State v. Wright

• Decision Date: 13 June 1989
• Docket Number: No. 17033,17033
• Citation: 775 P.2d 1224,116 Idaho 382
• Parties: STATE of Idaho Plaintiff-respondent, v. Laura Lee WRIGHT, Defendant-appellant.
• Court: Idaho Supreme Court

Page 1224

775 P.2d 1224

116 Idaho 382

STATE of Idaho Plaintiff-respondent, v. Laura Lee WRIGHT, Defendant-appellant.

No. 17033.

Supreme Court of Idaho.

June 13, 1989.

Rolf M. Kehne, Boise, for defendant-appellant.

Jim Jones, Atty. Gen., Boise, for plaintiff-respondent. Myrna A.I. Stahman, Deputy Atty. Gen., argued.

HUNTLEY, Justice.

Laura Lee Wright appeals her conviction on one count of lewd conduct with a minor under sixteen, felony, I.C. § 18-1508. Wright was jointly charged with Robert L. Giles who was also convicted on two counts of lewd conduct with a minor for having jointly committed the stated crimes against her two daughters, aged 5 1/2 (older daughter) and 2 1/2 (younger daughter) when the crimes were charged. Wright was found to have held her daughters down to permit her co-defendant, Giles, to have sexual intercourse with each. Giles and Wright were jointly tried and convicted by the same jury. Wright was sentenced to twenty years, indeterminate, on each count, the terms to run concurrently.

Wright and Giles each filed a separate appeal seeking reversal of their conviction on the count charged with respect to the acts against the younger daughter. This Court filed an opinion in State v. Giles, 115 Idaho 984, 772 P.2d 191 (1989) wherein a majority affirmed Giles' conviction notwithstanding his argument that admission of Dr. Jambura's testimony violated the rule against hearsay. The majority opinion in Giles held that the same testimony challenged herein was correctly admitted into evidence under I.R.E. 803(24) pursuant to the authority of State v. Hester, 114 Idaho 688, 760 P.2d 27 (1988). ¹ Unlike Wright, Giles did not raise the question of violation of the Confrontation Clause of the Constitution of the United States and the majority was of the opinion that this Court could not raise that issue on its own motion. The issue of error under the Confrontation Clause is appropriately raised in the instant case and we hold that the trial court erred in admitting this testimony in violation of the standards applicable to the Confrontation Clause of the United States Constitution.

I. TESTIMONY

The trial court permitted Dr. John Jambura, a pediatrician who conducted a physical examination of the younger Wright girl and asked her whether sexual abuse occurred between her and the two co-defendants, to testify concerning hearsay statements made to him by the younger Wright daughter. This evidence was admitted over the defendants' objection. The younger Wright daughter was three years old at the time of the trial and only two-and-one-half years old at the time of the out-of-court statements to Dr. Jambura. She did not testify at trial. After the judge conducted a voir dire examination of the child, he asked both counsel if they agreed that she was not capable of communicating to the jury and both agreed she was not competent to testify.

Dr. Jambura examined and interviewed the younger daughter and was allowed to testify to her responses to four questions, his testimony being:

.... "Do you play with daddy? Does daddy play with you? Does daddy touch you with his pee-pee? Do you touch his pee-pee?" And again we then established what was meant by pee-pee, it was a generic term for genital area.

Q. Before you get into that, what was, as best you recollect, what was her response to the question "Do you play with daddy?"

A. Yes, we play--I remember her making a comment about yes we play a lot and expanding on that and talking about spending time with daddy.

Q. And "Does daddy play with you?" Was there any response?

A. She responded to that as well, that they played together in a variety of circumstances and, you know, seemed very unaffected by the question.

Q. And then what did you say and her response?

A. When I asked her "Does daddy touch you with his pee-pee," she did admit to that. When I asked, "Do you touch his pee-pee," she did not have any response.

She allegedly then volunteered that her daddy ".... does do this with me, but he does it a lot more with my sister than with me."

