State v. S.S.

• Decision Date: 30 November 1992
• Docket Number: No. 28960-8-I,28960-8-I
• Citation: 840 P.2d 891,67 Wn.App. 800
• Parties: STATE of Washington, Respondent, v. S.S., Appellant.
• Court: Washington Court of Appeals

Page 800

67 Wn.App. 800

840 P.2d 891

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

No. 28960-8-I.

Court of Appeals of Washington,

Division 1.

Nov. 30, 1992.

Andrew P. Zinner, Washington Appellate Defender, Seattle, for appellant.

Michael E. Rickert, Pros. Atty., and Thomas E. Seguine, Deputy Pros. Atty., Mount Vernon, for respondent.

KENNEDY, Judge.

S.S., ¹ a juvenile, challenges his manifest injustice disposition, claiming that the trial court erroneously admitted and considered the written report of a social worker in violation of appellant's right to cross-examine the preparer of the report. Specifically, appellant contends that his right to cross-examine witnesses embodied in RCW 13.40.150(1) must be measured by constitutional confrontation clause standards.

I

On July 5, 1991, S.S. pleaded guilty to taking a motor vehicle without permission (2 counts) and obstructing a public servant (1 count). In his guilty plea, appellant, a middle offender, acknowledged that the prosecutor would seek a finding of manifest injustice and a disposition higher than the standard range of 16 to 24 weeks of confinement.

The disposition hearing was held on July 17, 1991. The prosecutor called the following witnesses: Cameron Oliver, a caseworker for Northwest Youth Services in Mount Vernon; Christopher Tobey, an intervention specialist for Skagit County who had been employed at Secret Harbor School while appellant was in residential treatment there; Richard Tilkin, who had served as appellant's probation and parole counselor in Snohomish County; R.S., appellant's mother; and Susan Hunt, appellant's probation officer in Skagit County. Each of these witnesses testified to his or her respective knowledge of appellant's extensive history of criminal conduct, his problems with alcohol and drug abuse, his problems with impulse control and family and interpersonal relationships and his inability to benefit significantly from numerous community based treatment programs which had been offered in the past. Tobey, Tilkin and Hunt each recommended 104 weeks of confinement as essentially the appellant's last hope of rehabilitation before reaching the age of majority and becoming subject to the adult criminal justice system. Each of these witnesses testified that he or she believed that 16 to 24 weeks of confinement would not be a sufficient time in which to provide the kind and degree of treatment called for in this case. Appellant's mother testified that she, too, was in favor of up to 104 weeks of confinement if this would provide S.S. with treatment for his emotional, drug and alcohol problems.

Absent from the hearing was Ted St. Hilaire, appellant's social worker at Smokey Point Division of Children and Family Services (DCFS) in Snohomish County. St. Hilaire submitted a letter, which was provided to appellant prior to the hearing, in which he joined in the recommendation of Ms. Hunt for 104 weeks of confinement and in which he stated that DCFS had no community based programs available which would be effective for the appellant. ²

Appellant objected to the admittance of St. Hilaire's letter into evidence, arguing that he was entitled to cross-examine St. Hilaire. The prosecutor then elicited testimony from Ms. Hunt as to the reason for St. Hilaire's absence. Ms. Hunt testified that, when she contacted St. Hilaire to notify him of the date of the disposition hearing, St. Hilaire advised her that he and his wife had made vacation plans which they could not reschedule, due in large part to Ms. St. Hilaire's work schedule. The court admitted St. Hilaire's letter into evidence, over appellant's renewed objection, on the basis that St. Hilaire was not "reasonably available" for cross examination, pursuant to RCW 13.40.150(1).

At the conclusion of the hearing the court imposed a manifest injustice disposition of 80 weeks. This appeal followed.

II

RCW 13.40.150(1) provides that:

In disposition hearings all relevant and material evidence, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value, even though such evidence may not be admissible in a hearing on the information. The youth ... shall be afforded an opportunity to examine and controvert written reports so received and to cross-examine individuals making reports when such individuals are reasonably available, but sources of confidential information need not be disclosed.

