State v. Martinez

• Court: Washington Supreme Court
• Writing for the Court: González, J.
• Citation: State v. Martinez, 196 Wash.2d 605, 476 P.3d 189 (Wash. 2020)
• Decision Date: 19 November 2020
• Docket Number: No. 97496-9
• Parties: STATE of Washington, Respondent, v. Simon Ortiz MARTINEZ, Petitioner.

196 Wash.2d 605

476 P.3d 189

STATE of Washington, Respondent,

v.Simon Ortiz MARTINEZ, Petitioner.

No. 97496-9

Supreme Court of Washington.

Filed: November 19, 2020

Maureen Marie Cyr, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Petitioner.

Carla Barbieri Carlstrom, King County Prosecutor's Office, 500 4th Ave. Ste. 900, Seattle, WA, 98104-2316, for Respondent.

González, J. ¶1 Under our constitutions, the State bears the burden of proving the criminal charges it brings with reliable evidence. See WASH. CONST. art. I, §§ 9, 22 ; U.S. CONST. amend. VI. The person charged with a crime has the right to challenge and test the State's evidence. WASH. CONST. art. I, § 22 ; U.S. CONST. amend. VI. Most evidence is presented through live testimony of witnesses sworn to tell the truth. As a general rule, witnesses may testify only about their own observations, not about what other people told them. This general rule is subject to a long-standing exception for "the fact of the complaint." Under this current iteration of the fact of the complaint exception, the State may offer evidence that a victim of sexual violence told someone about it. In this case, four witnesses were allowed to testify that the victim told each of them she had been raped. The defendant argues this was error under our hearsay rules and asks this court to abandon the fact of the complaint doctrine. Declining to do so, we affirm.

FACTS

¶2 Simon Ortiz Martinez¹ sexually abused his daughter, Y.M., for nearly a decade. 1 Verbatim Report of Proceedings (VRP) (Oct. 24, 2017) at 34. Y.M. testified that the abuse began when she was five years old. Id. Martinez stopped Y.M. from playing Barbies with her brothers and told her to go to his room where he molested her. 3 VRP (Oct. 31, 2017) at 535, 538-40. The molestation continued regularly for several years. 1 VRP (Oct. 24, 2017) at 34; 3 VRP (Oct. 31, 2017) at 545, 574, 598-99.

¶3 When Y.M. was nine years old, she was alone in the house with Martinez. Her youngest brother had been hospitalized, and their mother stayed at the hospital with him. 3 VRP (Oct. 31, 2017) at 548. Martinez raped Y.M. that night. Id. at 555-58. Three months later, Martinez raped her again. Id. at 560. Martinez continued to rape and sexually abuse Y.M. regularly until she moved out of the family home in 2014, when she was about 14. 1 VRP (Oct. 24, 2017) at 34, 36, 66-67; 3 VRP (Oct. 31, 2017) at 545, 574, 598-99. Around that time, she told several people about the sexual abuse. 4 VRP (Oct. 31, 2017) at 615, 617. A few months later, Y.M. reported it to authorities. 3 VRP (Oct. 30, 2017) at 488-89, 495; 4 VRP (Oct. 31, 2017) at 624-26.

¶4 The State charged Martinez with one count of first degree rape of a child, which required it to prove Martinez raped Y.M. when she was no more than 12 years old. 1 VRP (May 8, 2017) at 2; RCW 9A.44.073. The State limited the charging period to three years: July 2009 to July 2012. Clerk's Papers (CP) at 1. Even though there was considerable evidence that the abuse continued until Y.M. was 14 years old, the State elected not to add a charge of second degree rape. During trial, over Martinez's objection, Y.M.’s two friends, her mother, and a friend's mother were all permitted to testify that in 2014, Y.M. told them she had been sexually abused. 3 VRP (Oct. 30, 2017) at 435-36, 455; 3 VRP (Oct. 31, 2017) at 507-08. This was long after the charging period but still contemporaneous with the ongoing abuse. 1 VRP (Oct. 24, 2017) at 17-18; 2 VRP (Oct. 26, 2017) at 340-44.

¶5 Martinez moved to exclude Y.M.’s complaints to these witnesses as untimely since they happened so long after the charging period. 1 VRP (Oct. 24, 2017) at 18-19. The trial judge denied the motion, concluding that complaints are no longer required to be timely to be admissible. 2 VRP (Oct. 26, 2017) at 344. Based on those complaints, Y.M.’s testimony, and other evidence, the jury found Martinez guilty. CP at 35. Martinez received an indeterminate sentence of 123 months to life. Id. at 40. The Court of Appeals affirmed in an unpublished decision, holding that the trial court did err by finding that there is no timeliness requirement, but that the four complaints were timely since they were contemporaneous with the abuse. State v. Martinez , No. 77776-9-I, slip op. at 1, 7-8, 2019 WL 2751295 (Wash. Ct. App. July 1, 2019) (unpublished), https://www.courts.wa.gov/opinions/pdf/777769.pdf. We granted review. State v. Martinez , 194 Wash.2d 1009, 452 P.3d 548 (2019).

