State v. S.J.W.

• Decision Date: 27 April 2009
• Docket Number: No. 61753-2-I.,61753-2-I.
• Citation: 149 Wn. App. 912,206 P.3d 355
• Parties: STATE of Washington, Respondent, v. S.J.W., Appellant.
• Court: Washington Court of Appeals

206 P.3d 355

149 Wn. App. 912

STATE of Washington, Respondent, v. S.J.W., Appellant.

No. 61753-2-I.

Court of Appeals of Washington, Division 1.

April 27, 2009.

Jennifer J. Sweigert, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Colleen Sue Kenimond, Prosecuting Atty. of Island Co., Coupeville, WA, for Respondent.

LEACH, J.

¶ 1 S.J.W. appeals his conviction for third degree rape. He contends that the juvenile court erred in ruling that the victim, W.M., who was 14 years old at the time of trial, was competent to testify under State v. Allen¹ and in failing to strike W.M.'s trial testimony due to its inconsistencies. S.J.W. also claims that the court erred when it admitted statements he made to a police officer, arguing that they were made during a custodial interrogation and required Miranda² warnings. We hold that, under Allen, the court erred in placing the burden on S.J.W. to prove that W.M. was incompetent to testify. But this error does not warrant reversal because our review of W.M.'s trial testimony shows that he satisfied the requirements set forth in Allen. The court also acted within its discretion when it did not to strike W.M.'s trial testimony. Finally, the court properly admitted statements made by S.J.W. during a noncustodial interview at W.M.'s house, in his mother's presence. Accordingly, we affirm.

Background

¶ 2 W.M. is developmentally delayed due to a seizure disorder and requires constant supervision. From about September 2007 until the beginning of November 2007, W.M.'s parents paid S.J.W., who was a neighbor and friend of W.M., to watch him once a week. At the time of the incident, both were 14 years old.

¶ 3 On October 3, 2007, S.J.W. watched W.M. for about 45 minutes until W.M.'s father returned from work about 5:50 p.m. W.M.'s father heard S.J.W. leaving the house and found his son in the bathroom dressing himself. When asked by his father what he was doing, W.M. replied, "I'm getting dressed. Like [S.J.W.]." Then he told his father S.J.W. had "stuck his pee-pee in his butt." W.M. repeated this when his father asked him a second time.

¶ 4 After receiving a call from W.M.'s father, S.J.W.'s mother returned with S.J.W. to W.M.'s house around 6:15 p.m. W.M.'s father phoned the police and spoke with Officer Patrick Horn. Horn also spoke with S.J.W. over the phone, and according to Horn, S.J.W. admitted having sexual contact with W.M. When Horn arrived at the house, W.M.'s father stated that he wanted to file a report but not do "anything further." Horn then asked to speak with S.J.W. and his mother privately, and W.M.'s father showed them to the master bedroom. S.J.W.'s mother closed the door, and she and Horn stood a few feet from S.J.W., who sat on the bed.

¶ 5 Horn testified that he read S.J.W. his Miranda rights before questioning him. But W.M.'s father and S.J.W.'s mother testified that Horn advised S.J.W. of his Miranda rights after questioning him, and the court found their testimony credible. At the interview, S.J.W. chose not to answer some of Horn's questions, but he admitted having oral and anal intercourse with W.M. He also told Horn that he "knew he could take advantage of [W.M.] because he was retarded." Later in the interview, S.J.W.'s mother became upset so she opened the door and asked W.M.'s father to come inside. W.M.'s father remained in the room. Towards the end of the interview, Horn stated he was not taking S.J.W. into custody and asked him to make a written statement. S.J.W.'s mother refused to allow Horn to obtain a written statement and terminated the interview.

¶ 6 Horn next interviewed W.M. and both of his parents in the bedroom.³ Horn testified that he asked as few questions as possible to avoid "lead[ing] [W.M.] in any direction." W.M. told Horn that S.J.W. "made me lick his penis" and then directed him to lie down on the bed. When W.M. said he did not want to continue, S.J.W. responded, "Just be quiet and do it." W.M. said S.J.W. then "put his penis in my butt."

¶ 7 At the CrR 3.5 confession hearing on May 2, 2008, the court ruled that Horn's interview with S.J.W. was noncustodial based on the following facts: (1) S.J.W. was in a private residence; (2) S.J.W. did not answer some of Horn's questions; (3) S.J.W.'s mother was present during the interview; (4) S.J.W.'s mother shut the bedroom door at the start of the interview and later opened the door to call W.M.'s father into the room when she became upset; (5) W.M.'s father remained in the room; and (6) S.J.W.'s mother terminated the interview when Horn attempted to obtain a written statement. The court concluded that S.J.W.'s statements at the interview were voluntary and admissible.

