State v. Scott, C0-91-2102

• Decision Date: 11 June 1993
• Docket Number: No. C0-91-2102,C0-91-2102
• Citation: 501 N.W.2d 608
• Parties: STATE of Minnesota, Respondent, v. Richard Galen SCOTT, Petitioner, Appellant.
• Court: Minnesota Supreme Court

Page 608

501 N.W.2d 608

STATE of Minnesota, Respondent, v. Richard Galen SCOTT, Petitioner, Appellant.

No. C0-91-2102.

Supreme Court of Minnesota.

June 11, 1993.

Syllabus by the Court

1. Children are presumed competent to testify.

2. In this case, the trial judge erroneously asked questions at the competency hearing regarding the subject matter of the trial.

3. The Confrontation Clause of the Sixth Amendment requires that hearsay may only be admitted at trial if there are adequate indicia of reliability and if cross-examination would be of marginal utility.

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, Minneapolis, for appellant.

Hubert H. Humphrey III, Atty. Gen., Robert Stanich Asst. Atty. Gen., St. Paul, Robert Tiffany, Redwood County Atty., Redwood Falls, for respondent.

Heard, considered and decided by the court en banc.

TOMLJANOVICH, Justice.

Appellant, Richard Scott, was convicted of eight separate charges of sexual misconduct involving two female children, H.S., his daughter, and A.B., who attended a daycare service run by his wife. At the time of trial, H.S. was nine; A.B. was six. After holding competency hearings, the trial judge ruled that A.B. was competent to testify but that H.S. was not. In lieu of H.S.'s live testimony, the judge admitted an audiotape of an interview with H.S. conducted by a deputy sheriff and a social worker.

This appeal presents two issues. First, we are asked to revisit our decisions regarding the inquiries trial courts may make when determining whether children are competent to testify in trials. We also must decide whether an audiotape of a statement a child complainant made to a police officer and a social worker was properly admitted into evidence pursuant to the standards set forth by the United States Supreme Court in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). We believe the trial court erroneously inquired into the core of the child's anticipated testimony. The trial court based the finding that the child was incompetent on the answers to these questions and strayed from the standards the legislature and this court have set forth for determining competency of child witnesses. We also believe that the audiotape did not have the indicia of reliability necessary in order for its admission into evidence to comport with the requirements of the Confrontation Clause of the Sixth Amendment of the United States Constitution. Because these errors were only harmful as to some of the convictions, we, however, affirm in part and reverse and remand in part.

Appellant Scott's wife runs a daycare service. When A.B., a child who attended the daycare service, was picked up by her mother on Friday, April 12, 1991, she told her mother that Scott had touched her improperly while his wife was running errands. A.B. later testified that she had been coloring when Scott had picked her up and put her on his lap. He then pulled a tablecloth over their laps and stuck his finger down her pants. A.B. told her mother that he touched her with one finger, which he put inside her and that this had hurt. She also told her mother that Scott had kissed her; she also testified that this kiss was "different" from the kisses her parents gave her. She also testified that Scott had touched her in a similar fashion previously. A.B. also told her mother that when H.S., the Scotts' nine-year-old daughter, arrived home from school, she told her what had happened. A.B. reported that H.S. told her that her father had done this to her too.

That evening, A.B.'s parents called a school counselor, who said he would contact the necessary authorities. On Monday morning, the Human Services Department contacted the sheriff's office about the incident and assigned a deputy to the case. He went to A.B.'s school and spoke to A.B.'s mother, who was employed there. At the deputy's request, A.B. and her mother went with the deputy to the law enforcement center, and he interviewed A.B. on videotape.

At about 2:30 Monday afternoon, Scott's wife called the deputy and made a report as required by the Child Abuse Reporting Act, Minn.Stat. Sec. 626.556 (1990). Following an interview with the deputy, and a discussion with a representative of the Human Services Department, arrangements were made to interview H.S. This interview took place that evening at the Scotts' home. It was primarily conducted by the deputy; the human services representative asked a few questions. H.S.'s mother was present; Scott was not present because he was traveling for work.

