State v. Ryan, No. 50216-1

CourtUnited States State Supreme Court of Washington
Citation103 Wn.2d 165,691 P.2d 197
PartiesThe STATE of Washington, Respondent, v. John T. RYAN, Appellant.
Docket NumberNo. 50216-1
Decision Date26 November 1984

Page 165

103 Wn.2d 165
691 P.2d 197
The STATE of Washington, Respondent,
John T. RYAN, Appellant.
No. 50216-1.
Supreme Court of Washington,
En Banc.
Nov. 26, 1984.
Concurring Opinion Dec. 6, 1984.

Page 167

[691 P.2d 200] John Burchard, Public Defender, Okanogan, for appellant.

Douglas S. Boole, Okanogan County Prosecutor, Okanogan, for respondent.

Washington Appellate Defender, James E. Lobsenz, Deputy Pros. Atty., Seattle, for amicus curiae appellant.


Hearsay statements of child victims of sexual abuse are conditionally admissible in criminal trials under RCW 9A.44.120. Defendant (appellant) John Ryan was convicted in Okanogan County of two counts of indecent liberties in a trial where hearsay statements of the two alleged victims were admitted under this statutory exception to the hearsay rule. Division III of the Court of Appeals certified to this court the question whether RCW 9A.44.120 violates the confrontation clauses of the state and federal constitutions. The admission of the statements did not comply with the statute's requirements, and resulted in a denial of defendant's right of confrontation under the sixth amendment to the United States Constitution and Const. art. 1, § 22. We, therefore, reverse the convictions.

Count 1 charged that the defendant committed indecent liberties upon 4 1/2-year-old boy "M" on or about June 25, 1982, and count 2 charged the same conduct with a 5-year-old boy "J", on or about June 1, 1982. At trial, in September 1982, neither child testified. Both parties stipulated that the boys were incompetent. The basis for the defendant's stipulation is not apparent, but the State argued that the boys were "statutorily incompetent". Report of Proceedings, vol. II, at 17-18. The State further[691 P.2d 201] argued that the children's incompetency rendered them unavailable. 1

Out-of-court statements made by the two children were offered through the testimony of M's mother and aunt, and J's mother. This hearsay testimony, the State argued, was permitted by RCW 9A.44.120, which provides in relevant

Page 168


A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings in the courts of the state of Washington 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; or

(b) Is unavailable as a witness: Provided, That when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

The trial court accepted the State's argument that the children were statutorily incompetent, and also unavailable. In satisfaction of the corroboration requirement, the trial court found that the defendant's knowing and voluntary confession established corroboration. The record reveals that the defendant admitted the charged conduct regarding M to M's mother, and later to a police officer. The record does not disclose an admission of the charged misconduct in regard to J.

The following circumstances surrounded the making of the children's statements: On June 25, 1982, M's aunt, while babysitting, questioned M about the source of some candy he brought to her house. M initially indicated that a person across the street had given it to him, but later said that "John would give it to him" if he permitted certain sexual contact. Report of Proceedings, vol. II, at 10. M's aunt reported these statements to M's mother who again questioned M. M told his mother the same story. M's mother also testified that she had forbidden M to accept candy.

M's mother reported what she had been told to J's mother. On June 27, 1982, J's mother questioned her son, and he told his mother substantially the same thing M had

Page 169

told his mother. J's mother testified that on June 24, she had questioned J about candy in his possession, and he responded that it had been given to him for his birthday. Neither mother was able to state with certainty when the charged acts had occurred, as neither child had a solid conception of time.

Defendant challenges his conviction on several theories: (1) He contends that RCW 9A.44.120 (Laws of 1982, ch. 129, § 2, p. 559, effective June 10, 1982) denies him the right of confrontation under the sixth amendment to the United States Constitution, and the right to face-to-face confrontation guaranteed under Const. art. 1, § 22. (2) He argues that his confession is inadmissible without the State's first establishing the corpus delicti. (3) He challenges the legislative authority to enact evidentiary rules as violative of separation of powers doctrine. (4) Defendant contends that the passage of the act violated Const. art. 2, § 19 notice provisions. Finally, (5) he argues that the effective date of the act, June 10, 1982, being subsequent to June 1, 1982, the date of the alleged count 2 incident, renders the act ex post facto as to that count.


The Sixth Amendment's Confrontation Clause provides, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." Const. art. 1, § 22 provides: "In criminal prosecutions the accused shall have the right ... to meet the witnesses [691 P.2d 202] against him face to face." Neither clause has been read literally, for to do so would result in eliminating all exceptions to the hearsay rule. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The Confrontation Clause is more than a codification of common law hearsay rules, and may be violated even though hearsay statements are admitted under recognized exceptions. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). The right to confrontation excludes some

Page 170

hearsay, and "countenances only hearsay marked with such trustworthiness that 'there is no material departure from the reason of the general rule.' " Roberts, 448 U.S. at 65, 100 S.Ct. at 2538, quoting Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934).

The general approach employed by the Supreme Court to test hearsay admissions against confrontation rights requires: (1) Either the production of the out-of-court declarant or a demonstration of unavailability, and (2) assurances of reliability of the statement. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539. "Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness." (Footnote omitted.) Roberts, at 66, 100 S.Ct. at 2539.

RCW 9A.44.120 is not within the category of firmly rooted hearsay exceptions, and by its terms is to be used when the child's out-of-court declaration is "not otherwise admissible by statute or court rule".

