his interpretation of the polygraph examination, his training and experience, the conditions under which he administered the exam, the limitation of polygraph testing, and the possibility of error in his results. The trial court did not abuse its discretion in admitting the stipulated polygraph.

B. Exclusion of the Defense's Rebuttal Polygraph Results

Elliott argues that the trial court violated his constitutional right to present a defense when it excluded the unstipulated polygraph results. Absent the parties' stipulation of admissibility, courts have admitted polygraph test results only when relevant as proof that the polygraph was administered, regardless of the results. State v. Justesen, 121 Wn. App. 83, 95, 86 P.3d 1259 (2004) (quoting State v. Reay, 61 Wn. App. 141, 149-50, 810 P.2d 512 (1991)).

Nevertheless, Elliott argues that his right to present a defense overrides this evidentiary rule. Under the Sixth Amendment, a criminal defendant has the right to present exculpatory evidence. Taylor v. Illinois, 484 U.S. 400, 408, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988); Rock v. Arkansas, 483 U.S. 44, 55, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987). But this right is subject to a state's legitimate interest in ensuring that reliable evidence is presented to the trier of fact. State v. Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998); Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). The United States Supreme Court, in upholding a per se rule excluding polygraph evidence from court martial proceedings in Scheffer, held that excluding polygraph results is "a rational and proportional means of advancing the legitimate interest in barring unreliable evidence." Scheffer, 523 U.S. at 312. Washington courts have similarly held that the rule excluding unstipulated polygraphs is a valid exercise of the state's legitimate interest in excluding inherently unreliable testimony. See State v. Ahlfinger, 50 Wn. App. 466, 472, 749 P.2d 190 (1988); State v. Yapp, 45 Wn. App. 601, 606, 726 P.2d 1003 (1986).

Typically, when Washington courts have upheld the exclusion of unstipulated polygraphs, the defendant has still been able to adequately address the credibility of the examinee in some other way. See, e.g., Ahlfinger, 50 Wn. App. at 472 (defendant could still take the stand to fully explain his version of the facts and to deny his guilt without his "passing" polygraph); Yapp, 45 Wn. App. at 606 (defendant could still cross-examine victim to reveal early inconsistent statements without using her polygraph test results that indicated untruthfulness); State v. Ellison, 36 Wn. App. 564, 567, 676 P.2d 531 (1984) (defendant was still able to impeach witness with earlier statement given to police).

Similarly, by excluding the unstipulated polygraph the trial court did not prevent Elliott from putting on his defense. Elliott offered the unstipulated polygraph results to challenge the results of the stipulated polygraph and, thus, support his version of events. The trial court's rejection of Elliott's proposed evidence did not deny him the opportunity to cross-examine Detective Barnes about his procedure and interpretation of his results; nor did the trial court preclude Elliott from introducing his own expert to testify as to his interpretation of the stipulated polygraph. Thus, even without the results of the unstipulated polygraph, Elliott was able to challenge the unfavorable interpretation of the stipulated polygraph. We conclude that the trial court's rejection of Elliott's proposed unstipulated test results did not infringe on Elliott's constitutional right to present a defense.

II. Improper Opinion Testimony

Elliott argues that the prosecutor elicited improper opinion testimony about M.J.'s credibility from Breland and Sommerfeld.

Elliott did object to some of the questions that elicited the argued improper witness testimony; however, he did not object on the grounds of improper opinion testimony and the objections pertained to the questions, not to the witness's answers.

A witness expresses opinion testimony if the witness testifies to beliefs or ideas rather than the facts at issue. State v. Demery, 144 Wn.2d 753, 760, 30 P.3d 1278 (2001). Generally, no witness may offer opinion testimony regarding the guilt or veracity of the defendant or the credibility of a witness; such testimony is unfairly prejudicial "because it . . . invad[es] the exclusive province of the finder of fact." Demery, 144 Wn.2d at 759 (quoting City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993)). To determine whether a witness has offered improper opinion testimony, we consider five factors: (1) the type of witness involved; (2) the specific nature of the testimony; (3) the nature of the charges; (4) the type of defense; and (5) the other evidence before the trier of fact. Demery, 144 Wn.2d at 759.

