State v. Hopkins

• Decision Date: 06 March 2007
• Docket Number: No. 31879-2-II.,31879-2-II.
• Citation: 154 P.3d 250,137 Wn. App. 441
• Parties: STATE of Washington, Respondent, v. Andre Roach HOPKINS, Appellant.
• Court: Washington Court of Appeals

154 P.3d 250

137 Wn. App. 441

STATE of Washington, Respondent, v. Andre Roach HOPKINS, Appellant.

No. 31879-2-II.

Court of Appeals of Washington, Division 2.

March 6, 2007.

Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA, for Appellant.

Michelle Hyer, Pierce County Prosecutor, Tacoma, WA, for Respondent.

OPINION

HUNT, J.

¶ 1 Andre Hopkins appeals his jury conviction and exceptional minimum sentence for first degree rape of a child and his jury conviction for first degree child molestation. He argues that (1) the State and the trial court failed to meet the statutory prerequisites for finding the child victim unavailable to testify for purposes of the child hearsay statute, RCW 9A.44.120; (2) the child victim's hearsay statements were testimonial and, thus, violated his Sixth Amendment confrontation rights;¹ and (3) his exceptional minimum sentence under RCW 9.94A.712 violated Blakely² because a jury did not decide the underlying aggravating factors. In his Statement of Additional Grounds (SAG),³ Hopkins asserts illegal witness tampering, malicious prosecution, incorrect offender score calculation, and ineffective assistance of counsel.

¶ 2 Holding that RCW 9A.44.120 required the trial court to conduct a competency hearing before finding the child unavailable to testify for child hearsay statutory purposes, we reverse and remand.

FACTS

¶ 3 A jury convicted Andre Hopkins of raping and molesting his girlfriend's two-and-one-half-year-old daughter, MH. Because of MH's young age at the time of the incident and because she was three-and-one-half years old at the time of Hopkins' trial, the State chose not to call her as a witness.

I. PRETRIAL

¶ 4 Rather than call MH, the State proposed to call Samantha Hannah (MH's mother), Janet Blake (Hannah's mother), and Patricia Mahaulu-Stephens, a CPS social worker, to testify about MH's hearsay disclosures to them concerning her allegations against Hopkins. The trial court held a child hearsay hearing to determine whether MH's hearsay statements were admissible under the child hearsay statute.⁴ During the child hearsay hearing, the trial court heard testimony from the State's three adult witnesses. But it did not interview MH, and Hopkins' counsel did not object to the trial court's failure to interview the child.

¶ 5 Nor did the trial court conduct a child competency hearing under RCW 9A.44.120. Instead, the State and defense counsel agreed that MH was incompetent to testify based on "her young age." The trial court made no express findings about whether MH was incompetent and, therefore, unavailable to testify for purposes of RCW 9A.44.120.

¶ 6 Nonetheless, the trial court ruled that MH's hearsay statements to the State's three adult witnesses were admissible based on State v. C.J., 148 Wash.2d 672, 63 P.3d 765 (2003), and State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 (1984), because her statements bore evidence of reliability and there was sufficient corroborating evidence under RCW 9A.44.120.

II. TRIAL

¶ 7 At trial, the State called Hannah, Blake, and Mahaulu-Stephens to relate MH's disclosures to them about Hopkins' sexual contact with her. The State also called the emergency room physician and the sexual-assault-clinic nurse practitioner who had examined MH following her disclosures, neither of whom conclusively found that MH had been sexually molested, based on their respective physical examinations of her.⁵

¶ 8 MH did not testify at trial. Thus, she was not subject to cross examination by Hopkins.

¶ 9 Hopkins called his friend, Julie Roth, who testified that (1) she had seen MH and her infant sister immediately before Hopkins had returned them to their mother, after spending two days with Hopkins, during which the alleged sexual contact had occurred; and (2) she had noted nothing strange in their behavior. Hopkins also took the stand in his own defense and denied ever having touched MH in an inappropriate manner.

¶ 10 The jury convicted Hopkins on both counts. Hopkins moved for a new trial based on a new Supreme Court decision, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The trial court denied Hopkins' motion, reasoning that the child hearsay statements were not "testimonial" in nature and, thus, Crawford did not apply.

