State v. Warren

• Decision Date: 10 July 2006
• Docket Number: No. 54032-7-I.,54032-7-I.
• Citation: 138 P.3d 1081,134 Wn. App. 44
• Parties: STATE of Washington, Respondent, v. Richard WARREN, Appellant.
• Court: Washington Court of Appeals

138 P.3d 1081

134 Wn. App. 44

STATE of Washington, Respondent, v. Richard WARREN, Appellant.

No. 54032-7-I.

Court of Appeals of Washington, Division 1.

July 10, 2006.

COPYRIGHT MATERIAL OMITTED

Dennis John McCurdy, King County Prosecutor's Office, Seattle, WA, for Respondent.

Ric Warren, Pro Se.

Elaine L. Winters, Washington Appellate Project, Seattle, WA, for Appellant.

SCHINDLER, A.C.J.

¶ 1 In the first trial, a jury convicted Richard Warren on one count of child molestation in the first degree of his eight-year-old stepdaughter, S.S. In a second trial, a jury convicted Warren on three counts of rape of his fourteen-year-old stepdaughter, N.S. Warren challenges his conviction in the first trial claiming the child interview specialist and police detective violated his constitutional rights by improperly vouching for S.S.'s credibility; the trial court abused its discretion in admitting evidence; prosecutorial misconduct denied him a fair trial; and cumulative error. Warren challenges his conviction in the second trial based on evidentiary rulings, prosecutorial misconduct, and cumulative error. Warren also contends the condition of his sentence prohibiting contact with Lisa Warren, the mother of S.S., N.S., and his child is not crime-related and violates his constitutional rights.

¶ 2 Because the child interview specialist and the police detective did not explicitly say they believed S.S., any error in admitting their testimony is not manifest constitutional error that can be raised for the first time on appeal. We also conclude the trial court's evidentiary rulings were not an abuse of discretion; there is not a substantial likelihood the outcome of the two trials was affected by improper arguments of the prosecutor; and Warren was not denied his constitutional right to a fair trial. In addition, the trial court's decision to prohibit contact with Lisa Warren as a condition of his sentence is crime-related and is not an unconstitutional restriction. We affirm Warren's conviction for child molestation of S.S. and three counts of second-degree rape of N.S.

FACTS

¶ 3 Richard Warren and Lisa Warren married in 2001 and lived together with Lisa's two daughters from a prior marriage S.S. and N.S. In March 2002, the family was living in Bellevue and Lisa was approximately seven months pregnant with Warren's child.¹ On March 24, Lisa and Warren had an argument which became physical. Warren was charged with a domestic violence offense. He pleaded guilty and was sentenced to serve time in the King County Jail.

¶ 4 On the morning of June 11, 2002, nine-year-old S.S. told her teacher she was upset because her stepfather was coming home from jail. When S.S. met with the school counselor, she said Warren did "disgusting things" to her. When asked what she meant, S.S. said Warren made her wear short skirts without underwear, touched her between her legs, showed her pornographic video covers, and talked to her about sex. The counselor reported the disclosures to the police and Child Protective Services (CPS).

¶ 5 Two Bellevue police detectives came to S.S.'s elementary school to talk to her. S.S. again described how Warren touched her inappropriately on several different occasions and exposed her to sexual material. After the interview, the detectives met with S.S.'s 14-year-old sister, N.S., at her school. N.S. denied Warren had any inappropriate sexual contact with her. CPS placed S.S. and N.S. in protective custody.

¶ 6 When S.S. was later interviewed by Nicole Farrell, a forensic child interview specialist for the prosecutor's office, S.S. repeated the disclosures she made to the school counselor and the detectives. The State charged Warren with one count of rape in the first degree and one count of child molestation in the first degree of S.S.

¶ 7 Lisa Warren did not initially cooperate with the police. After Warren was arrested, S.S. and N.S. returned home to live with their mother. In August 2003, Lisa and her daughters did not appear for the scheduled trial date. The police located Lisa and the girls in Tacoma at Lisa's sister's house. Lisa was arrested on a material witness warrant and S.S. and N.S. were again placed in protective custody.

¶ 8 The next day, S.S. and N.S. went to the prosecutor's office to prepare for the trial. S.S. was upset and wanted to see her mother. S.S. did not want to talk about the trial, but told the detectives and the prosecutor that everything she told the counselor was true. When Detective Ryland and the prosecutor met separately with N.S., she told them she only wanted to talk about what happened to S.S. N.S. said she was concerned about having to swear on the Bible when she testified because she did not want to lie. N.S. did not want the prosecutor to ask her at trial if Warren did anything to her. N.S. then disclosed that she had been sexually abused by Warren.

