State v. Bratt

• Citation: 250 Kan. 264,824 P.2d 983
• Decision Date: 17 January 1992
• Docket Number: No. 66656,66656
• Parties: STATE of Kansas, Appellee, v. Nancy BRATT and Dennis Bratt, Appellants.
• Court: Kansas Supreme Court

Page 983

824 P.2d 983

250 Kan. 264

STATE of Kansas, Appellee, v. Nancy BRATT and Dennis Bratt, Appellants.

No. 66656.

Supreme Court of Kansas.

Jan. 17, 1992.

Syllabus by the Court

1. The Confrontation Clause operates in two ways when determining the admissibility of hearsay statements. First, the Sixth Amendment establishes a rule of necessity. In the usual case, the prosecution must either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. Second, once a witness is shown to be unavailable, the witness' statement is admissible only if it bears adequate indicia of reliability. Reliability can be inferred where the evidence falls within a firmly rooted hearsay exception. If the evidence does not fall within a firmly rooted hearsay exception, the evidence must be excluded absent a showing of particularized guarantees of trustworthiness.

2. Particularized guarantees of trustworthiness required for admission of a hearsay statement under the Confrontation Clause must be shown from the totality of the circumstances that surround the making of the statement and that render the declarant particularly worthy of belief. Evidence possessing particularized guarantees of trustworthiness must be at least as reliable as evidence admitted under a firmly rooted hearsay exception and must be so trustworthy that adversarial testing would add little to its reliability.

3. Though not an exclusive list, factors that properly relate to whether hearsay statements made by a child witness in a child sexual abuse case are reliable include spontaneity and consistent repetition, mental state of the declarant, use of terminology unexpected of a child of similar age, and lack of motive to fabricate.

4. "Unavailable as a witness" as used in K.S.A. 1990 Supp. 60-460(dd) also includes situations where a witness is unable to be present or to testify at a hearing because of death or then-existing physical or mental illness. Some of the factors relevant to the determination of whether a victim witness is unavailable because of psychological trauma or disability under 60-460(dd) are: (1) the probability of psychological injury as a result of testifying; (2) the degree of anticipated injury; (3) the duration of the injury; and (4) whether the expected psychological injury is substantially greater than the reaction of the average victim of rape, kidnapping, or other violent act. Other factors may also be relevant.

5. K.S.A. 22-3202(3) allows two or more defendants to be joined and tried together (1) when each of the defendants is charged with accountability for each offense included, or (2) when each of the defendants is charged with conspiracy and some of the defendants are also charged with one or more offenses alleged to be in furtherance of the conspiracy, or (3) when in the absence of a conspiracy it is alleged the several offenses charged were part of a common scheme or were so closely connected in time, place, and occasion that proof of one charge would require proof of the others.

6. If two or more defendants have been tried together and none of the requirements of K.S.A. 22-3202(3) have been met, a misjoinder results that is an absolute ground for reversal and separate trials.

David P. Troup, of Weary, Davis, Henry, Struebing & Troup, Junction City, argued the cause and was on the brief, for appellants.

Thomas P. Alongi, Asst. County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.

LOCKETT, Justice:

Nancy Bratt appeals her conviction of two counts of aggravated intimidation of a witness or victim under 18 years of age, K.S.A. 21-3833(d). Dennis Bratt appeals his convictions of two counts of indecent liberties with a child, K.S.A. 1990 Supp. 21-3503(1)(b). Each defendant claims the trial judge improperly (1) admitted hearsay statements of the child-victim witness in violation of the Confrontation Clause of the Sixth Amendment and § 10 of the Kansas Bill of Rights; (2) permitted testimony concerning the child's actions and statements by use of anatomical dolls; (3) excluded expert testimony concerning the unreliability of testimony based on use of anatomical dolls and the suggestibility of children when interviewed by adult interrogators concerning alleged sexual abuse; (4) prevented defendants from reading to the jury the transcript of the child's statement given at the second K.S.A. 1990 Supp. 60-460(dd) hearing; (5) excluded and/or adversely commented on defendants' proffered evidence from lay witnesses; and (6) consolidated defendants' cases for trial contrary to K.S.A. 22-3202(3). Defendants further claim there was insufficient evidence to convict either defendant.

Defendants Dennis and Nancy Bratt are the parents of R.B., the child-victim witness.

