State v. Hooper

• Decision Date: 24 December 2007
• Docket Number: No. 33826.,33826.
• Citation: 176 P.3d 911,145 Idaho 139
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Darren B. HOOPER, Defendant-Appellant.
• Court: Idaho Supreme Court

176 P.3d 911

145 Idaho 139

STATE of Idaho, Plaintiff-Respondent, v. Darren B. HOOPER, Defendant-Appellant.

No. 33826.

Supreme Court of Idaho, Boise, September 2007 Term.

December 24, 2007.

Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Paula M. Swensen argued.

Honorable Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

J. JONES, Justice.

Darren B. Hooper was convicted of lewd conduct with his daughter, six-year-old A.H. At trial, the district court deemed A.H. unavailable and admitted a videotaped interview of the child. After Hooper's conviction, the U.S. Supreme Court decided Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Hooper appealed. The Court of Appeals held that a videotaped interview of the child victim was testimonial under Crawford and Davis, that the admission of the videotape was error, and that the error was not harmless. The court vacated the conviction and remanded for further proceedings. This Court granted the State's petition for review. We hold that the videotaped statements were testimonial in nature, based on Crawford and Davis, and that admission of the statements was not harmless error. We vacate the conviction and remand the case for further proceedings.

I.

On August 2, 2003, Crystal Hooper woke and learned Darren Hooper was in the bathroom with their daughter, A.H. The door was locked. Crystal Hooper used a screwdriver to open the bathroom door. She ordered A.H. into Crystal's bedroom and questioned Darren about his activities in the bathroom. Then, after speaking with A.H., Crystal accused Darren of sexually molesting A.H. and called the police.

When the police arrived, they questioned Darren and Crystal Hooper and attempted to question A.H. The police did not collect evidence at this time, but Detective Marshall and Detective Plaza arranged a forensic examination with on-call personnel at the Sexual Trauma Abuse Response ("STAR") Center in Ontario, Oregon.

At the STAR Center, Dr. De La Paz first talked with Crystal Hooper and then conducted a sexual abuse examination of A.H., during which she found breaking and swelling in the rectal area. Jeremi Helmick, a STAR Center nurse and forensic interviewer, interviewed A.H. after Dr. De La Paz completed the medical examination. Helmick videotaped the interview while Detective Plaza observed from another room via a closed circuit system. At the end of the interview, Detective Plaza talked with Helmick and Crystal Hooper. Plaza collected the videotape and two swabs taken during the physical examination and put them into evidence storage at the Payette Police Department. Following the examination and interview, the police returned to the Hooper home to collect evidence, including a sheet from A.H.'s bed, underwear belonging to A.H. and a washcloth from the bathroom.

Prior to trial, the State served notice of intent to introduce the videotaped interview of A.H. and hearsay statements made by A.H. to the forensic examiner, based on Idaho Rules of Evidence 803(24) and 804(5). The District Court reserved ruling on the matter. At trial, the State called A.H. to testify. After A.H. was unable to take the oath, the district court declared A.H. unavailable and the state sought to introduce the videotaped interview. The defense objected based on the Defendant's Sixth Amendment right to confront and cross-examine witnesses against him.¹ The court admitted the videotape over Defendant's objection, based on a pre-Crawford analysis, and played the video for the jury.

The jury found Mr. Hooper guilty of lewd and lascivious conduct with a minor child under the age of sixteen pursuant to Idaho Code § 19-1508. The District Court sentenced Mr. Hooper to six years imprisonment, with two and one-half years fixed. Mr. Hooper timely filed his Notice of Appeal from his Judgment of Conviction. The Court of Appeals held that the admission of the videotaped interview violated Mr. Hooper's right to cross-examine his accuser as guaranteed by the Confrontation Clause: "The conclusion is inescapable that the nurse was acting in tandem with law enforcement officers to gain evidence of past events potentially to be used in a later criminal prosecution." The court further held the error was not harmless. As a result, the court vacated the Judgment of Conviction and remanded the case. This Court granted the State's Petition for Review.

II.

