State v. Borland

Decision Date20 February 1990
Docket NumberNo. 22275-9-I,22275-9-I
Citation786 P.2d 810,57 Wn.App. 7
PartiesSTATE of Washington, Respondent, v. Kendrick R. BORLAND, Jr., Appellant.
CourtWashington Court of Appeals

Lenell Nussbaum, Washington Appellate Defender, Seattle, for appellant.

Denis O'Leary, King County Deputy Pros. Atty., Seattle, for respondent.

FORREST, Judge.

Kendrick P. Borland, Jr. appeals from his conviction of statutory rape in the first degree, claiming that the trial court erred in finding that the 4-year-old complaining witness was competent to testify, and in finding that her out-of-court statements were admissible under the child hearsay statute. We affirm.

On January 8, 1988, Borland was charged with one count of statutory rape in the first degree. The trial court conducted a hearing to determine the testimonial competence of the complaining witness, D.W., who was 4 years and 1 month old at the time of trial. Following questioning by both the trial judge and the prosecuting attorney, the court determined that D.W. was competent to testify.

On the same day, the court held a hearing to determine the admissibility of out-of-court statements made by D.W. to her mother and her grandmother following the alleged incidents. The court ruled that these statements were admissible under the child hearsay statute, RCW 9A.44.120. 1 Following these rulings, Borland waived his right to a jury trial.

Pursuant to an agreement between counsel, D.W. did not testify at trial. 2 D.W.'s out-of-court statements implicating Borland were admitted through the testimony of her mother and her grandmother. Borland did not object to the admission of these statements. The court found Borland guilty as charged, and he appeals.

Was D.W. Competent?

The requirements for determining the competency of a child witness, as formulated in State v. Allen 3 and applied to child hearsay in State v. Ryan 4 are: (1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which she is to testify; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words her memory of the occurrence; and (5) the capacity to understand simple questions about it. This is a close case. Borland identifies portions of D.W.'s testimony that show difficulty in responding to questions, inconsistencies and uncertainty in distinguishing between truth and error. Other portions of the testimony do show her ability to distinguish between the truth and a lie, to remember events contemporaneous with the charged acts, to express her memory, and to answer simple questions about such acts. Although the exercise of the trial judge's discretion must be based on the entire testimony, the court is entitled to select which portions have the greater persuasive value on the ultimate issue. There is probably no area of law where it is more necessary to place great reliance on the trial court's judgment than in assessing the competency of a child witness. The trial judge is in a position to assess the body language, the hesitation or lack thereof, the manner of speaking, and all the intangibles that are significant in evaluation but are not reflected in a written record. 5 Accordingly, a trial court's determination of the competency of a child witness will not be reversed on appeal absent a manifest abuse of discretion. 6 After a careful review of D.W.'s testimony, we find no such abuse of discretion.

Were D.W.'s Out-of-Court Statements Admissible?

Borland also asserts that the court erred in admitting D.W.'s out-of-court statements because the requirements of RCW 9A.44.120 and State v. Ryan 7 were not satisfied.

1. Failure of D.W. To Testify

Borland first contends that because D.W. did not testify and because there was no showing that she was unavailable as a witness, her hearsay statements were improperly admitted, relying on State v. Ryan, supra, and State v. Clark. 8 Before admitting child hearsay statements, RCW 9A.44.120(2) requires that the child either testify or be unavailable. 9 The facts here present a situation not specifically addressed by the statute: D.W. was competent and physically available to testify but was not called to the stand and did not testify.

