State v. Karpenski

Decision Date12 February 1999
Docket NumberNo. 21431-8-II,21431-8-II
Citation94 Wn.App. 80,971 P.2d 553
CourtWashington Court of Appeals
PartiesSTATE of Washington, Respondent, v. Thomas R. KARPENSKI, Appellant.

Lenell Rae Nussbaum, Attorney At Law, Seattle, Counsel for Appellant.

Barbara L. Corey-Boulet, Pierce County Deputy Pros. Atty., Tacoma, Counsel for Respondent.

MORGAN, J.

Thomas R. Karpenski appeals his convictions for first degree rape of a child and first degree child molestation. Holding that a child witness was incompetent to testify at trial and that hearsay was erroneously admitted, we reverse and remand.

Z was born on June 9, 1989. His mother, MM, was single and employed. As a result, her parents, Z's maternal grandparents, have been heavily involved in raising him.

At all times relevant here, Z told imaginary stories containing vivid detail. He falsely claimed, for example, that he had spoken with his deceased uncle, that his mother had won $10,000, and that he had gone skydiving. In the skydiving story, "he even had the colors of the parachute." 1 According to his mother, he sometimes went "for months believing his stories." 2 According to his grandmother,

... [H]e always exaggerates. He always insists--that's a normal thing for him.--Much more so than I would think most kids. I was a day care director for five years and I've been around children ages one to six, and I never encountered--I mean, kids tell stories, but you usually know--you can usually tell them that's not real and they'll accept that. Z does not accept it.[ [ 3

In May 1992, Z's mother began dating Karpenski. In 1993, she became pregnant with Karpenski's child. In April 1994, she gave birth to Matthew, Z's half-brother.

In June 1994, MM, Z and Matthew moved into Karpenski's house. Z slept in a sleeping bag on the living room couch "for like ... two nights," until his and Matthew's bedroom was ready for occupancy. 4

In July 1995, an Oregon family with twin six-year-old sons was visiting for a week in Karpenski's neighborhood. Z and the twins played together each day. One afternoon, the twins' mother told her husband, the twins' father, that the twins and Z were playing in the bushes with their pants down. The record does not show what, if anything, the mother actually saw the three boys doing; she never testified, and the twins' father, who did testify, did not know whether his wife had actually seen what she was describing. 5

In any event, the father reacted by calling the twins inside and asking what they were doing. The twins said that Z was showing them "how to put his pee-pee in their bottom." Understandably disturbed, the father "caught Z, he was walking by or something," and asked "who showed him how to put his pee-pee in a bottom." 6 At first, Z said "it didn't happen." Then, Z said "he learned it from [the twins]." 7 The father retorted, "My boys could not have shown you because they don't know" about such things, and asked again, "How did you learn it?" 8 At that point Z finally said, "Well, my mom's boyfriend spends the night at my mom's house. I sleep in the living room in my sleeping bag, and he comes in the middle of the night and tears my clothes off." 9

The twins' parents did not pursue the matter with any of the boys. They did, however, write a letter to Z's mother, whom they had not met. Then they returned to Oregon with their children.

When Z's mother received the twins' parents' letter, she asked Z "if this was true and he said no." 10 She "couldn't go talk to ... the lady that wrote [the letter], because they were gone ... back to Oregon where they lived." 11 She asked R, a neighbor whose daughter often played with Z, whether R knew of any sex play between the children. R did not, but R had heard Z say he did not want to go home "because Tom was there." 12 Apparently linking the letter to what she had heard Z say, R "asked [MM] to take [Z] to the hospital and to get him out of [Karpenski's] house." 13 MM chose not to comply, so R called Z's maternal grandmother and Child Protective Services (CPS).

The grandmother reacted to R's call by speaking with Z. According to her later testimony:

A: ... [R] told me that supposedly [Z] had talked to a man neighbor, the father of the twins, about Tom abusing him.

....

A: ... Z told me, no, he didn't talk to a man, he talked to their mommy. And I said, "Did you see a man?" And he said, "No."

Q: And did he say what he told the mother?

A: He told the mother that the little boys wanted him, the twins, wanted him to play go to the kissing fort and play pee-pee in the butt. And I ... asked him at that time, "Did you do that?" And he said, "No, I went and talked to their mommy." And then ... his mother called him home.[ 14

CPS reacted to R's call by requiring MM to remove Z from Karpeski's house. Thus, on or about July 28, 1995, MM, Z, and Matthew moved to MM's parents' house. CPS also required MM to take Z to mental health counseling, which apparently lasted for a few weeks.

