State v. Biggs

• Citation: 333 S.W.3d 472
• Decision Date: 01 March 2011
• Docket Number: No. SC 90775.,SC 90775.
• Parties: STATE of Missouri, Respondent,v.George BIGGS, Appellant.
• Court: United States State Supreme Court of Missouri

333 S.W.3d 472

STATE of Missouri, Respondent,

v.George BIGGS, Appellant.

No. SC 90775.

Supreme Court of Missouri, En Banc.

March 1, 2011.Rehearing Denied March 29, 2011.

G. Michael Baker, Springfield, for Appellant.James B. Farnsworth, Attorney General's Office, Jefferson City, for Respondent.MICHAEL A. WOLFF, Judge.

George Biggs was tried and found guilty of child abuse after his son, age 7, was found to have suffered extensive bruising after spending approximately five weeks with his father. Biggs challenges the admission of statements that the boy made to his mother and to authorities who investigated the bruising.

The boy suffered from a medical condition that rendered him unable to control his bowels. Due to this medical condition, the boy frequently defecated in his pants, often without realizing that he had done so. The boy's mother picked him up from Biggs' house; on the ride home, the boy asked her if he could lie down because his bottom hurt. He explained that his buttocks were bruised.

After arriving home, the mother asked the boy if she could see his bruises. He pulled his pants down and showed her bruising all along his buttocks, extending to his upper thighs and the sides of his legs. When asked what happened the boy said his dad “whopped [his] butt.” He said that when he would defecate on himself, the boy's father, Biggs, would take him into the master bedroom, bend the boy over the bed naked and spank him with a belt.

The mother called the police. Curt Ringgold, the responding officer, spoke with the boy and photographed his injuries. The boy told Ringgold that his father often “whopped” him. Ringgold reported that the boy's bruising was consistent with belt strikes. Ringgold also testified at Biggs' trial that the bruises were in various stages of healing—indicating that the bruises had been inflicted at different times.

The boy was then taken to the Child Advocacy Center in Springfield. Rachel Happel, a forensic interviewer, conducted a recorded interview during which he said that when he stayed with Biggs he was “whopped” with a belt as punishment when he “pooped himself.” The boy said that his father “whopped him” “every day and night” and that the beatings caused bruises.

After an investigation by the Springfield special victims unit, Biggs was charged with abuse of a child under section 568.060, RSMo 2000.¹

Prior to trial the state notified Biggs that it intended to use the boy's out-of-court statements to his mother, Happel, Ringgold and Gayla Hancock, the child's godmother. Biggs filed objections to the state's motion, arguing that section 491.075—by admitting hearsay statements as substantive evidence—violates the confrontation clause of the United States Constitution and improperly bolsters witness testimony.

The trial court held a hearing as required by section 491.075 to determine whether there were sufficient indicia of reliability.² At the hearing the child's mother, Happel, and Ringgold each testified as to the boy's statements. After hearing the proposed testimony, the trial court overruled Biggs's objections and held that there were sufficient indicia of reliability to permit the proposed witnesses to testify pursuant to section 491.075. Just before trial, the court held a second hearing and determined that the testimony of Hancock, who was unavailable for the earlier hearing, also met the criteria of 491.075.

At trial, the witnesses testified to the following statements by the boy:

(1) Hancock, who was with the mother and child when he was picked up from Biggs' house, testified:

• The boy asked if he could lie down, saying “that his bottom hurt, that he had bruises.”

• The boy said, “I have bruises on my bottom. My dad whopped my butt.”

• The boy “that he boo-booed on himself, and his daddy made him go take a shower to get cleaned up. He was made to come into the bedroom naked, to bend over the bed, and Daddy whooped his bottom with a belt.”

• When asked about where Biggs' wife was, the boy answered: “She was in the living room.”

• In response to the mother's saying she was going to call the police, the boy said: “Don't call the police. My daddy will get mad and spank me.”

(2) The mother testified:

• The boy said: “He has a bruise”

• He told his mother: “Mommy, I have a bruise.”

• The boy said: “I'm scared.”

• He said: “Daddy whopped me with a belt.”

(3) Ringgold testified:

• The boy said “he often gets spankings because he has accidents. He is told to take a bath or shower, put pajamas on, sit on a couch. And then when his father calls him into his room, he goes into his father's room and receives spankings.”

