State v. Carothers

• Decision Date: 26 January 2005
• Docket Number: No. 23236.,23236.
• Citation: 2005 SD 16,692 N.W.2d 544
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Derrick E. CAROTHERS, Defendant and Appellee.
• Court: South Dakota Supreme Court

692 N.W.2d 544

2005 SD 16

STATE of South Dakota, Plaintiff and Appellant, v. Derrick E. CAROTHERS, Defendant and Appellee.

No. 23236.

Supreme Court of South Dakota.

Argued on January 12, 2005.

Decided January 26, 2005.

Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant.

Sean M. O'Brien, Brookings, South Dakota, Attorney for defendant and appellee.

ZINTER, Justice.

[¶ 1.] S.T., a four-year-old child, made statements to her mother, a deputy sheriff, and a social worker alleging sexual contact by Derrick Carothers. The State moved to introduce the statements at trial, indicating that S.T. would be available as a witness. The trial court interpreted Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) to preclude use of S.T.'s testimonial statements because they were not subjected to cross-examination at the time they were originally made. We granted the State's request for an intermediate appeal. We now reverse, concluding that testimonial statements need not be subject to cross-examination at the time they were made if the witness is available and subject to cross-examination at trial.

Facts and Procedural History

[¶ 2.] On October 3, 2003, Mother was in the bathroom of her home when S.T. came in, pushed a stool up against the door, and locked it. S.T. told Mother that she had been touched in a bad place, indicating her vaginal area. S.T. did not use Derrick Carothers' name, but said "he" and pointed to Carothers' location in the dining room. Mother subsequently made an appointment for S.T. to be examined at a medical clinic.

[¶ 3.] Mother and S.T. met with Deputy Sheriff Darin Haider at the clinic. S.T. told Haider that Carothers had licked her in her vaginal area. She also told him that Carothers had placed his hand on her vaginal area and moved it back and forth; that he used his fingers and he did it a lot of times; and, that he put his hand in her pants. She further indicated that his pants were unzipped and that he had licked her, grabbed her, and wanted to kiss her, but she said that she did not want to. S.T. finally indicated that Carothers always wanted to come over and kiss her.

[¶ 4.] On October 8, 2003, Mother took S.T. to a medical evaluation center called Child's Voice. Child's Voice examines children who are possible victims of physical or sexual abuse. S.T. was interviewed there by Colleen Brazil, a social worker with extensive training in interviewing children. Brazil testified that the purpose of the interview was "to gather a history for [the] physician or other medical provider in order for them to diagnose and treat the child...." During this interview, S.T. told Brazil that Carothers had showed her his "winkie." S.T. also gave further details of the alleged sexual contacts.

[¶ 5.] On November 26, 2003, a grand jury indicted Carothers on three offenses: Sexual Contact with a Child Under Sixteen, (SDCL 22-22-7); Kidnapping, (SDCL 22-19-1(2)); and Criminal Pedophilia, (SDCL 22-22-30.1). On December 31, 2003, the State filed a notice of intent to offer S.T.'s statements at trial. The trial court initially indicated that it would admit the statements under SDCL 19-16-38,¹ a statute that permits admission of certain young children's hearsay statements describing sexual contact, rape, and other forms of abuse and neglect.

[¶ 6.] However, on April 12, 2004, the trial court advised counsel of the March 2004 decision in Crawford, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. Crawford fundamentally changed Confrontation Clause jurisprudence concerning hearsay. After further hearing on the impact of Crawford, the trial court concluded that the testimonial statements made to the deputy and social worker² were inadmissible because under Crawford, the Confrontation Clause only permits admission of testimonial statements that were subjected to cross-examination at the time they were made. The State now appeals.

Analysis and Decision

[¶ 7.] "[A]n alleged violation of a constitutionally protected right is a question of law...." State v. Ball, 2004 SD 9, ¶ 18, 675 N.W.2d 192, 198 (citing State v. Lamont, 2001 SD 92, ¶ 12, 631 N.W.2d 603, 607). Constitutional questions of law are reviewed de novo. Id.

[¶ 8.] The Sixth Amendment to the United States Constitution provides that a criminal defendant has the right to be "confronted with the witnesses against him." U.S. Const. amend. VI. In construing this amendment, Crawford overruled Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which had admitted hearsay without confrontation if the statement satisfied certain "firmly rooted" hearsay exceptions or if the statement bore "particularized guarantees of trustworthiness." In overruling Roberts, Crawford concluded that "[t]he unpardonable vice of the Roberts test ... [was] not its unpredictability, but its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude." Crawford at ___, 124 S.Ct. at 1371,158 L.Ed.2d at 184.

