State v. Bradley
Decision Date | 09 November 2020 |
Docket Number | No. 80147-3-I,80147-3-I |
Court | Washington Court of Appeals |
Parties | STATE OF WASHINGTON, Respondent, v. DALE LANE BRADLEY, Appellant. |
UNPUBLISHED OPINION
CHUN, J. — A jury found Bradley guilty of one count of first degree rape of a child and two counts of first degree child molestation. At trial, the trial court admitted evidence that the victim had told others that Bradley had assaulted her and a recording of an interview of the victim by a detective. Bradley appeals, asking us to abandon the fact of complaint doctrine and claiming evidentiary error and prosecutorial misconduct. We affirm.
BACKGROUND
Bradley lived with his girlfriend and her three daughters, one of whom is R.K. One morning on the bus to school, R.K. told her friend W.H. that someone had sexually abused her. W.H. took R.K. to the school counselor, Sarah Day, and told Day what R.K. had told her. After speaking with R.K., Day called Child Protective Services (CPS), and a CPS officer and a King County Sheriff's detective arrived and interviewed R.K. In the interview, R.K. alleged that Bradley had sexually abused her on multiple instances over the past two years, including, most recently, the Tuesday before the interview. The State charged Bradley with one count of first degree rape of a child and three counts of first degree child molestation.
The trial court admitted evidence, under the fact of complaint rule, that R.K. had told W.H., her sisters, and Day that Bradley raped and molested her. It also admitted portions of a recording of law enforcement's interview of R.K. under the recorded recollection exception to the hearsay rule.
In closing argument, the State commented on R.K.'s testimony:
(Emphasis added.)
The jury found Bradley guilty of one count of first degree rape of a child and two counts of first degree child molestation.
ANALYSIS
Bradley makes three arguments in support of reversal. First, he says that the fact of complaint rule, which allows admission of evidence that a victim reported a sex offense, stems from outdated and misogynistic stereotypes, and that we should no longer recognize such admission as proper. Next, he says that the trial court erred in admitting the police interview because it does not meet the standard for reliability required by the record recollection exception to the hearsay rule. Finally, he says the State committed prosecutorial misconduct in its closing argument by improperly referring to his presence at trial.
A. Evidentiary Admissions
We review for abuse of discretion a trial court's admission of evidence. State v. Heutink, 12 Wn. App. 2d 336, 356, 458 P.3d 796 (2020). "A trial court abuses its discretion if its decision is based on untenable grounds, an erroneous view of the law, or is manifestly unreasonable." State v. Dillon, 12 Wn. App. 2d 133, 146, 456 P.3d 1199 (2020).
Bradley says we should abandon the fact of complaint doctrine as it stems from a faulty and offensive premise. We decline his invitation.
The fact of complaint rule, a case law exception to the hearsay rule, derives from the antiquated doctrine of "hue and cry." State v. Murley, 35 Wn.2d 233, 236-37, 212 P.2d 801 (1949); State v. Chenoweth, 188 Wn. App. 521, 532, 354 P.3d 13 (2015). "The fact of complaint or hue and cry doctrine allows the prosecution in sex offense cases to present evidence that the victim complained to someone after the assault." Chenoweth, 188 Wn. App. at 532. The rule allows admission only of the fact that the victim made such a timely complaint, and not any evidence of their attacker's identity or nature of the act. State v. Ferguson, 100 Wn.2d 131, 135-36, 667 P.2d 68 (1983). The feudal notion that "a female naturally complains promptly of offensive sex liberties upon her person" underlies the hue and cry rule. Murley, 35 Wn.2d at 237. Courts have increasingly recognized that victims of sexual abuse commonly might delay in reporting their attackers. See, e.g., State v. Holland, 77 Wn. App. 420, 427-28, 891 P.2d 49 (1995) ( ). And evidentiary rules have largely replaced the doctrine. See, e.g., State v. Makela, 66 Wn. App. 164, 172-74, 831 P.2d 1109 (1992) ( ); State v. Wilson, 60 Wn. App. 887, 889-91, 808 P.2d 754 (1991) ( ). But the fact of complaint rule remains the law as declared by our Supreme Court and binds us. See, e.g., Ferguson, 100 Wn.2d at 144.1
Bradley says the trial court erred in admitting portions of R.K.'s police interview because it did not meet the recorded recollection exception's requirement for reliability. He concedes that the police interview met the standards of reliability for the most recent instance of alleged sexual assault. The State accepts this concession but counters that trial court properly admitted all the portions of the recording. We agree with the State.
Under ER 803(a)(5), a record about a matter about which a witness once had knowledge but now has insufficient recollection to enable them to testify fully and accurately is admissible if the record accurately reflects the witness's knowledge and was made when the matter was fresh in their memory. To determine whether a record accurately reflects a witness's knowledge, courts apply a totality of circumstances analysis. In re Det. of Peterson, 197 Wn. App. 722, 727-28, 389 P.3d 780 (2017). "The totality of the circumstances includes: '(1) whether the witness disavows accuracy; (2) whether the witness averred accuracy at the time of making the statement; (3) whether the recording process is reliable; and (4) whether other indicia of reliability establish the trustworthinessof the statement.'" Id. at 728 (quoting State v. Alvarado, 89 Wn. App. 543, 552, 949 P.2d 831 (1998)).
In its analysis of whether R.K. made or adopted her statements when the matter was fresh in her memory, the trial court addressed the timing of R.K.'s interview as related to the timing of the instances of abuse:
The trial court also concluded that the recordings accurately reflected R.K.'s knowledge:
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