A claim of improper opinion testimony may be raised for the first time on appeal only if it is a manifest error affecting a constitutional right. RAP 2.5(a)(3); Kirkman, 159 Wn.2d at 926. "Manifest error" requires a showing of actual and identifiable prejudice to the defendant's constitutional rights at trial. Kirkman, 159 Wn.2d at 926-27 (citing State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995)). In the case of improper opinion testimony, a defendant can show manifest constitutional error only if the record contains "an explicit or almost explicit witness statement on an ultimate issue of fact." Kirkman, 159 Wn.2d at 938.

A. Breland

Elliott argues that the State elicited improper opinion testimony regarding M.J.'s credibility from Breland, the nurse who examined M.J. Breland testified that M.J.'s disclosure was more detailed than that given by most children. She later stated that "[t]he statements [M.J.] made to me and the details are not what typical five year olds know. . . . To me, that demonstrated an advanced knowledge of sexual activities which certainly raises the question: where does that come from." RP (Feb. 1, 2005) at 348.

In Kirkman, the State asked a doctor, "Do you have an opinion with medical certainty whether the findings you observed are consistent with the history of abuse you were given?" Kirkman, 159 Wn.2d at 931-32. The doctor responded, "I would say the findings — to have no findings after receiving a history like that is actually the norm rather than the exception." Kirkman, 159 Wn.2d at 932. The court held that this testimony did not constitute manifest error because the doctor never testified as to any ultimate fact: "He never opined that Candia was guilty, nor did he opine that C.M.D. was molested or that he believed C.M.D's account to be true." Kirkman, 159 Wn.2d at 933.

Like the examining doctor in Kirkman, Breland compared the facts that she had gathered from M.J.'s examination with her expert knowledge of children and sexual abuse. As with the expert in Kirkman, Breland did not testify as to an ultimate fact in the case: she did not state that M.J.'s advanced knowledge came from the alleged sexual abuse or that she believed M.J.'s testimony. As such, there was no manifest constitutional error in Breland's testimony.

B. Sommerfeld

Elliott also argues that Sommerfeld gave improper opinion testimony about M.J.'s credibility while describing her interview with M.J. Specifically, Sommerfeld testified that M.J. was able to tell the truth from a lie and that she had promised to tell the truth in the interview.

In Kirkman, a detective offered testimony virtually identical to Sommerfeld's, describing in detail a competency examination he gave to a child witness that related to her ability to tell the truth, "kind of a competency." Kirkman, 159 Wn.2d at 930. He testified that the child was able to distinguish the truth from a lie and had expressly promised to tell him the truth. Kirkman, 159 Wn.2d at 930. The Supreme Court held that this testimony was a description of the interview protocol that "`provided the necessary context that enabled the jury to assess the reasonableness of the . . . responses.'" Kirkman, 159 Wn.2d at 931 (quoting Demery, 144 Wn.2d at 764). The detective "did not testify that he believed [the child] or that she was telling the truth;" therefore, there was no manifest error that could relieve the defendant of his duty to object. Kirkman, 159 Wn.2d at 931.

Similarly, Sommerfeld did not directly express an opinion on the ultimate issue of M.J.'s credibility: she did not testify that she believed M.J. or that M.J. was telling the truth in her interview. Again, Elliott has not demonstrated manifest constitutional error.

III. Denial of Motion to Exclude Child Hearsay Testimony

Elliott argues that the trial court erred by denying his motion to exclude child hearsay statements because (1) the trial court improperly adopted the ruling from Elliott's first trial that the statements were admissible and (2) M.J.'s lack of an independent memory of events deprived him of effective cross examination in violation of the confrontation clause.

A. Trial Court's Use of Previous Trial Court's Ruling on Admissibility

Before Elliott's first trial, the trial court determined that M.J.'s hearsay statements were admissible because they complied with RCW 9A.44.120. At the second trial, a different trial court adopted the first trial court's ruling. Elliott argues that the second trial court erred in not holding an independent hearsay hearing because M.J.'s testimony had substantially changed over the two-and-a-half years that separated the two trials. The State counters that Elliott cannot raise the issue on appeal because he did not object to the procedure below.