Before turning on the tape recorder, the deputy talked with H.S. about general matters and asked some questions about her father. He continued by asking her several questions about the subject matter of the allegations. ¹

Upon returning home, on the evening of April 18, 1991, Scott was arrested. He agreed to an interview in a squad car. In the interview, he admitted touching A.B. in the vaginal area the previous Friday. He said he barely recalled the incident, but was sure he had touched her on top of her clothing--not beneath it. He also admitted touching H.S. in the vaginal area, but said it had been a year ago or even longer and that he had not done it many times. He claimed to have stopped after his wife discussed it with him.

During the trial, the court ruled that A.B. was competent to testify but that H.S. was not. The trial judge also ruled that the audiotape would be entered into evidence pursuant to Minn.Stat. Sec. 595.02, subd. 3 (1990). ²

Scott testified at trial. He admitted that he had touched A.B. in the vaginal area, but denied penetrating A.B. Appellant admitted touching H.S. in a similar fashion, but claimed that this had occurred just once, more than two or three years previously. Appellant stated that he was admitting to one instance of second-degree criminal sexual conduct with each girl, specifically denying that he had touched the girls beneath their clothes or otherwise penetrated them. He explained his admission by saying that he only wanted to be found guilty of what he had done, not what he had not done. In closing argument, his counsel emphasized that defendant had committed one incident of second degree sexual misconduct with each child. The jury found defendant guilty of several counts of criminal sexual conduct. ³

Scott appealed to the Court of Appeals. In an unpublished opinion filed on July 28, 1992, the Court of Appeals ruled there was insufficient evidence to support the two convictions for solicitation of children to engage in sexual conduct. The court also reversed three of Scott's convictions as to H.S., affirming one conviction for first degree and one conviction for second degree sexual criminal misconduct. ⁴ Scott has appealed to this court only as to the remaining convictions as to H.S.

I.

Competency of children to testify is governed by Minn.Stat. Sec. 595.02, subd. 1(l ) (1992), which states in part:

Competency of witnesses. Every person of sufficient understanding, including a party, may testify in any action or proceeding, civil or criminal, in court or before any person who has authority to receive evidence, except as provided in this subdivision:

* * * * * *

(l ) A child under ten years of age is a competent witness unless the court finds that the child lacks the capacity to remember or to relate truthfully facts respecting which the child is examined. A child describing any act or event may use language appropriate for a child of that age.

This statute was enacted in 1987. In that year, the legislature clearly changed course on the issue of the competency of children to testify. Previously Minn.Stat. Sec. 595.02, subd. 1(f), repealed by 1987 Minn.Laws, c. 120 Sec. 1, had created a presumption that a child under ten was incompetent to testify. As the new statute makes clear, children are now presumed competent to testify unless the contrary is shown. This court recognized this legislative change of course in State v. Lanam, 459 N.W.2d 656 (Minn.1990), and held that in a competency hearing, the task before the trial judge is to test whether the child has the ability to relate events truthfully:

[The statute] does not mean that the court is to question the child on the details of possible testimony, but rather means that the court should determine in a general way whether the child remembers or can relate events truthfully. The jury will judge the child's credibility and decide the weight to assign the testimony. A competency hearing is not a credibility hearing. Competency concerns the child's ability to be truthful and to understand the importance of telling the truth in court. It also concerns the child's ability to remember and relate events. Whether a child is easily led goes more to credibility than to competency. Even adults at trial become inconsistent upon cross-examination. It is the jury's province to sort out the inconsistencies and determine credibility, the court's province to determine competency. Where the court is in doubt as to the child's competency, it is best to err on the side of determining the child to be competent.

Lanam, 459 N.W.2d at 659-60. Thus this court in Lanam acknowledged the change in child competency law and acknowledged the presumption that children are competent to testify unless it is shown that they are incompetent.

In this case, the trial judge began H.S.'s competency hearing with the general types of questions clearly sanctioned by Lanam. The judge asked H.S. her age, where she attended school, what she was studying in school and what activities she enjoyed during the summer. The judge next asked H.S. questions going to her ability to understand the oath and to testify truthfully. During this examination, H.S. showed an appreciation for an understanding of the difference between a truth and a lie and said, "It's bad to tell a lie," and answered yes to the question, "Is it good to tell the truth, do...