¶ 9 N.S. said Warren engaged in vaginal, anal, and oral intercourse with her on numerous occasions. Warren told her he was "teaching" her and he made her watch pornographic videos to show her how to perform sexual acts properly. Sometimes when Warren had intercourse with her, he covered her eyes with a bandana and sometimes he put a pink ball in her mouth. N.S. also said Warren told her that if she complied, he would not do the same things with S.S. N.S. was afraid to tell her mother, but told the detectives she "didn't want to lie anymore." After talking to N.S., the police detectives visited Lisa in jail and told her about N.S.'s disclosures. After learning about the disclosures, Lisa cooperated with the police and the prosecutor.

¶ 10 The court allowed the State to amend the information to add three additional counts of second-degree rape of N.S. The charges against Warren for one count of rape and child molestation of S.S. and for three counts of second-degree rape of N.S. were tried together.

¶ 11 The defense theory was that S.S. and N.S. were not truthful or credible. Warren argued that S.S. alleged sexual abuse because she did not want Warren to return home after the domestic violence incident with her mother. Because S.S. suffered frequent vaginal irritations, Warren claimed he only touched her genital area for benign medical reasons. Warren argued N.S. was not credible because when she was initially asked by the detectives, N.S. unequivocally denied Warren sexually abused her and only "remembered" the abuse later. Warren claimed N.S. had a motive to fabricate because she thought lying might result in her mother being released from jail and prevent Warren from returning home. Warren did not testify in the first trial. Following a six-day trial, the jury found Warren guilty on one count of child molestation of S.S. The jury was unable to reach a verdict on the charge of rape of S.S. or on the three counts of second-degree rape of N.S.

¶ 12 A second trial on the three counts of second-degree rape of N.S. began in November 2003.² Warren testified in the second trial. Elizabeth Loftus, a research psychologist and expert on memory also testified on Warren's behalf. After a five-day trial, the jury found Warren guilty on all three counts of second-degree rape of N.S. The court imposed a 280-month standard range sentence.³ As a condition of Warren's sentence, the court ordered no contact with Lisa Warren for life. Warren appeals.

ANALYSIS

S.S. TRIAL

Opinion Testimony

¶ 13 For the first time on appeal, Warren contends that the testimony of child interview specialist Nicole Farrell and Bellevue police detective Jennifer Rylands improperly vouched for S.S.'s credibility and violated his constitutional rights. Even though Warren did not object at trial, he argues admission of the testimony was a "manifest error affecting a constitutional right." No witness may state an opinion about a victim's credibility because such testimony "invades the province of the jury to weigh the evidence and decide the credibility of the witness." State v. Jones, 71 Wash. App. 798, 812, 863 P.2d 85 (1993) (citing State v. Alexander, 64 Wash.App. 147, 154, 822 P.2d 1250 (1992)); State v. Madison, 53 Wash.App. 754, 760, 770 P.2d 662 (1989).

¶ 14 Child interview specialist Nicole Farrell testified that she interviewed S.S. on June 13, 2002. Before testifying about S.S.'s disclosures, Farrell described the interview process. Farrell told the jury she conducts a "forensic" or "neutral" interview as distinguished from an interview for therapeutic purposes. Farrell also testified that the protocol requires discussing the importance of telling the truth with the child. When interviewing a very young child, Farrell said she often conducts a "competency assessment" that includes an in-depth discussion of truthfulness. Farrell testified she did not do a competency assessment when she interviewed S.S. because of her age and developmental stage. But Farrell told S.S. that as they talked, it is "important to only talk about the truth" and asked S.S. if she could "promise to only talk about the truth today." Farrell testified that S.S. nodded her head affirmatively. Farrell then testified about the information S.S. disclosed during the interview.

¶ 15 Both the State and the defense asked Farrell questions to clarify if her role in the interview was to determine whether a child is telling the truth. The prosecutor asked Farrell if she forms "an opinion about whether or not you believe the child or believe that something really happened" when interviewing a child. In response, Farrell said that type of assessment was "outside the scope" of her role. During cross examination, the defense suggested that it was not Farrell's role to determine what actually happened, but "only to see what the child said happened." While Farrell said that one of her objectives was to "set up a context in which the child has demonstrated a knowledge of the difference between telling the truth and fabricating, and to get an agreement from the child that they...