State v. Macon
| Decision Date | 07 March 1996 |
| Docket Number | No. 62910-2,62910-2 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Michael MACON, Petitioner. |
Andrew L. Subin, Vashon, Nielsen & Acosta, Eric Nielsen, Seattle, for Petitioner.
Norm Maleng, King County Prosecutor, John Belatti, Deputy, Cynthia Gannett, Deputy, Lee Yates, Deputy, Theresa Fricke, Deputy, Seattle, for Respondent.
Petitioner Michael Macon seeks review of an unpublished decision of the Court of Appeals, Division One, affirming his conviction in the King County Superior Court for second degree child molestation (Count I) in violation of RCW 9A.44.086 and first degree rape of a child (Count II) in violation of RCW 9A.44.073 and a ruling by the trial court which denied his motion to vacate judgment on the first degree rape charge and motion for new trial. We granted review limited to the issue of recantation by the child victim. We affirm.
The limited question presented in this case is whether the trial court erred in concluding after a hearing that a child victim's recantation of trial testimony of sexual abuse by Petitioner was unreliable, thus denying Petitioner's motion to vacate judgment upon his conviction of first degree rape of a child and his motion for a new trial.
The victim, T.S., was born on April 1, 1985. 2 Her mother is Ms. Michelle Short. 3 Ms. Nancy S. Scribner, Ms. Short's mother, is T.S.' grandmother. Petitioner Michael Macon met Ms. Short and began living with her and her daughter, T.S., in Seattle in 1987. 4
In 1988, three-year-old T.S. told her mother and a counselor that "Michael" sexually abused her with a wooden spoon and fork. At that time male cousins named Michael and Dominique also lived with T.S., her mother and Petitioner. Initially Ms. Short and the counselor were unsure whether the child was referring to her cousin Michael or to Petitioner. Child Protective Services (CPS) investigated the report and initially concluded Petitioner was the purported abuser. T.S. later identified her cousins Michael and Dominique as the abusers, and not Petitioner. 5 After further investigation, including evaluation by the Seattle Sexual Assault Center, no charges were filed because of inconclusive results. T.S. was not examined for sexual abuse at that time.
On February 4, 1991, based upon events happening in September 1990, Petitioner was charged by information in the King County Superior Court with child molestation in the second degree involving thirteen-year-old D.S. (count I) and rape of a child in the first degree involving five-year-old T.S. (count II), 6 the count at issue on this appeal.
On June 4, 1991 the trial court, the Honorable Jerome M. Johnson, conducted a pre-trial hearing to determine competency of the child victim, T.S., and reliability of hearsay testimony in corroboration. The court ruled the child was competent to testify and that hearsay testimony would be allowed at trial. 7
The trial began on June 5, 1991 before a jury in the King County Superior Court. The jury on June 11, 1991 found Petitioner "guilty" of both charges. On September 16, 1991, the court sentenced him to 48 months on Count I and 120 months on Count II.
On Thursday evening, September 20, 1990, Ms. Michelle Short took her daughter, T.S., to the home of her mother Ms. Nancy S. Scribner, to spend the night. 8 That night, T.S. told her grandmother, Ms. Scribner, "my private part hurts." 9 The grandmother looked at T.S.' vaginal area and noticed it looked "quite red." 10 She then asked the child whether she hurt herself. 11 T.S. said "no" and then said "mommy's Michael" had put his fingers inside her and hurt her. 12 Ms. Scribner asked T.S. more questions. The child said she was lying on her bed in her nightgown when Petitioner came in and put his fingers inside her. 13 She said it happened when her mother, Ms. Short, went to the store and left her with Petitioner. She could not give a date. 14 Ms. Scribner immediately told her husband what the child had told her.
In testimony at trial, Ms. Scribner referred to sexual abuse of T.S. in 1988 by the child's cousin Michael. She testified that during that time, she and another daughter, "Becki," tried to gain custody of T.S. because Ms. Short did not properly care for the child. 15
The grandmother testified that on September 20, 1990 she took T.S. for an examination at Swedish Hospital in Seattle where T.S.' doctor, Dr. Marshall Murrey, M.D. 16 worked. But Dr. Murrey was not there. Dr. Mary Hulseman, M.D. tried to examine T.S., but the child became hysterical and initially would not let Dr. Hulseman touch her. However, Dr. Hulseman did briefly examine the child and testified her vaginal area looked "somewhat reddened" and "irritated." 17 She said T.S. did not answer her questions about anyone touching her, but did say Petitioner hit her with a switch, and not a wooden spoon. Dr. Hulseman testified about arranging for a CPS referral and referred the child to the Seattle Sexual Assault Center at Harborview Medical Center. 18
Early in the morning on September 21, 1990 Dr. Murrey telephoned Ms. Scribner. He told her T.S. was referred to Dr. Mary Gibbons at Seattle Sexual Assault Center at Harborview for an appointment that same day. He spoke by telephone with T.S. Reading from his dictated notes, Dr. Murrey testified that T.S. told him "Michael, her mother's boyfriend, did touch her 'privates' and has whipped her with a switch." 19 First, she told Dr. Murrey it happened "one month ago," then she said it happened "two days ago."
