State v. Wright, 69481

• Decision Date: 17 May 1988
• Docket Number: No. 69481,69481
• Citation: 751 S.W.2d 48
• Parties: STATE of Missouri, Respondent, v. William E. WRIGHT, Appellant.
• Court: Missouri Supreme Court

Page 48

751 S.W.2d 48

56 USLW 2698

STATE of Missouri, Respondent, v. William E. WRIGHT, Appellant.

No. 69481.

Supreme Court of Missouri En Banc.

May 17, 1988.

Sean O'Brien, Public Defender, JoAnn Arnold, David S. Durbin, Asst. Public Defenders, Kansas City, for William E. Wright.

William L. Webster, Atty. Gen., Karen A. King, Asst. Atty. Gen., Jefferson City, for the State.

RENDLEN, Judge.

Convicted by a jury of rape and sodomy of a six-year-old girl, defendant was sentenced to consecutive terms of ten years' imprisonment and in this appeal challenges the constitutionality of §§ 491.060 and 491.075, RSMo 1986; hence the cause falls within this Court's original appellate jurisdiction. Mo. Const. art. V, § 3. We affirm.

Because defendant makes no challenge to the sufficiency of the evidence we need only briefly summarize the dispositive facts supportive of the verdict. The victim was playing outside her home with her four-year-old brother and C.B., the six-year-old son of her mother's fiance, when defendant approached C.B., asked if he could "have" the victim, and offered the boy some coins. Defendant then threatened the victim, saying, "if you don't go with me, I'll kill you," picked her up and took her to the basement of a neighboring building where he committed the crimes for which he was convicted. C.B. alerted the victim's mother and his father, who found the defendant holding the victim's hand and leading her away from her apartment. When confronted, defendant stated that the victim had told him she was lost and he was taking her home.

The principal issue involves the admission, pursuant to § 491.075, of hearsay statements of the victim which came into evidence through the testimony of Paula Phelan, a police detective who interviewed the child shortly after the alleged crimes occurred. When Phelan arrived at the crime scene, other police officers were present as well as the defendant, the victim, the victim's mother, C.B., and C.B.'s father. Phelan took the mother and children to the police station, where she talked with each child individually for five or ten minutes before conducting separate videotaped interviews in a room equipped with a concealed camera. No one other than Phelan and the child then being questioned was present in the taping room.

Prior to trial, defendant moved for a declaration of invalidity of § 491.075 and to exclude evidence of out-of-court statements made by several witnesses, including the victim. Phelan, testifying in the pretrial hearing on the motions, explained the circumstances, time, and contents of her interview with the victim, and the trial court found that the time, content, and circumstances of the victim's out-of-court statements provided the statutorily required indicia of reliability and rejected defendant's constitutional challenge to the statute.

At trial the victim gave testimony which, if believed, was sufficient to support the charges. Defense counsel cross-examined the victim at length and, among other things, brought out the fact that several persons, including Phelan, had discussed the alleged assault with her and that some aspects of the victim's previous statements deviated from her testimony at trial. Phelan was also called and described, over defendant's objection ¹, the statements the victim had made at the police station and the procedure followed there. No mention on direct examination was made of any out-of-court statements of C.B., and the state did not attempt to introduce either the transcript or videotape of the interview with the victim. During cross-examination of Phelan, defense counsel directed attention to inconsistencies between the victim's trial testimony and her previous statements and inquired concerning portions of C.B.'s interview.

Defendant asserts on appeal that § 491.075 ² is facially unconstitutional and unconstitutional as applied here because it "invidiously discriminates against [defendant] and impinges upon a fundamental right of his thereby denying him equal protection of the laws" and his due process right to a fair trial. The principles of law applicable to equal protection claims such as this are discussed at length in State v. Williams, 729 S.W.2d 197 (Mo. banc 1987). If a statutory scheme operates to the disadvantage of a suspect class or impinges upon a fundamental right protected by the Constitution, the scheme receives strict scrutiny to ascertain whether the classification is necessary to a compelling state interest. Id. at 200. If the statutory scheme neither burdens a suspect class nor impinges upon a fundamental right, it need only be rationally related to a legitimate state interest, and the person attacking it bears the burden of demonstrating the scheme has no reasonable basis and is purely arbitrary. Id.

Defendant would have us invoke the strict scrutiny standard because, he asserts, defendants charged with offenses under chapters 565, 566 and 568 constitute a suspect class and § 491.075 thwarts his "fundamental right" of confrontation. The classification here is the same as that employed in § 491.060(2) and found not suspect in Williams, id., and it provides no basis for applying the strict scrutiny standard. Further, as we shall presently discuss, the statute does not impinge upon a fundamental right.

We need not decide whether the right of confrontation is one of those implicitly recognized as "fundamental" for purposes of equal protection analysis, see Williams, id., because the statute here does not deny defendant the protections afforded by the Confrontation Clause. In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Court developed a two-prong test for considering confrontation ramifications of out-of-court statements sought to be admitted in criminal trials and concluded: "in the usual case (including those where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant." Id. at 2538. If a witness is shown to be unavailable, his prior statement is admissible only if it bears "sufficient indicia of reliability[,]" which "can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness." Id. at 2539.

The language of § 491.075 mirrors those constitutional parameters by requiring a showing that the "time, content, and circumstances of the statement provide sufficient indicia of reliability" and that the child either testify at the proceedings or be unavailable as a witness ³; thus the statute comports with the Confrontation Clause requirements described in Roberts and is not facially invalid. Further, we find no constitutional infirmity in its application in this case. The child testified at trial and was subjected to cross-examination, and the court conducted a careful and thorough hearing from which it concluded that the statements contained sufficient indicia of reliability. The record supports those findings. Under the statute, evidence of the time, content, and circumstances of the statement must demonstrate the basis for an assessment of reliability. The statements here were made within two hours of the crime, reducing the chance of memory lapse or fabrication as well as contamination from interaction with persons interested in the event and exposure to their suggestions. In this regard it should be noted that defendant was allowed to introduce evidence which he argues indicates possible sources of "contamination" during the brief period between the crime and the statement. Additional indications of reliability may be found in the circumstances of the interview. The environment was not shown to be threatening; instead, the evidence indicated that the statement took place in a special interview room designed to be comfortable and calming. No one except the victim and Phelan was present, and no direct pressure on the victim from others was possible during that procedure. The record indicates the statements were not the product of coercion or leading questions. Finally, despite some minor inconsistencies and other matters going to the weight to be accorded the declarations, an examination of the contents of the statements does not indicate that they were unreliable. Furthermore, the videotape and transcript of the interview were available to defendant for impeachment purposes and in presenting his argument that the statements lacked the requisite indicia of reliability. In summary, "indicia of reliability" must be considered in the context of the particular case and the factors prescribed by the statute. The trial judge considered the relevant factors and made findings supported by the record, and we find no violation of defendant's right to confront the witnesses against him.

Having decided the statute by its terms and as applied in this case neither burdens a suspect class nor impinges a fundamental right, we consider whether defendant has established that the statute is arbitrary and lacks a reasonable basis. Many of the considerations cited in Williams as the rationale for the enactment of § 491.060, relating to the competency of child victims to testify,...