State v. Lanam

• Decision Date: 10 August 1990
• Docket Number: No. C8-89-95,C8-89-95
• Citation: 459 N.W.2d 656
• Parties: STATE of Minnesota, Respondent, v. David G. LANAM, Appellant.
• Court: Minnesota Supreme Court

Page 656

459 N.W.2d 656

STATE of Minnesota, Respondent, v. David G. LANAM, Appellant.

No. C8-89-95.

Supreme Court of Minnesota.

Aug. 10, 1990.

Syllabus by the Court

1. Criminal defendant's right of confrontation under state and federal constitutions was not violated by admission of out-of-court statements by minor victim who was incompetent to testify where totality of circumstances surrounding making of statements show statements were sufficiently trustworthy for confrontation clause purposes.

2. Evidence identifying defendant as person who abused child was sufficient.

John Stuart, State Public Defender, Mark F. Anderson, Asst. State Public Defender, Minneapolis, for appellant.

Hubert H. Humphrey, III, Atty. Gen., Paul R. Kempainen, Asst. Atty. Gen., St. Paul, and Harris Darling, Nobles County Atty., Worthington, for respondent.

Heard, considered and decided by the court en banc.

KEITH, Justice.

Defendant, David G. Lanam, was found guilty by a district court jury of two counts of criminal sexual conduct in the first degree, Minn.Stat. Sec. 609.342, subd. 1(a), (e)(i) (1988), for sexually abusing a 3-year-old girl while he was babysitting with her and her brothers. He received a 43-month prison sentence, which has been stayed pending appeal. The main issue is whether the trial court violated state law or the state or federal constitution in admitting out-of-court statements of the child, who was determined by the trial court to be incompetent to testify at trial, concerning the abuse. The court of appeals affirmed. State v. Lanam, 444 N.W.2d 882 (Minn.App.1989). We also affirm.

The abuse occurred during the fall of 1987 but did not come to light until later, after the child, S, was removed from her mother's care and placed in foster care with a woman who had been providing daycare, Sharon Carlson. In response to a report that the child might have been sexually abused, Carlson read her the book Private Zones, a book aimed at teaching children the difference between "good touch" and "bad touch." The following Monday, May 2, 1988, Carlson overheard S telling Carlson's own child that someone had touched her private zone. When Carlson questioned her, S said "David" had done it. She then related the details of what happened, saying he had touched her "in the hole" and had "peed" in her mouth and she had "spitted it out." S said that when she had cried because it hurt, he had slapped and spanked her and told her not to tell anyone. S said that "David" did it while babysitting at her mother's house.

A police officer and a social worker met with her and, using anatomically correct dolls, S showed them what happened. A medical examination on May 3 confirmed that S had been sexually abused. The doctor noted scarring on S's hymen and an enlarged vaginal opening. She ruled out any disease or other condition as possible causes.

The only "David" whom Carlson knew was defendant, David Lanam, who on several occasions had picked up S and her siblings from Carlson's house when the children were there for daycare. When Carlson asked some questions to identify who "David" was, S described him as the "David" who worked for "Pizza Hut," a generic term S used for all pizza places. She said he lived near her house and often sat with her at her mother's house. S subsequently pointed out defendant's house one day as they drove by it. She also identified defendant one day as the "David" when she saw him accidentally in the hall at the courthouse on the day of a hearing.

The key issue at defendant's trial was the issue of identity, with the defense claiming that S might have been referring to another "David" who had sat with her, David Richardson. Richardson testified, however, that he had babysat with the children only before mid-September--i.e., apparently before the abuse occurred--and that he had sat with the children only at his house in the presence of his sister and mother. Moreover, he neither worked for a pizza place nor lived near S's mother's house. S was declared incompetent to testify but her statements were admitted substantively under Minn.Stat. Sec. 595.02, subd. 3 (1988). Other evidence was admitted showing that defendant, and not David Richardson, fit the description provided by S: (a) evidence that defendant worked at Domino's Pizza and that the child called all pizza places "Pizza Hut," (b) evidence that defendant lived near S's mother's house, (c) evidence that only defendant, and not David Richardson, sat with her at her mother's house, and (d) evidence concerning S's seeing and identifying defendant in the halls of the courthouse.

