State v. Frey

• Decision Date: 06 May 1986
• Docket Number: No. 6754-4-II,6754-4-II
• Citation: 43 Wn.App. 605,718 P.2d 846
• Parties: The STATE of Washington, Respondent, v. Robert M. FREY, Appellant.
• Court: Washington Court of Appeals

Page 605

43 Wn.App. 605

718 P.2d 846

The STATE of Washington, Respondent, v. Robert M. FREY, Appellant.

No. 6754-4-II.

Court of Appeals of Washington,

Division 2.

May 6, 1986.

C. Michael McLean, Longview, for appellant.

Bert Paul, Deputy Pros. Atty., Kelso, for respondent.

ALEXANDER, Judge.

The defendant appeals his conviction of indecent liberties from the Cowlitz County Juvenile Court. We affirm.

On December 31, 1981, Carol Doe entered an Emergency Support Shelter with her three young children, Berta, Duncan, and Robert Doe. ¹ After the family had been at the support shelter for eight days, 6-year-old Berta approached Jackie Lorati, the children's director at the shelter, and asked her if she wanted to know Berta's "secret." Lorati said "yes" and Berta told her, "I got a hickey." When Lorati asked the child if she knew what a "hickey" was, Berta said, "You just suck and suck real hard."

After further questioning over a period of several hours, Berta revealed that she had other hickeys on her breasts, stomach, and vaginal area. ² Berta indicated during this conversation that her "boyfriend" had given her the hickeys. Although she indicated her boyfriend's name was "Bobby," she said she did not know his last name or where he lived. She said the events occurred in Bobby's bedroom at different times. Lorati examined Berta for marks but found none. She described Berta as a quiet child, of probably low average mental ability, who would often suck her thumb and curl up in a fetal position.

Approximately four days later, Jenny Senn, a case worker for the State of Washington Department of Social and Health Services, and Deputy Sheriff Mike Riley interviewed Berta. They gave her two fully clothed anatomically correct dolls, one male and one female, and asked the child to demonstrate what happened at "Bobby Frey's house." Berta unclothed the dolls and demonstrated explicit sexual acts with the dolls consistent with those earlier described by her.

Two days later Lorati and Senn again interviewed Berta. Playing the part of Bobby, Berta play-acted various sexual acts, including oral sex. Senn indicated that Berta was not very verbal about the events, but that she would demonstrate and would say "one word things."

On January 12, Deputy Riley first interviewed Bobby Frey, a juvenile, ³ who had previously babysat Berta. Frey made a handwritten statement, in which he indicated that he had no idea why Berta was accusing him of these acts. He indicated in this statement that Berta had done "weird things" from time to time, such as spreading her legs and asking Bobby to wrestle. Frey told Deputy Riley that he thought Berta's father had been molesting her.

On February 2, Frey admitted in a tape recorded statement given to Deputy Riley that he had touched Berta with his finger near Berta's vaginal area, but only on one occasion, which he said was some six months before the interview.

Bobby Frey was charged with indecent liberties, and the case proceeded to a bench trial in juvenile court. The trial judge interviewed Berta and determined that she should not be permitted to testify because, in his opinion, she was unable to understand the significance of the oath. ⁴ However, Senn and Lorati testified, without defense objection, concerning the statements Berta had made to them.

The trial court ruled, this time over defense objection, that the contents of Berta's statements were sufficient to establish the corpus delicti of the crime, thus supporting admission of Frey's statements. In making its ruling, the trial court explained that the child's statements to Senn and Lorati were admissible, pursuant to RCW 9A.44.120, as statements of an "unavailable" child witness.

Frey testified at trial that he had babysat Berta several times, but that he had never sat with her alone. Berta's mother confirmed that Frey had babysat Berta, but was unsure whether this occurred at Frey's residence or whether Frey had babysat Berta alone. Frey was found guilty of indecent liberties and appeals the conviction to this court.