III. SENTENCING

¶ 11 At sentencing, the trial court calculated Hopkins' offender score as six, based on a prior juvenile child-rape adjudication. For Count I, first degree rape of a child, the trial court sentenced Hopkins to life imprisonment and set an exceptional minimum sentence of 260 months under RCW 9.94A.712. The trial court based this exceptional minimum sentence on Hopkins' denial of his guilt for the child rape to which he pled had guilty as juvenile and the vulnerable age of the victim. For Count II, first degree child molestation, the trial court sentenced Hopkins to 130 months confinement, a standard range sentence.

¶ 12 Hopkins moved for reconsideration of his exceptional minimum sentence, citing another new Supreme Court case, Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The trial court denied the motion and entered written findings of fact and conclusions of law supporting the exceptional minimum sentence based on the victim's age and Hopkins' abuse of his position of trust.

¶ 13 Hopkins appeals both convictions and his exceptional minimum sentence on Count I.

ANALYSIS

I. CHILD HEARSAY STATEMENTS

¶ 14 Hopkins argues that the trial court improperly admitted MH's statements under the child hearsay statute based on both constitutional and statutory grounds. Finding dispositive the trial court's failure to conduct a mandatory competency hearing for MH before admitting her hearsay statements at trial, we address the statutory ground first.

A. RCW 9A.44.120—Competency Hearing Requirement

¶ 15 Hopkins argues that the trial court improperly admitted MH's statements under the child hearsay statute, RCW 9A.44.120, because (1) the trial court failed to conduct the statutorily required competency hearing,⁶ and (2) the State failed to show that she was unavailable to testify with the meaning of the statute. We agree.

¶ 16 RCW 9A.44.120 provides, in pertinent part:

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 ... 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.

(Emphasis added.)

¶ 17 It is uncontroverted that (1) MH was under the age of ten; (2) but for this statutory exception, her hearsay statements to the State's adult witnesses were not otherwise admissible;⁷ and (3) MH did not testify at Hopkins' trial, RCW 9A.44.120(2)(a). Therefore, we focus on whether the trial court conducted a hearing under RCW 9A.44.120(1) and found that MH was "unavailable as a witness" under RCW 9A.44.120 (2)(b).

¶ 18 A child may be "unavailable as a witness" under RCW 9A.44.120(2)(b) if she is incompetent to testify. RCW 5.60.050 governs witness competency. A witness is incompetent to testify if she is (1) of unsound mind or intoxicated at the time of her production for examination or (2) "incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly."⁸ Arguably the plain language of RCW 9A.44.120(1) can be read to limit the hearing requirement to the trial court's inquiry and determination of whether the child's hearsay statements have "sufficient indicia of reliability."

¶ 19 But in Ryan, our Supreme Court expressly ruled that the RCW 9A.44.120 hearing requirement also applies to RCW 9A.44.120(2). The Court held that: (1) "[s]tipulated incompetency based on an erroneous understanding of statutory incompetency is too uncertain a basis to find unavailability,"⁹ and (2) the trial court must determine a child's competency within the framework of RCW 5.60.050 by conducting a competency hearing to examine the child's manner, intelligence, and memory.¹⁰ 103 Wash.2d at 172, 691 P.2d 197 ¶ 20 The record before us does not reflect that the trial court here conducted a hearing to determine whether MH was incompetent as a witness on any ground.¹¹ On the contrary, it appears that the trial court neither interviewed nor evaluated this child victim. Here, as in Ryan, the trial court (1) erroneously relied on the parties' agreement, and apparently its own non-hearing assessment, that MH was too young to testify;¹² (2) based on this assumption, erroneously presumed that she was unavailable to testify; and (3) erroneously allowed her hearsay statements into evidence, ostensibly under the child hearsay statute.

¶ 21 Neither our Legislature nor our state courts have set an age below which a child is presumed incompetent to testify and a competency hearing is superfluous.¹³ See Ryan, 103 Wash.2d at 171-72, 691 P.2d 197¹⁴; see also State v. Shafer, 156 Wash.2d 381, 385, 128 P.3d 87 (2006) (competency hearing for a three-year-old).¹⁵ On the contrary, our Legislature has clearly established prerequisites for allowing child hearsay in a criminal trial at which the child does not testify herself. A primary prerequisite is that the trial court must conduct a hearing, and find that a child witness is unavailable to testify. RCW 9A.44.120 (1) and (2)(b). Absent compliance with the strict requirements of RCW 9A.44.120 or falling within some exception to the Rules of Evidence generally excluding hearsay, a child hearsay...