State v. Foster

CourtUnited States State Supreme Court of Washington
Citation957 P.2d 712,135 Wn.2d 441
Decision Date11 June 1998
Docket NumberNo. 64217-6,64217-6
PartiesSTATE of Washington, Respondent, v. Boyd Allen FOSTER, Petitioner.

Page 441

135 Wn.2d 441
957 P.2d 712
STATE of Washington, Respondent,
Boyd Allen FOSTER, Petitioner.
No. 64217-6.
Supreme Court of Washington,
En Banc.
June 11, 1998.

[957 P.2d 714]

Page 443

Lenell Rae Nussbaum, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Amy Freedheim, Michele Hauptman, Theresa Fricke, Deputy County Prosecutors, for respondent.

Page 444

GUY, Justice.

The issue in this appeal is whether RCW 9A.44.150, which, in limited circumstances, permits a child witness to testify via one way closed-circuit television rather than in the physical presence of the accused, violates the guarantees of the state or federal confrontation clause.

We hold that the right of an accused to confront witnesses "face to face," as guaranteed by our state constitution, like the right guaranteed by the Sixth Amendment to the United States Constitution, is not absolute. The right may be limited, in rare circumstances, when necessary to further an important state interest and, then, only if the procedures used for taking the evidence adequately ensure the reliability of that evidence.

The purpose of RCW 9A.44.150 and the procedures set forth in the statute meet this standard. Accordingly, we hold the statute withstands constitutional scrutiny. We also hold that it was properly applied in this case and we affirm the conviction.


Defendant Boyd (Spud) Foster was convicted by a jury of first degree child molestation. 1 The victim was a six-year-old girl.

The trial court held two pretrial hearings to determine whether the child was competent to testify. The first was held in the courtroom, with the Defendant present. The second was held by closed-circuit television. In the second hearing, the child testified from the judge's chambers and the testimony was broadcast live into the courtroom.

Page 445

In the initial hearing, the child testified that she had been to Kid's Court 2 and that she understood the difference between telling the truth and telling a lie. However, she was unable to promise that she would tell the truth about the incident involving Defendant Foster. Her responses to repeated questions with respect to whether she would tell [957 P.2d 715] the truth about what happened were "I might" and "I don't know." Report of Proceedings at 76-80. On redirect examination, the prosecutor asked the child the reason she was not able to promise to tell the truth. The testimony was as follows:

Q. If I ask you what happened with Spud [Defendant's nickname], will you tell me the truth or will you tell me a lie?

A. I don't know.

Q. If I tell you that you have to tell me the truth, will you tell me the truth?

A. I don't know.

Q. Is it because of the courtroom?

A. Yes.

Q. Are you feeling shy because Spud is here? ... If you couldn't see Spud, would you be able to tell what happened?

A. Yes.

Q. If you couldn't see him, would you be able to tell me the truth about what happened?

A. Yes.

Q. Is it because you can see him that you feel that you can't tell the truth?

Page 446

A. Yes.

Q. You don't want to say anything about what happened, you don't want to talk about it, because you see him?

A. Yes.

Q. Are you afraid that something might happen if you tell the truth?

A. No.

Q. It's just because you see him, that makes you scared?

A. Yes.

Report of Proceedings at 80-81.

The trial court ruled that the child's statements to her mother and others about the alleged molestation were reliable and admissible hearsay statements, under RCW 9A.44.120, if corroborated or if the child was competent and chose to talk. However, the court determined that the child was not competent because she could not promise to tell the truth. Following the hearing, the child was unusually subdued. She repeatedly said, "I didn't know he was going to be there." Report of Proceedings at 249.

Two days later the trial court held a second competency hearing. This second hearing was conducted via closed-circuit television. The child victim, the victim's advocate, the prosecutor, defense counsel, the court reporter, and the technician operating the equipment were in the judge's chambers. The judge, Defendant, bailiff and court clerk were in the courtroom. There was an open microphone so that the judge could communicate with the attorneys and there was a two-way system for private communication between the Defendant and his counsel. The persons in the courtroom were able to view the video screen, and it showed an accurate reproduction of the judge's chambers.