In September 1995, Z started the first grade. "[W]hen his teacher asked him what he did over summer vacation," he said, according to his mother, that he and his little brother "went to Hawaii, and the warm water was splashing on his legs and they were ... eating pineapple, and the trees were whispering in the wind and it was so warm...." 15 According to his grandmother,

He told us ..., and he relayed this to his teacher also, that he had been to Hawaii, very vividly that he'd been to Hawaii, down to the fact that he described the feel of the water on his feet, the smell, the plane trip. He's never been in a plane. And it was very hard to convince him that he didn't do that.

There ha[ve] been times when we've been in the car riding somewhere and he'll insist that he's done something, he's either been in a plane or he's jumped off a cliff or whatever, and we've had to tell him, no, you didn't do that, and he gets very angry and says yes, he did, that he's done it and we just don't remember it.[ 16

When the first grade teacher learned that Z had not actually been to Hawaii, she referred him to the school psychologist, who in turn referred him to mental health counseling. The counseling apparently lasted until spring.

On November 14, 1995, Z's mother and maternal grandfather took him to the county courthouse for an interview with a child interviewer employed by the Pierce County Prosecutor's Office. As they left the grandparents' house, Z's mother told him, according to her, "that somebody was going to be asking him questions about Tom," 17 and "he had to tell them the truth." 18

Upon arriving at the courthouse, the mother and grandfather spent 15 minutes in conference with the child interviewer while Z played in a separate room. At the end of that time, the nterviewer directed the mother and grandfather to wait outside while she interviewed Z. During the conference, according to the child interviewer, both the mother and grandfather made it

very clear ... that to them these allegations were not true, and the information that they provided me was kind of a background about how some neighbors had come up to [Z's mother] and indicated that ... her boyfriend at the time was a child molester.[ 19

The interviewer spoke with Z for about 35 minutes. No one else was present. She did not tape the interview, or seek consent to tape it, in accordance with a policy of her office. 20 She took notes that she destroyed after typing a report, again in accordance with a policy of her office. 21

Near the beginning of the interview, the interviewer asked three simple questions designed to show whether Z understood the difference between the truth and a lie. The first was whether she would be telling the truth or lying if she were to claim that she was a boy. The second was whether she would be telling the truth or lying if she told Z his hair was on fire. The third was whether a truth or a lie was better. Z's responses are not in the record, but we assume he answered appropriately. 22

After these preliminaries, the interviewer began to explore whether Z had been sexually abused. Her questions and Z's answers were as follows: (1) The interviewer asked "if anything had ever made [Z] feel uncomfortable." Z said, "One time when I was in my bed in my sleeping bag at home, I got my [bottom] wet and Tom came in and wiped my [bottom]." 23 Z explained, in child's terms, that he had defecated, neglected to clean his anus, and awakened while Karpenski "was wiping him with toilet paper underneath his clothing." 24 (2) The interviewer did not consider this "something sexual in nature," so she "press[ed] Z further" by asking "if Tom had ever done anything to make him feel unsafe." 25 Z answered, "That's all." 26 (3) The interviewer "explained to Z that someone thought something might have happened to make him feel unsafe," and asked if they got that right or if they got that mixed up." 27 Z responded, "What were they talking about?" 28 (4) The interviewer "told [Z] that I meant anything that made him feel unsafe," and Z said, "I can't remember it all because my mom only told me that one thing." 29 (5) The interviewer "asked if his mom told him about what happened with Tom," and Z said, "Yes, [when we] were about to go." 30 Clarifying, the interviewer asked if Z was talking about "today, meaning the day of the interview," and Z said, "Yes." 31 (6) The interviewer asked if Z "had said he couldn't remember all of the things that happened with Tom," and Z replied, "No, he can't remember all of them." 32 (7) The interviewer asked if Z would tell her "about one thing," 33 and Z said, "Only that just one thing," adding, "I can't remember all of them." 34 (8) The interviewer "told Z that someone thought he told them about some other things that happened with Tom," and "asked if they got that right or if they were mixed up." Z said, "Right." 35 (9) The interviewer asked "what else Tom did." Z said, "That's all." 36 (10) The interviewer ...

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