State v. Redman

• Citation: 916 S.W.2d 787
• Decision Date: 20 February 1996
• Docket Number: No. 78380,78380
• Parties: STATE of Missouri, Respondent, v. Frankie R. REDMAN, Appellant. Frankie R. REDMAN, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 787

916 S.W.2d 787

STATE of Missouri, Respondent, v. Frankie R. REDMAN, Appellant.

Frankie R. REDMAN, Appellant, v. STATE of Missouri, Respondent.

No. 78380.

Supreme Court of Missouri,

En Banc.

Feb. 20, 1996.

Rehearing Denied March 26, 1996.

Appeals from the Circuit Court of Pulaski County; Honorable John D. Wiggins, Trial Judge; Honorable Douglas E. Long, Jr., Post-Conviction Judge.

Henry Robertson, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Fernando Bermudez, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERTSON, Judge.

The rule against hearsay to the contrary notwithstanding, section 491.075.1(1), (2)(a), RSMo 1994, admits as evidence testimony concerning out-of-court statements made by a child under the age of twelve who is the alleged victim of sexual abuse to prove the truth of the matter asserted in the child's statement if the trial court finds "that the time, content and circumstances of the statement provide sufficient indicia of reliability" and "[t]he child testifies at the proceedings." Id.

In Idaho v. Wright, 497 U.S. 805, 821, 110 S.Ct. 3139, 3149, 111 L.Ed.2d 638 (1990), the United States Supreme Court upheld an Idaho statute similar to section 491.075 against a Sixth Amendment Confrontation Clause challenge. In so doing, the Supreme Court wrote that "use of terminology unexpected of a child of similar age" is one indicator of the content-reliability of a child's out-of-court statement. Perhaps as a result of the Supreme Court's verbiage, the districts of the court of appeals of this state have focused their content-reliability analysis under section 491.075 on the particular words used by the child, but not under a consistent analytical construct. For example, State v. Murray, 838 S.W.2d 83, 86 (Mo.App.1992), holds that the absence of adult language also indicates the absence of adult coaching and renders the child's statement content-reliable. To the contrary, State v. Jefferson, 818 S.W.2d 311, 312 (Mo.App.1991), finds that the use of "words not expected of a child of three" renders the statement reliable.

We granted transfer to consider the issue raised by the conflicting application of Idaho v. Wright. We have jurisdiction. Mo. Const. art. V, § 10. We hold that in assessing content-reliability, courts should not place undue emphasis on the particular vocabulary used by a child but must determine whether knowledge of the subject matter described by the child is unexpected of a child of similar age.

The judgments are affirmed.

I.

The facts are sordid.

"K" is the adopted daughter of appellant. The events in question happened approximately eight months prior to trial. At the time of trial, K was ten years old. She testified at the trial.

According to K's testimony, K and her sister were sleeping in a mobile home belonging to appellant's uncle, Jerry Cooper, on May 6, 1992. K testified that while she and her sister slept, "[m]y dad went in there and he sucked my boobs." The prosecutor asked K, "Is that what an adult would call a breast?" K answered, "Yes." K testified that this occurred several times one night. K further testified that during a car ride the next day, defendant "felt my boobs."

K was also questioned about events that occurred at her home on the Wednesday night following the trip to Cooper's, May 6, 1992. She testified that after her mother went to work (her mother worked nights), appellant came to her bedroom and took her into the living room of their house. Appellant told her he wanted her to watch television. She gave the following testimony:

Q. (Prosecutor) What happened next?

A. He asked me to suck his pee-pee.

Q. Now, [K], you just said pee-pee. Would that be what an adult would call a penis?

A. Yes.

She also testified that appellant offered her bribes--a dollar and a "troll doll." She said that at first she "kept quiet and didn't say anything" but after appellant persisted, she "finally gave up" and "[s]ucked his pee-pee." The prosecutor asked what happened next and K testified that "[s]omething got caught in my throat" and she then "[w]ent to spit it out and went to bed."

K's mother testified that on the following Friday, May 8, K's sister told K's mother "that Daddy had put his hand on [K's] bottom." When K's mother asked K about what K's sister had said, K responded that appellant "didn't do that." K's mother questioned K further and K told her about the incidents at Cooper's. Later that evening, after K and her sister had gone to bed, K's mother testified that she woke K and asked her if there was anything else K wanted to tell her. K's mother testified that K said appellant "asked her to suck on his thing, or pee-pee, what [K] calls it." K's mother also said that K told her that defendant said what happened was to be a secret--that K was not to tell K's mother.

