State v. Griffith
| Citation | 727 P.2d 247,45 Wn.App. 728 |
| Decision Date | 21 October 1986 |
| Docket Number | No. 7192-8-III,7192-8-III |
| Court | Court of Appeals of Washington |
| Parties | STATE of Washington, Respondent, v. Rick T. GRIFFITH, Appellant. |
Arthur D. Klym, Armstrong & Klym, Richland, for appellant.
Curtis L. Ludwig, Pros. Atty., Andrew K. Miller, Chief Crim. Deputy Pros. Atty., Kennewick, for respondent.
Rick T. Griffith appeals his conviction for committing indecent liberties with his 6-year-old daughter, referred to herein as "victim." He contends admission of the victim's out-of-court statements without permitting her to testify violated his confrontation rights as (1) the victim was erroneously found unavailable and (2) the circumstances surrounding the making of the statements demonstrate their unreliability. We reverse and remand for new trial.
Around 6:30 p.m. on February 28, 1985, Roxie Coquillette went to the store leaving her two daughters, the victim and her 3-year-old sister, at home with Mr. Griffith and his brother, James. James left the house sometime between 7 and 7:30 p.m.; Ms. Coquillette returned about 7:30 p.m. After returning home, she noticed the victim was looking at her in a "funny" manner, had bitten her lip, and had dark circles under her eyes as if she had been crying.
Around 9 p.m., as Ms. Coquillette was putting the victim and her sister to bed, she became concerned when the sister declared that "Daddy hurt [the victim]." Ms. Coquillette asked the victim if someone had hurt her, to which she replied yes. When Ms. Coquillette asked who, the victim refused to answer, appearing afraid. Ms. Coquillette proceeded to talk to the victim for approximately 2 hours; after considerable encouragement, Ms. Coquillette asked if her "daddy" had done this; the victim answered "yes." The victim claimed Daddy had touched her "pooky" (vagina) with his finger. Ms. Coquillette inspected the victim's vaginal area, noticing it was red and that the victim appeared to be in pain.
Ms. Coquillette took the victim to Kennewick General Hospital where she was examined by the emergency room physician; Linda Halverson, a rape-relief advocate was also present during the examination. In response to the physician's questions, the victim again claimed her daddy had stuck his finger inside her vagina. The physician found the victim's vaginal area was extremely red and inflamed; he believed this inflammation was consistent with sexual abuse.
The following day around 11 a.m., the victim was interviewed by Detective Joy Adams and Ms. Halverson. After determining the victim knew the difference between telling the truth and lying, Detective Adams interviewed her using anatomically correct dolls. The victim used the dolls to indicate Mr. Griffith had put his hand on her vagina; she also declared he had put his "ding-dong in my pooky."
Later that evening, the victim was brought back to the police station by Ms. Coquillette, Mr. Griffith's mother, and Mr. Griffith's lawyer. Ms. Coquillette was quite upset and demanded the victim tell the detective what she had just told her, i.e., that her previous story had been a lie. The victim mumbled her previous story was a lie. In response to her mother's command to tell how her vagina had become inflamed, she replied: Counsel for Mr. Griffith asked: "Did Uncle Jimmy [James Griffith] do this to you?" The victim answered "yes." Defense counsel then inquired: "Did Jimmy threaten to hurt your daddy if you didn't say Daddy did it ...?" She replied "yes." Detective Adams took the victim to another room and asked whether her original story, i.e., that her father committed the act, was the truth. She answered yes, and the detective concluded the interview.
Prior to trial, the court conducted a hearing outside the presence of the jury to determine if the victim was competent to testify and if her out-of-court statements were sufficiently reliable to be admissible. Although the victim had some memory problems, she recounted the events of the alleged incident. She remembered she had initially accused her "daddy" of committing the act; however, throughout the hearing she consistently alleged her "Uncle Jimmy" actually assaulted her.
Following the victim's testimony and that of the other witnesses, the court ruled the child was incompetent to testify at trial because of insufficient memory and because she was susceptible to leading questions; however, the court held she was competent at the time she made the statements. The court ruled the victim's declarations were reliable and admissible under RCW 9A.44.120 as statements of an unavailable child victim. It also ruled the victim's statements to her mother were admissible as excited utterances.
