State v. Carlson

• Decision Date: 15 July 1991
• Docket Number: No. 24932-1-I,24932-1-I
• Citation: 812 P.2d 536,61 Wn.App. 865
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Appellant, Cross-Respondent, v. Gary M. CARLSON, Respondent, Cross-Appellant.

Page 865

61 Wn.App. 865

812 P.2d 536

STATE of Washington, Appellant, Cross-Respondent, v. Gary M. CARLSON, Respondent, Cross-Appellant.

No. 24932-1-I.

Court of Appeals of Washington Division 1.

July 15, 1991.

Jeanette Dalton, Deputy King County Pros. Atty., Seattle, for appellant, cross-respondent

Catherine Wright Smith, Malcolm L. Edwards, Edwards Sieh Wiggins & Hathaway, Seattle, for respondent, cross-appellant.

AGID, Judge.

The State appeals an order granting Gary Carlson's motion for a new trial. Carlson cross appeals, contending that several alternative grounds support the This appeal concerns two charges against Carlson for criminal conduct occurring in January 1989: first degree rape of a child, and first degree child molestation. The victim of the crimes is Carlson's granddaughter, "Z", who was approximately 3 1/2 years old when the sexual abuse occurred.

                trial court's order.   We find no basis for granting a new trial and reinstate the jury's verdict of guilty
                

Carlson has at all times denied the charges. His defense is that Z's mother, Sandy, manufactured the abuse allegations because of concerns about retaining custody of Z, and because she needed the money a post-conviction civil suit against Carlson would bring. The jury rejected this defense and found Carlson guilty as charged.

Carlson moved for a new trial. Of the several grounds alleged in support of Carlson's motion, the trial judge found two persuasive: (1) that it was error to admit on cross examination, hearsay statements Z made to her father, Mitch; and (2) that it was error to admit hearsay statements Z made to her babysitter, Shami. The judge concluded that this improperly admitted testimony may have prejudiced the outcome of trial and granted Carlson's motion.

STATEMENTS TO FATHER

Mitch, who is Carlson's son, testified for the defense. During cross examination, the prosecutor asked Mitch about conversations he had with Z during supervised visits with her:

Q Isn't it true that on several of the occasions when you, [the supervisor] and [Z] were in the room, [Z] told you about how your father had abused her?

A [Z] had repetitiously said, "When do I get to come home over to see [Carlson] and Gummy [Z's grandmother]? As soon as [Carlson] stops doing bad things to me." That was all she said.

Q At that point, in fact, she described it in a little more detail, didn't she? She talked to you and told you exactly how your father had abused her when she was outside playing?

A No, not really.

[Defense Counsel]: I'm going to object to this line of questioning.

THE COURT: Overruled.

Q ... She told you exactly about how your father did that?

A No, that was all she said. It was pretty simple, cut and dried, usually, "Do I get to come over as soon as [Carlson] stops touching me down there?" She never did go into detail about it.

The prosecutor had previously given no indication of his intent to elicit this testimony on cross-examination.

In his motion for new trial, Carlson argued that this testimony was improperly admitted because it was never tested through a RCW 9A.44.120 reliability hearing. Evidently the trial court accepted this argument; it ruled that admission of the testimony was an error of law that warranted a new trial. This was error.

The erroneous admission of evidence is grounds for a new trial only when the evidence at issue was timely and specifically objected to at trial. CrR 7.6(a)(6); see also State v. Leavitt, 111 Wash.2d 66, 71-72, 758 P.2d 982 (1988) (so long as child victim testifies and there are no confrontation clause problems, defendant's failure to object to admission of hearsay testimony or request a reliability hearing precludes review); State v. Guloy, 104 Wash.2d 412, 422, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1208, 89 L.Ed.2d 321 (1986) (objection that does not specify the particular ground upon which it is based does not preserve the question for appellate review; party may only assign error on the specific ground of the evidentiary objection made at trial). Unless these requirements are satisfied, there is no basis for a new trial and it is error to grant one. See State v. Bauers, 23 Wash.2d 462, 466-67, 161 P.2d 139 (1945) (reversing grant of new trial because no objection made at trial to errors the trial judge identified as grounds for a new trial), overruled on other grounds in Larson v. Seattle, 25 Wash.2d 291, 171 P.2d 212 (1946).

