State v. Murray, No. 31460-6-II (WA 6/28/2005)
| Decision Date | 28 June 2005 |
| Docket Number | No. 31460-6-II,31460-6-II |
| Parties | STATE OF WASHINGTON, Respondent, v. STEWART WILLIAM MURRAY, Appellant. |
| Court | Washington Supreme Court |
Appeal from Superior Court of Pierce County. Docket No. 02-1-03430-8. Judgment or order under review. Date filed: 02/06/2004. Judge signing: Hon. Gary Steiner.
Counsel for Appellant(s), Linda J. King, Attorney at Law, 9 St Helens Ave, Tacoma, WA 98402-2600.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Stewart William Murray appeals his convictions and sentence for three counts of third degree child rape. Murray contends that the trial court erred in admitting (1) the victim's statements to a sex offender treatment provider under ER 803(a)(4); and (2) the victim's statements to a detective under ER 801(d)(1)(ii). He also contends that the trial court's jury instructions deprived him of his right to a unanimous verdict on each count and that there was insufficient evidence to support two of his convictions. In his Statement of Additional Grounds for Review (SAG),1 Murray contends, inter alia, that two of the charges constituted `same criminal conduct,' that there was prosecutorial misconduct warranting reversal, and that he received ineffective assistance of counsel. We affirm.
J.D. was born May 23, 1986. He knew Murray because Murray lived across the street from J.D.'s aunt's house in Spanaway, Pierce County. Murray lived in a house with a big yard that had cars and a motor home in the back and a trailer in the front. Murray owned an automotive repair business called Mechanically Correct.
In Spring 2001, J.D. asked Murray if he could work for him. Murray replied that he would `have to talk to the boys about it.' Report of Proceedings (Sept. 10, 2003) (RP) at 131.
Later that spring, before J.D.'s 15th birthday, Murray asked J.D. if he was `bi or gay or straight.' RP at 132. J.D. told him that he had had sexual contact with males but that he was straight. Murray asked J.D. to come into his house with him, led J.D. to the bathroom, shut and locked the door, pulled down J.D.'s pants, and performed oral sex on him. J.D. did not hear or see anyone else in the house. Afterward, they went to the living room and watched television for a while.
About an hour later that same day, Murray and J.D. went out to the motor home in Murray's backyard. Murray told J.D., `If it hurts, let me know and I'll stop.' RP at 142. Then J.D. pulled down his pants and Murray put lotion on his penis and inserted it into J.D.'s rectum. Eventually J.D. told Murray to stop because it hurt, and Murray complied. J.D. did not tell anyone what had happened.
About a week later, when J.D. was almost 15, he began working at Murray's business earning five dollars an hour in cash. He worked there during the summer of 2001. J.D. continued to have sexual contact with Murray, for which Murray paid him. J.D. estimated that they had oral and anal sex about 20 times and that it mainly occurred in the shop. J.D. testified that on one occasion, after the shop closed, Murray took J.D. and a 16 or 17-year-old employee, T.J., into his office with the doors locked and the window covered. J.D. testified that while Murray inserted his penis into T.J.'s rectum, Murray performed oral sex on J.D. T.J., who testified for the defense, denied that the incident had occurred.
After J.D. turned 15, he went to Murray's house to hang out, but there were people at the house, so J.D. and Murray went to the small trailer in Murray's front yard. Murray shut and locked the door and J.D. took off his pants. Murray's son walked in while Murray was performing anal sex on J.D.
J.D. was arrested on unrelated first degree child rape and first degree child molestation charges on December 17, 2001. On January 7, 2002, J.D. had a psychosexual evaluation by Michael Comte (Comte), a therapist and state certified sex offender treatment provider. J.D. underwent an evaluation to determine whether he was eligible for a Special Sex Offender Disposition Alternative (SSODA).2 Comte, who is required by law to report juvenile sexual victimization to law enforcement, contacted the Pierce County Sheriff's Department based on J.D.'s disclosure of his contacts with Murray.