[¶ 9.] Factually, Crawford precluded the use of testimonial statements of an unavailable witness who had not been previously subjected to cross-examination. Id. at ___, 124 S.Ct. at 1369, 158 L.Ed.2d at 197-198. Therefore, the trial court interpreted³ Crawford to prohibit "previous testimonial hearsay statements made, even if the alleged victim testifies at trial and is cross-examined at trial." The trial court reasoned that under Crawford:

"the [C]onfrontation [C]lause isn't cured as to previous testimonial statements because the alleged victim testifies at trial. There's no question that the testimony at trial would have some differences.... There would be no immediate confrontation right relating to [certain] exhibits."

However, in our opinion Crawford does not require prior cross-examination if the witness is subject to cross-examination at trial.

[¶ 10.] First, it must be reiterated that factually, Crawford involved the admissibility of hearsay under the Confrontation Clause where the witness was unavailable. Id. at ___, 124 S.Ct. at 1357, 158 L.Ed.2d at 184-185. Therefore, Crawford logically stated that the Sixth Amendment demanded what the common law required when a witness was unavailable: "a prior opportunity for cross-examination." Id. at ___, 124 S.Ct. at 1374, 158 L.Ed.2d at 203-204. However, Crawford did not suggest that a prior opportunity for cross-examination was also required if the witness was available for cross-examination at trial. On the contrary, in answering the dissent, the Court expressly rejected a prior cross-examination requirement stating:

we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. It is therefore irrelevant that the reliability of some out-of-court statements "`cannot be replicated, even if the declarant testifies to the same matters in court.'" The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.

Id at ___, 124 S.Ct. at 1369, 158 L.Ed.2d at 198, n. 9 (internal citations omitted).

[¶ 11.] Crawford further emphasized this point by expressly reaffirming its previous holding in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). In Green, the Court reviewed California Supreme Court rulings, which like the trial court here, had held "that prior statements of a witness that were not subject to cross-examination when originally made, could not be introduced ... to prove the charges against a defendant without violating the defendant's right of confrontation guaranteed by the Sixth Amendment...." 399 U.S. at 150-151, 90 S.Ct. at 1931, 26 L.Ed.2d at 492-493. See also People v. Johnson, 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111 (1968)

; People v. Green, 70 Cal.2d 654, 75 Cal.Rptr. 782, 451 P.2d 422 (1969). However, Green overruled the California decisions and held that "where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admission of [the] out-of-court statements does not create a confrontation problem."⁴

Id. at 162, 90 S.Ct. at 1937, 26 L.Ed.2d at 499; Crawford, 541 U.S. at ___, 124 S.Ct. at 1369,

158 L.Ed.2d at 197-198, n. 9. Thus, under both Green and Crawford, if the declarant is available for cross-examination at the trial, "the Confrontation Clause places no constraints at all on the use of [the declarant's] prior testimonial statements." Crawford, 541 U.S. at ___, 124 S.Ct. at 1369,

158 L.Ed.2d at 198, n. 9.

[¶ 12.] This conclusion has been confirmed by virtually all of the courts that have had the opportunity to review this issue after Crawford. They agree that Crawford does not apply if the declarant testifies and is subject to cross-examination at trial.⁵ In the most recent of these decisions, the Colorado Supreme Court considered a case that is quite similar to the one we are presented with today. See People v. Argomaniz-Ramirez, 102 P.3d 1015 (Colo.2004)

. In Argomaniz-Ramirez, the court concluded that prior, out-of-court, videotaped statements made by two children to law enforcement officials were admissible (in a child sexual assault case) because the children were available to testify. Id. at 1016. The Colorado court held that "[b]ecause the hearsay declarants will testify at trial and will be subject to cross-examination, admission of their out-of-court statements does not violate the Confrontation Clause. [Additionally,] Crawford does not alter ... this important principle." Id. at 1018.

[¶ 13.] Carothers, apparently anticipating this interpretation of Crawford, moved the trial court to have S.T. declared unavailable as a witness. Carothers argued that "there is little question that the child will be unable to remember and testify at...