1. The main issue which we address is whether the admission of S's out-of-court statements violated defendant's right of confrontation, guaranteed by both the Minnesota constitution and the federal constitution. Defendant contends that S's incompetence to testify is not equivalent to unavailability and that therefore her statements should not have been admitted against him without giving him a chance to cross-examine her. He also argues that even if she was unavailable, her statements were unreliable and should not have been admitted.

S's statements were admitted pursuant to Minn.Stat. Sec. 595.02, subd. 3 (1988), which provides:

An out-of-court statement made by a child under the age of ten years * * * alleging, explaining, denying, or describing any act of sexual contact or penetration performed with or on the child or any act of physical abuse of the child * * * not otherwise admissible by statute or rule of evidence, is admissible as substantive evidence if:

(a) the court or person authorized to receive evidence finds, in a hearing conducted outside of the presence of the jury, that the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made provide sufficient indicia of reliability; and

(b) the child * * * either:

(i) testifies at the proceedings; or

(ii) is unavailable as a witness and there is corroborative evidence of the act; and

(c) the proponent of the statement notifies the adverse party of the proponent's intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence to provide the adverse party with a fair opportunity to prepare to meet the statement.

For purposes of this subdivision, an out-of-court statement includes video, audio, or other recorded statements. An unavailable witness includes an incompetent witness.

Although we have the primary responsibility under the separation of powers doctrine for the regulation of evidentiary matters, we have enforced reasonable statutory rules of evidence as a matter of comity if the rules are not in conflict with the Minnesota Rules of Evidence. State v. Dana, 422 N.W.2d 246, 249 (Minn.1988). Relevant cases of this court interpreting and applying the statute include: State v. Conklin, 444 N.W.2d 268 (Minn.1989); State v. Dana, 422 N.W.2d 246 (Minn.1988); State v. Burns, 394 N.W.2d 495 (Minn.1986).

Most recently, in State v. Larson, 453 N.W.2d 42 (Minn.1990), we chose not to decide whether to construe the statute as not requiring the state to call a child declarant who is available. Instead, we held that the statements in that case were admissible under Minn.R.Evid. 803(24) and 803(4) even though the nontestifying declarant was available. In so doing we noted that the United States Supreme Court in United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986), had made it clear that the unavailability of the declarant is not always prerequisite to admission of hearsay evidence against the defendant in every criminal case. Larson, 453 N.W.2d at 45-46. We also held that in future cases of that kind the state must, when expressly requested by the defendant to do so, call in its case-in-chief an available witness whose hearsay statements are being admitted against the defendant. Id. at 47.

In this case the defendant concedes that the statements were admissible under the statute but contends that S's incompetence as a witness is not the equivalent of unavailability for the purpose of confrontation clause analysis. He also contends that the statements were unreliable. We see no point in discussing whether a demonstration of unavailability was required in this case, as defendant argues. Suffice it to say, although unavailability is not always prerequisite to the admission of hearsay in a criminal case, it seems clear that the United States Supreme Court is willing to admit any kind of hearsay statement despite the confrontation clause if the declarant is unavailable and the statement is sufficiently reliable. Idaho v. Wright, --- U.S. ----, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); 4 J. Weinstein & M. Berger, Weinstein's Evidence p 800 (1988) (interpreting Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980)). A witness' testimony may be unavailable at trial for many reasons, including "incompetence, the * * * Rules of Evidence grounds for unavailability, the danger of severe psychological injury to a child victim from testifying, and an unwillingness or inability to testify." M. Graham, The Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship, 72 Minn.L.Rev. 523, 554 (1988). See Minn.Stat. Sec. 595.02, subd. 1(l ) (1988); Minn.R.Evid. 804(a).

A witness is not "unavailable" under Roberts unless the prosecutor has made a "good faith effort" to produce the witness. Ohio v. Roberts, 448 U.S. at 74-75, 100 S.Ct. at 2543. In this case the prosecutor clearly wanted to use S's testimony at trial and produced S at the required competency hearing. When the trial court ruled S incompetent, the prosecutor differed with the trial court as to the meaning of S's responses, apparently in an effort to persuade the court that she was competent. The defense,...