Under RCW 9A.44.120, a court may admit child hearsay statements if it 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." RCW 9A.44.120(1). In addition, the child must either testify at the proceedings or be unavailable as a witness, provided that when the child is unavailable, such statement may be admitted only if there is corroborative evidence of the act. RCW 9A.44.120(2).

The State is correct that Elliott did not raise the issue below and, generally, we will consider an issue raised for the first time on appeal only if it constitutes manifest error that affects a constitutional right. RAP 2.5(a). As stated earlier, the defendant must show actual and identifiable prejudice to his constitutional rights at trial to establish manifest error. Kirkman, 159 Wn.2d at 935.

Regardless of whether the error alleged here meets this standard, Elliott's argument fails. We allow the trial court wide discretion in determining how best to manage the issues before it. Snyder v. State, 19 Wn. App. 631, 636, 577 P.2d 160 (1978). Elliott cites no authority in support of the proposition that the trial court must conduct separate hearsay hearings at each trial involving the same statements. At least two courts have characterized prior rulings that a hearsay statement complied with RCW 9A.44.230 as the law of the case and dispensed with any further hearsay hearings on those statements. In re Pers. Restraint of Grasso, 151 Wn.2d 1, 7-8, 84 P.3d 859 (2004); State v. Przybylski, 48 Wn. App. 661, 663, 739 P.2d 1203 (1987). A trial court's decision to adhere to a prior evidentiary ruling protects "`[t]he circumstantial guarantees of trustworthiness on which the various specific exceptions to the hearsay rule are based'" because the guarantees "`are those that existed at the time the statement was made and do not include those that may be added by using hindsight.'" State v. Ryan, 103 Wn.2d 165, 174, 691 P.2d 197 (1984) (quoting Huff v. White Motor Corp., 609 F.2d 286, 292 (7th Cir. 1979)). Thus, the trial court's adoption of the previous trial court's determination of admissibility was not error.

B. Confrontation Clause

Still, Elliott maintains that the "material changes in M.J.'s description make it clear that she did not retain an independent memory of the event and therefore removed the possibility of true `confrontation' of her allegations against Elliott." Br. of Appellant at 13. The word "testify" in RCW 9A.44.120 implicates the confrontation clause of the Sixth Amendment. State v. Rohrich, 132 Wn.2d 472, 476, 939 P.2d 697 (1997). Nevertheless, hearsay statements do not violate the confrontation clause if "`the hearsay declarant is a witness at trial, is asked about the event and the hearsay statement, and the defendant is provided an opportunity for full cross-examination.'" Grasso, 151 Wn.2d at 17 (quoting State v. Clark, 139 Wn.2d 152, 159, 985 P.2d 377 (1999)).

Here, the State questioned M.J. about the specifics of the alleged abuse and about the contents of the hearsay testimony. To elicit testimony about the alleged abuse, the prosecutor asked if Elliott had touched her in a way that made her feel uncomfortable and where he touched her. The prosecutor also asked M.J. to identify the part of his body that Elliott used to touch her. Regarding the hearsay statements, the prosecutor asked M.J. if she remembered going to the hospital and if she remembered ever seeing a doctor. That M.J. answered some of these questions with answers that contradicted her earlier hearsay statements and another with "I can't remember" did not deprive Elliott of his right to confront and cross-examine her about the alleged abuse and the hearsay statements. RP (Jan. 31, 2005) at 168. On cross examination, Elliott brought out the inconsistencies between M.J.'s testimony and her hearsay statements. For example, counsel asked, "Did you ever see his penis?"; "He never put his penis in your vagina?"; "Do you remember ever telling someone that Brian was making milk?"; "Do you remember when you told your mom about it?"; and "Where were you when you told them?" RP (Jan. 31, 2005) at 191-92.

