In re Personal Restraint of Grasso

• Citation: 151 Wash.2d 1,84 P.3d 859
• Decision Date: 05 February 2004
• Docket Number: No. 72588-8.,72588-8.
• Court: United States State Supreme Court of Washington
• Parties: In the Matter of the PERSONAL RESTRAINT Petition OF Vincent Peter GRASSO, Petitioner.

84 P.3d 859

151 Wash.2d 1

In the Matter of the PERSONAL RESTRAINT Petition OF Vincent Peter GRASSO, Petitioner.

No. 72588-8.

Supreme Court of Washington, En Banc.

Argued May 22, 2003.

Decided February 5, 2004.

Suzanne Elliott, Seattle, for Petitioner.

James Krider, Snohomish County Prosecutor, Mary Webber, Deputy, Everett, for Respondent.

OWENS, J.

Vincent Grasso was convicted of first degree child rape and first degree child molestation in 1994. The victim, Grasso's five year old daughter, R.G., took the stand at his trial. In his personal restraint petition, Grasso argues that because the prosecutor gave R.G. permission to answer some questions with "I don't want to talk about it," R.G. did not "testify" within the meaning of the child hearsay statute, and admission of her hearsay statements violated his right of confrontation. We hold that Grasso's petition is not procedurally barred and the prosecutor's instruction was indeed improper. Yet, setting aside the interchanges where R.G. answered, "I don't want to talk about it," the remainder of her testimony was sufficient to support admission of most of her hearsay statements. The remaining hearsay statements were admissible on alternative grounds. Thus, we hold that the improper instruction did not result in actual or substantial prejudice and we deny the petition.

FACTS

In April 1993, R.G. was living with her aunt, Tucker Copple. Copple and a friend found R.G. and their other young children engaging in sexualized play. As a result, Copple asked R.G. if she had ever been touched on her "private parts." IV Verbatim Report of Proceedings (VRP) at 543. Initially, R.G. answered, "No." Id. After Copple reassured R.G. that she was not in trouble, R.G. began crying and answered, "Yes." Id. When Copple asked who touched her, R.G. answered, "My dad." Id.

On May 4, 1993, Elaine Metz, a child interview specialist, interviewed R.G. Metz knew only R.G.'s name, her age, and the type of charge involved. On a drawing of a child, R.G. marked the places where her dad had touched her, and told Metz that her father had touched her on six occasions under her clothes. She indicated that her dad had touched her chest and rubbed her vaginal area, and that he had inserted his hand inside her vagina and rectum. R.G. stated that she was three when her dad first touched her in this way.

On June 3, 1993, Jean Bourget, a pediatric nurse practitioner, examined R.G. R.G. told Bourget that her dad had touched her front private part once with his hands and it hurt. Bourget's colposcopic exam revealed that R.G. had an unusually large hymenal opening and a notch in her hymenal tissue, symptoms that are diagnostic of sexual abuse.

The State charged Grasso with one count of first degree rape of a child and one count of first degree child molestation. Before trial, the court conducted a child hearsay hearing pursuant to RCW 9A.44.120, under which a statement made by a child when under the age of 10, describing any act of sexual contact performed on the child by another, is admissible if the court finds (1) sufficient indicia of reliability and (2) the child either (a) testifies or (b) is unavailable, but there is other corroborative evidence of the abuse. Judge Gerald L. Knight admitted the statements R.G. made to Metz and Bourget pursuant to the statute. Although he initially excluded the disclosure to Copple, Judge Knight eventually ruled that the defense had opened the door to admission of those statements. Despite difficulty getting her to take the stand, R.G. testified at trial but denied her dad had abused her. The trial ended with a hung jury.

Before Grasso's second trial, R.G. made additional statements about the abuse in the course of therapy with Kathy Keating-Harvey. On January 20, 1994, when asked about bad touches, R.G. responded, "like when ... dad touched my privates." 5 VRP at 691.¹ Again on February 10, when asked to name a bad part about someone she loves, R.G. responded, "My dad touching my privates, but I still love him." 5 VRP at 696. Finally, on April 14, in a "Book about me" R.G. wrote that "Vincent" was someone she did not like to have touch her. 5 VRP at 697-99. When talking about the book, R.G. stated that she did not remember exactly how her dad had touched her but that he had touched her privates. She also explained that her dad said it did not happen, but it really did, and she remembered telling her aunt about it.

