State v. Larson
| Decision Date | 24 October 1989 |
| Docket Number | No. C2-88-2379,C2-88-2379 |
| Citation | 447 N.W.2d 593 |
| Parties | STATE of Minnesota, Respondent, v. Bruce Phillip LARSON, Appellant. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. While objections were not made at trial, they were made at the omnibus hearings; therefore, appellant may raise the issue of the trial court's admission of out-of-court statements of a child witness under Minn.Stat. Sec. 595.02, subd. 3, where the child witness neither testifies nor is unavailable to testify.
2. Admission of out-of-court statements of a child witness under Minn.Stat. Sec. 595.02, subd. 3, where the child witness neither testifies nor is unavailable to testify, is error.
3. State's duty under Minn.Stat. Sec. 595.02, subd. 3 regarding "production" of a child witness who is required to testify in order to make that child witness's out-of-court statements admissible is not satisfied if child witness is available to testify but remains uncalled.
4. Upon exclusion of the contested out-of-court statements, the "remaining evidence" was insufficient to support appellant's conviction.
5. Where an appellate court is unable to discern whether the appropriate factors were considered in determining a child's competency, a remand for a re-enunciation of the basis for the trial court's competency determination is appropriate.
6. Trial court did not deprive appellant of a fair trial by denying the challenge of a juror for cause.
C. Paul Jones, State Public Defender, Michael F. Cromett, Asst. State Public Defender, St. Paul, for appellant.
Hubert H. Humphrey, III, Atty. Gen., Paul R. Kempainen, Asst. Atty. Gen., St. Paul, and D. Gerald Wilhelm, Martin County Atty., Fairmont, for respondent.
Heard, considered and decided by WOZNIAK, C.J., and HUSPENI and RANDALL, JJ.
After a jury trial, appellant was found guilty of second degree criminal sexual conduct involving his daughter. Appellant alleges that he was convicted based on the trial court's improper admission of his daughter's out-of-court statements and insufficient evidence. We remand.
Following marriage dissolution proceedings, appellant's three-year-old daughter B.L.L. remained in her mother's custody, subject to visitation by appellant. In late April, 1987, B.L.L. complained to her mother of being sore. B.L.L. was taken to a clinic where a medical assistant tested and visually inspected B.L.L. The inspection revealed genital swelling and "redness." Upon questioning of B.L.L. by the medical assistant, B.L.L. stated that appellant had touched her genitals with his own on more than one occasion and that appellant had put B.L.L. on his couch and rubbed her stomach until the skin peeled.
Subsequently, a child protection specialist who interviewed B.L.L. was told that somebody had abused her in her father's living room. B.L.L. indicated this had happened more than once. Also, a psychologist hired by appellant to evaluate B.L.L. indicated there was a "high probability" B.L.L. had been abused, but the psychologist did not identify the alleged abuser.
In August, 1987, B.L.L. began weekly therapy with another psychologist. In late October, B.L.L. indicated she had been abused in her father's bedroom. A late November interview of B.L.L. by a police officer, a child protection specialist and B.L.L.'s mother was videotaped. It included allegations of abuse and demonstrations thereof with anatomically correct dolls. Three weeks later, appellant was charged with criminal sexual conduct.
In mid-June 1988, after an omnibus hearing at which the parties stipulated that B.L.L. was incompetent to testify, the trial court denied appellant's motion to suppress B.L.L.'s out-of-court statements with the exception of the videotape, on which the trial court reserved judgment. In making its determination, the court noted the parties' stipulation regarding competency and granted appellant's motion for a partial continuance based on the state's indication that it did not intend to call the then five-year-old B.L.L. at trial.
After the remainder of the omnibus hearing in late August, the trial court ruled the videotape inadmissible. Appellant then obtained permission to admit the videotape. He also sought and was granted a determination that B.L.L. was competent to testify because he was thinking of calling her as a witness. At trial B.L.L.'s out-of-court statements were presented and the videotape was shown to the jury, but neither party called B.L.L. to testify. A jury found appellant guilty of a single act of second degree criminal sexual conduct.
