State v. Madison

Decision Date03 April 1989
Docket NumberNo. 21474-8-I,21474-8-I
Citation770 P.2d 662,53 Wn.App. 754
CourtWashington Court of Appeals
PartiesSTATE of Washington, Respondent, Cross-Appellant, v. Frank S. MADISON, Jr., Appellant, Cross-Respondent.

Helen Anderson, Appellate Defender, Seattle, for Frank S. madison, jr.

Michael T. Downes, and S. Aaron Fine, Deputies, Everett, for the State.

FORREST, Judge.

Frank S. Madison, Jr., appeals from his conviction of statutory rape in the first degree, contending that the out-of-court statements made by the complaining witness were improperly admitted, that opinion and expert testimony were improperly admitted, that evidence implicating another person was improperly excluded, and that he was denied effective assistance of counsel at trial. We affirm.

FACTS

"D" 1, 5 years old, was the complaining witness. D was living with her foster mother, Debra Muir, when Muir observed D masturbating more often than usual, including one incident involving a bath brush. When asked, D refused to say whether anyone had touched her. One day, Muir read to D from a book on human reproduction entitled "Where Did I Come From". Muir again asked D if anyone had touched her. After being reassured by Muir, D "said 'My Uncle Steve put his,' and pointed at the picture in the book, which was the penis on the male, 'and put it here,' and pointed to her vagina." Muir asked D whether "Uncle Steve" did anything else with his penis, and D said that he put it in her mouth. Muir also asked D whether anyone had seen these acts, and D said that "Auntie Rhonda" had made "Uncle Steve" stop and told her to go home. "Uncle Steve" was D's term for Frank S. Madison. "Auntie Rhonda" was D's term for Madison's companion, Rhonda Gobin.

The next day, Debra Muir was visited by her sister Deanna. During the visit, D said to Debra "Uncle Steve humped me, huh, Auntie Debbie?" Debra asked D to repeat this to Deanna. Deanna testified that D pointed at a picture in a book (apparently the book used by Debra), and said it was her Uncle Steve. When asked why she thought that, D again pointed at the picture in the book and said "He put this between my legs."

These statements were reported to D's Child Protective Services (CPS) caseworker, Sherry Schuller-Roth. During an interview, D told Roth that Madison had touched her breasts and vagina on at least two occasions, had put his penis in her mouth, and had attempted to put it in her vagina. Roth arranged for D to be examined by a pediatrician, Dr. Naomi Katsch. After an examination, Dr. Katsch found that D's hymen was absent, found that her vaginal opening was wider than it should have been for her age, and concluded that her vagina had been penetrated by some object. Dr. Katsch asked D whether anyone had touched her vagina, and D said that Madison had done so "lots" and "a long time ago".

Detective Cothern of the Snohomish County Sheriff's Office was contacted about the allegations. He interviewed D, who told him that Madison had put his penis in her mouth and had touched her vagina with his hand. When Cothern asked whether a neighbor, Brian Reeves, had touched her, D emphatically replied "Steve, Steve, Steve."

Madison was charged with one count of statutory rape in the first degree. The State filed a notice that it intended to use D's out-of-court declarations, pursuant to RCW 9A.44.120. A hearing was held to determine the admissibility of the statements and D's competence to testify. After strong reluctance, necessitating a recess, D took the stand. She was able to identify her name and the names of her teachers and friends. She recognized the difference between truth and lies. The State did not question D about her allegations against Madison. Over objection, defense counsel did ask D whether "Steve" had done anything to hurt her, and she answered no.

The court found that D was not competent to testify. This finding is not challenged on appeal. The court then found that the out-of-court statements were admissible under RCW 9A.44.120, after applying the State v. Ryan factors for determining indicia of reliability.

At trial, the State presented the testimony of the Muirs, Roth, Dr. Katsch, and Cothern, which included D's out-of-court declarations. Madison presented a number of witnesses, including D's mother, father and other relatives, who testified that D had in recent weeks recanted her allegations against Madison and now claimed that someone had raped her at knifepoint on a nearby trail. The relatives believed that a neighbor, Brian Reeves, who had been previously convicted of sexual offenses, was the assailant. During the trial, they prepared a "photo montage" and asked D to identify who molested her. They stated that D identified Reeves. Madison proffered this testimony, but the court rejected it as suggestive and prejudicial.