Before the second trial, the new trial judge (Judge Anita L. Farris) also held a child hearsay hearing. Judge Farris found that R.G. was available to testify, and R.G.'s statements to Keating-Harvey were sufficiently reliable to satisfy RCW 9A.44.120(1). See State v. Ryan, 103 Wash.2d 165, 175-76, 691 P.2d 197 (1984)

. Following the law of the case, she also admitted R.G.'s statements to Metz and Bourget under RCW 9A.44.120. Even though Judge Knight had initially ruled that R.G.'s statements to Copple were inadmissible, Grasso stipulated to their admission, presumably for the purpose of arguing that Copple was suggestive in her questioning of R.G. Thus, R.G.'s statements to Copple were admitted as stipulated, and the statements to Metz, Bourget, and Keating-Harvey were admissible pursuant to RCW 9A.44.120, so long as R.G. testified. Finally, Judge Farris found that if R.G. were to become unavailable, the hearsay statements would still be admissible because the physical evidence of abuse provided corroboration sufficient to meet the requirements of RCW 9A.44.120(2)(b). However, R.G. was never found to be unavailable.

R.G. took the stand at the second trial and the prosecutor instructed R.G. that if she did not know the answer to a question, she should answer, "I don't know," if she could not remember, she should answer, "I don't remember," and if she did not want to talk about it, she could answer, "I don't want to talk about it." 5 VRP at 630. During direct examination, R.G. answered, "I don't want to talk about it," when asked if she knew why she did not live with her dad anymore, 5 VRP at 633, if she knew where her private parts were, 5 VRP at 635, and who it was that touched her in a bad way, 5 VRP at 639. R.G. also replied, "I don't want to talk about it," when asked, "Do you remember telling the doctor that your dad touched you in a bad way?"² 5 VRP at 636, and "does Kathy ever ask any questions about your dad?" 5 VRP at 633-34.

However, when the prosecutor asked whether anyone had ever touched her privates in a way she did not like, R.G. answered, "I can't remember." 5 VRP at 636. The prosecutor inquired further, "You can't remember or you don't want to talk about it?" and R.G. answered, "I can't remember." 5 VRP at 636. When asked whether she was telling the truth when she told the doctor about her dad, R.G. answered, "Yeah." 5 VRP at 636. R.G. stated that she did not remember the meeting with Elaine Metz. Finally, the prosecutor asked general questions about what activities R.G. did with Kathy Keating-Harvey, to which R.G. answered, "I can't remember." 5 VRP at 631.

On cross-examination, R.G. affirmed that she did not know why she could no longer see her father. She also admitted that she had previously recanted, once in an interview with defense counsel and once in court, and she stated that those recantations were truthful. Finally, defense counsel asked, "Your daddy didn't touch you in the private parts, did he?" and R.G. stated that she could not remember. 5 VRP at 645. Notably, R.G. never answered, "I don't want to talk about it" to any questions asked on cross-examination.

All of the hearsay statements discussed above were admitted, and R.G.'s testimony and her hearsay statements were the only evidence connecting Grasso to the abuse. The jury convicted Grasso and the Court of Appeals affirmed. This court denied review and the Court of Appeals issued a mandate on October 23, 1997.

Grasso filed his first personal restraint petition alleging confrontation clause violations on November 6, 1998, a few days after the statutory one-year time limit. See RCW 10.73.090(1). That petition was dismissed. Grasso filed his third personal restraint petition in this court in December 2001, claiming again that the admission of R.G.'s hearsay statements violated his right of confrontation and RCW 9A.44.120. The commissioner transferred the petition to the Court of Appeals where the acting chief judge dismissed the petition as both untimely and successive. Grasso filed a motion for discretionary review, which this court granted.

ISSUES

A. Is Grasso's personal restraint petition procedurally barred?

B. Did admission of R.G.'s child hearsay statements violate Grasso's right of confrontation?

C. If so, did actual and substantial prejudice result?

ANALYSIS

A personal restraint petition is not a substitute for direct appeal and availability of collateral relief is limited. In re Pers. Restraint of St. Pierre, 118 Wash.2d 321, 328-29, 823 P.2d 492 (1992). In order to obtain relief, Grasso must first overcome statutory and rule based procedural bars. See, e.g., RCW 10.73.090, .140; RAP 16.4(d). Then, in order to successfully argue a claim not previously raised, Grasso must demonstrate by a preponderance of the evidence either a constitutional error that worked to his actual and substantial prejudice, or a nonconstitutional error that constitutes a fundamental defect inherently resulting in a complete miscarriage of justice. St. Pierre, 118 Wash.2d at 328, 823 P.2d 492; In re Pers. Restraint of Cook, 114 Wash.2d 802, 812, 792 P.2d 506 (1990).

A. Procedural Issues

Grasso concedes that his petition was filed more than one year after the mandate ended his direct appeal. See RCW 10.73.090(1). However, the one-year time limit for collateral attack does not apply to a petition that is based solely on the grounds that there has been a significant change in the law, which is material to the conviction, so long as sufficient reasons exist to...