We deal initially with Frey's contention that RCW 9A.44.120, ⁵ which permits hearsay statements of children under 10 years of age to be admitted into evidence in certain cases, is unconstitutional as a violation of the confrontation clauses of the Washington and United States Constitutions. ⁶

This precise question has been considered and determined adversely to the defendant's position. In State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 (1984), the Washington Supreme Court ruled that RCW 9A.44.120 "facially conforms to the right of confrontation." The court in Ryan pointed out that neither the federal nor Washington confrontation clause has been read literally, "for to do so would result in eliminating all exceptions to the hearsay rule." State v. Ryan, 103 Wash.2d at 169, 691 P.2d 197, quoting with approval, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

Where evidence does not fall within a firmly rooted hearsay exception, there must be a showing of particularized guarantees of trustworthiness. Ohio v. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539. Although the court in Ryan conceded that RCW 9A.44.120 did not constitute a "firmly rooted hearsay exception," it held that the statutory requirements for admission of statements "comport with the general approach utilized to test hearsay against confrontation guaranties...." Ryan, 103 Wash.2d at 170, 691 P.2d 197. The court noted with approval that RCW 9A.44.120 requires: (1) a determination "that the time, content, and circumstances of the statement provide sufficient indicia of reliability"; and (2) that either the child testify or a showing that the child is unavailable. Ryan, 103 Wash.2d at 170, 691 P.2d 197. It is clear that RCW 9A.44.120 does not violate either the Washington or the federal confrontation clause.

Frey asserts that the trial court could not consider Berta's hearsay statements to Senn and Lorati as independent evidence sufficient to establish the corpus delicti for the admissibility of Frey's statements to Riley. While he does not dispute that Berta was "unavailable," he argues that the statements were inadmissible because they lacked corroboration as required by RCW 9A.44.120(2)(b). ⁷

We note that defense counsel did not raise this alleged lack of corroboration when Senn and Lorati testified. The requirement that an unavailable child witness's testimony be corroborated is only a statutory requirement. RCW 9A.44.120(2)(b). The corroboration requirement is a creation of the Legislature, and it is in addition to the constitutional requirement that the statements contain indicia of reliability. See State v. Ryan, 103 Wash.2d at 174, 691 P.2d 197. Because the requirement of corroboration is not mandated by either the United States or the Washington constitutions, we will not consider Frey's assignment of error where he did not object at trial to the lack of corroboration of the child's statements. RAP 2.5(a).

The requirement that the statements contain indicia of reliability, however, is a constitutional requirement as we have already noted. We will, therefore, consider Frey's argument that the child's statements were unreliable, notwithstanding his failure to object at trial. The appellate court may consider a "manifest error affecting a constitutional right" even if it was not raised at trial. RAP 2.5(a).

As discussed above, the court must find that "the time, content, and circumstances of the statement provide sufficient indicia of reliability ..." before statements are admissible under RCW 9A.44.120(1). Ryan, 103 Wash.2d at 170, 691 P.2d 197. In Ryan, the court considered the factors set out in State v. Parris, 98 Wash.2d 140, 654 P.2d 77 (1982), and Dutton v. Evans, 400 U.S. 74, 88-89, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970) to determine reliability. Ryan, 103 Wash.2d at 175-76, 691 P.2d 197. Under Parris the following factors are significant: (1) Whether there is an apparent motive to lie; (2) the general character of the declarant; (3) whether more than one person heard the statement; (4) whether the statements were made spontaneously; and (5) the timing of the declaration and the relationship between the declarant and the witness. Parris, ⁸ 98 Wash.2d at 146, 654 P.2d 77. Considering these factors, Berta's statements are admissible. The record reveals no evidence that would suggest a motive for Berta to lie to the two witnesses who were relatively unknown to her. Further, her low mental development suggests that she would be less likely to be devious and fabricate the incidents. "A young child is unlikely to fabricate a graphic account of sexual activity because such activity is beyond the realm of [her] experience." See Comment, Sexually Abused Infant Hearsay Exception: A Constitutional Analysis, 8 J.Juv.Law 59, 67 (1984). Finally, Berta repeated the story consistently to more than one person on three occasions, and she made the statements spontaneously without prompting.

In Dutton v. Evans, these factors were found significant in determining the reliability of the hearsay statements: (1) The statement contains no express assertion about past fact, (2) cross examination could not show declarant's lack of knowledge, (3) the possibility of the declarant's faulty recollection is remote, and (4) the circumstances surrounding the statement are such that there is no reason to suppose the declarant misrepresented defendant's involvement. Dutton, 400 U.S. at 88-89, 91 S.Ct. at 219.

Again, there were no circumstances to suggest that Berta would have misrepresented the defendant's involvement. While Berta's low intelligence may have affected her ability to express herself, it would not necessarily have affected her memory or recollection. Although Berta's demonstrations concerning what happened at Frey's house would appear to be non-spontaneous, express assertions about past facts, her statements about the "hickeys"...