(Italics ours.) Appellant contends that he has a constitutional right to confront witnesses at a manifest injustice hearing under the sixth amendment to the United States Constitution and article 1, section 22 of the Washington State Constitution. Appellant further contends that these constitutional rights were violated when St. Hilaire's letter was admitted and considered after the State failed to exercise all available means to compel St. Hilaire's presence at the trial. ³

In State v. Whittington, 27 Wash.App. 422, 428-29, 618 P.2d 121 (1980), a panel of this court held that a disposition hearing at which a finding of manifest injustice is sought is subject to the same standard as an adjudicatory proceeding, insofar as the constitutional right to confront and cross-examine witnesses is concerned. However, in State v. Beard, 39 Wash.App. 601, 607-08, 694 P.2d 692, review denied, 103 Wash.2d 1032 (1985), another panel of this court questioned the underlying premise of Whittington. Stopping short of entirely disavowing Whittington, the Beard court nevertheless suggested that Whittington should be narrowly construed. Beard, 39 Wash.App. at 608 n. 4, 694 P.2d 692.

In State v. Escoto, 108 Wash.2d 1, 11 n. 2, 735 P.2d 1310 (1987) (Durham, J., concurring), the author of Whittington stated:

I believe that Whittington should be limited to its facts and that [Beard ] suggests a more reasonable approach to analyzing constitutional issues surrounding manifest injustice proceedings under the Juvenile Justice Act of 1977.

In State v. S.P., 110 Wash.2d 886, 889 n. 1, 756 P.2d 1315 (1988), although not addressing whether there is a constitutional right to confront witnesses at a juvenile disposition hearing--the juvenile in S.P. having been denied his statutory right to confront and cross-examine a witness in the absence of any finding by the court that the witness was not reasonably available--the Supreme Court noted that it had "questioned Whittington's approach to analyzing the constitutional right to confront at a manifest injustice proceeding" (citing Escoto, 108 Wash.2d at 11 n. 2, 735 P.2d 1310 (Durham, J., concurring)).

To the extent that Whittington may have any continuing vitality, in light of Beard, Escoto and S.P., we decline to adopt its holding or reasoning. Instead, we start our analysis of the constitutional rights of a juvenile in a manifest injustice disposition proceeding with the observation of the United States Supreme Court in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), that there is a valid distinction between the adjudicatory stage of a juvenile proceeding and the post-adjudication disposition stage. In re Gault, 387 U.S. at 31 n. 48, 87 S.Ct. at 1445 n. 48; at 57 n. 98, 87 S.Ct. at 1459 n. 98. The Washington appellate courts repeatedly have recognized the rehabilitative purposes underlying the juvenile justice system. See, e.g., State v. Rice, 98 Wash.2d 384, 392, 655 P.2d 1145 (1982); In re Smiley, 96 Wash.2d 950, 953, 640 P.2d 7 (1982); State v. Beard, 39 Wash.App. at 606, 694 P.2d 692; State v. Escoto, 108 Wash.2d at 9-10, 735 P.2d 1310 (Durham, J., concurring). The rehabilitative purpose of juvenile dispositions provides a compelling reason for permitting a sentencing court to consider such information as may make "a substantial contribution to the court's understanding of the child's need and capacity for rehabilitation." Escoto, 108 Wash.2d at 10, 735 P.2d 1310 (Durham, J., concurring). Such information is likely to be found in written reports from professionals who have worked with the juvenile in the past but who, for one reason or another, are unable to be present at the disposition hearing.

ER 1101(c)(3) specifically exempts juvenile disposition hearings from the rules of evidence, thus allowing the routine use of hearsay evidence at juvenile disposition hearings. Although RCW 13.40.150(1) provides a statutory exception to this evidentiary rule, in cases where the preparer of a written report is "reasonably available" for cross examination, we do not deem this statutory exception to be a codification of the confrontation clauses of the federal and state constitutions. Rather, RCW 13.40.150(1) is intended to codify fundamental notions of due process in juvenile dispositions. See RCW 13.40.010(2)(e) (a purpose of the chapter is to "[p]rovide due process for juveniles alleged to have committed an offense").

Certainly, there are due process implications at any time that the State seeks a manifest injustice disposition in excess of the standard range. In addition to its rehabilitative purposes, the Juvenile Justice Act of 1977 also has the stated dual purpose of holding juvenile offenders accountable for their offenses. RCW 13.40.010(2); Escoto, 108 Wash.2d at 10, 735 P.2d 1310 (Durham, J., concurring). In its effort to provide juvenile offenders with every realistic opportunity for rehabilitation, the courts may not ignore the fact that involuntary confinement of a child serves a punitive as well as a treatment function. Accordingly, juvenile disposition proceedings may not violate fundamental notions of due process based on a "misguided belief that such a denial of constitutional protection is for [the juvenile's] own good." Escoto, 108 Wash.2d at 14, 735 P.2d 1310 (Dore, J., dissenting).

We have previously held, in the context of a pre-SRA adult sentencing hearing, that due process is satisfied so long as a defendant has an opportunity to rebut evidence presented at the time of...