State v. ALLEN S.
| Decision Date | 17 December 1999 |
| Docket Number | No. 22642-1-II.,22642-1-II. |
| Citation | 98 Wash.App. 452,989 P.2d 1222 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. ALLEN S., Appellant. |
Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry (Court Appointed), Olympia, for Appellant.
Cynthia Cecilia Szeker, Clallam Co. Pros. Ofc., Seattle, for Respondent.
The question in this appeal is whether a party may impeach a person who claims at trial not to remember anything relevant to the case. The answer is no.
S is the father of two sons, J and B. J is the older, B is the younger.
Sometime before April 5, 1996, J alleged that S had been sexually abusing him. S was then arrested and jailed. The same evening, B was asked by his grandmother whether anyone "had touched him where they wasn't [sic] supposed to."1 B replied, "[N]o."2
On April 5, 1996, B was interviewed by Deputy Larry Dunn of the Clallam County Sheriff's Department. According to Dunn's later testimony, Dunn asked B "if his dad had touched him in a way that made him uncomfortable such as touching his privates."3 B responded, "[M]y dad didn't do any nothing [sic]."4
Later in the day on April 5, B asked to see Dunn again. During this second interview, B said, "[M]y dad raped me."5 B said he had omitted this from the first interview "[b]ecause I was scared."6
On April 8, 1996, B was seen by a pediatrician. B told her that his father had "put his privates in my butt and in my mouth almost every day for three years."7 She observed "multiple bruises and scrapes of varying ages on his body,"8 but no physical signs of "trauma... to [the] rectum."9 She thought that "a normal exam can be compatible with chronic sodomy because of the normal healing capacity of the rectum."10
On February 21, 1997, the State charged S with the first degree child rape of B (Count I) and the second degree child rape of J (Count II). The rape of B was alleged to have occurred on or about April 2, 1996.
In April 1997, a jury acquitted on Count II but could not reach a verdict on Count I. The State sought a retrial on Count I. It also alleged for the first time that S was a persistent offender.
In May 1997, Josh Spry was an inmate in the Clallam County Jail. He had a felony record and was again facing felony charges. He asked to be interviewed by a sheriff's deputy, and on May 22 Deputy Charles Fuchser responded. Spry told Fuchser that "he was willing to provide information about [S] and others so he could cut himself a better deal."11 Fuchser did not agree to a deal, but Spry nonetheless described jailhouse conversations between himself and S. In those conversations, according to Spry, S had admitted to getting "high on crank" and doing "some fucked up things to his children."12 Fuchser sent the prosecutor a police report that incorporated Spry's comments.
Retrial commenced on September 30, 1997. Witnesses included B, Dunn, Spry, and Fuchser. B testified that on a "whole bunch" of occasions,13 S had "stuck his privates in my butt."14 Pain had resulted, and his "butt" had "bled."15 The most recent occurrence was about three days before S's arrest.
Before Spry took the stand, the prosecutor told the court, outside the presence of the jury, that she had recently tried to interview Spry at the state prison where Spry was presently incarcerated. Spry had told her that she "would hear what he had to say when he took the witness stand."16 As a result, she was concerned about what Spry would say in front of the jury, and she wanted to preview his testimony out of the presence of the jury. She stated:
... [W]hat I would like to do to clarify any problems before we get in front of the jury is have Mr. Spry in here, allow him to read the report that Det. Fuchser made which is one and a quarter pages of what Mr. Spry told Det. Fuchser ... and ask him if that is what he intends to testify to and, if he says yes, have him testify. If he says no, I am sunk. If he testifies other than ... he says he is going to testify ... I think I should be allowed to put Det. Fuchser on for impeachment and the jury is entitled to a limiting instruction.[17]
After a question from the court, the prosecutor reiterated:
... I think perhaps the best way to handle it [is] out of the presence of the jury, give him an opportunity to read what he told Fuchser and, if he denies saying it, we don't have a witness. If he says he is going to testify to what is here, we put him on the witness stand and, if he does so, we don't need Det. Fuchser. If he doesn't testify as to what is here, then I will need Det. Fuchser.[18]
The trial court declined to preview Spry's testimony outside the presence of the jury. Instead, it directed the prosecutor to use the following procedure in front of the jury:
If Mr. Spry gets on the witness stand and says nothing happened, nothing was said to me, under [ER] 613 you can [ask] him; Did you not tell Fuchser in an interview that [S] said this to you. If he denies that, then you can bring on Fuchser. If he admits that, then we are done. That is the way. But you will have to first ask him... what occurred in jail between he and [S] and did [S] say anything and, if he testifies to what he says in the report, fine. If not, you can use the report to ask him whether or not he made some other statements to Deputy Fuchser.[19]
When the jury came back in the courtroom, Spry testified as follows:
In accordance with the trial court's earlier direction, the prosecutor then called Fuchser. He testified:
At the end of the evidence, the trial court gave a limiting instruction. It stated:
Evidence has been introduced in this case by Deputy Charles Fuchser on the subject of Joshua Spry's testimony for the limited purpose of impeaching Joshua Spry. You must not consider this evidence for any other purpose.[25]
The jury convicted, and the trial court imposed a sentence of life without possibility of parole. S then filed this appeal, in which we consider one dispositive issue, two additional issues that could affect the remedy on appeal, and one issue that is likely to recur on retrial.
The dispositive issue is whether the trial court erred by admitting, through Fuchser's testimony, the out-of-court statements that Spry made to Fuchser on May 22. S says yes, while the State says no.
Fuchser's testimony was admitted to impeach Spry's testimony. Thus, we analyze (A) who can impeach; (B) who can be impeached; and (C) the nature of the evidence by which impeachment can be accomplished. Then, we apply our analysis to the facts here.
ER 607 addresses the question of who can impeach. It provides, "The credibility of a witness may be attacked by any party, including the party calling the witness." It eliminates Washington's old rule that a party cannot impeach his or her own witness—even if the witness' credibility is a fact of consequence to the action—unless the party is surprised and damaged.26 ER 607 has nothing to do with the question of who can be impeached, and it does not permit a person to be impeached when his or her credibility is not a fact of consequence to the action.
Who can be impeached is a question associated with relevance. Under ER 402, all evidence must be relevant. Under ER 401, evidence is relevant if it has "any tendency" to make more or less probable than otherwise a fact of consequence to the action.
Evidence offered to impeach is relevant only if (1) it tends to cast doubt on the credibility of the person being impeached, and (2) the credibility of the person being impeached is a fact of consequence to the action. The second of these elements is the question of who can be impeached. If a person's credibility is a fact of consequence to the action, the jury needs to assess it, and impeaching evidence may be helpful. If a person's credibility is not a fact of consequence to the action, the jury does not need to assess it, and impeaching evidence could not be helpful. Thus, a person may be impeached if his or her credibility is a fact of consequence to the action,27 but not if his or her credibility is not a fact of consequence to the action.
Five cases illustrate when a person's credibility is not a fact of consequence to the action. In State v. Robbins,28 a man named Leader was called to the stand. He...
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