On July 25, 2002, Murray was charged with two counts of third degree child rape.3 On July 23, 2003, the State filed an amended information adding two additional counts of third degree child rape. The State alleged that all of the acts occurred between November 1, 2000 and November 1, 2001.4
At trial, the State moved in limine to allow Comte and Rick Minnich, who had administered a polygraph as part of J.D.'s SSODA evaluation, to testify about J.D.'s disclosures under the hearsay exception for statements for medical diagnosis or treatment, ER 803(a)(4). The court tentatively ruled that the testimony would not be admissible. Eventually, however, the court permitted Comte's (but not Minnich's) testimony about J.D.'s sexual contact with an adult but did not permit the adult to be identified. Comte later testified over defense objection regarding J.D.'s `sexual reactivity,' the tendency of abused boys to evolve into abusers themselves. RP (Sept. 15, 2003) at 241.
J.D., Comte, and Deputy Brent Eggleston (Eggleston) of the Pierce County Sheriff's Department testified for the State. The defense called Detective John Sample (Sample), J.D.'s former junior high school principal, two of Murray's former auto repair employees (including T.J.), and a community newspaper publisher who rented office space from Murray.
In closing argument, the State identified J.D. as age 14 when Counts I and II occurred. These counts related to the oral and anal intercourse in Murray's house and backyard mobile home. The prosecution identified Count III as the encounter in the office with T.J. after J.D. began working at Murray's business and Count IV as the incident in the trailer in the front of the Murray house after J.D. was 15.
The jury returned a verdict of guilty on Counts I, II and IV and a verdict of not guilty on Count III.
Murray was sentenced to 60 months on each count, to run concurrently, the high end of the standard range.5 Murray appeals both his convictions and his sentence.
Murray contends that the trial court abused its discretion in admitting Comte's testimony about J.D.'s SSODA evaluation under ER 803 (a)(4), the hearsay exception for statements made for medical diagnosis or treatment.
We review the trial court's evidentiary decisions under an abuse of discretion standard. State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995). A court abuses its discretion when it exercises such discretion in a manifestly unreasonable way or based on untenable grounds or reasons. State v. Valdobinos, 122 Wn.2d 270, 279, 858 P.2d 199 (1993) (citing State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
Generally, to preserve an evidentiary issue for appellate review, the party challenging the ruling must make a timely and specific objection. ER 103; RAP 2.5(a); State v. Avendano-Lopez, 79 Wn. App. 706, 710, 904 P.2d 324 (1995).
``Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.' ER 801(c). Unless a rule or statute provides otherwise, hearsay is not admissible at trial. ER 802.
Under ER 803 (a)(4), the hearsay rule does not exclude `{s}tatements made for the purposes of medical diagnosis or treatment and describing medical history or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.' The decision to admit such a statement is left largely to the trial court's discretion, with the ultimate test being whether the statement sought to be introduced was `reasonably pertinent' to medical diagnosis or treatment. 5B Karl B.Tegland, Washington Practice sec. 803.23 at 469 (4th ed. 1999).
Statements made to counselors in child abuse or rape situations may fall under this hearsay exception. See State v. Ackerman, 90 Wn. App. 477, 482, 953 P.2d 816 (1998) (); see also State v. Sims, 77 Wn. App. 236, 239, 890 P.2d 521 (1995); State v. Florczak, 76 Wn. App. 55, 65, 882 P.2d 199 (1994); State v. Bishop, 63 Wn. App. 15, 24-25, 816 P.2d 738 (1991); but see State v. Lopez, 95 Wn. App. 842, 848, 980 P.2d 224 (1999) ().
Here, Murray objected to the admission of Comte's statements on the grounds that a SSODA evaluation did not fall under the medical diagnosis or treatment exception because J.D's primary motive in making the statements was to obtain a SSODA and avoid jail time, and that it was not an inherently reliable process. Initially, the court excluded the testimony. Later, the court stated that it was `keep{ing} an open mind' and stated: `I'm going to let you know Monday morning before we begin my decision on this.' RP (Sept. 4, 2003) at 32. As the parties continued to argue the matter the following Monday, the court ruled that it needed to hear from Comte outside the jury's presence. `I have to hear from whoever you want to testify. . . I then have to see whether it meets the criteria, and then look apparently to the internal reliability as...
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