Kierst v. D.D.H., WD

• Decision Date: 31 March 1998
• Docket Number: No. WD,WD
• Citation: 965 S.W.2d 932
• Parties: In the Interest of David KIERST, Juvenile Officer, Respondent, v. D.D.H., et al., Appellant. 53827.
• Court: Missouri Court of Appeals

Page 932

965 S.W.2d 932

In the Interest of David KIERST, Juvenile Officer, Respondent, v. D.D.H., et al., Appellant.

No. WD 53827.

Missouri Court of Appeals Western District.

March 31, 1998.

Tricia Richter, Asst. Public Defender, Kansas City, for appellant.

Robert M. Schieber, Kansas City, for Respondent.

David W. Bushek, Freilich, Leitner & Carlisle, Kansas City, Guardian ad Litem, Intervenor-Appellant.

Before SPINDEN, P.J., and LAURA DENVIR STITH and EDWIN H. SMITH, JJ.

LAURA DENVIR STITH, Judge.

D.D.H. and the guardian ad litem appeal the court's judgment sustaining allegations that D.D.H., a juvenile, committed statutory sodomy upon a person less than fourteen years old, an act for which he would be criminally responsible under Section 566.062 RSMo 1994, ¹ if he had been tried as an adult. We reject the guardian ad litem's claim that the court erred in admitting the child-victim's out-of-court statements because the juvenile officer failed to follow the notice provisions required by Section 491.075.3, for neither the juvenile's attorney nor the guardian ad litem objected to these statements' admission on this basis. We also reject the guardian ad litem's claim that the court erred in failing to make a specific finding, at a separate hearing, that the time, content and circumstances of the child's hearsay statements were sufficiently reliable for admission under Section 491.075. Although a specific finding is preferred, the court's finding was implicit in its rulings and supported by the record.

We agree with the guardian ad litem and D.D.H. that the trial court erred in finding the child-victim unavailable under Section 491.075.1(2)(c) and in admitting his hearsay statements without the benefit of any evidence supporting a finding that the child would experience "significant emotional or psychological trauma ... result[ing] from testifying in the personal presence of the defendant." Because this was the only evidence supporting the judgment, we reverse. We remand for a new hearing before the court at which it will determine whether the Section 491.075.1(2)(c) standard was met. If not, a new trial is required.

I. FACTUAL AND PROCEDURAL HISTORY

Following the death of his mother and a brief placement at the Family Attention Center, the Division of Family Services (DFS) placed D.D.H., a fifteen year old boy, in the custody of his brother, A.H., on June 4, 1996. D.D.H. claims that his brother kicked him out of his house in August, 1996. He subsequently stayed with Ms. Edora Odor and T.J., her young son. D.D.H. babysat for T.J. and two other children at Ms. Odor's home on August 26 or 27, 1996.

On August 30, 1996, T.J.'s grandfather, Robert Holopter, overheard T.J. saying that two boys had made him perform oral sex on them. Mr. Hollopter confronted T.J., who at first cried and acted "a little hysterical." After he calmed down, T.J. told his grandfather that D.D.H. and another person had made him perform oral sex on them. T.J. told his grandfather that "they told him they'd beat him up if he didn't." Mr. Holopter testified that he did not know of any reason his grandson would make up such a story. Mr. Hollopter called his wife, and Mrs. Hollopter called her daughter, Ms. Odor. Ms. Odor called the police and told her father to bring T.J. home to talk to them.

Officer James Buck questioned T.J. outside while Mr. Hollopter and Ms. Odor were present in the front yard. T.J. repeated the same story, and gave the officer a description of the two boys. T.J. was a little excited or upset, and seemed afraid to talk about the incident, but his account of what had occurred was detailed and consistent. T.J. also told the officer that, at the time of the incident, he was afraid he would be beaten up if he did not do as they told him. The officer escorted T.J. and his mother to the hospital for an examination.

On August 31, 1996, the attorney for the juvenile officer filed a Fifth Amended Petition which incorporated by reference the Kansas City Missouri police report. This provided D.D.H. with the information gathered in the course of the police investigation. On September 3, 1996, a Sixth Amended Petition was filed, and on October 8, 1996, D.D.H. was brought before the Family Court on this six-count petition.

