State v. Willis

• Decision Date: 15 April 2004
• Docket Number: No. 73345-7.,73345-7.
• Citation: 151 Wash.2d 255,87 P.3d 1164
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Alvin Eugene WILLIS, Petitioner.

87 P.3d 1164

151 Wash.2d 255

STATE of Washington, Respondent, v. Alvin Eugene WILLIS, Petitioner.

No. 73345-7.

Supreme Court of Washington, En Banc.

Argued October 16, 2003.

Decided April 15, 2004.

Nancy P. Collins, WA Appellate Project, Seattle, Arthur Cohen, Ft. Lauderdale, FL, for Petitioner.

Deborah A. Dwyer, King county Pros. Office, Appellate Unit/Seattle, for Respondent.

Jacqueline McMurtrie, Seattle, for Amicus Curiae (The Innocence Project Northwest)

David Allen, Cassandra L. Stamm, Allen Hansen & Maybrown PS, Seattle, for Amicus Curiae (Washington Association of Criminal Defense Lawyers)

CHAMBERS, J.

A jury convicted Alvin Eugene Willis of two counts of first degree rape of a child. He was given a life sentence without possibility of parole under the Persistent Offender Accountability Act (POAA), former 9.94A.120(4)(1998). Willis asks us to vacate his conviction on the grounds the trial court improperly excluded expert testimony regarding the use of child witness interview techniques. Additionally he seeks review of his sentence on the grounds statutory rape was not listed as a POAA predicate offense at the time. Division One of the Court of Appeals affirmed both his conviction and sentence. State v. Willis, 113 Wash.App. 389, 393, 54 P.3d 184 (2002). After a searching review of the record, we conclude that the exclusion of the expert's testimony was not an abuse of discretion. Therefore, we affirm Willis's conviction. However, because statutory rape was not a POAA predicate offense at the time, we vacate Willis's sentence as a persistent offender and remand for resentencing.

FACTS

C.B., the complaining witness, was five years old when the alleged abuse took place. 3 Report of Proceedings (3 RP) at 89.¹ Her parents are divorced and she lives primarily with her mother, Cori Brand. Brand and Willis had been romantically involved for about two years, were in the process of buying a home, and were contemplating marriage when the allegations of abuse surfaced. Willis frequently spent the night at Brand's home, and C.B. often slept in the bed with her mother and Willis.

C.B. also regularly visited her father, Dwain Beck. On one of these visits she began to talk about sex, Willis, her mother, and herself. Beck's friend Kelli Dorn (who had known C.B. for about four years) was also present. She and Beck remember this conversation rather differently. While Beck testified that C.B. first asked him to "tell [Willis] to stop" having sex with her, 3 RP at 94, Dorn testified that C.B. began by pressing two Barbie dolls together while saying "this is my mom and [Willis] having sex." 3 RP at 61-62. Additionally, Dorn testified that it was just before the conversation ended when Beck asked C.B. "do you want daddy to make him stop[?]" 2 RP at 60. Both adults remember C.B. pressing Barbie dolls together, pointing to her vagina to indicate that is where Willis kissed her vagina, saying that her mother was at work or in the kitchen when this happened, and saying that her mother became angry at Willis when this happened.

Two days after C.B. first revealed the abuse, Beck asked C.B.'s mother, Brand, to come over to his house to discuss the matter. He specifically requested that Willis be excluded. After speaking to Beck without C.B. present, Brand went to question her daughter. C.B. indicated that Willis had touched and kissed her vagina and her bottom. C.B. stayed with her father that night and Brand left to confront Willis. Willis's response was equivocal. When Brand asked him if he had licked or kissed C.B.'s vagina, he responded, "I don't think so." 3 RP at 149.

C.B. was interviewed multiple times. She was questioned twice by her father and once by her mother. She was also interviewed twice by Nicole Farrell, the child interview specialist for the King County Prosecutor's Office, once by Dr. Wiester of the Harborview Sexual Assault Center, and once jointly by Detective Wilcox of the Federal Way Police Department and her day-care teacher Kristina Gregory.

Farrell, the child interview specialist, combined techniques and procedures from various sources to develop her own child interview protocol. She relied in part on work done by the defense expert Dr. John C. Yuille in developing her protocol. Farrell worked closely with a police detective before and during her interview.