• The boy reported that “[spankings] happen every day.”

• When asked how his father spanked him the boy answered—“with a belt.”

In addition to the above hearsay statements, the trial court also admitted the videotaped interview that Happel conducted with the boy at the Children's Advocacy Center. The jury watched the video.

The boy took the stand and testified that he never showed his mother or Hancock anything on his body. He also testified that he did not know if he had any bruises on his body; he did not remember the Happel interview; he never had any accidents when he visited his father, and he did not remember if anyone ever hit him. The boy was unable to recall any information concerning the abuse, his reporting of the abuse, his videotaped interview or the police investigation.

The jury found Biggs guilty of child abuse and the trial judge sentenced him to a seven-year prison term. Biggs directly appealed to this Court, which has jurisdiction. Mo. Const. art. v., sec. 3.

I. Biggs's Constitutional Challenges to Section 491.075

The constitutional validity of a statute is a question of law to be reviewed de novo. City of Arnold v. Tourkakis, 249 S.W.3d 202, 204 (Mo. banc 2008).

Section 491.075 allows the hearsay statements of a minor less than 14 to be admitted as substantive evidence if:

(1) Defendant is charged with committing a violation of RSMo Chapters 565, 566, 568 or 573;

(2) The statements relate to the offense;

(3) The child either testifies, or is unavailable as a witness, or is otherwise physically available as a witness but the court finds that significant emotional or psychological trauma would result from testifying in the personal presence of the defendant.

Section 491.075, RSMo Supp 2006. Pursuant to this statute, the child's mother, Hancock, Ringgold and Happel testified regarding the boy's statements concerning his father's abuse.

Biggs argues that section 491.075 is unconstitutional because: (1) it violates the confrontation clause, (2) it violates Biggs's due process rights and (3) it violates Biggs' right to equal protection of the law.

A. Confrontation Clause

The Sixth Amendment's confrontation clause says, “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Missouri Constitution echoes this statement, guaranteeing that “in criminal prosecutions the accused shall have the right ... to meet the witnesses against him face to face.” Mo. Const. art. I, sec. 18(a).

If a witness does not testify at trial, prior testimonial statements are admissible “only where the declarant is unavailable and only where defendant has had a prior opportunity to cross-examine.” State v. Perry, 275 S.W.3d 237, 242 (Mo. banc 2009) (quoting Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). If, however, the declarant testifies at trial, there are no constraints on the use of his prior testimonial statements. Id.

Biggs admits that his son was available to testify, but argues that he was “unavailable” because of his testimony that “he could not remember,” “it did not happen” or “he did not know” to all essential elements of the offense. Biggs argues that because the boy was essentially unavailable, Biggs was denied his opportunity for meaningful cross-examination of his son and, therefore, the admission of the section 491.075 testimony violates the confrontation clause.

The fact that a witness's testimony is unsatisfactory does not render the witness unavailable.³ The confrontation clause only guarantees “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” United States v. Owens, 484 U.S. 554, 559, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988); Kentucky v. Stincer, 482 U.S. 730, 739, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). Because the child was on the stand, answered Biggs' attorney's questions and was cooperative, the boy was available. Superficially, of course, the boy's testimony at trial was favorable to his father, but the jury obviously did not believe it. In any event, the evidence did not violate the confrontation clause.

B. Due Process

Biggs argues that section 491.075 is unconstitutional because it violates the due process clause by allowing a criminal defendant to be convicted on unreliable and incompetent evidence. U.S. Const. amend. V.; U.S. Const. amend. XIV; Mo. Const. art. I, sec. 10. It should be noted that section 491.075 requires the court to find that the “content and circumstances of the statement provide sufficient indicia of reliability.” Section 491.075. In the section 491.075 hearing the trial judge found that the hearsay statements were reliable, and the record supports that conclusion. Biggs, therefore, was not convicted on “unreliable or incompetent evidence.” Because the evidence was reliable, the allegation of a due process violation fails.

Moreover, “the prevalent theme in due process cases is that in a criminal prosecution the accused must be allowed to present a complete defense.” State v. Williams, 729 S.W.2d 197, 200 (Mo. banc 1987); State v. Wright, 751 S.W.2d 48, 53 (Mo. banc 1988). This Court has held that admitting evidence under section 491.075 does not prevent a defendant from presenting a...