State v. Brousseau

• Decision Date: 18 August 2011
• Docket Number: No. 83415–6.,83415–6.
• Citation: 259 P.3d 209,172 Wash.2d 331
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent,v.William A. BROUSSEAU, Appellant.

172 Wash.2d 331

259 P.3d 209

STATE of Washington, Respondent,

v.William A. BROUSSEAU, Appellant.

No. 83415–6.

Supreme Court of Washington, En Banc.

Argued May 18, 2010.Decided Aug. 18, 2011.

Jeffrey Erwin Ellis, Oregon Capital Resource Center, Portland, OR, for Appellant.Benjamin Curler Nichols, Asotin County Prosecutors Office, Asotin, WA, Joseph James Anthony Jackson, Thurston County Prosecutor's Office, Olympia, WA, Teresa Jeanne Chen, Attorney at Law, Pasco, WA, for Respondent.MADSEN, Chief Judge.

[172 Wash.2d 334] ¶ 1 William A. Brousseau was convicted of first degree rape of a child and child molestation. The court held a pretrial hearing to determine whether the alleged victim, seven-year old J.R., was competent to testify and whether her out-of-court statements were admissible under Washington's child hearsay exception, RCW 9A.44.120. The court heard testimony from Brousseau's witness, Dr. Scott Mabee, a psychologist who had interviewed the child, but did not permit Brousseau to call the child as a witness.

¶ 2 Brousseau claims that the trial court abused its discretion by finding J.R. competent without examining her at the competency hearing. He also claims that the court's refusal to allow testimony from J.R. at the competency hearing denied him due process of law under the state and federal constitutions. Brousseau does not claim, however, that J.R. was incompetent.¹

[172 Wash.2d 335] ¶ 3 Brousseau further contends that subsection (2)(a) of RCW 9A.44.120 requires the child declarant to testify at the child hearsay hearing and that the trial court's refusal to permit J.R. to testify warrants reversal. Finally, he claims his counsel was ineffective.

¶ 4 Due process protects a criminal defendant against a conviction based upon incompetent evidence. However, under our recent holding in State v. S.J.W., 170 Wash.2d 92, 239 P.3d 568 (2010), we reject Brousseau's contention that due process requires a child witness to be examined in a pretrial proceeding in every case in which a criminal defendant challenges the child's competency.

¶ 5 After reviewing the record, we hold that the trial court did not abuse its discretion in concluding that J.R. was competent to testify. Additionally, we hold that RCW 9A.44.120(2)(a) does not require a child to testify at a child hearsay hearing and that trial counsel was not ineffective. Accordingly, we affirm Brousseau's convictions.

FACTS

¶ 6 Seven-year-old J.R. was staying alone with Brousseau, her mother's fiancé, while her mother was undergoing open-heart surgery. Brousseau generally left for work at 6:30 a.m., and J.R. would stay with her next-door neighbor, Ellen Klein, whose granddaughter attended J.R.'s school. Ms. Klein testified that at 6:30 a.m. on December 4, 2006, she noticed that the lights were out in Brousseau's house, and she telephoned to make sure Brousseau was awake. Soon thereafter, J.R. arrived at Ms. Klein's house.

[172 Wash.2d 336] ¶ 7 Ms. Klein testified that later, while driving her granddaughter and J.R. to school, she asked J.R. if Brousseau had been upset about the wake-up call. J.R. responded, “Oh, no, he wasn't mad. He wasn't asleep. He was still in my bed.” Verbatim Report of Proceedings (VRP) (Sept. 12, 2007) at 170. Ms. Klein asked if Brousseau always slept in J.R.'s bed, and when J.R. responded that he only did so on occasion, Ms. Klein could hear her granddaughter urge J.R., in a whisper, to tell Ms. Klein what Brousseau had said that morning. At first J.R. refused, but after being reassured, she replied, “He asked me to play with his penis.” Id. at 171. She also indicated that Brousseau had touched her previously.

¶ 8 Ms. Klein contacted the school guidance counselor, Carla Metcalf. Ms. Metcalf met with J.R., who repeated her allegations and also indicated that Brousseau had requested that she play with his penis on previous occasions.

¶ 9 Later that day, Deputy Jackie Nichols interviewed J.R., with Ms. Metcalf and a representative from child protective services, Janet Beitelspacher, in attendance. After indicating that she could distinguish a truth from a lie, J.R. told Deputy Nichols essentially what she had told Ms. Klein and Ms. Metcalf. She also asserted, gesturing towards her vagina, that defendant had touched her “privates,” and that “[h]e opened it, and he put his finger in, and it hurt.” Id. at 238–40.