1. Did the trial court err in admitting B.L.L.'s out-of-court statements?
2. Is the evidence sufficient to sustain appellant's conviction?
3. Was appellant denied a fair trial by the trial court's refusal to honor appellant's challenge of a juror for cause?
In Minnesota,
[a]n 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 * * * by another, not otherwise admissible by statute or rule of evidence, is admissible as substantive evidence if:
* * * * * *
(b) the child * * * either:
(i) testifies at the proceedings; or
(ii) is unavailable as a witness and there is corroborative evidence of the act; * * *
Minn.Stat. Sec. 595.02, subd. 3(b) (1988). Appellant claims that the admission of B.L.L.'s out-of-court statements when B.L.L. was available to testify, but did not do so, violated his right to confrontation and deprived him of due process of law.
Regarding B.L.L.'s failure to testify after being determined competent to do so, we note, first, that when the trial court made its determination, the state failed to move for a continuance to integrate into its case the testimony of B.L.L. required under Minn.Stat. Sec. 595.02, subd. 3(b)(i) for B.L.L.'s out-of-court statements to be admitted and, second, that the state subsequently failed to have B.L.L. testify. These events indicate that the state was not completely aware that the trial court's competency ruling implied that if B.L.L. did not testify, her out-of-court statements could not be properly admitted. Additionally, we note the trial court's statement regarding B.L.L.'s competency determination:
Of course, it is understood that neither party--if the court finds [B.L.L.] is competent, neither party has to call her if they don't wish to do so.
Thus, it appears that the import of the ruling that B.L.L. was competent to testify was not fully explored by the trial court either.
The Sixth Amendment's Confrontation Clause, made applicable to the States through the Fourteenth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him."
Ohio v. Roberts, 448 U.S. 56, 62-63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597 (1980) (citations omitted); see also State v. Conklin, 444 N.W.2d 268, 271 (Minn.1989). However,
the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. But its denial or significant diminution calls into question the ultimate "integrity of the fact-finding process" and requires that the competing interest be closely examined.
Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973) (). Before trial, appellant moved for
an [o]rder denying the admissibility of the out of court statements of the alleged victim because the admissibility of the statements would violate [appellant's] constitutional right of confrontation in light of the fact that [the state] does not intend to call the alleged victim, [B.L.L.] as a witness because he believes she is incompetent.
Also, denial of appellant's right to confrontation was argued at both omnibus hearings. Therefore, given the constitutional aspects of the issue and despite the fact that appellant did not directly address the confrontation issue for a third time at trial, we believe the issue sufficiently preserved to be addressed on appeal. See State v. Cash, 391 N.W.2d 875, 880 (Minn.Ct.App.1986) (); State v. Marty, 376 N.W.2d 515, 517 (Minn.Ct.App.1985), pet. for rev. denied (Minn. Jan. 17, 1986) (evidentiary issue properly before this court where defendant objected at state's first unsuccessful attempt to enter evidence but not a later successful attempt).
The state argues that B.L.L. was actually unavailable to testify because of "the State's undisguised intention to proceed without ever calling her due to her tender age." This argument on appeal reinforces our concern that neither the prosecutor nor the trial court fully considered how the determination that B.L.L. was competent affected the admissibility of her out-of-court statements under section 595.02, subd. 3(b). We are unable to discern the basis for B.L.L.'s continued unavailability if, in fact, she was appropriately declared competent to testify.
The state also argues that B.L.L. was unavailable to testify because of the stipulation. We cannot agree. As articulated by the prosecutor at the first omnibus hearing, the parties' stipulation was:
For the purpose of this hearing only the state is claiming and I believe the defense will agree * * * that the issue of incompetency of the witness which is one of the requirements to be shown in order to admit out-of-court testimony is admitted. The issue before the court * * * is the...
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