The requirements for admission under RCW 9A.44.120 comport with the general approach utilized to test hearsay against confrontation guarantees. The statute requires a preliminary determination "that the time, content, and circumstances of the statement provide sufficient indicia of reliability". It requires the child to testify at the proceedings, or to be unavailable, and does not alter the necessary showing of unavailability. Neither unavailability nor reliability were shown prior to admitting the hearsay testimony.


The Sixth Amendment requires a demonstration of unavailability when the declarant witness is not produced. Roberts, at 65, 100 S.Ct. at 2538. A witness may not be deemed unavailable unless the prosecution has made a good faith effort to obtain the witness' presence at trial. Barber v. Page, 390

Page 171

U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). When a confrontable witness is not produced unavailability must be certain. State v. Smith, 85 Wash.2d 840, 540 P.2d 424 (1975).

The State accounted for the children's absence by saying they were not subpoenaed. Report of Proceedings, vol. II, at 17. Apparently, they were not subpoenaed because the prosecutor believed they were "statutorily incompetent", and hence unavailable. Report of Proceedings, vol. II, at 18. The State's equation of unavailability and incompetency is faulty in several respects. First, incompetency and unavailability serve separate purposes, and mean different things. Second, as the discussion on reliability below indicates, a resolution that a witness is incompetent precludes most hearsay statements of that witness whether available or not. Third, the State has misconstrued the statutory definition of incompetency.

Unavailability means that the proponent is not presently able to obtain a confrontable witness' testimony. It is usually based on the physical absence of the witness, but may also arise when the witness has asserted a privilege, refuses to testify, or claims a lack of memory. See ER 804(a); 5A K. Tegland, Wash.Prac., Evidence § 393 (1982). Unavailability in the constitutional sense additionally requires the prosecutor to make a good faith effort to obtain the witness' presence at trial. Roberts, 448 U.S. at 74, 100 S.Ct. at 2543.

Competency, on the other hand, means that the witness "has sufficient mental capacity to understand the nature [691 P.2d 203] and obligation of an oath and possessed of sufficient mind and memory to observe, recollect, and narrate the things he has seen or heard." State v. Moorison, 43 Wash.2d 23, 28-29, 259 P.2d 1105 (1953). The statutory categories of persons who are incompetent to testify illustrate its meaning:

(1) Those who are of unsound mind, or intoxicated at the time of their production for examination, and

(2) Children under ten...

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406 practice notes
  • State v. Kirkman, No. 76833-1.
    • United States
    • United States State Supreme Court of Washington
    • April 5, 2007
    ...Greer met the reliability factors and were admissible under the child hearsay statute, RCW 9A.44.120, and State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 ¶ 11 The matter went to a jury trial on February 2, 2004. At trial, Dr. John Stirling was called to testify about his findings from physical......
  • State v. Swan, No. 55393-9
    • United States
    • United States State Supreme Court of Washington
    • May 3, 1990
    ...factors to be applied in determining whether a child's out-of-court statements are reliable in State v. Ryan, 103 Wash.2d 165, 175-76, 691 P.2d 197 (1984). The first five, derived from State v. Parris, 98 Wash.2d 140, 146, 654 P.2d 77 (1982), include " '(1) whether there is an apparent moti......
  • State v. Cardenas-Flores, NO. 93385-5.
    • United States
    • United States State Supreme Court of Washington
    • August 17, 2017
    ...Wash.2d 22, 32, 846 P.2d 1365 (1993) ; State v. Smith , 115 Wash.2d 775, 781, 801 P.2d 975 (1990) ; State v. Ryan , 103 Wash.2d 165, 178, 691 P.2d 197 (1984). Thus, corpus delicti and the corroboration rule are related yet distinct concepts. See People v. LaRosa , 2013 CO 2, 293 P.3d 567, 5......
  • State v. CJ, No. 71867-9.
    • United States
    • United States State Supreme Court of Washington
    • February 6, 2003
    ...statements were made. State v. C.J., 108 Wash.App. 790, 792, 32 P.3d 1051 (2001). Citing our decisions in State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 (1984) and Jenkins v. Snohomish County Pub. Util. Dist. No. 1, 105 Wash.2d 99, 713 P.2d 79 (1986), as well as the Court of Appeals, Division......
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410 cases
  • Stoddard v. State, 70 September Term, 2004.
    • United States
    • Court of Special Appeals of Maryland
    • December 8, 2005
    ...the same rule applies with regard to a hearsay declarant"). Most courts have also expressed that view. See State v. Ryan, 103 Wash.2d 165, 691 P.2d 197, 203 (1984) ("the declarant's competency is a precondition to admission of his hearsay statements as are other testimonial qualifications")......
  • State v. Campbell, s. CC
    • United States
    • Supreme Court of Oregon
    • August 20, 1985
    ...has no burden to prove unavailability. As recently stated by the Washington Supreme Court in State v. Ryan, 103 Wash.2d 165, 171, 691 P.2d 197, 203 "Stipulated incompetency based on an erroneous understanding of statutory incompetency is too uncertain a basis to find unavailability. To excu......
  • State v. Scott, s. 27017-6-
    • United States
    • Court of Appeals of Washington
    • December 27, 1993
    ...structure the trial court's exercise of discretion, appellate courts have formulated guidelines. See e.g., State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 (1984) (factors to determine reliability of hearsay statements of child victims of sexual abuse); State v. Holland, 98 Wash.2d 507, 656 P.2......
  • State v. Quigg, s. 12386-3-II
    • United States
    • Court of Appeals of Washington
    • February 3, 1994
    ...made an inadequate record for admitting these statements, thus violating the [866 P.2d 660] standards of State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 We decline to consider the first alleged error, that the court admitted hearsay evidence beyond the scope of the child hearsay statute. Four ......
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