On Sunday, May 10, K's mother called the Division of Family Services (DFS) child abuse hot line number and reported the incident. On Monday, May 11, K's mother went to the DFS office and met with Ruku Young, a social worker. After K's mother talked to Ms. Young, the two of them, accompanied by Deputy Sheriff Rick Williams, went to K's school. While Officer Williams and K's mother were present, Young interviewed K.

Young testified about her interview with K and stated that K told her about the incidents at Cooper's. Young testified that K said appellant "came and sucked her right titty." Young indicated that those were the exact words K used. Young further testified that K said "she was sitting in the back seat next to Frank Redman, and he put his hand on her bra--on her breast underneath her bra." Young also related her conversation with K about what occurred on May 6, at K's home. Young explained that K said appellant woke her up, took her to another room "and asked her to suck his private parts." Young testified that K said appellant "pestered her about thirty times before she gave in" and that appellant offered K a dollar to do what he asked. Young said Officer Williams asked K if appellant said anything about telling someone. Young recalled K's answer to be that appellant told K "it was a secret."

Officer Williams testified to essentially the same facts. Williams testified that K said appellant came into the bedroom, pulled her nightgown down "and sucked on her breast." Williams did not remember if K used the word "breast."

The trial court relied on section 491.075 to admit the testimony of K's mother, Young and Williams concerning K's out-of-court statements. A jury found appellant guilty and the trial court sentenced him to forty years' imprisonment as a persistent sexual offender. §§ 566.060, 558.018, RSMo 1994. On appeal, the southern district affirmed, finding that the child's use of "age-appropriate" language to describe sexual organs was one factor, among others, supporting the trial court's decision to admit testimony concerning K's statements.

II.

Section 491.075 provides:

1. A statement made by a child under the age of twelve relating to an offense under chapters 565, 566 or 568, RSMo, performed with or on a child by another, not otherwise admissable by statute or court rule, is admissable in evidence in criminal proceedings in the courts of this state as substantive evidence to prove the truth of the matter if:

(1) The 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; and

(2) The child either:

(a) testifies at the proceedings....

A.

The United States Supreme Court has ruled that hearsay testimony concerning a child's statement admitted under the authority of statutory hearsay exceptions similar to section 491.075 does "not share the same tradition of reliability" as do the "firmly rooted" hearsay exceptions. Idaho v. Wright, 497 U.S. at 815-19, 110 S.Ct. at 3147-8. Therefore, the Confrontation Clause requires exclusion of a child's out-of-court statement, "unless an affirmative reason, arising from the circumstances in which the statement was made, provides a basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial." Id. at 819-23, 110 S.Ct. at 3149-50.

While Idaho v. Wright did not articulate a rigid test for determining when a child's out-of-court statement is "trustworthy," the Supreme Court noted that "[t]he state and federal courts have identified a number of factors that we think properly relate to whether hearsay statements made by a child witness in child sexual abuse cases are reliable." Idaho at 821, 110 S.Ct. at 3150. The listed nonexclusive factors include: (1) spontaneity and consistent repetition; (2) mental state of the declarant; (3) lack of motive to fabricate; and, most importantly for our purposes; (4) use of terminology unexpected of a child of similar age. Id. Missouri has incorporated the Supreme Court's test noting that "[t]he language of § 491.075 mirrors th[e] [United States] constitutional parameters by requiring a showing that the 'time, content, and circumstances of the statement provide sufficient indicia of reliability'...." State v. Wright, 751 S.W.2d 48, 52 (Mo. banc 1988).

As the precis to this opinion indicates, the phrase "use of terminology unexpected of a child of similar age" is susceptible to more than one meaning. It may mean that a child's statement is reliable when the vocabulary--the precise words--used by the child to describe the sexual abuse is "age-appropriate," i.e., words that a child of that age would be expected to use. See State v. McGuire, 892 S.W.2d 381, 385 (Mo.App.1995); State v. White, 873 S.W.2d 874, 877 (Mo.App.1994). It may also mean that a child's statement is reliable when the vocabulary--the precise words--used by the child to describe the sexual abuse is not "age-appropriate," i.e., words that a child of that age would not be expected to use. State v. Jefferson, 818 S.W.2d 311, 312 (Mo.App.1991).

Defendant,...