The trial court admitted these statements under Rule 803(24) I.R.E. which provides:

Rule 803. Hearsay exceptions; availability of declarant immaterial.--The following are not excluded by the hearsay rule, even though the declarant is available as a witness.

....

(24) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. A statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

II. CONFRONTATION

Wright argues that even if admission of the doctor's testimony was not erroneous under the rule against hearsay, it was, nonetheless, erroneous because it violated the dictates of the Confrontation Clause of the United States Constitution. The sixth amendment to the United States Constitution provides in part that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. Amend. VI. This provision is applicable to the states through the fourteenth amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965).

The purpose of the right of confrontation is to "advance 'the accuracy of the truth-determining process in criminal trials' " by allowing only reliable evidence to be admitted. Tennessee v. Street, 471 U.S. 409, 415, 105 S.Ct. 2078, 2082, 85 L.Ed.2d 425 (1985), (quoting Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970)). "The right to confront and cross-examine witnesses is primarily a functional right that promotes reliability in criminal trials." Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514 (1986).

The Confrontation Clause objective of reliability is met by cross-examination, an opportunity for the jury to observe the witness' demeanor, and face-to-face confrontation between the witness and the accused. "[A] major reason underlying the constitutional confrontation rule is to give a defendant charged with a crime an opportunity to cross-examine the witnesses against him." Pointer v. Texas, 380 U.S. at 406-07, 85 S.Ct. at 1069-70. Concerning the opportunity for the jury to observe demeanor, the Supreme Court mentioned the importance of live testimony, when a witness stands "face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." Mattox v. United States, 156 U.S. 237, 242-43 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895). The purpose of confrontation between an accuser and defendant is that it "undoubtedly makes it more difficult to lie against someone, particularly if that person is an accused and is present at trial." Ohio v. Roberts, 448 U.S. 56, 63 n. 6, 100 S.Ct. 2531, 2538, n. 6, 65 L.Ed.2d 597 (1980). Only last year, the United States Supreme Court found that the sexual assault defendant's right to face-to-face confrontation was violated by permitting two 13-year-old girls to testify behind a large screen that enabled Coy to dimly perceive the witnesses but rendered them unable to see him. Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988).

The hearsay rules and the Confrontation Clause have similar policy objectives. California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 1933, 26 L.Ed.2d 489 (1970). However, they are not coextensive. Some out-of-court declarations which are admissible under hearsay exceptions may violate confrontation rights. E.g., Green, 399 U.S. at 153-156, 90 S.Ct. at 1932-34; Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The impact of the Confrontation Clause upon the admissibility of hearsay is difficult to analyze. "Few tasks in criminal evidence are more perplexing than to describe the effect of the Confrontation Clause of the sixth amendment upon the hearsay doctrine." 4 LOUSELL & MUELLER, FEDERAL EVIDENCE § 418 at 123 (1970). Hearsay which falls into a well-established exception is usually, but not always, reliable enough to satisfy confrontation. Other hearsay, such as the declarations of the younger Wright girl admitted in the "catch-all" provision of Rule 803(24) I.R.E., should be considered "presumptively unreliable and inadmissible for Confrontation Clause purposes" absent a "showing of particularized guarantees of trustworthiness." Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 2064, 90 L.Ed.2d 514 (1986). (Emphasis added.)

We fail to see how Wright's right to face-to-face confrontation escaped violation in this event of admission of inculpatory hearsay testimony which did not fall within any of the traditional exceptions and which was brought into evidence as a result of an interview lacking procedural safeguards. The record does not provide the required showing of particularized guarantees of trustworthiness supporting the doctor's statement of the young girl's declarations. Instead, the hearsay declarations of the younger Wright girl are not trustworthy because of Dr. Jambura's interview technique: the questions and answers were not recorded on videotape for preservation and perusal by the defense at or before trial; and, blatantly leading questions were used in the interrogation....