The only count at issue on this appeal is Count VI. ² It alleged:

[o]n or about August 30, 1996, in Jackson County, Missouri, the juvenile by the juvenile's own conduct and by the conduct of another, for which the juvenile would be criminally responsible if tried as an adult, had deviate sexual intercourse with [T.J.], born 08-31-90, a person less than fourteen years old, in violation of Section 566.062, RSMo (Statutory Sodomy, First Degree--Class B Felony).

The trial was to begin on October 8, 1996. On the preceding morning, the attorney for the juvenile officer filed and hand-delivered a written motion for a hearing pursuant to Section 491.075 concerning whether the child victim's out-of-court statements to others about the incident would be admissible under that provision. Section 491.075 states in relevant part that:

Statement of child under twelve admissible, when.--1. A statement made by a child under the age of twelve relating to an offense under chapter 565, 566 or 568, RSMo, performed with or on a child by another, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings in the courts of this state as substantive evidence to prove the truth of the matter asserted 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

....

(c) The child is otherwise physically available as a witness but the court finds that the significant emotional or psychological trauma which would result from testifying in the personal presence of the defendant makes the child unavailable as a witness at the time of the criminal proceeding.

(emphasis added).

The judge took up the Section 491.075 issue when court convened the following morning, October 8th, 1996. No party objected at that time that inadequate notice had been given of the juvenile officer's intention to seek to introduce the victim's out-of-court statements under Section 491.075, and no party requested a continuance or alleged prejudice due to the late notice.

Without hearing any evidence, the court ruled that [B]ased upon his observation of the alleged child victim, who is age six years, [the court] find[s] the child, due to his tender years, unavailable for purposes of submitting to testimony and interrogation in this cause; and therefore, will allow use of out-of-court statements and declarations regarding the alleged incident in Count VI of the sixth amended petition to the extent that the other factors with respect to validity of said statements can be established.

Counsel for the juvenile objected that this finding that the child was of tender years was not adequate to support a determination that the child was unavailable as a witness, stating:

I think there would need to be a finding that the juvenile--I'm sorry--that the alleged child victim was unavailable other than with respect to his age. I think there would have to be a finding that there was some type of concern that the child would, in some way, be affected by testifying. I think it violates my client's [Sixth] Amendment right to confront witnesses and accusers.

The court responded by clarifying that it based its determination of unavailability not just on the child's age, but also on its observation of the child in court, stating:

The Court did so find with respect to--certainly age relates to tender years, but also the Court's observation of the child as he appears before the Court on this date, coupled with his age, render him unavailable. And the Court will so rule. The objection will be noted for the record.

(emphasis added).

The court and parties then discussed when the court would determine whether each out-of-court statement was sufficiently reliable to be admissible under Section 491.075. The court decided that, since it was a court-tried case, there was no need to hold a separate hearing on reliability. Instead, the court informed the parties that it would decide the reliability of each out-of-court statement as it was offered.

The juvenile officer then proceeded with its case. The first witness was the victim's mother, Ms. Odor. On cross-examination, counsel for the juvenile established that the witness's knowledge of the incident was based on what her mother had told her D.D.H. had said and, thus, constituted "compounded hearsay" and asked that any further testimony by that witness be disallowed. The court sustained this objection. Counsel did not request that her prior testimony be stricken, however, and it is unclear whether the court considered it except on the issue that the juvenile had been babysitting for the victim.

The victim's grandfather, Mr. Hollopter, was next called to testify. Although multiple objections were made during his testimony, they were overruled and no separate point is made on appeal that the rulings on these objections were erroneous. Finally, the juvenile officer called Officer Buck to testify about his interview with the victim at the time the incident was reported to him. This testimony was received without objection. The judge never made a specific finding on the reliability of any of this testimony, nor was he asked to do so.

The judge found that "sufficient facts have been adduced to sustain the allegations made and contained in Count VI beyond a reasonable doubt." Following a dispositional hearing, he ordered D.D.H. to remain in the custody of DFS with placement in residential care, with a goal of reunification with his brother.

II. STANDARD OF REVIEW

"We review juvenile proceedings under the same standard as that applied in court-tried civil cases: we...