State v. Justus

• Decision Date: 21 November 2006
• Docket Number: No. SC 87604.,SC 87604.
• Citation: 205 S.W.3d 872
• Parties: STATE of Missouri, Respondent, v. Samuel L. JUSTUS, Appellant.
• Court: Missouri Supreme Court

205 S.W.3d 872

STATE of Missouri, Respondent, v. Samuel L. JUSTUS, Appellant.

No. SC 87604.

Supreme Court of Missouri, En Banc.

November 21, 2006.

COPYRIGHT MATERIAL OMITTED

Ellen H. Flottman, Office of Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, for Respondent.

MICHAEL A. WOLFF, Chief Justice.

Samuel Justus challenges his conviction for child molestation in the first degree on the basis that admission of certain hearsay statements of the alleged child victim violated his constitutional right to confront and cross-examine the witness against him because the child did not testify at trial and Justus had no prior opportunity to cross-examine her. In the alternative, Justus argues that the out-of-court statements did not have "sufficient indicia of reliability" to be admissible under section 491.075,¹ which allows hearsay evidence of a child's statements in certain circumstances.

The United States Supreme Court's decisions in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Davis v. Washington, ___ U.S. ___, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), applying the Confrontation Clause of the Sixth Amendment, govern this case. The question is whether the statements were testimonial. If so, they were inadmissible.

This Court holds that the child's out-of court statements were "testimonial," under the Supreme Court precedents, as there was not an ongoing emergency and because the primary purpose of the interrogations was to prove past events potentially relevant to a later criminal prosecution. Admission of the statements, without a prior opportunity for cross-examination, violated Justus' constitutional right to confront witnesses against him. The trial court's judgment is reversed, and the cause is remanded.

Facts and Procedural History

Justus was charged with child molestation in the first degree for acts involving his three-year-old daughter, S.J.² The State filed a pre-trial motion to admit several hearsay statements of S.J. pursuant to section 491.075. Section 491.075 allows admission, under certain circumstances, of out-of-court statements made by a child victim regarding sex offenses.³ The State alleged that S.J. was "unavailable as a witness" because of severe emotional distress. Justus filed a motion objecting to the admission of the hearsay testimony of three adult witnesses—Joyce Estes, Cynthia Debey, and Bernice Fields—regarding what S.J. had told them. Justus asserted, in part, that the statements did not have sufficient indicia of reliability and admitting them would violate his "right to be confronted with the witnesses against him." After a hearing, the trial court found that the hearsay statements satisfied the requirements of section 491.075 and ruled that they would be admissible at trial.

Just prior to calling the jury in at trial, the court noted the recent United States Supreme Court decision in Crawford v. Washington and said the court would consider whether to change its pre-trial decision to admit testimony pursuant to section 491.075. The trial court indicated that it had held a hearing on the availability of the witness and on the reliability of the statements. The court decided that the criteria of the statute were met, and "in light of the Crawford decision," affirmed its previous order allowing the evidence.

The State called four witnesses at trial: Debbie Justus, Bernice Fields, Cynthia Debey, and Joyce Estes. S.J. did not testify.

Debbie Justus testified that she is Samuel Justus' former spouse and S.J.'s mother. S.J. had visitation with Mr. Justus every weekend from Thursday evening to Sunday evening beginning sometime around the 2001 dissolution of their marriage and ending in August of 2002. S.J. was three years old during this time period. Debbie testified that on the nights after S.J. visited Mr. Justus, she would wet her bed, would have nightmares, and was afraid to sleep. Sometime after S.J. began visits with Mr. Justus, she would cry and did not want to visit him. Every time S.J. visited Mr. Justus, she would return home with a yeast infection. The infections stopped when the visits stopped.

Bernice Fields, S.J.'s grandmother, testified that in August of 2002, while she was visiting with S.J. and brushing her hair, S.J. began rubbing her private area. Fields asked S.J. why she was doing that and S.J. told her that her daddy "rubs me there." S.J. also told Fields that her father "kisses" her "pee-pee" and that she "kiss[es] his pee-pee too." S.J. described her father's genitalia to Fields as similar to the genitalia of the horse in the nearby pasture. S.J. showed Fields a masturbatory style hand motion that she makes when she is "kissing her daddy's pee-pee." S.J. told Fields that "yellow stuff" would come out of his "pee-pee" when she did that. Fields also testified that S.J. was referring to Samuel Justus when describing the above-stated acts, as opposed to S.J.'s mother's boyfriend. Shortly after talking to S.J., Fields called the child abuse hotline. Because Samuel Justus was coming to pick S.J. up that evening, Fields took S.J. to an office where S.J. met with Cynthia Debey, who investigates child abuse and neglect for the division of family services.

