State v. Smith

• Decision Date: 28 September 2001
• Docket Number: No. 25610-0-II.,25610-0-II.
• Citation: 108 Wash. App. 581,31 P.3d 1222
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Wallace Michael SMITH, JR., Appellant.

31 P.3d 1222

108 Wash. App. 581

STATE of Washington, Respondent, v. Wallace Michael SMITH, JR., Appellant.

No. 25610-0-II.

Court of Appeals of Washington, Division 2.

September 28, 2001.

Jill Landes, Jefferson Co. Pros., Port Townsend, for Respondent.

Kristen A. Reid, Craddock Davis Verser, Port Townsend, for Appellant (Court Appointed).

ARMSTRONG, C.J.

The State charged Wallace Michael Smith, Jr., with first degree rape of a child. At a pretrial hearing, the trial court found that the child victim, J.S., was unavailable due to her emotional state. The court also found that J.S.'s out-of-court statements to various adults were sufficiently reliable and corroborated to admit them under the child hearsay statute, RCW 9A.44.120. Smith would not concede that J.S. was unavailable and asked that the State take J.S's testimony over a closed-circuit television system. The trial court denied the request, stating that Jefferson County did not have such facilities. J.S. did not testify at trial, and the court admitted her hearsay statements. The jury convicted Smith. He now appeals, claiming that the trial court erred by denying his request for closed-circuit television facilities and by admitting J.S.'s hearsay statements.

FACTS

In November 1998, five-year-old J.S. told her aunt, Christine Campbell, that her mother's boyfriend, Michael Smith, touched her "private part." Supp. RP at 63. J.S. repeated these accusations to other adults, including a nurse practitioner, a detective, a counselor, and a physician.

The Jefferson County Prosecuting Attorney charged Smith with one count of first degree rape of a child. After the State filed its notice of intent to introduce hearsay pursuant to RCW 9A.44.120, the child hearsay statute, the court set a hearing to determine J.S.'s competency to testify and the admissibility of her hearsay statements. At the hearing, when J.S. entered the courtroom and saw Smith, she became scared, began to cry, and "clammed up." Supp. RP at 13. The court asked Smith if he would waive his right to confront J.S. and stipulate that she was incompetent or unavailable to testify. Smith refused. Based on RCW 9A.44.150, which allows children to testify by closed-circuit television under some circumstances, Smith requested that the State have J.S. testify at trial by "closed circuit TV or video transmission." Supp. RP at 16. The court responded that the courthouse lacked such facilities. The court then heard testimony on J.S.'s ability to testify.

Jean Koester, a social worker with the Division of Child and Family Services, testified that J.S. might be able to testify. She stated,

I believe that she would [be able to testify], but I think that testimony would be best obtained if she could do it in a quiet reassuring environment rather than a larger courtroom such as this.... For example, if she were able to sit down with the Judge in closed Chambers with one or two people that she trusted.

Supp. RP 26. Koester also opined that alternative physical arrangements for testifying "might be worth exploring further." Supp. RP at 27. After stating that "we don't have the option of having [J.S.'s] testimony presented to a small group of people in a comfortable setting," the court asked Koester if she thought J.S. could testify in open court. Supp. RP at 28-30. Koester responded that J.S. might be able to in time and after additional work with a therapist.

Lisa Marks, J.S.'s therapist, testified that in her opinion J.S. would not be able to testify in open court. She also stated that closed-circuit television "might" work, but probably would not. Supp. RP at 51.

After hearing argument, the court ruled that J.S. was "unavailable" for the purposes of the child hearsay statute. Supp. RP at 58. The judge noted J.S.'s reaction and demeanor as she entered the courtroom, as well as testimony describing the State's efforts in previous weeks to familiarize J.S. with the courtroom and prepare her for the experience of testifying. Addressing Smith's repeated request for closed-circuit television arrangements, the court stated, "[W]e do not have ... an arrangement for the defendant to be absent from the Courtroom, or watch the proceedings by video tape ... That's not something that we have available, and it's not required by the statute, as I understand the statute." Supp. RP at 60. After finding, as required by RCW 9A.44.120, that J.S.'s statements were sufficiently reliable and corroborated, the court ruled that her statements were admissible.

At trial, the State introduced five of J.S.'s six hearsay statements. J.S. did not testify. The jury convicted Michael Smith of first degree rape of a child.