Carlson never objected to the State's line of questioning on hearsay grounds, nor did he ever argue to the trial court that Mitch's conversations with Z should have been the

                subject of a RCW 9A.44.120 reliability hearing.   Instead, Carlson's only objection was nonspecific and general:  "I'm going to object to this line of questioning."   Carlson therefore waived any error in admitting Mitch's hearsay testimony and the court erred in granting a new trial on this basis
                

STATEMENTS TO SITTER

Shami is a 14-year-old who took care of Z for the first time in April 1989, 3 months after the abuse occurred. At that time, Shami was unaware of any abuse allegations. Pursuant to the trial judge's pretrial ruling under RCW 9A.44.120, Shami was permitted to testify that she put Z to sleep, that Z woke up after about 1/2 hour, and that when she awoke, Z:

was very, very upset. She was crying and screaming. And I was trying to control her.

And I asked her what was wrong. She told me that [Carlson] hurt her, and she pointed down to her private spots.

I didn't say anything else. She was really upset. Shami explained that Z's "private spot" is her vagina.

In his motion for new trial, Carlson argued that Shami's testimony was improperly admitted because Z's statements to Shami were made several months after the alleged abuse occurred, and after numerous interviews and several months of counseling. According to Carlson, these factors made Z's post-nightmare statements unreliable within the meaning of RCW 9A.44.120 and State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 (1984). ¹ Carlson further argued that Z's nightmare and statements could have been the product of the many repetitions of abuse allegations, as opposed to her memory of the actual incident. The trial court found these arguments persuasive and granted a new trial pursuant to CrR 7.6(a)(6), which allows a new trial for "[e]rror of law occurring at the trial and objected to at the time by the defendant."

The grant or denial of a new trial is a matter within the trial court's discretion. The trial court's decision will be disturbed only for a clear abuse of that discretion or when it is predicated on an erroneous interpretation of the law. State v. Jackman, 113 Wash.2d 772, 777, 783 P.2d 580 (1989); State v. Wilson, 71 Wash.2d 895, 899, 431 P.2d 221 (1967). We need not determine whether an abuse of discretion occurred here because we are convinced that the trial court committed an error of law in determining that Shami's testimony was unreliable and inadmissible under Ryan and RCW 9A.44.120.

The trial judge's conclusion that Shami's testimony was improperly admitted was premised in part on his determination that Z's post-nightmare statements did not satisfy the spontaneity element of Ryan. In making this determination, the court relied on an improper definition of spontaneous. Rather than analyzing spontaneity in terms of child hearsay, the trial court relied on the spontaneity definition used in applying the excited utterance exception to the hearsay rule. ²

For purposes of a child hearsay analysis, spontaneous statements are statements the child volunteered in response to questions that were not leading and did not in any way suggest an answer. State v. Henderson, 48 Wash.App. 543, 550, 740 P.2d 329, review denied, 109 Wash.2d 1008 (1987); accord State v. McKinney, 50 Wash.App. 56, 63 n. 4, 747 P.2d 1113 (1987), review denied, 110 Wash.2d 1016 (1988). Unlike an excited utterance, the statements need not be contemporaneous with the event in question. Cf. Henderson, 48 Wash.App. at 545, 550-51, 740 P.2d 329. Z's post-nightmare statements, which were made in response to Shami's general inquiry as to what was wrong, unquestionably satisfy these requirements. The court therefore erred in ruling that Z's statements were inadmissible because they were not spontaneous.

The trial judge also premised his decision to grant a new trial on a determination that Z's counseling and the lapse of time between the abuse and Z's statements to Shami necessarily made those statements unreliable. This, too, was error.

We recognize that a lapse of time and intervening counseling could affect the reliability of a child's statements regarding abuse. The underlying issue in any RCW 9A.44.120 determination is whether the time, content, and circumstances of the statement provide sufficient indicia of reliability. E.g., State v. Swan, 114 Wash.2d 613, 647, 790 P.2d 610 (1990), cert. denied, --- U.S. ----, 111 S.Ct. 752, 112 L.Ed.2d 772 (1991). "[I]t is possible that '[i]f there is evidence of prior interrogation, prompting, or manipulation by adults, spontaneity may be an inaccurate indicator of trustworthiness.' " (Emphasis added.) Idaho v. Wright, --- U.S. ----, 110 S.Ct. 3139, 3152, 111 L.Ed.2d 638 (1990) (quoting State v. Robinson, 153 Ariz. 191, 201, 735 P.2d 801, 811 (1987)). However, as the Wright court's careful language makes clear, these factors will not affect reliability in all cases. ³ We hold, therefore, that a trial judge may find child hearsay statements unreliable on the ground that there has been a lapse of time and intervening counseling between the abuse and the statements at issue only when the evidence demonstrates that the lapse or counseling somehow affected the child's statements.

No such evidence exists here. Z's pre- and post-counseling statements are substantially the same. Even after counseling, Z continued to use the same age-appropriate descriptions of the abuse that she used from...