At trial, the victim's out-of-court statements implicating Mr. Griffith were offered through the testimony of the victim's mother, the emergency room physician, and Detective Adams. Both Ms. Coquillette and Detective Adams were cross-examined with respect to the victim's subsequent allegations against her Uncle Jimmy. However, the jury never heard the victim had testified at the pretrial hearing that someone other than her father had committed the acts. The jury found Mr. Griffith guilty as charged on one count of indecent liberties. He appeals.
Mr. Griffith initially contends the trial court erred in admitting the victim's statements as it erroneously ruled she was incompetent to testify and, thus, unavailable. 1 He maintains the victim's testimony at the pretrial hearing clearly demonstrated she remembered the events surrounding the alleged sexual act. The admission of hearsay statements does not violate confrontation rights of the Sixth Amendment and article 1, section 22 (amendment 10) of our constitution when the hearsay declarant is either produced at trial or found unavailable, and the hearsay statements are demonstrated to be reliable. State v. Ryan, 103 Wash.2d 165, 170, 691 P.2d 197 (1984) (citing Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980)).
State v. Doe, 105 Wash.2d 889, 895, 719 P.2d 554 (1986) clarified the relationship between testimonial incompetence and unavailability by stating:
While the concepts of availability and competency do not overlap entirely, it is quite clear that an incompetent child is not available. The term "available" denotes a witness who can be confronted and cross-examined. ER 804(a)(4). A child unable to take the stand obviously cannot respond to opposing counsel's questions.
The victim's competency to testify at the time of trial is not dispositive as to her competency at the time she made the statements and, hence, their admissibility. Doe, at 896, 719 P.2d 554, and cases cited therein. Whether a child witness is competent to testify is a discretionary determination made by the trial court after examining the child and observing her manner, intelligence, and memory. State v. Gitchel, 41 Wash.App. 820, 824, 706 P.2d 1091, review denied, 105 Wash.2d 1003 (1985). This determination will not be reversed absent an abuse of discretion. Gitchel, 41 Wash.App. at 824, 706 P.2d 1091.
Here, the trial court ruled the victim was incompetent to testify, after hearing from her and other witnesses; in making this ruling, the court noted:
I find that the child is incompetent to testify at these proceedings, and particularly, that the child would qualify as to a full realization of her obligation to testify truthfully, and that she could be punished in some fashion for not telling the truth, but that her ability to detail material facts as required under that statute is totally lacking at this time. I find the child to be, at this time, highly suggestive to respond to the questions and in changing her testimony in a number of times, depending on the question and who was questioning, referring back and forth between Uncle Jimmy and Daddy, and although I quoted the [ State v. Woodward, 32 Wash.App. 204, 646 P.2d 135 (1982) ] case as for the fact that the State v. Woodward, in 32 Wash.App. , that any inconsistencies in testimony given by a 6-year-old child would go to her credibility and not to admissibility of her testimony, I find these inconsistencies so replete in the testimony of this child and the child's conduct in court so unpredictable, that I am disqualifying her and find that she is incompetent to testify, and accordingly ... unavailable as a witness ...
The court's first reason for finding the victim incompetent to testify was her lack of memory at the time of trial. While the record indicates the victim was somewhat confused by the questioning, she was, for the most part, able to recall the events of the evening in question. She never wavered in her testimony that someone did, in fact, touch her vaginal area that evening. The prosecutor himself noted the apparent accuracy and consistency of the victim's testimony while arguing her statements should be admitted. Likewise, the record clearly demonstrates the victim realized she had identified "Daddy" and not Uncle Jimmy as the perpetrator on the night of and the day following the incident. When asked why she initially stated that "Daddy" had done it, she said Uncle Jimmy had threatened to "punch [her daddy] out" if she told what he (Uncle Jimmy) had done. Contrary to the court's determination, the victim did have sufficient memory to testify as to the events of the night in question; in addition, the trial court itself found she was capable of truthfully relating the events.
The trial court's second basis for disqualifying the victim from testifying was the purported inconsistency between her accusations depending on who asked the questions. The record reveals that during the pretrial hearing, the victim never testified that the defendant committed the acts; she did admit to previously stating he had committed the acts. During the pretrial hearing, however, she consistently stated...
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