ANALYSIS

Smith assigns error to the trial court's refusal to require closed-circuit television testimony; he also claims that the trial court erred by finding J.S. unavailable to testify. RCW 9A.44.150 allows a child victim of abuse to testify via closed-circuit television in certain circumstances. The statute requires the court to find that the child will suffer serious emotional distress that will interfere with her ability to reasonably communicate if she is forced to testify in open court. RCW 9A.44.150(1)(c), (d). The court must also find that the State has "made all reasonable efforts to prepare the child for testifying," and that there is no less restrictive method of obtaining the testimony. RCW 9A.44.150(1)(e), (g). Under the statute, the defendant must be able to communicate with his attorney during the testimony, and the judge must be able to communicate with the attorneys. RCW 9A.44.150(1)(h), (i). The trial court may allow the use of closed-circuit television "[o]n motion of the prosecuting attorney in a criminal proceeding." RCW 9A.44.150(1). If video facilities are used, "[t]he state shall bear the costs of the closed-circuit television procedure." RCW 9A.44.150(9).

I. Smith's "Right" to Closed-Circuit Testimony

Smith makes two arguments. First, he claims that under RCW 9A.44.150 he "was entitled to have the closed-circuit video feed made available at the State's expense." Br. of App. at 19. He contends that RCW 9A.44.150(9) requires this with the language "[t]he state shall bear the costs of the closed-circuit television procedure." The legislature's use of the word "shall," argues Smith, indicates that the trial court must order that closed-circuit television facilities be made available at a defendant's request.

But Smith's argument ignores the first section of the statute, which allows for closed-circuit television only on the motion of the prosecuting attorney. RCW 9A.44.150(1). "When the words in a statute are clear and unequivocal, this court is required to assume the Legislature meant exactly what it said and apply the statute as written." Duke v. Boyd, 133 Wash.2d 80, 87, 942 P.2d 351 (1997). RCW 9A.44.150(1) clearly and unequivocally allows the court to consider the use of closed-circuit television only on motion of the prosecuting attorney. And if the State does move to present closed-circuit television, it must bear the cost. RCW 9A.44.150(9).

II. Unavailability of Child Witness

Smith's second argument is that the trial court erred in finding J.S. unavailable without providing the opportunity for J.S. to testify via the closed-circuit television as outlined in RCW 9A.44.150. Smith claims that his constitutional right to confront the witness requires the court to explore the possibility that J.S. could testify via closed-circuit television.

RCW 9A.44.120, the child hearsay statute, allows the court to admit hearsay statements of a child under ten 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.

When the trial court admits a child's hearsay statement under this statute, the Confrontation Clause requires that the child either testify in court or be found unavailable. State v. Rohrich, 132 Wash.2d 472, 480-81, 939 P.2d 697 (1997).¹ Thus, "unavailability" is both a constitutional and a statutory requirement.

A. Unavailability Under RCW 9A.44.120

Under RCW 9A.44.120, a child's hearsay statements are admissible only if the child declarant testifies at trial or is unavailable. ER 804(a) governs availability of a witness under RCW 9A.44.120. State v. Ryan, 103 Wash.2d 165, 171, 691 P.2d 197 (1984). ER 804(a) states, in part: "`Unavailability as a witness' includes situations in which the declarant: ... [i]s unable to be present or to testify at the hearing because of ... mental illness or infirmity." Child victims of sexual abuse are "unavailable" within the meaning of RCW 9A.44.120 if they are emotionally or psychologically unable to testify in court. See, e.g., State v. Justiniano, 48 Wash.App. 572, 575

-76 & n. 3, 740 P.2d 872 (1987) (defendant did not dispute that child was unavailable as a witness when "trauma of courtroom setting" left her unable to testify). And the legislature has acknowledged that the emotional trauma of testifying in a defendant's presence can render a child unavailable. See LAWS OF 1990, ch. 150, § 1 ("In rare cases, the child is so traumatized that the child is unable to testify at trial and is unavailable as a witness or the child's ability to communicate in front of the jury or defendant is so reduced that the truth-seeking function of trial is impaired.").

We review a trial court's decision to admit hearsay under RCW 9A.44.120 for an abuse of discretion. State v. Hirschfield, 99 Wash.App. 1, 3, 987 P.2d 99 (1999), review denied, 139 Wash.2d 1022, 994 P.2d 848 (2000). Here, the judge observed J.S. as she entered the courtroom and he heard testimony from J.S.'s social worker and...