State v. Zimmerman

Decision Date02 April 1992
Docket NumberNo. 18356,18356
PartiesSTATE of Idaho, Plaintiff-Respondent, v. John Asa ZIMMERMAN, Defendant-Appellant. Coeur d'Alene, October 1992 Term
CourtIdaho Supreme Court

Rapaich, Knutson & Chapman, Lewiston, for defendant-appellant. Scott MacDonald Chapman argued.

Larry J. EchoHawk, Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-respondent. Myrna A.I. Stahman argued.

JOHNSON, Justice.

This is a criminal case. Zimmerman appeals his conviction for lewd and lascivious conduct with a minor under the age of sixteen in violation of I.C. § 18-1508. Zimmerman alleges: (1) that testimony of various witnesses concerning out-of-court statements of the alleged victim of the lewd and lascivious conduct violated his constitutional right to confront witnesses; (2) that the trial court erred in allowing evidence of uncharged conduct; (3) that the trial court erred by limiting the testimony of Zimmerman's expert witness; (4) that the evidence does not support the verdict of guilt; and, (5) that the cumulative error doctrine requires reversal. We reverse and remand for a new trial on the basis of the trial court's admission of some of the out-of-court statements of the victim.



Zimmerman alleges as error the admission of various out-of-court statements made by the victim. The victim was Zimmerman's daughter who was five years old at the time of the alleged lewd and lascivious conduct. Zimmerman and the victim's mother were divorced, the victim's mother had primary custody of the child. Zimmerman received weekend visits by the victim.

At the beginning of the trial and outside the presence of the jury, the court examined the victim to determine whether she was competent to testify. The victim answered some questions but refused to answer questions posed by Zimmerman's attorney. The victim kept asking for her mother and would spin around in the swivel chair in which she was sitting. Based upon her reaction to the questioning, the trial court found the victim to be unable to testify in a courtroom setting, and treated her as an unavailable witness for the purposes of I.C. § 19-3024 and I.R.E. 803(24). We note that Zimmerman has not challenged this finding by the trial court. In any event, whether the victim was unavailable is not significant in light of our treatment below of I.C. § 19-3024 and in light of White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (confrontation clause does not require that declarant be at trial or unavailable for hearsay statements to be admissible).

We can separate the out-of-court statements into three distinct categories. The first category consists of the victim's statements that her daddy "picked" at her and "scratched" her with his fingernail. The second category consists of the statement "I'm not going to tell my dad's secret," overheard by Latah County Sheriff's Detective "Chip" Whiteley. The third category consists of the statements made by the victim while she was asleep ("sleep-talk"). Because of the different issues involved and different analyses to be applied, we will address each category separately.

A. The "picked" and "scratched" statements.

The victim and her mother lived with the victim's great-grandmother. The great-grandmother testified that she gave the victim a bath the day after the victim returned from visiting her father on November 27, 1988. She noticed that the victim's vaginal area was red, swollen and irritated, as if it had been rubbed raw. She noticed a "terrific" odor and some discharge. She stated that when she asked the victim what had happened, the victim began to cry and said that her daddy had "picked" at her.

The victim's mother also helped give the victim the bath. She also noted that the victim's vaginal area was swollen and irritated. When she asked the victim what had happened, the victim began to cry and stated that her daddy had "scratched" her with his fingernail.

The trial court admitted these statements of the victim's mother and great-grandmother pursuant to I.R.E. 803(24) and I.C. § 19-3024. The court found that these statements were not admissible under any other hearsay exception; that the conditions surrounding the statements had "circumstantial guarantees of trustworthiness" equivalent to the other twenty-two exceptions listed in I.R.E. 803; that the statements were offered as evidence of a material fact; that the statements were more probative on the point for which they were offered than could be procured by the State through reasonable efforts; that the interests of justice would be served by the admission of the statements because the statements were made in a less threatening situation for a child of tender years; and, that the state had given the defendant adequate notice of the intent to use these statements at trial. Thus, the district court found the five requirements for admission of testimony under I.R.E. 803(24). See State v. Horsley, 117 Idaho 920, 792 P.2d 945 (1990); State v. Hester, 114 Idaho 688, 760 P.2d 27 (1988).

