State v. Pham
| Decision Date | 01 September 1994 |
| Docket Number | No. 12588-2-III,12588-2-III |
| Court | Washington Court of Appeals |
| Parties | The STATE of Washington, Respondent, v. Tuoc Ba PHAM, Appellant. Panel Four |
Kevin Korsmo, Deputy Prosecutor, Spokane, for respondent.
Tuoc Ba Pham appeals a jury conviction of first degree child rape and first degree child molestation. RCW 9A.44.073(1); . 083(1). 1 He contends the court erred in (1) ruling the victim was competent to testify; (2) admitting hearsay statements the victim made to family members; and (3) allowing an uncertified interpreter to translate the victim's trial testimony. For the first time at oral argument, Mr. Pham further asserts he was deprived of his Sixth Amendment right to counsel. We affirm.
T.T., age 9 at the time of trial, came to the United States from Vietnam. For a short period of time while her mother traveled, T.T. lived with her grandmother and Mr. Pham, her grandfather by marriage. When her mother returned to Spokane, T.T. told her mother that Mr. Pham had taken her pants off and "licked her bird".
At a pretrial competency hearing, the court permitted T.T.'s mother to assist Dave Williams, a certified court interpreter, in understanding T.T., who has a speech impediment. T.T. said she was in the second grade, counted to 10, indicated what colors certain objects were, and recited the alphabet. She did not know the exact date she came to the United States, but remembered it was around the Vietnamese New Year. She recalled being in a car accident when her family visited Canada. The record indicates she understood the difference between the truth and a lie. T.T. "forgot" where she lived, when her birthday was, and the name of her school.
The prosecutor asked T.T. several questions about the incident with Mr. Pham, and T.T. was examined by defense counsel. The court held she understood her obligation to speak the truth and was competent to testify. State v. Allen, 70 Wash.2d 690, 692, 424 P.2d 1021 (1967). Further, the court ruled T.T.'s statements to her mother, grandmother, uncle and aunt concerning the incident were admissible, but that T.T.'s statements to the prosecutor were not because they did not meet the indicia of reliability. State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 (1984).
Prior to trial, the prosecutor informed the court T.T. was not comfortable working with a male interpreter but answered questions more openly with a female interpreter. She argued good cause existed for the use of an uncertified interpreter and recommended either Twan Pace or Sylva Lamb, who was serving as Mr. Pham's interpreter. Defense counsel expressed a preference for Mr. Williams.
The court asked Mr. Williams whether T.T.'s difficulty in answering was gender related or a speech impediment The jury returned a verdict of guilty. This appeal follows.
problem. Mr. Williams responded it was difficult to understand T.T. because of her speech impediment and that the court "might have better luck with a female" interpreter. The court ruled a female interpreter would be used and asked defense counsel his preference. Counsel opposed Ms. Pace because she had previously spoken with T.T. but stated: "If the Court is leaving us no choice but to have a different interpreter, which my objection has been made known, I would suggest my interpreter [Sylva Lamb]." The court instructed Mr. Williams to ensure Ms. Lamb's interpretation was accurate.
Mr. Pham first contends the court erred in ruling T.T. was competent to testify. He concedes T.T. understood her obligation to speak the truth, but argues the record does not support the court's determination she had the capacity to express in words her memory of the alleged occurrence or to understand simple questions about it. We do not agree.
A witness is competent to testify if he or she " 'has sufficient mental capacity to understand the nature and obligation of an oath and [is] possessed of sufficient mind and memory to observe, recollect, and narrate the things he has seen or heard.' " Ryan, at 171, 691 P.2d 197 (quoting State v. Moorison, 43 Wash.2d 23, 28-29, 259 P.2d 1105 (1953)). Those "who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly" are not competent to testify. RCW 5.60.050(2). The determination of whether a child witness is competent is within the sound discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion. State v. Smith, 97 Wash.2d 801, 803, 650 P.2d 201 (1982); State v. Wyse, 71 Wash.2d 434, 437, 429 P.2d 121 (1967).