On September 9, 1990, R.B., the Bratts' five-year-old son, was playing with M.D., the seven-year-old son of C.D., a neighbor of the Bratts. C.D. walked into her bedroom where the two were playing and saw R.B. straddling M.D.'s stomach. They were hugging and kissing. C.D. asked R.B. what they were doing. R.B. said they were playing games. When C.D. asked R.B. what kind of games, he said "sex games." When she asked him who else he played sex games with, R.B. named a boy who lived across the street, "Big Robert." She then asked if R.B. also played sex games with his father. R.B. said yes.

C.D. reported her conversation with R.B. to Officer Tony Barnes of the Junction City Police Department. Officer Barnes went to the Bratt home and took R.B. into protective custody. Officer Barnes interviewed R.B. in private, using four drawings of nude white males of various ages. He asked R.B. to select a drawing that represented R.B. and one that represented his father. R.B. picked the white grammar-school-age male to represent himself and the white teenage male to represent his 40-year-old father. Barnes told R.B. he wanted him to put an "X" where his father had touched him. At first, R.B. made one "X" on the paper between the depictions of the front view and back view of the white grammar-school-age male. Officer Barnes then asked R.B. to make an "X" on the picture of the body where his father had actually touched him and make an "X" on the other picture where he had touched his father. R.B. subsequently made several "X's" on each drawing, including directly on the genitals of the drawing of the white grammar-school-age male and the drawing representing his father. In response to Officer Barnes' questions, R.B. indicated that he and his father wore their clothes when they played the games but sometimes his father would take out his penis and let R.B. play with it. Officer Barnes said that R.B. used the word "penis." After Officer Barnes concluded his interview, the matter was turned over to a juvenile officer, Robert Grant.

On September 10, 1990, Officer Grant and SRS Social Worker Veronica Camp jointly interviewed Robert. Because R.B. was uncommunicative, he was given clothed anatomically correct dolls and asked to select a doll representing everyone involved in the sex games. Camp testified at trial that R.B. selected a black male child to represent Big Robert, a white male child to represent himself, and a white adult male to represent his father but that R.B. was unable to find a doll to represent M.D., because he had selected the only white male child doll to represent himself. Camp testified that R.B., without prompting, immediately removed the clothes from the dolls representing himself and his father and placed them face-to-face in a sexual position.

Officer Grant testified that R.B. selected two dolls, one to represent himself and one to represent his father. Grant also testified that he told R.B. it was okay if he wanted to remove the dolls' clothes.

During the interview, R.B. used the dolls to describe various forms of sexual contact with his father. After the interview, R.B. was taken to the Geary County Community Hospital emergency room and examined for possible sexual assault. No physical evidence of trauma was found.

R.B. was sent for therapy with Lamar Roth, a master's level psychologist. Roth testified at trial that he had been provided with little information about the specifics of R.B.'s case. Roth testified that when he presented R.B. with anatomical dolls, R.B. immediately disrobed them. Roth admitted that he was unaware that R.B. had previously been exposed to the use of anatomical dolls. At one point, Roth observed R.B. place the boy doll and the mother doll in various sexual positions. This caused Roth to suggest to Camp the possibility of sexual activity between R.B. and his mother. Camp and Grant reinterviewed R.B., again using the anatomical dolls. This time, using the adult female doll and the boy doll, R.B. indicated sexual contact with his mother.

Prior to a temporary custody hearing on September 11, 1990, Camp overheard Nancy Bratt talking to R.B. outside the courtroom. At trial, Camp testified Nancy "told [R.B.] not to say anything, to shut up and not to talk, not to say anything." Camp neither reported this statement to the court at that time, nor did she make a report about this incident in her SRS case activity log until some time later. Camp also testified at trial that, on September 26, 1990, R.B. told her during one of the visitations at her office that his mother took him aside and, "asked him had he told, had he talked. [R.B.] said he told his mom no. And [R.B.] said the mom told him not to talk, not to tell anybody." Again, Camp failed to report the conversation or include this conversation in her log for several weeks. Camp also testified that R.B. informed her, at a later date, that his mother had directed him "not to talk, not to tell anybody what's going on in their home," and "not to talk to the judge, not to talk to the police, not to talk with [Camp]."

R.B. did not testify during his parents' trial. The trial judge...