In rebuttal, the State called Nina Auerbach to present expert testimony regarding the recantation of allegations of abuse made by children. Auerbach testified that in her experience and in her review of the literature, there existed a "recantation phenomenon" where children would recant allegations of abuse. She testified that there were a number of reasons proposed for recantation, including the possibility that the original allegation was false. On cross-examination, she admitted that she had not interviewed D, and did not know why D was recanting her allegations.

The jury convicted Madison of statutory rape in the first degree. His motion for new trial was denied, and he appeals.

OUT-OF-COURT DECLARATIONS
1) Did the court err in admitting the out-of-court declarations of the complaining witness under RCW 9A.44.120, when the court found the complaining witness incompetent

to testify but found that the indicia of reliability supported admission of the declarations?

Madison contends that the court erred in finding sufficient indicia of reliability to satisfy RCW 9A.44.120, as elaborated in State v. Ryan, 103 Wash.2d 165, 175, 691 P.2d 197 (1984), especially in light of the finding that the complaining witness was incompetent to testify at trial. Incompetence to testify does not per se preclude the admission of prior hearsay statements of the child witness, if sufficient reliability is established. State v. John Doe, 105 Wash.2d 889, 719 P.2d 554 (1986). The trial court considered the appropriate Ryan elements in some detail and concluded that sufficient reliability was established to justify admission of the hearsay statements.

Madison particularly urges that the child's statements were not made spontaneously, thus failing to satisfy the fourth factor in Ryan. He is correct that the statements were made when the foster mother was asking questions in the course of sharing a book on human reproduction with the child. But "spontaneity" is only one factor. The court is to make its judgment based on all the indicia of reliability. We agree with the trial court that while the setting was not spontaneous, the details of the event and the identity of the defendant were not suggested and were "spontaneously" volunteered. Indeed, the foster mother testified that she was "a little stunned" by the child's accusation.

In evaluating whether the recantation demonstrated unreliability, we note that it did not occur until approximately 3 weeks before trial. The child had been almost 7 months in the company of her aunt, Rhonda Gobin, who believed Madison to be innocent. The trial court is vested with considerable discretion in evaluating indicia of reliability. State v. Hancock, 46 Wash.App. 672, 676, 731 P.2d 1133 (1987), aff'd, 109 Wash.2d 760, 748 P.2d 611 (1988). We find no abuse of that discretion in admitting D's out-of-court declarations pursuant to RCW 9A.44.120.

OPINION TESTIMONY
2) Did the court err in allowing opinion testimony from a CPS caseworker regarding the behavior of the complaining witness during an interview?

D's CPS caseworker, Roth, testified that D's masturbation was "typical of a sex abuse victim"; that when D spoke to her "it was obvious she was very relieved, very comfortable that she was not needing to maintain the secret", and that D waited to make her accusations because "she was very clearly aware of the impact her disclosure would have on many people whom she loved". No objection was made at trial to these statements. Madison urges that the issue can be raised for the first time on appeal because the testimony amounts to a statement of belief in the victim's story (and therefore in Madison's guilt), thus invading the province of the jury. State v. Carlin, 40 Wash.App. 698, 700 P.2d 323 (1985); State v. Garrison, 71 Wash.2d 312, 315, 427 P.2d 1012 (1967).

No witness may express his opinion that the defendant is guilty, State v. Haga, 8 Wash.App. 481, 507 P.2d 159 (1973), or express an opinion as to the truth of a child's statement to him, hence, indirectly opining that the defendant is guilty. State v. Fitzgerald, 39 Wash.App. 652, 694 P.2d 1117 (1985). A witness may properly describe the manner and demeanor of a child at the time he is making such statements, and that description may include inferences. State v. Wigley, 5 Wash.App. 465, 466-68, 488 P.2d 766 (1971), states:

The general rule is that witnesses are to state facts, and not to express inferences or opinions. State v. Dukich, 131 Wash. 50, 228 P. 1019 (1924). Expressed definitively, it is said that a layman who sees the commission of a crime can describe the acts, the appearance and the demeanor of a defendant, from which inferences as to a defendant's mental processes may be drawn. State v. Farley, 48 Wn.2d 11, 290 P.2d 987 (1955). While it is a rule easily stated, it is often difficult to apply when the question arises at trial. It may be that in many cases it is impossible for a witness to testify in terms of pure fact; testimony inherently involves a "thinking out into language", the transformation of thought to word, and the thought process involves much more than mere...

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