¶ 10 Brousseau was charged with first degree rape of a child and first degree child molestation. Prior to trial, he challenged J.R.'s competence to testify, and the court held a pretrial competency hearing. At that proceeding, the defense offered testimony from Dr. Scott Mabee, a psychologist who had interviewed J.R. to determine whether she met the legal criteria for testimonial competency. The defense had intended to call J.R. to offer additional testimony, but after hearing Dr. Mabee's testimony, the judge declined to hear testimony from J.R.

¶ 11 The court evaluated J.R.'s competency on the basis of Dr. Mabee's testimony, using the factors established in State v. Allen, 70 Wash.2d 690, 692, 424 P.2d 1021 (1967), namely (1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence to receive an accurate impression of it; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express his memory of the occurrence; and (5) the capacity to understand simple questions about it.²

¶ 12 Dr. Mabee testified that J.R. had the “capacity to understand the obligation to be truthful.” VRP (Mar. 27, 2007) at 94. On the basis of this testimony, the trial court found the first Allen factor satisfied. Dr. Mabee also indicated that J.R. had “sufficient capacity to accurately store the occurrence of the events,” thus satisfying the second Allen factor. Id. Dr. Mabee found that J.R. had “sufficient capacity to understand simple questions regarding the occurrence.” Id. at 95. The court adopted his testimony that the fifth Allen factor had been met.

¶ 13 With regard to the third Allen factor, Dr. Mabee opined that J.R. had “limited memory capacity to independently recall the occurrence” but conceded that J.R. had been able to describe the alleged occurrences and provide a detailed, albeit uncorroborated, physical description of the bedroom in which she allegedly had been abused. Id. at 61, 65–69. In light of J.R.'s ability to provide details of this nature, the court found that the third Allen factor had been satisfied.

¶ 14 Finally, while Dr. Mabee opined that J.R.'s ability to express abstract concepts was “limited,” id. at 95, the court held that the fourth Allen factor, namely the “capacity to express in words memory of the occurrence” did not require an ability to express abstract concepts and that, even if it did, J.R. was not entirely deficient in this regard, but simply “limited.” Id. at 117. Thus, the court found J.R. to be competent to testify. Brousseau's counsel informed the court that he intended to call J.R. to testify, but the court declined to hear from the child.

¶ 15 Later the same day, the court heard testimony to determine whether to admit child hearsay statements. The State called various individuals to whom J.R. had reported sexual abuse, and each described J.R.'s out-of-court statements and the circumstances under which they were made.³ The court applied the criteria set forth in State v. Ryan⁴ and found that J.R.'s out-of-court statements to Ellen Klein, Carla Metcalf, and Deputy Nichols each bore the requisite indicia of reliability for admissibility under RCW 9A.44.120. See State v. Ryan, 103 Wash.2d 165, 175–76, 691 P.2d 197 (1984).

¶ 16 J.R. testified at trial and was subject to cross-examination. Direct examination began with the following exchange:

Q. A little nervous?

A. No.

Q. Huh-uh? [J.R.], just promise to tell the truth?

A. Yes.

Q. Can you tell me what that is?

A. The truth is where I don't lie.

Q. What is a lie?

A. It means you are not telling the truth.

Q. Okay. Can you give me an example of something that would be the truth?

A. No.

Q. What if I said that my tie was purple?

A. You would be lying.

Q. Because my tie isn't purple, is it? What color is my tie?

A. Yellow.

VRP (Sept. 11, 2007) at 104. Next, before questioning J.R. about her allegations against Brousseau, the State proceeded to ask J.R. for specific details about her present life and her life at the time of the alleged abuse. Brousseau did not object to this line of questioning. J.R. was able to provide details as to her current living situation, her living situation at the time of the alleged abuse, her relationship to the defendant, the house she shared with Brousseau, her bedroom in that house, a friend in her former hometown, her siblings, her grade level at the time of the alleged abuse, the view from her old classroom, her mother's whereabouts at the time of the alleged abuse, and transportation arrangements in her former hometown. When questioned about the abuse, J.R. repeated her allegations against Brousseau.

¶ 17 The jury also heard testimony from Ellen Klein, Carla Metcalf, Deputy Nichols, Janet Beitelspacher, J.R.'s mother, Ms. Klein's granddaughter, Brousseau, and a number of expert witnesses. Brousseau did not renew his objections to J.R.'s competency.

¶ 18 Brousseau was found guilty of first degree rape of a child and first degree child molestation. He appealed, and Division Three of the Court of Appeals certified the matter to this court, pursuant to RCW 2.06.030.

ANALYSIS

¶ 19 Brousseau argues that the trial court abused its discretion in determining that J.R. was a competent witness where J.R. did not testify and Dr. Mabee identified deficiencies in J.R.'s competency. He further claims that the court's refusal to allow testimony from J.R. at the competency hearing denied him due process of law under the state and federal constitutions. In addition, he contends that subsection (2)(a) of...