In our review of the trial court's ruling, we note that the trial court has broad discretion in the admission of evidence at trial and its judgment will be reversed only when there has been an abuse of that discretion. State v. Hester, 114 Idaho 688, 760 P.2d 27 (1988); State v. Terry, 98 Idaho 285, 561 P.2d 1318 (1977). In reviewing the decision of the trial court, we look to the totality of the circumstances surrounding the statement and also at those circumstances that make the declarant worthy of belief. Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).

The trial court found that the statements were reliable because the victim made the statements the next morning after returning from visiting her father. The trial court concluded that the short length of time between the victim's visit to her father and her bath the next morning indicated that there was not enough time for the victim to fabricate the story. Our review of the totality of the circumstances supports this finding of the trial court. The trial court's finding coupled with the other circumstances surrounding the statement all demonstrate a sufficient showing of trustworthiness. The trial court did not abuse its discretion in admitting this evidence pursuant to I.R.E. 803(24).

The trial court also ruled that these statements were admissible under I.C. § 19-3024. This statute allows for the admission of a child's out-of-court statements of sexual or physical abuse or other criminal conduct committed with or upon the child when: (1) the child is under 10 years of age at the time of the conduct; (2) the court finds, in a hearing conducted outside the presence of the jury, that the time, content and circumstances of the statement provide indicia of reliability; and, (3) the child either: (i) testifies at trial; or, (ii) the child is unavailable as a witness, provided that there is corroborative evidence of the act.

The trial court should not have considered the admission of the out-of-court statements under I.C. § 19-3024. To the extent that this statute attempts to prescribe the admissibility of hearsay evidence and is in conflict with the Idaho Rules of Evidence, it is of no force or effect. I.R.E. 802 ("Hearsay is not admissible except as provided by these rules or other rules promulgated by the Supreme Court of Idaho."); I.R.E. 1102 ("Statutory provisions and rules governing the admissibility of evidence, to the extent they are evidentiary and to the extent that they are in conflict with applicable rules of Idaho Rules of Evidence, are of no force or effect.").

The trial court also allowed Dr. Maria J. Krasnec, Ph.D. to testify as to out-of-court statements made by the victim. Dr. Krasnec is a psychologist and counseled with the victim concerning the sexual abuse. Dr. Krasnec testified that the victim stated that her dad "picked" at her or "scratched" her with his fingernail. Dr. Krasnec also testified regarding the victim's statements and reactions Dr. Krasnec observed while treating the victim. The trial court allowed this testimony pursuant to I.C. § 19-3024 and I.R.E. 803(4) and 803(24).

As we discussed above, the trial court should not have considered the admission of this evidence under I.C. § 19-3024.

The trial court should not have admitted this testimony pursuant to I.R.E. 803(4). The exception contained in Rule 803(4) applies only to statements made for the purpose of medical treatment. Griffith v. State, 584 So.2d 383 (Miss.1991); State v. Robinson, 153 Ariz. 191, 735 P.2d 801 (1987). A psychologist does not provide "medical" treatment as contemplated by the rule. People v. LaLone, 432 Mich. 103, 437 N.W.2d 611 (1989). A psychologist "cannot be made a conduit for testifying in court as to any and all out of court statements made." State v. Van Dyken, 242 Mont. 415, 429-30, 791 P.2d 1350, 1359 (1990); See also State v. Schreuder, 726 P.2d 1215 (Utah 1986). Only out-of-court statements necessary for medical diagnosis and treatment are admissible under I.R.E. 803(4). The victim did not make her statements to Dr. Krasnec for the purposes of medical treatment. Therefore, it was error to admit them pursuant to this hearsay exception.

Next, we must determine if this testimony is admissible pursuant to I.R.E. 803(24). In a pre-trial Order in Limine, the trial court found:

According to the Krasnec deposition, [the victim] presented to Dr. Krasnec complaining of nightmares, and stated that she hoped the nightmares would go away and understood that she had to tell the truth in order that Dr. Krasnec could help the nightmares to go away. Dr. Krasnec testified in her deposition as to the emotional state of [the victim], from time to time, during the eleven sessions during which she treated the child. The content of the child's statements and the circumstances under which [the victim's]...

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