ANALYSIS

¶6 At common law, victims of violent crimes were expected to raise an immediate "hue and cry" so their community could mount an immediate response. State v. Hill , 121 N.J. 150, 157, 578 A.2d 370 (1990) (quoting 2 SIR FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH LAW 578-79 (2d ed. 1923)). The failure to raise a hue and cry could be fatal to a future prosecution or civil action. Dawn M. DuBois, A Matter of Time: Evidence of a Victim's Prompt Complaint in New York , 53 BROOK. L. REV. 1087, 1089 (1988) (citing 4 JOHN HENRY WIGMORE, EVIDENCE § 1135, at 298-306 nn.2-11 (Chadbourn rev. ed. 1972)).

¶7 The general requirement to raise a hue and cry was eliminated in the mid-1700's, but, because of deeply sexist expectations, it widely persisted in cases of alleged sexual violence. Kathryn M. Stanchi, The Paradox of the Fresh Complaint Rule , 37 B.C. L. REV. 441, 446 (1996) (citing Hill , 121 N.J. at 158, 578 A.2d 370 ). It continued to be applied in such cases under two general theories. First, an immediate outcry (or some other sort of immediate complaint) by the alleged victim was often required to be proved because courts were skeptical of victims’ claims. See, e.g. , Davis v. State , 120 Ga. 433, 435, 48 S.E. 180 (1904) ("Without [a corroboration requirement], every man is in danger of being prosecuted and convicted on the testimony of a base woman, in whose testimony there is no truth."). Second, the fact the victim made an immediate complaint was often admitted to show that the victim had made a timely report of the assault when it otherwise would not have been able to do so under the Rules of Evidence.

State v. Murley , 35 Wash.2d 233, 236-37, 212 P.2d 801 (1949). Without evidence of a timely report, juries might assume no assault occurred. Hill , 121 N.J. at 159, 578 A.2d 370 (citing State v. Thomas , 351 Mo. 804, 818, 174 S.W.2d 337 (1943) ). We recognize that under either theory, the rule, like society, ignored some victims of sexual violence and treated others with unfortunate skepticism and demanded that they all behave in a like manner.²

¶8 The closely related "fresh complaint" doctrine evolved as a response to the common law requirement of hue and cry. Hill , 121 N.J. at 157, 578 A.2d 370. Eventually, the requirement that the prosecution prove a sexual assault victim made a timely hue and cry was replaced with the rule that the State could introduce such evidence in its case in chief to negate any inference that because the victim had failed to tell anyone she had been sexually assaulted, her later claim could not be believed.³ Id. at 159, 578 A.2d 370 ; State v. Kendricks , 891 S.W.2d 597, 601 (Tenn. 1994) ("Because juries were allowed—sometimes even instructed—to draw negative inferences from the [victim's] failure to complain after an assault, ... the [fact of the complaint doctrine] evolved as a means of counterbalancing these negative inferences." (citation omitted)).

¶9 Despite the doctrine's problematic roots, it still plays an important function because many jurors still subscribe to the myth that "real" victims report promptly. Beyond its original purpose to combat myths about female rape victims, the doctrine has evolved to include others, including children, men, and same-sex rape victims. See State v. Ragan , 22 Wash. App. 591, 598, 593 P.2d 815 (1979) (where a 16-year-old male victim was raped by an adult male, the appellate court explained that it was proper to admit evidence of the victim's early complaint to prevent "the negative inference which otherwise would be properly drawn had the jury not known of the early complaint"); State v. Ackerman , 90 Wash. App. 477, 484-85, 953 P.2d 816 (1998) (where the defendant was convicted of molesting a 12-year old child, and the victim was unavailable to testify, the appellate court held that the victim's statements were properly admitted under the fact of the complaint doctrine). The majority of states continue to apply the doctrine. Dale Joseph Gilsinger, Annotation, Application of Common-Law "Fresh Complaint" Doctrine as to Admissibility of Alleged Victim's Disclosure of Sexual Offense– Post-1950 Cases , 39 A.L.R.6th, tbl. of cases, laws & rules at 267-76 (2008), § 3.5, at 13 (Supp. 2020). In Washington, the State may present evidence that the victim reported the sexual violence to someone as part of its case in chief. State v. Ferguson , 100 Wash.2d 131, 135, 667 P.2d 68 (1983) (citing State v. Goebel , 40 Wash.2d 18, 25, 240 P.2d 251 (1952), overruled in part on other grounds by State v. Lough , 125 Wash.2d 847, 889 P.2d 487 (1995) ). The evidence admissible under the doctrine is limited. Testimony under the doctrine is not admissible for the truth of the matter asserted, only to demonstrate that the victim reported to someone. State v. Stewart , 52 Wash. 61, 63, 100 P. 153 (1909). Witnesses may give sufficient details "to identify the nature of the offense of which complaint was made," but details such as identity of the perpetrator are not admissible. Goebel , 40 Wash.2d at 25, 240 P.2d 251. ¶10 Martinez essentially argues that Ferguson and Goebel are no longer good law because they are inconsistent with our hearsay rules and are harmful because they perpetuate myths about the victims of sexual violence. See Suppl. Br. of Pet'r at 10-12. We will not overturn prior published opinions unless " ‘an established rule is incorrect and harmful,’ " or "the...