State v. Alexander
| Citation | 822 P.2d 1250,64 Wn.App. 147 |
| Decision Date | 03 February 1992 |
| Docket Number | No. 26589-0-I,26589-0-I |
| Parties | STATE of Washington, Respondent, v. Robert Lamone ALEXANDER, Appellant. |
| Court | Court of Appeals of Washington |
Rita Griffith, Washington Appellate Defender, for appellant.
Norm Maleng, Pros. Atty., and Jeffrey Smith, Deputy Pros. Atty., for respondent.
Robert Lamone Alexander appeals his judgment for two counts of first degree rape of a child. He challenges the admissibility of the alleged victim's out-of-court statements under the "fact of the complaint" doctrine and other hearsay exceptions, the trial court's failure to grant a mistrial on the ground of prosecutorial misconduct, and the sufficiency of the evidence. We reverse and remand for a new trial.
Alexander was charged with two counts of rape committed on 9-year-old M during the period of May 1, 1989, to June 1, 1989. M's mother, "S", and Alexander lived together for 4 years. After Alexander moved out of S's apartment in 1987, M continued to visit him regularly and spent two or three weekend nights a month at his house.
In his opening statement, the prosecutor argued that the State would prove that Alexander sexually abused M in his home on three occasions, including an incident involving baby oil and an incident in the bathtub. However, M's actual trial testimony about what happened and when she was abused differed from the State's description during opening argument.
With respect to when the sexual abuse occurred, M initially testified that the first incident took place in February when she and her brother were spending the night at Alexander's house. The second incident happened about a week later, and the third, the following week. She also testified, however, that she disclosed the abuse to her mother and a counselor, David Bennett, during a counseling session 4 days after Alexander last abused her. According to S, that counseling session took place the last Friday in May. On cross examination, M testified that the third incident happened the weekend before Mother's Day, 2 weeks after the previous incidents on two consecutive weekends.
M's mother also testified that she recalled only two weekend nights when both M and her brother stayed at Alexander's apartment: the weekend of February 9th, when S graduated from school, and once in May. She also testified that she saw blood on M's underwear in May.
When the prosecutor questioned M about what Alexander had done to her, she initially denied that he had touched her vagina in the bathtub. The prosecutor then showed M three pictures she had drawn earlier for Detective Connors. M explained that in one picture, she and Alexander were taking a bath, "and that is when he touched me with his mouth". The drawing showed tears on M's face, indicating that she was crying "[b]ecause he wouldn't stop." On redirect, M testified that, M had also drawn a picture showing the defendant "putting baby oil ... [o]n my body." She denied that he had put baby oil on her vagina.
Dr. Mary Gibbons testified from an examination record written by Dr. Fraser, a doctor under her supervision who had examined M, and from her own examination of colposcopic slides of M. Dr. Gibbons' testimony included the verbatim quotes M made to Dr. Fraser during the exam. M's description to Dr. Fraser of the first incident of abuse paralleled her account given at trial. She also told the doctor that Alexander had touched her in her "privates" in the bathtub. M said the touching was painful, and that "when I wiped it, red stuff came out." M told the doctor that the abuse happened the weekend before Mother's Day, the weekend after Mother's Day, and the following weekend. From her examination of the slides and the medical report, Dr. Gibbons concluded that there had been vaginal penetrating trauma.
As a preliminary matter, we note that several of the errors alleged on appeal were not properly preserved for appeal. Because we believe, however, that the cumulative effect of all these errors, preserved and not preserved, denied Alexander a fair trial, State v. Coe, 101 Wash.2d 772, 789, 684 P.2d 668 (1984), we exercise our discretion under RAP 2.5(a)(3) to review all of his claims. See State v. Curry, 62 Wash.App. 676, 679, 814 P.2d 1252 (1991); State v. Noel, 51 Wash.App. 436, 439, 753 P.2d 1017, review denied 111 Wash.2d 1003 (1988).
Alexander first contends that the trial court erroneously allowed M, her mother, and her counselor to testify that M had disclosed the abuse to them shortly after the last incident occurred. He argues that the "fact of the complaint" hearsay exception, under which the trial court admitted the testimony, is inapplicable here because the defense did not allege an untimely complaint.