The question presented is whether videotaped statements made by a child during an interview by a forensic examiner at a sexual trauma abuse response center are testimonial when the police directed the child to the center and observed the interview from another room. We hold that the videotaped statements were testimonial in nature, based on Crawford and Davis, and that admission of the statements was not harmless error. We vacate the conviction and remand the case for further proceedings.

A.

When considering a case on review from the Court of Appeals, this Court gives serious consideration to the Court of Appeals' decision. State v. Cope, 142 Idaho 492, 495, 129 P.3d 1241, 1244 (2006) (quoting Garza v. State, 139 Idaho 533, 535, 82 P.3d 445, 447 (2003)). This Court does not merely review the correctness of the decision. Id. Rather, the Court acts as though it is hearing the matter on direct appeal from the trial court's decision. Id.

When a violation of a constitutional right is asserted, the appellate, court should give deference to the trial court's factual findings unless those findings are clearly erroneous. Doe v. State, 133 Idaho 811, 813, 992 P.2d 1211, 1213 (Ct.App.1999) (citing State v. Peightal, 122 Idaho 5, 7, 830 P.2d 516, 518 (1992)). The appellate court exercises free review over the trial court's determination as to whether constitutional requirements have been satisfied in light of the facts found. Id. Hooper asserted below that admission of the videotaped interview violated his right to confront adverse witnesses under the Sixth Amendment's Confrontation Clause. This is a question of law over which the Court exercises free review. See Doe, 133 Idaho at 813, 992 P.2d at 1213.

B.

This is an issue of first impression for the Idaho Supreme Court. The U.S. Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), significantly altered the Supreme Court's Confrontation Clause analysis. A subsequent case, Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), further clarified Crawford, but left many issues unresolved. State courts have interpreted these cases in varying ways, and the parties in the present case similarly disagree on the proper application of the Supreme Court precedent.

Hooper contends the videotaped statements are testimonial because the forensic nurse examiner was acting as an agent of the police and no emergency existed at the time the statements were taken. According to Hooper, investigative interrogations are directed at establishing the facts of a past crime in order to identify, or provide evidence against, the perpetrator. Since the purpose of a forensic interview is to collect information to be used in a criminal prosecution, and there is a clear connection between the police and the STAR Center, the interview was the functional equivalent of a police interrogation. Thus, it is testimonial under Crawford and Davis, and inadmissible unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.

The State argues the Court of Appeals erred in its application of Davis to this case. According to the State, Davis applies only to determine whether statements to law enforcement personnel or their agents are testimonial. Since Hooper has not shown the interviewer here was an agent of the police, Davis is inapplicable and the question is whether the statement at issue is one of the three "core testimonial statements" listed in Crawford. Pointing to the third formulation of "core testimonial statements," the State contends the evidence is nontestimonial because the defendant has not shown the circumstances of the interview would have led a child of the victim's age to reasonably believe she was making a statement for use at a later trial. The State asserts that, at most, Hooper is entitled to have this case remanded so that evidence of agency may be presented to the district court.

The Sixth Amendment's Confrontation Clause provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with witnesses against him." U.S. Const. amend. VI, cited in Crawford, 541 U.S. at 42, 124 S.Ct. at 1359, 158 L.Ed.2d at 187. Prior to Crawford, the Supreme Court held that the Confrontation Clause did not bar admission of an unavailable witness's statement against a criminal defendant if the statement bears "adequate indicia of reliability." Roberts, 448 U.S. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608. To meet that test, the declarant must be unavailable and evidence must either fall within a "firmly rooted hearsay exception" or "bear particularized guarantees of trustworthiness." Id.

Crawford altered this analysis with regard to testimonial statements. In Crawford, the Court held that testimonial statements of witnesses absent from trial are admissible only where declarant is unavailable and where defendant had a prior opportunity to cross-examine the witness. 541 U.S. at 59, 124 S.Ct. at 1369, 158 L.Ed.2d at 197. Although the Court declined to spell out a comprehensive definition of "testimonial," the Court did set forth some guidelines. First, the Court looked to Webster's dictionary definition of "testimony" from 1828. Testimony is "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford, 541 U.S. at 51, 124 S.Ct. at 1364, 158 L.Ed.2d at...