During the second hearing the child answered questions more easily. She testified that she knew the difference between the truth and a lie and testified about what she had learned when she attended Kid's Court. Her testimony, in

Page 447

response to questions posed by the prosecutor, included the following:

Q. What was the first rule of Kids' Court?

A. Don't lie.

Q. Was there a second rule?

A. If you don't know something, you say you don't know.

Q. Will you promise to tell the truth today?

A. Yes.

Q. What will happen if you don't know, what will you do?

A. Say I don't know.

Q. Will you promise to tell the truth about what happened with you and Spud?

A. Yes.

Q. ... Do you know Spud?

A. Yeah.


Q. You promise to tell the truth about everything that happened with Spud?

A. Yes.

Report of Proceedings at 241-42.

Testimony continued, in response to questions by defense counsel, as follows:

[957 P.2d 716] Q. ... [D]o you remember when you were in the courtroom with us?

A. Yeah.

Q. Do you remember you told the judge that you might tell her the truth?

A. Yeah.


Page 448

Q. Are you still going to tell her the truth, or maybe tell her the truth?

A. I will.


Q. You will tell the judge the truth?

(Witness nods head.)

Q. ... [A]re you afraid of Spud?

(Witness nods head.)


Q. Has Spud ever threatened you?

(Witness shakes head.)

Report of Proceedings at 242-43.

At the conclusion of the hearing, the child spontaneously asked, "Where is Spud?" The prosecutor told her that the Defendant was in another room. The child then asked if he could hear her, and the prosecutor said, "Yes, he can hear you, you just can't see him." The child responded, "I don't care if he can hear me, I just don't want to see him." Report of Proceedings at 244.

The trial court concluded, following the second hearing, that the child was a competent witness. The court ruled:

I found a great deal of difference between the child that testified the other day and the child who testified today. The child today was clearly competent. I would have found her competent at an earlier time had she promised to tell the truth. Clearly something was definitely bothering her when she testified at the first competency hearing. There was a totally different child that I observed today. What I observed today was an outgoing child. The child that I observed in the competency hearing the other day was a child who was very shy, very quiet, had to be really led by the prosecutor. A child who wouldn't promise to tell the truth, would just say maybe, and indicated she was afraid of the defendant.

I'm convinced, as of the other day, that the child knew what it meant to tell the truth, but that she appeared to be, to the

Page 449

court, afraid to testify. She wouldn't promise to tell the truth. Today I think it is clear that the child is competent, that she knows the difference between right and wrong. That she's able to relate matters and is able to express herself and knows the importance of telling the truth in court....


Furthermore, it would certainly appear that she is definitely afraid of the defendant. There is no indication that the defendant has made threats, but clearly the child is in fear. She expressed that fear the other day when she testified. She expressed the fear today. She expressed it when she was leaving my chambers. She expressed it, not only in words, but in the way that she communicated in the hearing. It is quite clear that she is afraid of the defendant. I don't know precisely how or why this fear arose, but it is quite clear to me that she would not be able to testify were she present in court and able to observe the defendant. She was looking at him the other day and it apparently figured very strongly in her mind.

Report of Proceedings at 250-52. See also Clerk's Papers at 44-48 (Findings and Conclusions Pursuant to Testimony of Child by Closed Circuit Television).

The trial court ruled that requiring the child to testify in front of the Defendant would cause her to suffer serious emotional or mental distress that would prevent her from reasonably communicating at trial; that the prosecutor had made all reasonable efforts to prepare the child for trial; that the strength of the State's case would be significantly impaired without the testimony of the child; and that there was no less restrictive method of obtaining the child's testimony that could adequately protect her from serious emotional or mental distress. The trial court then ruled that the child would be permitted to testify at trial via closed-circuit television, pursuant to RCW 9A.44.150.

[957 P.2d 717] Following the trial, the jury found the Defendant guilty of first degree child molestation.

The Defendant appealed his conviction on the ground that the child's testimony by closed-circuit television violated his state and federal constitutional right to

Page 450

confront witnesses against him "face to face" and also violated his rights to due process and trial by jury. 3 The Court of Appeals affirmed the conviction, State v. Foster, 81 Wash.App. 444, 915 P.2d 520 (1996), and this court granted review.

1. Does RCW 9A.44.150, on its face or as applied in this case, violate a defendant's constitutional right to confront witnesses against him?

2. Was there substantial evidence to support the trial court's conclusion that requiring the child victim to testify in the presence...

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