State v. Smith
| Citation | 59 P.3d 74,148 Wash.2d 122 |
| Decision Date | 12 December 2002 |
| Docket Number | No. 71787-7.,71787-7. |
| Court | United States State Supreme Court of Washington |
| Parties | STATE of Washington, Respondent, v. Wallace Michael SMITH, Petitioner. |
James Bendell, Port Townsend, for Petitioner.
Juelie B. Dalzell, Jefferson County Prosecutor, Michael Haas, Deputy, Jill Landes, Deputy, Port Townsend, for Respondent.
Wallace Michael Smith seeks reversal of the Court of Appeals decision affirming his conviction for first degree rape of a child (RCW 9A.44.073). Smith argues that the trial court violated his state and federal confrontation clause rights when it ruled that the child victim, J.S., was unavailable to testify for the purpose of allowing hearsay under RCW 9A.44.120 without first requiring the State to show that J.S. could not testify via closed-circuit television pursuant to RCW 9A.44.150. We hold that the trial court abused its discretion in admitting the hearsay statements without determining that J.S. could not have testified via closed-circuit television where there was testimony that J.S. may have been able to testify by that method.
In November 1998, J.S., then five years old, told her aunt, Christine Campbell, that her mother's boyfriend, Michael Smith, touched her "private part."1 Campbell's friend, Angel Reed, took J.S. into another room to further discuss the issue. J.S. eventually told Reed that Smith touched her under her clothing and that "White stuff came out of it."2 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. The State filed notice of its intent to introduce hearsay statements made by J.S. pursuant to RCW 9A.44.120. The court held a hearing to determine J.S.'s competency to testify and the admissibility of her hearsay statements. The State called J.S. as its first witness. Upon seeing Smith in the courtroom, J.S. became scared, began to cry and immediately "clammed up."3 Smith refused to concede that J.S. was incompetent and unavailable to testify based on her behavior. Smith argued that he was entitled to confront the witness against him and that he should be allowed to listen to J.S.'s testimony through other means, like closed-circuit television. The court responded that the courtroom lacked such facilities and proceeded to take testimony as to J.S.'s competency.
Koester further indicated that she did not think that J.S. would be able to go into the courtroom with the defendant present and testify, but that there may be "some things that could be tried to help her feel safe and protected" and that perhaps a different physical arrangement "might be worth exploring further."5
The court then asked Koester if J.S. would be able to testify in that setting. Koester responded that she may be able to "tolerate the courtroom setting" "if she weren't exposed to the alleged perpetrator."7 She also indicated that given time to prepare, "[J.S.'s] ability to testify would be improved."8
Lisa Marks, J.S.'s therapist, testified that she did not believe that J.S would be able to testify in open court with Smith present. She indicated that J.S. was a bright, engaging, articulate child, but that when the pressure was on, J.S. would get "overwhelmed and will just retreat and go into silence."9 Marks also stated that video "might" work, but that it probably would not.10
After hearing testimony as to J.S.'s out-of-court statements, the trial court found that the statements were reliable and supported by corroborating evidence as required by RCW 9A.44.120. It therefore admitted the hearsay statements. At trial, the State introduced five of J.S.'s six hearsay statements. J.S. did not testify. The jury convicted Smith of first degree rape of a child.
Smith appealed and the Court of Appeals, Division Two, affirmed in a split decision.13 In the lead opinion, Chief Judge Armstrong held that RCW 9A.44.150 did not entitle a defendant to have closed-circuit television made available at state expense. Instead, the statute only allowed the court to consider the use of closed-circuit television upon a motion by the prosecutor. He further held that the trial court's ruling that J.S. was unavailable did not violate either RCW 9A.44.120 or the federal confrontation clause. He found that the trial court's decision, which was based on its own observations as well as the testimony of J.S.'s social worker and therapist, was not an abuse of discretion.
Judge Armstrong also rejected Smith's argument that pursuant to the confrontation clause, the trial court could not find a witness unavailable without the State first showing that the witness would not be able to testify via closed-circuit television. He reasoned that requiring such a showing confused the requirements of the confrontation clause when dealing with live testimony with the requirements for the admission of hearsay. Thus, he concluded that whether hearsay statements were admissible was not affected by what methods may be available for testifying.
Although disagreeing with the lead opinion's holding that RCW 9A.44.150 allowed the court to consider the use of closed-circuit television only upon a motion from the prosecutor, she concluded that it was reasonable for the trial court to reject Smith's request because appropriate facilities were not available and the testimony of the social worker and the therapist did not establish that J.S. would be able to testify via closed-circuit television. Thus, the trial court properly determined that J.S. was unavailable.
Relying on the Washington Rules of Evidence (ER), Rule 804(a)(4), she reasoned that a witness should not be considered unavailable unless the proponent of the hearsay statements shows that it has been unable to procure the testimony by "`other reasonable means.'"14 Because the record did not show that the State attempted, but was unable to procure, a closed-circuit television system, it had not met its burden. She also concluded that the State's failure to make such a showing as well as its failure to show that J.S. could not have testified by such methods violated Smith's confrontation rights under both the state and federal constitutions. We granted Smith's petition for review.15
Smith asserts that the trial court's admission of J.S.'s hearsay statements violated his right to confront and cross-examine witnesses against him under both the Washington and United States Constitutions.16 The State responds that the confrontation clause does not require the use of closed-circuit television when determining unavailability. It therefore contends that the trial court properly admitted hearsay evidence pursuant to RCW 9A.44.120.
Both the Washington and the United States Constitutions guarantee criminal defendants the right to confront witnesses against them. U.S. Const. amend. VI; Wash. Const., art. I, § 22. In State v. Foster, 135 Wash.2d 441, 957 P.2d 712 (1998), five members of this court concluded that article I, section 22 provided greater protection than the Sixth Amendment. Id. at 473-74, 957 P.2d 712 (Alexander, J., concurring in part, dissenting in part); id. at 481-94, 957 P.2d 712 (Johnson, J., dissenting).17 There, the court analyzed whether RCW 9A.44.150, which permits a child victim to testify via closed-circuit television in certain situations, violated either the federal or state confrontation clauses.
Relying on Foster, Judge Hunt in dissent stated that the...
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