Debey, who talked to S.J. after the hotline call, testified that she has training in investigations, evidence and interviewing and has had "at least 30 training hours with law enforcement and outside agencies that come in to help work with interviewing children and perpetrators, documenting cases." Debey interviewed S.J. in a "visitation room," which has toys, a couch, and a one-way mirror so that someone on the outside of the room can view inside the room without detection. During the interview, Debey asked S.J. if she had anything to tell her about what her father had done. In response, S.J. described acts indicating that her father had performed oral sex on her and that her father made her perform sexual acts on him. S.J. correctly identified her vaginal area to Debey and described her father's genitals as looking like a "tail" with a "knob" on the end. S.J. indicated that these acts occurred at her father's home. S.J. told Debey that she knew Debey would protect her from her father. Debey did not see any signs that S.J. was untruthful.

Joyce Estes, a counselor and a licensed social worker for the Northwest Missouri Children's Advocacy Center in St. Joseph, testified that she performs forensic interviews of children alleging abuse and provides counseling, assessment, and evaluation services. Estes has over 18 years of experience in working with abused children. Debey referred S.J. to Estes after S.J. refused to talk to another worker at the advocacy center.

Estes performed a forensic interview of S.J. at the Center. Estes described a forensic interview as "an interview, an official legal interview done for law enforcement," which serves an investigatory, "fact-finding" purpose. Estes first met with S.J. in a play area. After about ten to 15 minutes, S.J. began to disclose some statements about the abuse. Estes then took S.J. to another room "[s]o the interview could be videotaped and audiotapes [sic]." During the videotaped interview, Estes asked S.J. what her name was. S.J. shrugged. When asked if her name was "[S.]", she nodded, but would not say it out loud. When asked her father's name, S.J. shook her head. Estes showed S.J. a picture, and S.J. said that it was a picture of a girl. Estes asked S.J. about several body parts, and S.J. just shrugged. Estes reminded S.J. that she had said earlier that she did not like her daddy and that he had kissed her "pee-pee." When asked if she had made that statement, S.J. shook her head. Estes then asked S.J. some questions about her birthday and her age, to which S.J. responded. After a while, S.J. told Estes that she did like Justus, but that she does not like him now because he kissed her "pee-pee"—that he just kept kissing it and kissing it. S.J. identified the "pee-pee" as the vagina on the picture of the girl. In response to questioning, S.J. said that Justus also kissed her "butt."

Estes showed S.J. another picture, which she correctly identified as a boy. S.J. identified the penis on the picture as a "little tail." S.J. said that Justus had one, but it was big and looked like a "water pump." Later, S.J. said: "Actually, it's his pee-pee." S.J. drew a picture of Justus' penis and said that she kissed it, but she did not like to kiss it. S.J. said it tasted like a tree and that she was in Justus' room when these acts occurred. S.J. also said that she would tell the judge what Justus had done. Estes testified at trial that she is trained in assessing whether a child is truthful during interviews. Estes did not see any "red flags" indicating that S.J. was not truthful during the interview.

The State offered the videotape into evidence and the trial court overruled defense counsel's objection to its admission. The videotape was played for the jury. Justus testified in his defense, denying the charges.

The jury found Justus guilty of child molestation in the first degree. Defense counsel filed a motion for a new trial, raising the hearsay issue and asserting that the defense was "unable to cross-examine the victim." Justus had waived jury sentencing, and the trial court sentenced him to a 10-year prison term.

On appeal, Justus' only challenge is to the admission of S.J.'s, out-of-court statements to Joyce Estes and Cynthia Debey, including the videotaped interview.⁴ Justus argues that the trial court erred and abused its discretion in admitting the hearsay statements and the videotaped interview, because such admission violated his right to confrontation guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by article I, section 18(a) of the Missouri Constitution. Justus, in the alternative, asserts that...