In evaluating whether the hearsay testimony complies with the confrontation clause, we focus on the direct examination, not the cross examination or the victim's response. Grasso, 151 Wn.2d at 29-30. A victim's equivocation or denial of the hearsay statement is a constitutionally valid response. Grasso, 151 Wn.2d at 17; see also Clark, 139 Wn.2d at 154-55, 161 (victim testified in a hearsay hearing to the alleged abuse but recanted on direct examination; court held this was sufficient to allow the defendant to cross-examine and, thus, satisfied the confrontation clause).

Here, M.J. was a witness at trial, she was asked about the event and the hearsay statements, and Elliott fully cross-examined her. Thus, the confrontation clause does not bar the admission of M.J.'s hearsay statements. Grasso, 151 Wn.2d at 17.

IV. M.J.'s Competency

A. Errors and Inconsistencies In M.J.'s Testimony

The trial court determines a child's competency to testify at trial under the standards of RCW 5.60.050. State v. C.J., 148 Wn.2d 672, 682, 63 P.3d 765 (2003). A child is competent to testify at trial if she (1) understands the obligation to speak the truth on the witness stand, (2) had the mental capacity at the time of the occurrence to receive an accurate impression of the matter about which she is to testify, (3) has sufficient memory to independently recall the occurrence, (4) has the capacity to express in words her memory of the occurrence, and (5) is capable of understanding simple questions about it. State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967); C.J., 148 Wn.2d at 682 (citing State v. Swan, 114 Wn.2d 613, 645, 790 P.2d 610 (1990)). A competency ruling is not necessarily dependent on the child's recollection of the events at issue. Przybylski, 48 Wn. App. at 665. A trial court's decision that the child meets these requirements lies within the court's sound discretion, which we review for an abuse of discretion. Allen, 70 Wn.2d at 692.

In evaluating a child's competency, the evidence must show that the child can identify a lie and understands that lying is wrong; her testimony does not have to be entirely consistent. See Przybylski, 48 Wn. App. at 666. The trial court need not find the child incompetent just because her testimony contradicts the testimony of other witnesses or is internally inconsistent. See State v. Strange, 53 Wn. App. 638, 641-42, 769 P.2d 873 (1989). Rather, a child's inconsistencies and contradictions go to the weight of the testimony, not its admissibility. Strange, 53 Wn. App. at 642; State v. Woodward, 32 Wn. App. 204, 208, 646 P.2d 135 (1982). The defendant may impeach the child witness's credibility, like any other witness, by pointing out inaccuracies and inconsistencies in her testimony. Przybylski, 48 Wn. App. at 665.

Before the first trial, in 2002, the trial court held a competency hearing for M.J. The trial court conducted a new competency hearing in 2005, before the second trial. At this hearing, M.J. knew it was a truth that the judge was wearing a black robe and a lie that the Washington State flag in the courtroom was red. She knew her age, birthday, school grade, and teachers. She remembered the names of Elliott's dogs, watching "Tom and Jerry" at his house, and planting plants in the greenhouse on his property. She testified that something bad happened to her in the living room of her grandmother's house when she was alone with Elliott. Elliott had used his tongue to touch her private area on the skin. When asked where her private part was, M.J. pointed to her vaginal area. M.J.'s testimony at the competency hearing did, at times, conflict with statements her mother made, as well as with her 2003 testimony.

The trial court expressly used the Allen test to determine her competency. The court concluded that M.J. understood the difference between the truth and a lie and that she "understood her obligation and understands at this time her obligation to speak the truth from the witness stand." RP (Jan. 11, 2005) at 349, 351. After evaluating the relevance of the findings from the first competency hearing, the trial court adopted the first trial judge's findings as to M.J.'s ability at the time of the incident to absorb an accurate impression of that incident and her ability to retain an independent memory of the incident. The trial court, particularly impressed with M.J.'s use of the four-syllable word "diagonally" to describe her apartment's location, found that she had the mental capacity to express her memory in words. RP (Jan. 11, 2005) at 350.

The trial court commented that M.J. clearly tracked and understood questions, responded to them, and communicated with attorneys on matters that were not of particular concern to her. Finally, the trial court acknowledged that M.J. did not remember portions of her earlier testimony and that some of her testimony contradicted her mother's, but it concluded that the discrepancies in M.J.'s testimony were for the trier of fact to resolve.

