State v. Tucker
| Decision Date | 27 March 1990 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 165 Ariz. 340,798 P.2d 1349 |
| Parties | STATE of Arizona, Appellee, v. James Thomas TUCKER, Appellant. 12234. |
| Court | Arizona Court of Appeals |
The defendant, James T. Tucker, was convicted upon trial by jury of four counts of public sexual indecency and sentenced to concurrent terms of imprisonment on each count, the longest of which was five years. His alleged conduct involved a child. We reverse and remand for a new trial because the trial court erred in admitting hearsay evidence of what the child told the police and a social worker. The court also erred in allowing an expert witness for the state to express opinions which invaded the province of the jury.
The facts are as follows. The child who is the alleged victim of these crimes had been living in Mississippi with her family. The family was in turmoil because the parents were going through a divorce. The defendant, who is the child's uncle, was offered a job in Phoenix, and the child's mother felt it best for the child and the child's older brother to move to Phoenix with the defendant. The three came to Phoenix prior to Christmas of 1986. At first they lived with relatives and then with friends, until, in early 1987, they rented their own apartment. The child was twelve years old at that time.
The child testified that around Valentine's Day in 1987, the defendant began to walk around the apartment naked. She testified about four separate incidents in which he masturbated himself to orgasm in her presence. She said these occurred on February 16; February 17; February 19; and March 6, 1987. The child testified that on one of these occasions she was covered by a quilt while pretending to be asleep, and the defendant masturbated and ejaculated on the quilt. The child further testified that her uncle was both verbally and physically abusive to her.
The child testified that at some time after she, her brother, and the defendant moved to their own apartment, and after the defendant's improper behavior began, she talked to her mother on the telephone. She told her mother that she wanted to return to Mississippi. The mother told her that she would get the money together to pay for the child's return as soon as she could. The child had previously been molested by her step-grandfather and some family members had blamed her for his ensuing suicide. The child testified that as a result of this earlier experience, she feared her mother would blame her for the defendant's behavior and thus said nothing during the telephone conversation about the defendant's sexual misconduct.
The child had made a friend at school named Becky. She told Becky about the first three incidents, and Becky advised her to write a letter to her mother. The child followed this advice and in the letter, written sometime in late February or early March, she told her mother that the defendant was not treating her well. In that letter she added, She did not, however, say anything explicit about the defendant's sexual conduct. The mother did not telephone the child regarding the letter.
After the fourth alleged incident, the child's friend Becky, on March 9, 1987, advised the child to call the police. When the child did not do so, Becky called them herself. When the police responded, the child related her story, first to a patrolman, then to a detective, and finally to a social worker. The defendant was arrested shortly thereafter. The child's mother, troubled by the letter she had received from the child, had driven from Mississippi and arrived in Phoenix soon after the defendant was arrested. She took the child and her brother back to Mississippi.
Before trial, the state filed a motion in limine seeking to admit the statements made by the child to the police and to the social worker, and to admit expert testimony concerning the behavior of child molesters and their victims. The defendant objected to this and he filed his own motion in limine to exclude such evidence. The court ultimately decided to allow the admission of the evidence but, initially at least, limited the expert's testimony to the general behavioral characteristics of child molesters and their victims.
In addition to the child and a number of other witnesses, the state did call the police officer, the detective, and the social worker. All three were allowed to testify as to what the child had told them about the defendant's conduct. All of the statements were generally consistent with the child's testimony. The defendant testified on his own behalf and denied the accusations. He said that he had been having trouble getting along with the child and had once slapped her because she called him a name. It was the theme of the defense that the child's false accusations were motivated by her desire to return to Mississippi without delay.
The defendant argues that it was error to allow the police officer, the detective, and the social worker to testify about what the child had told them. Generally, prior consistent statements made by a witness are hearsay and are therefore not admissible. State v. Martin, 135 Ariz. 552, 663 P.2d 236 (1983). Another authority has observed that the trustworthiness of a story is not enhanced by repetition. 4 Weinstein & Berger, Weinstein's Evidence § 801(d)(1)(B) (1988). Cf. State v. LeGrand, 153 Ariz. 21, 28, 734 P.2d 563, 570 (1987).
There is an exception to this general rule which is found in Rule 801(d)(1)(B), Arizona Rules of Evidence, 17A A.R.S. (Supp.1989). It reads:
(d) Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.... (Emphasis added.)
In Martin, the supreme court construed the rule and said:
The only way to be certain that a prior consistent statement in fact controverts a charge of 'recent fabrication or improper influence or motive' is to require that the statement be made at a time when the possibility that the statement was made for the express purpose of corroborating or bolstering other testimony is minimized. In other words, to be admissible, the witness must make the prior consistent statement before the existence of facts that indicate a bias arises.
Id., 135 Ariz. at 554, 663 P.2d at 238.
At trial, the defense suggested that the child made up the story to expedite her return to Mississippi. There is unquestionably evidence that the child did want to return to her mother, who lived in Mississippi, and this desire was expressed to others before the child made her accusation to the police and told the social worker her story. Indeed, the child's friend, Becky, had suggested that reporting the defendant's conduct might result in the child's return to Mississippi.
Of course, it is entirely possible that the defendant's misconduct was the reason for the child's desire to return home, and both parties, the state in particular, argue at length as to whether the evidence did in fact show a motive to fabricate and just when that motive arose. We need not analyze those arguments in detail because the crucial point is that the defendant never suggested that the statements made to the police and the social worker were a recent fabrication. The essence of this facet of his defense was that any accusation, whenever made, was a fabrication. Nothing in the evidence brings this case within the exception expressed in Rule 801(d)(1). The testimony of the police officers and the social worker as to what the child told them should not have been admitted in evidence.
In reaching our conclusion, we do not ignore the fact that one ground which the state sought to use to justify the admission of these hearsay statements was that the child, after she returned to Mississippi and talked to her father, had recanted her accusation. See State v. Moran, 151 Ariz. 378, 728 P.2d 248 (1986). The defense removed this basis for admissibility by foregoing any use of the recantation. The state later brought out the evidence of recantation in direct examination of the child. Just why the state did this is difficult to say. Perhaps it was to dovetail the evidence with the testimony of the state's expert witness to the effect that molested children often recant. In any event, none of this evidence of recantation justifies the admission of the hearsay evidence.
There is one case, not referred to by either party and apparently not considered by the trial judge, that we have considered because it has a bearing on this question of the use of consistent hearsay accusations. In State v. Robinson, 153 Ariz. 191, 735 P.2d 801 (1987), the supreme court held that it was not error to admit prior statements that a child had made to other people because they were permitted under Rules 803(24) and 804(b)(5), Arizona Rules of Evidence, the catchall exception for hearsay which permits the admission of testimony which has reliable circumstantial guarantees of trustworthiness and which is more probative than any other evidence...
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