¶ 8 At the competency hearing on May 6, 2008, S.J.W. called Dr. Sidney Sparks, W.M.'s pediatrician. On direct examination, Sparks was asked, "[W]hen you question a child, is there a particular manner in which you go about it?" The State objected, and the court sustained, stating that it was "not so concerned about how [W.M.] was questioned." Sparks then described W.M.'s abilities, opining that he functioned at a mental level comparable to a four to six-year-old. She testified that W.M. was able to answer direct questions but "can often be found to change his mind depending on how the question is asked." When asked about W.M.'s ability to tell the difference between truth and falsity, Sparks answered:

I don't know that I've ever specifically thought about whether he knows the difference between true and not true. I have thought about whether he is able to relate to me all the pieces of information I need and whether I can trust the ones he gives. Particularly in regard to time, he has difficulty.

¶ 9 W.M.'s father also testified that it "takes a while to get a true, accurate story out of [W.M.]." For example, he stated that his son once said that they had been at a park in the evening when, in reality, they had been there in the morning. Another time, W.M. talked about an airplane trip to Milwaukee that they had never taken. Similarly, after a football game, W.M. told his father that certain people had been there when they had not. W.M.'s father did not specify when these events occurred.

¶ 10 W.M.'s mother provided other examples in her testimony. She related how W.M. had been able to remember a baseball score but inaccurately reported that the Mariners won "because he wants them to win." She also described how W.M. often does not remember what he ate for lunch. On another occasion, W.M. was unable to repeat information to a doctor immediately after it was given to him. Although he remembered the information "perfectly" the next day, he could not recall it after that day. W.M.'s mother did not specify when these events occurred.

¶ 11 The State did not call any witnesses, and the trial court did not examine W.M. Based on the evidence presented, the court found W.M. competent. The court first explained that in applying the Allen test, the burden to demonstrate W.M.'s incompetency rested on S.J.W. "When a child is over 14, there is a presumption that that child is competent. So there has to be the burden on the person who is saying that person is not competent to show by a preponderance of the evidence." The court concluded that S.J.W. had failed to meet this burden:

[T]he types of issues you're bringing up go to the credibility of this particular witness. ...

But I've not heard anything about the "events in question." I've heard about lunches. I've heard about a Mariners game. I heard about some other situations which are, you know, troubling. And I think will be troubling to a jury. But not necessarily about the events in question. And that's what I have to look at.

As long as the child is able to demonstrate an independent recollection of the events in question and has the ability to describe them, then the child's equivocal or inability to recall details or to recall other things goes to the weight of the testimony.

.... There just has not been that finding by a preponderance of the evidence that the child is unable to recollect the events in question.

¶ 12 At the bench trial on the next day, the State called W.M. W.M. testified that Horn had come to his house "because [S.J.W.] put his peanuts in my butt." When asked to clarify what he meant by "peanuts," W.M. pointed to his groin. The prosecutor then asked W.M. whether he consented to having sexual intercourse with S.J.W.

Q: What did you tell [S.J.W.]?

A: Stop. Stop doing that.

Q: Why did you tell him to stop doing that?

A: Because he was doing something to me.

Q: Did you want him to do that?

A: No.

After intercourse, W.M. said, "I cried." But W.M. gave inconsistent answers when asked if he had performed oral intercourse on S.J.W. He also said that when he told S.J.W. to stop, he was playing video games. Later, he said he was playing basketball.

¶ 13 Additional witnesses called by the State included W.M.'s father, Horn, and Carl Seim, a police detective who investigated the case. W.M.'s father and Horn related their version of events as described above. Seim testified that W.M. was able to answer questions and recall past events based on his interview with W.M. S.J.W. called both of W.M.'s parents. W.M.'s father testified about writing a statement for the police. W.M.'s mother testified that she did not find any signs of physical trauma when she examined her son, but she conceded that she had no training with handling rape victims.

¶ 14 The court found S.J.W. guilty of third degree rape under RCW 9A.44.060(1)(a).⁴ In its oral ruling, the court stated that sexual intercourse had occurred, S.J.W. and W.M. were not married, and W.M. "clearly expressed his lack of consent by saying, `Stop. Stop doing that.' The fact that [W.M.] then followed [S.J.W.'s] directions to `Lie down on the bed and do it anyway' is not conduct that indicates freely given agreement to have sexual intercourse." At the dispositional hearing on May 21, 2008, the...