State v. McKinney

• Decision Date: 21 December 1987
• Docket Number: No. 18735-0-I,18735-0-I
• Citation: 747 P.2d 1113,50 Wn.App. 56
• Parties: STATE of Washington, Respondent, v. Kenneth McKINNEY, Appellant.
• Court: Washington Court of Appeals

Page 56

50 Wn.App. 56

747 P.2d 1113

STATE of Washington, Respondent, v. Kenneth McKINNEY, Appellant.

No. 18735-0-I.

Court of Appeals of Washington, Division 1.

Dec. 21, 1987.

[747 P.2d 1114] Terrence Kellogg, Seattle, for Kenneth McKinney.

Deborah J. Phillips, Cindy Smith, Deputy Pros. Attys., Seattle, for State of Wash PEKELIS, Judge.

Kenneth McKinney appeals his conviction for indecent liberties. He contends that the trial court erred in: (1) admitting the victim's hearsay statements under RCW 9A.44.120; (2) admitting the testimony of McKinney's wife under the guardian exception to the marital privilege; (3) admitting the testimony of McKinney's wife regarding McKinney's prior conduct with the victim and other children; and (4) admitting the testimony of a sexual deviancy specialist concerning McKinney's statements made in an interview with her.

FACTS

McKinney was charged by information with the crime of taking indecent liberties with his 4-year-old niece, A.S. The information was later amended to include the charge of first degree statutory rape.

Before trial, the court held a hearing to determine whether the victim, A.S., who was four and a half at the time, was competent to testify. The trial court found that she was competent. In addition, the trial court held a hearing pursuant to RCW 9A.44.120 (the child hearsay statute) to determine the admissibility of several hearsay statements A.S. made to her mother, D.S. Defense counsel argued that A.S.'s hearsay statements to D.S. were not reliable primarily because D.S. proposed to testify at trial about two additional statements made to her by A.S. which D.S. had not previously remembered. The court disagreed and found that there were sufficient indicia of reliability to permit admission of the victim's statements.

McKinney also made a motion in limine to exclude testimony of Cindy McKinney, his estranged wife, and of Susan Moores, the sexual deviancy specialist who had interviewed him. The trial court denied McKinney's motion, ruling that Cindy McKinney's testimony was admissible under the guardian exception to the marital privilege. See RCW 5.60.060(1). The court also ruled that Susan Moores' testimony would be admissible. At trial, the following testimony was presented:

On August 17, 1985, D.S. and her husband left their children, A.S. and her brother, N.S., overnight in the care of the children's grandparents. At the time, A.S. was 4 years old and N.S. was 3. The grandmother slept in the children's bed because this was the first time they had spent the night alone at their grandparents' house.

Sometime after midnight, A.S.'s aunt, Cindy McKinney and Cindy's husband, the defendant McKinney, arrived at the grandparents' house. At the grandmother's request, Cindy slept in the living room with the children and McKinney slept in the spare bedroom. Around 5 o'clock that morning, McKinney woke up Cindy and asked her to drive him to work. Cindy agreed. She followed McKinney to the spare bedroom and then went to the bathroom. When she returned to the living room, she found McKinney sitting on the children's bed talking to A.S. A.S. asked her whether "Uncle Kenney" had slept with her. Cindy assured her he had not. She lay down between the children and McKinney lay down next to A.S. Cindy dozed off and then woke up to the sound of McKinney showering. She got up, dressed, and took McKinney to work. When she returned, A.S. again asked her whether Uncle Kenney had slept with her.

Later that morning, A.S.'s parents picked up A.S. and N.S. from their grandparents and took them to a picnic in the park. On the way, A.S. lay down on the back seat of the car and intermittently held her lower abdomen and "curled up in a little ball". In response to her mother's question, A.S. denied that she had a stomachache. While the family was eating lunch at the park, A.S. told her mother that "her pee pee [vagina] hurt." D.S. took A.S. to the bathroom and asked A.S. "offhandedly, if anybody had touched her in her private parts". A.S. answered "yes, Uncle Kenney did ... [a]nd ... [he] told me not to tell but I did, didn't I, Mommy." In the bathroom, D.S. asked A.S. to show her D.S. took A.S. to be examined by Dr. Frederick Hazeltine. He testified that he was unable to find any trauma to A.S.'s genitalia, but admitted that lack of physical trauma did not rule out sexual abuse or digital penetration.