Harborview's Dr. Wiester interviewed C.B. and saw her for a follow-up physical examination. In the interview, C.B. repeated many of the claims she made previously. She also reported new ones. For example, when asked "if she had ever seen [Willis] touch any other kids in a way that is not right," she said "yes." Clerk's Papers (CP) at 86. When questioned further, C.B. said that Willis had touched other children at her house during a party. Dr. Wiester did not follow up on these allegations because "the more questions I asked her about the party at her house and what had happened, the sillier she became." CP at 86. Additionally, when asked if anybody else besides Willis had ever touched her in a way that is not right, she responded: "Well, I touched Duane's penis. [C.B.'s father's first name is Dwain.] I always used to play with his penis, but that was okay because he does not touch me.... I used to suck the pee out, only no pee came out." CP at 86. Again, Dr. Wiester did not follow up, but she did recommend that this allegation be explored by an additional interview by Farrell in the prosecutor's office.

Dr. Yuille, the defense's expert, is a professor at the University of British Columbia. He has developed a system for interviewing children called the "Step Way Protocol," that, according to him, is followed in five states and numerous countries. He offered to testify on the potential effect of the interview techniques used on C.B.'s memory. The State moved to exclude Dr. Yuille's testimony under Evidence Rule (ER) 702, arguing that it would not be helpful to the jury and was precluded by our holding in State v. Swan, 114 Wash.2d 613, 656, 790 P.2d 610 (1990).

After nearly a day devoted to the offer of proof and argument, the trial court excluded Dr. Yuille's testimony under ER 702. The trial court found the defense had satisfied only the first two elements of the ER 702 analysis. First, the trial court concluded that Dr. Yuille is an expert in child interview techniques.² Second, the trial court found that Dr. Yuille was relying upon scientific studies and data generally accepted within the scientific community. However, the trial court found that Dr. Yuille's testimony would not assist the trier of fact.

Willis was convicted. In his appeal he challenged the exclusion of Dr. Yuille's testimony. Willis, 113 Wash.App. at 390, 54 P.3d 184. Willis also argued that he was not properly sentenced under the POAA. State v. Willis, No. 47118-0-I, slip op. at 14 (Wash. Ct.App. Sept. 16, 2002). The State argued that under Swan, the susceptibility of a child's memory to different interview techniques is within the common knowledge of the jury and therefore expert testimony is always inappropriate.

The Court of Appeals held that Swan is not a per se bar to such expert testimony, but that the testimony was properly excluded in this case because Dr. Yuille's testimony would have been unhelpful to the trier of fact. Additionally, the Court of Appeals (in a decision that preceded publication of State v. Delgado, 148 Wash.2d 723, 63 P.3d 792 (2003)) upheld Willis's sentence as a persistent offender. Willis, slip op. at 16. Willis sought discretionary review; we granted review limited to the admissibility of Dr. Yuille's testimony and Willis's persistent offender sentence. State v. Willis, 149 Wash.2d 1017, 72 P.3d 762 (2003).³

ANALYSIS

STATE V. SWAN

We review a trial court's interpretation of case law de novo. See State v. Campbell, 125 Wash.2d 797, 800, 888 P.2d 1185 (1995)

. We begin by emphasizing that our holding in Swan does not bar all expert testimony on child interview techniques and suggestibility. In Swan, we reviewed and upheld a trial court's decision to exclude particular expert testimony under the particular circumstances. We applied the law to the facts; we did not create a new rule of law.

Further, the predicate for our holding in Swan is not present in this case. In Swan, the trial court specifically found that the witness's theories were not generally accepted by the scientific community. Swan, 114 Wash.2d at 656, 790 P.2d 610. Here the trial court found Dr. Yuille's theories were generally accepted in the scientific community. The State does not challenge this finding, and it is a verity on appeal. See State v. Rodgers, 146 Wash.2d 55, 61, 43 P.3d 1 (2002)

.

We hew to our conclusion in Swan that the general principle that younger children are more susceptible to suggestion is "well within the understanding of the jury." Swan, 114 Wash.2d at 656,790 P.2d 610. But we also agree with the Court of Appeals that specialized knowledge regarding the effects of specific interview techniques and protocols "is not likely within the common experience of the jury." Willis, 113 Wash.App. at 394,54 P.3d 184. For example, that wet pavement is more slippery than dry pavement is within the general knowledge of the jury. That does not prevent the admissibility of expert testimony regarding specific stopping distances under specific friction coefficients created when specific driving surfaces are wet. Similarly, merely because it is a matter of general knowledge that children's memories are changeable does not preclude testimony that specific interview techniques might compromise specific memories.

The admissibility of expert testimony is governed by ER 702 and requires a case by case inquiry. Whether Dr. Yuille's testimony was properly excluded in the present case must be evaluated under ER 702.

ER 702

We review a trial court's decision to exclude expert testimony for abuse of discretion. Swan, 114 Wash.2d at 655, 790 P.2d 610 (citing State...