The purpose of RCW 9A.44.120 is to permit the use of reliable child hearsay while at the same time protecting the defendant's constitutional right of confrontation. 10 The testimony, and opportunity for cross-examination, of the child witness at trial satisfies the defendant's constitutional right. Where the child witness is unavailable, the corroboration requirement serves as an accepted substitute for cross-examination. 11 Where, as here, the witness is competent and physically available, we see no reason to compel the testimony of a witness that neither the State nor the defendant chooses to call. Constitutional rights, including confrontation rights, may be waived. 12 A defendant can waive cross examination after a witness has testified. Similarly, a defendant can waive the right to call a witness who is available. That is the case before us. 13

Each side may have valid reasons for not calling an available child witness. The prosecutor, among other reasons, may properly wish to spare the child the stress and trauma of in-court testimony. Defense counsel may believe that hostile examination of a child witness may be counter-productive, especially in a jury trial, and may prefer to urge misperception or misunderstanding by the child or distortion by the witness relating the out-of-court statements. Whatever the reasons, the decision is for each of the parties to make, not for the court to make for them.

We hold that RCW 9A.44.120(2) is satisfied when the child witness is both competent and physically available to testify. Our use of the term "competent" embraces both senses in which the term has been used: that the child has an ability "to receive just impressions of the facts concerning the event" 14 and that the child meets the standards for testimonial competence discussed previously. 15 Actual testimony is not required as a condition of admission of the out-of-court statements. Testimony by the child witness may be waived by the defendant, but the fact of such waiver should be clearly made on the record. 16

2. Indicia of Reliability

RCW 9A.44.120 requires that in order for out-of-court statements by a child witness to be admitted at trial, the court must find that "the time, content, and circumstances of the statement provide sufficient indicia of reliability". In State v. Ryan, the court identified nine factors for assessing the indicia of reliability required for the admissibility of out-of-court statements under RCW 9A.44.120:

(1) whether there is an apparent motive to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; and (5) the timing of the declaration and the relationship between the declarant and the witness. [State v. Parris, 98 Wash.2d 140, 146, 654 P.2d 77 (1982) ] ... [and] (1) the statement contains no express assertion about past fact, (2) cross examination could not show the declarant's lack of knowledge, (3) the possibility of the declarant's faulty recollection is remote, and (4) the circumstances surrounding the statement (in that case spontaneous and against interest) are such that there is no reason to suppose the declarant misrepresented defendant's involvement. [Dutton v. Evans, 400 U.S. 74, 88-89, 91 S.Ct. 210, 219-20, 27 L.Ed.2d 213 (1970) ].

Ryan, 103 Wash.2d at 175-76, 691 P.2d 197.

Borland argues that the trial court abused its discretion in finding that the statements made by D.W. to her mother and grandmother satisfied these nine factors. Borland attempts to analogize his case to Ryan. In Ryan, two young victims were questioned about the source of some candy they had brought home. The children, who had been forbidden to accept candy, initially said that someone in the street had given it to them, but later said that the defendant had given it to them in exchange for permitting certain sexual contact. The trial court concluded that the hearsay statements by the children did not satisfy the nine criteria listed above and therefore lacked indicia of reliability. 17

A review of the record in this case indicates that it is distinguishable from Ryan. First, D.W. had no apparent motive to lie. Second, there was no challenge to D.W.'s general character. Third, D.W. told both her mother and her grandmother that Borland had sexually abused her. In Ryan, each child told only one person.

Fourth, while Borland argues that D.W.'s statements were not "spontaneous" because they were made in response to questioning, State v. Henderson 18 held that "Ryan compels a less narrow definition of 'spontaneous', one that considers the entire context in which the child makes the statement". The court in Henderson stated that the child witness:

volunteered the information that her father stuck his fingers in her vagina when Detective Hinds asked [the child] why it hurt her when her father touched her vagina. His question was neither leading nor suggestive. Thus, the statement qualifies as "spontaneous".

(Emphasis added.) State v. Henderson, 48 Wash.App. at 550, 740 P.2d 329. Likewise, D.W.'s statements were made in response to questions that were neither leading nor suggestive. 19 Thus, D.W.'s statements were "spontaneous".

Fifth, although Borland claims that the witnesses were predisposed to believe D.W. because they were her mother and her grandmother, this case presents different facts than Ryan. The person implicated by the statements in Ryan was a stranger. Borland was closely related to both witnesses: one was his sister, and the other was his mother. Although the witnesses may have been predisposed to believe D.W., they would also presumably be...

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