"what Uncle Kenney did." A.S. gestured with her forefinger back and forth toward her vagina. ¹

After A.S.'s report of sexual abuse, McKinney visited Susan Moores, a sexual deviancy specialist, to "prove that he was innocent." McKinney went to Susan Moores twice for evaluation. Susan Moores testified that during the first session, McKinney told her that he had gone to A.S.'s bed while he was getting ready for work, tickled her on her stomach and under her arms, and then laid down beside her and may have dozed off for a few minutes. McKinney suggested he might have molested A.S. while he was dozing, but did not remember. Susan Moores told McKinney that he was "minimizing faults that most people admit to" and was being "dishonest in testing". In response, McKinney admitted he may have molested A.S., but could not recall, and then denied that he had touched her at all.

At the second session, at which Cindy was present, McKinney denied he had touched A.S. ² but admitted "he had experienced sexual feelings about his niece and he had experienced a desire to touch her on the vagina." McKinney told Susan Moores that "... maybe I tried to hold myself away from touching her in areas."

After A.S. and D.S. had testified, defense counsel again moved to exclude D.S.'s testimony on the ground that A.S.'s hearsay statements were not reliable. The trial court denied the motion. After deliberating, the jury acquitted McKinney on the statutory rape charge, but convicted him of indecent liberties.

ANALYSIS

I. Child Hearsay Statements

A. Adequate Indicia of Reliability

RCW 9A.44.120 ³ permits the use of an otherwise inadmissible statement by a victim of sexual abuse under the age of 10 when the court finds that the circumstances of the statement provide sufficient indicia of reliability. State v. Henderson, 48 Wash.App. 543, 549, 740 P.2d 329 (1987); State v. Hancock, 46 Wash.App. 672, 675-76, 731 P.2d 1133, review granted on other grounds, 108 Wash.2d 1021 (1987). The trial court's finding that a hearsay statement is admissible under RCW 9A.44.120 should not be reversed absent a showing of manifest abuse of discretion. State v. Frey, 43 Wash.App. 605, 611, 718 P.2d 846 (1986); State v. Slider, 38 Wash.App. 689, 698, 688 P.2d 538 (1984), review denied, 103 Wash.2d 1013 (1985). In exercising this discretion, Ryan requires that the trial court consider nine factors bearing on the reliability of a hearsay statement. State v. Ryan, 103 Wash.2d 165, 175-76, 691 P.2d 197 (1984). These factors must be "substantially met before a statement is demonstrated to be reliable." State v. Griffith, 45 Wash.App. 728, 738-39, 727 P.2d 247 (1986).

McKinney argues that the circumstances surrounding A.S.'s statements to her mother did not provide sufficient indicia of reliability primarily because D.S. testified to two hearsay statements made to her by A.S. which D.S. had not previously remembered. However, McKinney cites no authority that would support his contention that the witness's faulty recollection of a child's statement necessarily renders the child's statement unreliable.

The constitutional requirement that there be adequate indicia of reliability surrounding a child's hearsay statements refers to the circumstances that " 'existed at the time the statement was made ...' " Ryan, 103 Wash.2d at 174, 691 P.2d 197 (quoting Huff v. White Motor Corp., 609 F.2d 286, 292 (7th Cir.1979)). (Emphasis added.) Ryan does not require the trial court to determine if the witness's memory or articulation of the child's statement is reliable. Indeed, any deficiencies in the witness's memory or perception may be explored on cross examination. Here, defense counsel had ample opportunity to show the jury how D.S.'s recollection of A.S.'s statements changed shortly before trial. We reject McKinney's attempt to alter the focus of the Ryan analysis from the reliability of the victim's statement to the reliability of the witness's recollection.

In the alternative, McKinney contends that the circumstances surrounding A.S.'s statement did not provide sufficient indicia of reliability because (1) only one person heard A.S.'s statements; (2) the statements were not made spontaneously; (3) the statements were not a "recitation of acts generally unknown to children"; and (4) the timing of the statement and the relationship between A.S. and the witness "favored inadmissibility of the statements."

The record supports the trial court's finding. There was no evidence that A.S. had any motive to lie, that D.S. was predisposed to believe McKinney had abused her daughter, or that the close relationship between the victim and the witness interfered with D.S.'s objectivity. A.S.'s statements were clearly spontaneous. ⁴ In addition, A.S. told her mother of the abuse only a few hours later while she still felt physical pain, making the possibility of her faulty recollection remote. Furthermore, A.S. described acts not generally known by children, and there was no evidence suggesting that A.S. had misrepresented McKinney's involvement. The trial court therefore did not abuse its discretion in finding that A.S.'s statements were reliable.

B. Unavailability and Corroboration.

McKinney contends that the trial court should have required evidence corroborating the abuse because A.S. was "unavailable" within the meaning of RCW 9A.44.120. Although McKinney does not challenge the trial court's determination that A.S. was competent to testify, he does contend that A.S.'s trial testimony so sharply contrasted with her testimony at the competency...