The test for competency of a young child as a witness consists of the following:
(1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it.
Allen, at 692, 424 P.2d 1021; State v. Smith, 30 Wash.App. 251, 253, 633 P.2d 137 (1981), aff'd, 97 Wash.2d 801, 650 P.2d 201 (1982). The age of the child is not determinative of his or her capacity as a witness. State v. Ridley, 61 Wash.2d 457, 378 P.2d 700 (1963). "Intelligence, not age, is the proper criterion to be used...." Allen, at 692, 424 P.2d 1021.
Here, the court observed T.T. and considered both her capacity to understand and her intelligence. The court addressed each Allen factor. Although T.T. had difficulty communicating and answering some basic questions, she knew the distinction between the truth and a lie.
To determine whether T.T. demonstrated the mental capacity to receive an accurate impression of the incident, the court considered T.T.'s ability to recollect details about an automobile accident in Canada which occurred a short time before the incident with Mr. Pham. T.T. remembered who she was with, where her family was and the injuries she suffered. This evidence convinced the court T.T. had the capacity to receive an accurate impression about the sexual incident. 2
Although T.T. had difficulty answering some simple questions, she expressed sufficient recollection of the sexual incident. She used her own words and testified how and when Mr. Pham touched her. She demonstrated the capacity to express a memory of the occurrence. We find no abuse of discretion.
Mr. Pham next contends the court erred in admitting the hearsay statements T.T. made to family members. He maintains there was no corroboration of the allegations and the record does not reflect adequate indicia of reliability.
Hearsay statements made by a victim of child abuse under age 10 may be used in a criminal proceeding if "[t]he court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability". RCW 9A.44.120(1). In determining the reliability of out-of-court declarations, the trial court is to examine:
"(1) whether there is an apparent motive to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; and (5) the timing of the declaration and the relationship between the declarant and the witness."
Ryan, at 175-76, 691 P.2d 197 (quoting State v. Parris, 98 Wash.2d 140, 146, 654 P.2d 77 (1982)). The court is also to consider:
(1) the statement contains no express assertion about past fact, (2) cross examination could not show the declarant's lack of knowledge, (3) the possibility of the declarant's faulty recollection is remote, and (4) the circumstances surrounding the statement ... are such that there is no reason to suppose the declarant misrepresented defendant's involvement.
Ryan, at 176, 691 P.2d 197 (citing Dutton v. Evans, 400 U.S. 74, 88-89, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970)).
The trial court is in the best position to make the determination of reliability as it is the only court to see the child and the other witnesses. State v. Swanson, 62 Wash.App. 186, 191 n. 1, 813 P.2d 614, review denied, 118 Wash.2d 1002, 822 P.2d 288 (1991). Whether statements are admissible pursuant to the child abuse hearsay exception is within the sound discretion of the trial court and will not be reversed absent a showing of manifest abuse of discretion. State v. Justiniano, 48 Wash.App. 572, 579, 740 P.2d 872 (1987).
Here, the court considered that T.T. had no motive to lie and more than one person heard the statements. The court noted T.T.'s general character was good and there was a great deal of similarity between the statements she made to different family members. The court noted there was no reason to suppose T.T. misrepresented Mr. Pham's involvement. It considered the timing of the declarations and the absence of any indication T.T. disliked Mr. Pham before the incident.
The court discussed, in turn, each of T.T.'s statements about the incident to family members. The disclosures were spontaneous. The time, content and circumstances of the statements provided sufficient indicia of reliability.
Mr. Pham argues that because there was no corroboration, the statements were not reliable. We disagree. T.T. was competent to testify. If a child victim is available to testify as a witness, corroboration of the out-of-court statements is not a prerequisite to their admissibility. RCW 9A.44.120; State v. Bishop, 63 Wash.App. 15, 20, 816 P.2d 738 (1991), review denied, 118 Wash.2d 1015, 827 P.2d 1011 (1992). The court did not err in ruling T.T.'s hearsay statements were admissible.
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