Elliott argues that because M.J. described events that could not have occurred exactly as she testified, she could not distinguish truth from falsity, and the trial court thus erred in finding M.J. competent to testify at trial. Elliott's argument fails on two points: (1) a child's ability to distinguish the truth from a lie does not depend on her ability to remember the specific events contested at trial and (2) inconsistencies in a child's testimony go to credibility, not competency. The trial court expressly evaluated M.J.'s ability to tell the truth and found her competent. The trial court did not abuse its discretion by deciding that M.J. was competent as measured against the Allen standards.

B. Trial Court's Use of the Previous Trial Court's Ruling On Competency

Elliott also argues that the trial court abused its discretion by relying on the previous trial court's 2002 ruling that M.J. was competent to testify. Specifically, Elliott contends that the two-and-a-half year lapse between the two trials required the trial court to evaluate M.J.'s independent recollection of events without considering the first court's findings. Again, we review a trial court's competency ruling for an abuse of discretion. Allen, 70 Wn.2d at 692.

In ruling on M.J.'s competency to testify, the trial court found the previous competency ruling relevant to her mental capacity at the time of the event. The trial court also found the related findings helpful in determining whether M.J. independently recalled the events because the first hearing "was closer in time to the time of the event, and therefore, that evidence of mental capacity was not quite so distant." RP (Jan. 11, 2005) at 348. In determining whether M.J. still independently recalled the occurrence, the trial court considered M.J.'s testimony about objective facts, in addition to her memory of the contested events. The court remarked that she knew where her father and mother worked, the pets in their homes, and the number of TVs in Elliott's home. The court also noted M.J.'s ability to distinguish between two apartments in the same townhouse where she had lived. Finally, the trial court evaluated M.J.'s testimony about the sexual contact. She "described it, what part of her body was involved, pointed to it. She said who did it: Mr. Elliott. She said he used his tongue. She said he did it more than one time. She confirmed that it was done on the skin." RP (Jan. 11, 2005) at 351. The trial court acknowledged that M.J. did not remember, or did not testify to, discussing the abuse with many of the people with whom she had in fact discussed it, but based on her testimony at the hearing, he determined that she "retained an independent recollection of some of the events that have been previously described." RP (Jan. 11, 2005) at 351-52.

The trial court did not abuse its discretion by considering the first trial court's competency ruling, in part, as one measure of M.J.'s competency against the Allen standards. Allen requires that the trial court find that M.J. had sufficient memory to recall the events in question. Allen, 70 Wn.2d at 692. This part of the Allen test may therefore be satisfied by asking the child about objective facts known to the court. Przybylski, 48 Wn. App. at 665. The trial court did this in addition to asking about the event and found that M.J.'s memory was sufficient under Allen.

Moreover, no legal authority supports Elliott's argument that trial courts are barred from considering the findings of a previous competency hearing when evaluating whether a child retains an independent memory of events. The trial court analyzed M.J.'s testimony at the 2005 competency hearing under all five parts of the Allen test and limited its consideration of the first trial court's ruling to the relevant portions. We hold that the trial court did not abuse its discretion by considering the first trial court's competency findings.

V. Cumulative Effect of Errors

Elliott argues that the combined effect of the errors discussed above deprived him of his right to a fair trial and, therefore, requires reversal under the doctrine of cumulative error.

Under the cumulative error doctrine, a defendant who has established numerous errors, each of which alone was harmless, is entitled to a new trial if we find that the combined effect of these errors denied the defendant a fair trial. In re Lord, 123 Wn.2d 296, 332, 868 P.2d 835 (1994); State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984). Because we have found no error, the cumulative error doctrine does not apply.

Affirmed.

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.

HUNT, J. and VAN DEREN, A.C.J., concur.


Summaries of

State v. Elliott

The Court of Appeals of Washington, Division Two
Dec 24, 2007
142 Wn. App. 1015 (Wash. Ct. App. 2007)
Case details for

State v. Elliott

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. BRIAN HOWARD ELLIOTT, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Dec 24, 2007

Citations

142 Wn. App. 1015 (Wash. Ct. App. 2007)
142 Wash. App. 1015