The grandmother took T.S. to the Sexual Assault Center late in the morning on September 21, 1990. They met first with Ms. Kathy Marks, a social worker, and Dr. Mary Wedegatertnen, M.D., a pediatric resident. 20 Ms. Scribner spoke with Ms. Marks and Dr. Wedegatertnen and then left the room while the two talked to T.S. alone.
Ms. Kathy Marks testified that Ms. Scribner told her CPS investigated the family in 1988 for the "same thing" by the "same person," 21 and that she tried to gain custody of T.S. then and was going to try again. Ms. Scribner also told Ms. Marks T.S. had a history of sexual and physical abuse. 22 Ms. Marks testified she asked T.S. if she had an "ouie" and T.S. said she did, pointing to her vaginal area, and said her mother's boyfriend Michael touched her with his hand, and that it happened in her bedroom. 23
Dr. Mary Gibbons, M.D. spoke to Dr. Wedergatertnen about T.S. and reviewed Dr. Wedergatertnen's notes on the child. 24 Dr. Gibbons testified that T.S. said in Dr. Wedergatertnen's presence "Michael touched me in my private parts" and he used his hand. 25 T.S. first said it happened "two days ago," then she said "yesterday." The child denied that Petitioner touched her with any other part of his body. Then she stated he had, but was unclear about what other parts of his body he had touched her with. She then told Dr. Wedergatertnen "Michael" spanked her with a wooden spoon and with a tree stick. 26
In the examining room a sedative was administered to T.S. so the doctors could examine her because the child was resistive. While she was being sedated she became extremely combative and yelled obscenities at her grandmother, who was holding her down. She also made statements like "get off of me" and "don't hurt me." Dr. Gibbons testified children sometimes get fussy or agitated while going under sedation, but she could not reach any specific conclusions about the child's behavior. 27
Both Dr. Wedergatertnen and Dr. Gibbons then examined T.S.' vaginal area. Some of the labial tissue tore easily during the examination, a condition called "friability." 28 Dr. Gibbons testified this condition was "very uncommon" in children without a history of sexual abuse, pointing to only one good study on the subject. 29 Dr. Gibbons also testified she found a small, white line of scar-like tissue near the edge of T.S.' vagina. The hymenal opening measured eight millimeters across, and Dr. Gibbons testified it was larger than normal for a child of T.S.' age. She found a notch on the hymen, which she testified was very unusual in children who had not been sexually abused, but occasionally a child was born with the condition. She said her physical findings were consistent with digital penetration of T.S.' vagina. She concluded T.S. had a history of sexual and physical abuse. 30 But upon cross-examination, she testified some of the conditions found were consistent with either recent injury or injury from several years ago. 31
Ms. Margo Coad, a CPS caseworker assigned to T.S.' case, testified about her interview with T.S. in the Scribners' home on September 25, 1990. She testified that T.S. told her she was afraid of Petitioner and did not like living with him. The child said Petitioner had touched her between her legs in her bedroom when she was by herself. But she told Ms. Coad that Petitioner also touched her friend "Rachel," who was with her, and they called the police about it. Ms. Coad believed T.S.' comments about calling the police were "fantasies" because there was no police report of the call. 32 Ms. Coad also testified she believed T.S. was referring to recent sexual abuse and not to past sexual abuse.
The child, T.S., stayed temporarily with the Scribners seven to ten days after her disclosure, but then was returned to her mother. 33 During her temporary stay with the Scribners, she made two drawings which she described to her grandmother. She told her grandmother one drawing showed "[T.S.] in her bed when Michael hurt her." Ms. Scribner testified that she then wrote the child's description on the drawing. She dated this and the other drawing October 1, 1990. 34
The grandmother also testified that shortly after T.S.' statements about Petitioner, the child exhibited some behavioral changes. Ms. Scribner testified she had a "bop-bag" in her home...
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