State v. Doe
| Citation | 719 P.2d 554,105 Wn.2d 889 |
| Decision Date | 22 May 1986 |
| Docket Number | No. 51984-6,51984-6 |
| Parties | STATE of Washington, Respondent, v. John DOE, Petitioner. |
| Court | United States State Supreme Court of Washington |
Donald C. Brockett, Spokane Co. Prosecutor, Patricia Thompson, Deputy Co. Prosecutor, Spokane, for respondent.
Jane Doe was born on December 19, 1978. In 1982, the community health authorities suspected that she was a victim of child abuse, and on May 12, 1982, a detective interviewed her father, John Doe 1 about this suspected sexual abuse. Mr. Doe admitted that Jane had on three occasions touched his genitals, but he claimed that this contact was accidental.
Jane visited her father on May 24, 1982. On the drive back from this visit, Jane began singing to her foster mother, "I hate daddy" and then, "I hate mommy." The next day, Jane woke up crying and kept asking, "Where's my daddy?" She seemed to calm down when her foster mother assured her that her daddy was at his own home.
The following day, Jane did not ask about her father as frequently, but complained of a headache. On May 27, Jane told her foster mother "out of the clear blue sky ... 'My daddy hurt me.' " Report of Proceedings, at 19. Her foster mother asked Jane where her father had hurt her, and Jane, pointing to her vagina, allegedly replied, "In here ... in my private parts." Report of Proceedings, at 20. Jane was neither upset nor agitated when she made this statement, although she had periodically been upset since her visit with her father.
On June 25, the Spokane County Prosecutor charged Mr. Doe with one count of indecent liberties, committed between January 1, 1981 and May 24, 1982. On September 3, 1982, the prosecutor notified Mr. Doe that the State intended to use Jane's statement to her foster mother at trial. Mr. Doe moved to exclude that statement.
Jane's foster mother was the only witness at the hearing on this motion. She described Jane's words and actions following her May 24 meeting with her father. The prosecutor argued that the statement was admissible either pursuant to the excited utterance exception to the hearsay rule or under RCW 9A.44.120 as statements of a child victim to sexual abuse. Regarding the availability requirement of the After lunch recess, but before Jane could be brought into court, the judge changed his ruling regarding the admissibility of the statement. The judge's reasoning is not clear, but he appeared to decide that because of her age, Jane could not be found competent, and her incompetency would undermine any finding regarding the reliability of the statement. The judge further concluded that it would not be necessary to have the child brought in, and the prosecution made no further efforts to have the judge determine Jane's competency.
statutory hearsay exception, the prosecutor believed that Jane, then just under 4 years of age, probably was not competent to testify. Report of Proceedings, at 29. The trial judge asked if he should examine Jane to determine her competency, and the prosecution said she would be available for this determination later in the afternoon. The judge then denied the motion to exclude Jane's statement to her foster mother pending a competency hearing. Report of Proceedings, at 33
The trial court dismissed the charges on Mr. Doe. The Court of Appeals reversed and remanded for a determination of Jane's competency. The appellate court held in an unpublished opinion that the child's statement was not admissible as an excited utterance, but that it might be admissible under RCW 9A.44.120. Mr. Doe petitioned and this court granted discretionary review.
EXCITED UTTERANCE
ER 802 states that "[h]earsay is not admissible except as provided by these rules, by other court rules, or by statute." ER 803(a)(2) allows the admission of evidence of an excited utterance "made while the declarant was under the stress of excitement caused by the event or condition." The State has argued that the comment Jane made to her foster mother, 3 days after the alleged crime, fits within this hearsay exception, and that the trial court erred in excluding it.
Normally, in order to fall within the excited utterance Following this reasoning, Washington courts have admitted statements of witnesses an hour or so after the event if the witness remained in a state of excitement. Johnston v. Ohls, supra (), State v. Downey, supra (). Equally true, however, is that hearsay statements which do not cause the sort of excitement contemplated by this rule are not admissible even if they immediately follow the event in question. Brown v. Spokane Cy. Fire Protec. Dist. 1, 100 Wash.2d 188, 668 P.2d 571 (1983) (). The determination of whether the statement occurred while the declarant was in a state of excitement is left to the sound discretion of the trial court. Brewer v. Copeland, 86 Wash.2d 58, 542 P.2d 445 (1975).
exception, a statement must occur immediately after the event in question. Complete spontaneity is not required, however, and we have allowed statements made by declarants a short time after the event in question. State v. Downey, 27 Wash.App. 857, 861, 620 P.2d 539 (1980); State v. Smith, 85 Wash.2d 840, 855, 540 P.2d 424 (1975). The question involved is not how much time has passed, but "whether the statement was made while the declarant was still under the influence of the event to the extent that his statement could not be the result of fabrication, intervening actions, or the exercise of choice or judgment." Johnston v. Ohls, 76 Wash.2d 398, 406, 457 P.2d 194 (1969)
The trial judge in this case determined that the statement made by Jane did not fall within the excited utterance exception. The court was concerned about the 3-day interval between the event and the statement, the fact that Jane made the statement while she was calm, and that part of Jane's statement was in response to a question her foster mother had asked her. These objections are appropriate as the rationale for the excited utterance exception to the hearsay rule is precisely that spontaneous or near spontaneous No case in Washington has ever allowed such a long period of time to elapse between the event and the statement and still hold the statement admissible under ER 803(a)(2). Although cases have extended the time limit for young children because the danger of fabrication is more remote, State v. Bouchard, 31 Wash.App. 381, 384, 639 P.2d 761, review denied, 97 Wash.2d 1021 (1982) the most amount of time allowed between event and statement was less than 1 day. State v. Woodward, 32 Wash.App. 204, 646 P.2d 135, review denied, 97 Wash.2d 1034 (1982). Therefore, we hold that the Court of Appeals decision to affirm the trial court's ruling that Jane's statement was not an excited utterance was correct.
comments are more reliable because the declarant has no time to reflect or narrate (perhaps incorrectly) about an event.
The State also attempted to admit Jane's statement pursuant to RCW 9A.44.120. This statute (now amended to apply in certain civil actions as well) provides:
A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, not otherwise admissible by statute or court rule, is admissible in evidence in dependency proceedings under Title 13 RCW and criminal proceedings in the courts of the state of Washington if:
(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and
(2) The child either:
(a) Testifies at the proceedings; or
(b) Is unavailable as a witness: Provided, That when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.
The trial court decided that Jane's statement did not meet the reliability requirement under RCW 9A.44.120(1). The trial court's rationale is unclear, but it focuses on the This decision raises two issues. First, although the trial court and Court of Appeals discussed the child's competency, ER 803, 804(a)(4) and RCW 9A.44.120(2)(b) refer to the child's availability. A child's competency is determined under RCW 5.60.050(2), which states that "[c]hildren under ten years of age, who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly [are incompetent]." ER 804(a)(4), however, defines "unavailability" as being "unable ... to testify ... because of ... then existing physical or mental illness or infirmity ..."
fact that the child was not competent as a witness and therefore could not have made a statement sufficiently reliable to be admitted under subsection (1). The Court of Appeals reversed on the limited grounds that the trial judge held no hearing and made no independent finding regarding the child's competency
Although other jurisdictions uniformly conclude an incompetent witness is unavailable State v. Bounds, 71...
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