In criminal trials involving sex offenses, the prosecution may present evidence that the victim complained to someone after the assault. State v. Ferguson, 100 Wash.2d 131, 135, 667 P.2d 68 (1983); State v. Murley, 35 Wash.2d 233, 237, 212 P.2d 801 (1949). However, this narrow exception allows only evidence establishing that a complaint was timely made. Evidence of the details of the complaint, including the identity of the offender and the specifics of the act, is not admissible. Ferguson, 100 Wash.2d at 135-36, 667 P.2d 68.
In Murley, the court held that "the credibility of the complaining witness, irrespective of whether it is assailed or unassailed, may be supported by evidence of her timely prior out-of-court complaint." 35 Wash.2d at 236-37, 212 P.2d 801. The court explained the history behind the "hue and cry" doctrine, as it was formerly known. When the State made no showing as to when the victim first complained, the omission raised the inference that she did not complain at all and that she therefore fabricated her allegations. The existence of this inference required the State to prove affirmatively in its case in chief that the victim timely complained. While the State no longer bears such a burden, the Murley court acknowledged that, if the State were to remain silent as to when the victim complained, the inference of fabrication could still exist. Thus, the court ruled that, because the inference "affects [her] credibility generally," evidence of when the victim first complained is admissible. 35 Wash.2d at 237, 212 P.2d 801; see also State v. Fleming, 27 Wash.App. 952, 957, 621 P.2d 779 (1980), review denied, 95 Wash.2d 1013 (1981). Applying that rule to this case, the fact of M's prior disclosure was admissible even though the defendant did not expressly raise as an issue the timeliness of her complaint.
Alexander argues, however, that the trial court admitted evidence beyond the scope of that permitted under the "fact of the complaint" doctrine. In this regard, the defendant assigns error to several portions of Bennett's and S's testimony.
He first challenges Bennett's testimony that M's description of the abuse was "very clear" and that it remained consistent throughout their counseling sessions. 1 From this testimony, the jury could have inferred that, because M consistently described the sexual abuse during her repeated disclosures to her counselor, it was more likely that she was telling the truth. Unless the defense directly attacks the victim's credibility by, for example, suggesting that she recently fabricated her allegations, evidence that she repeatedly told the same story out of court is not admissible to corroborate or bolster her testimony. Thomas v. French, 99 Wash.2d 95, 659 P.2d 1097 (1983); State v. Bray, 23 Wash.App. 117, 125, 594 P.2d 1363 (1979); State v. Harper, 35 Wash.App. 855, 857, 670 P.2d 296 (1983). This is because "repetition is not generally a valid test for veracity." Harper, 35 Wash.App. at 857, 670 P.2d 296. Thus, Bennett's testimony that M's disclosures were consistent impermissibly bolstered M's credibility and should not have been allowed.
Alexander also argues that the prosecutor went beyond the scope of the fact of disclosure during the following portion of his examination of S:
Q Now at one of these counseling sessions did you inquire of [M] as to why she was acting out?
A Yes.
Q What was her response?
A She mentioned to David and I that some things were going on over there, and that she was scared to talk about it.
Q When she said over there--
A Over at Robert's house. Over at Robert Alexander's house.
Q Do you remember when this counseling session was?
A It was in May of 1989.
Q When she said things were going on over there did she get more specific about what happened?
A Yes.
Alexander also attacks the trial court's admission of Bennett's testimony that he filed a CPS sexual abuse report against only one individual. In both instances, Alexander believes the trial court indirectly admitted evidence of the abuser's identity, which is not admissible under the fact of complaint doctrine. We agree. The prosecutor's questioning elicited inadmissible evidence of the details of the sexual abuse allegations, i.e., the abuser's identity. Ferguson, 100 Wash.2d at 135-36, 667 P.2d 68. S's testimony that M spoke of "some things [that] were going on over ... at Robert Alexander's house" and Bennett's testimony that he filed only one report of sexual abuse both raised a virtually indisputable inference that in each instance M identified Alexander as the abuser. 2
Next, Alexander assigns error to the prosecutor's questioning Bennett about whether M gave any indication that she was lying about the abuse. As in most sexual abuse cases,...
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