T.P. v. State

• Citation: 911 So.2d 1117
• Decision Date: 11 March 2005
• Docket Number: No. CR-03-0574.,CR-03-0574.
• Parties: T.P. v. STATE of Alabama.
• Court: Supreme Court of Alabama

911 So.2d 1117

T.P. v. STATE of Alabama.

No. CR-03-0574.

Court of Criminal Appeals of Alabama.

October 29, 2004.

Rehearing Denied January 7, 2005.

Certiorari Denied March 11, 2005 Alabama Supreme Court 1040567.

COPYRIGHT MATERIAL OMITTED

James Russell Pigott, Foley, for appellant.

Troy King, atty. gen., and Bettie J. Carmack, asst. atty. gen., for appellee.

WISE, Judge.

The appellant, T.P.,¹ was convicted of one count of first-degree sexual abuse, a violation of § 13A-6-66, Ala.Code 1975. Because he had two prior felony convictions, he was sentenced as a habitual offender to life imprisonment.

The evidence presented at trial tended to establish that on July 18, 2002, Investigator Dean McGowan of the Baldwin County Sheriff's Department was contacted by the Baldwin County Department of Human Resources ("DHR") concerning a suspected case of child sexual abuse. McGowan and Stephanie Buehler, a DHR social worker, interviewed eight-year-old B.P. ("the victim"). Buehler took the lead role during the interview; McGowan took notes during the interview but did not otherwise participate in interviewing the victim. Also present during the interview was the victim's mother.

During the interview, Buehler and the victim discussed "good touches" and "bad touches." They also discussed which parts of the body were considered "private parts." During this part of the discussion, Buehler showed the victim a book with drawings of a girl and a boy wearing bathing suits. Buehler explained that the areas under a bathing suit were considered to be "private parts" of the body. Buehler asked the victim if anyone had ever touched his private parts, to which the victim responded that his grandfather, T.P., had touched him on his buttocks. Further questioning established that on at least one occasion his grandfather had touched the victim's buttocks through his clothing. On at least one other occasion, the victim told Buehler that his grandfather had taken him inside a camper, unfastened his pants, and placed his hands under his underwear on his bare buttocks. The victim stated that his grandfather told him not to tell his daddy — T.P.'s son — what had happened. The victim told Buehler the last time that his grandfather had touched his buttocks occurred just a few days before the interview.

Buehler and McGowan were advised that T.P. was a registered sexual offender who had been released from prison in January 2002 after completing a 10-year prison sentence for child sexual abuse. Following his release, T.P. returned to Baldwin County and lived next door to his son, the victim's father. The victim's parents were divorced and the victim lived with his mother; the father had scheduled visitation.

Later that day, McGowan interviewed T.P. at the sheriff's office in Robertsdale. McGowan explained to T.P. the nature of the investigation. He advised T.P. of his Miranda² rights. T.P. indicated that he understood those rights; he thereafter elected to waive those rights and to be interviewed by McGowan. Initially, T.P. denied touching his grandson inappropriately. He implied that the allegations were the result of custody issues between the victim's parents — his son and former daughter-in-law. Later in the interview, however, T.P. asked McGowan "what would happen to somebody if they committed the crime that he was being accused of." (R. 30.) Eventually, T.P. told McGowan that he was going to tell him the truth. According to McGowan, T.P. said that the victim "liked to grab people on the penis and on the butt, and he said that [the victim] had done that to him." (R. 30.) The victim's actions made T.P. think that he "might be interested in having some kind of sexual contact with him." (R. 30.) T.P. then told McGowan that when the victim came to see him at his camper he "fondled his butt cheeks on the outside of his clothes." (R. 31.) A few days later, he said, he took the victim inside the bedroom of the camper, unbuttoned the victim's pants, put his hands down the back of the victim's underwear, and "played with his little hiney cheeks." (R. 31.) T.P. agreed to give McGowan an audiotaped statement to this effect. Following T.P.'s audiotaped statement, McGowan arrested T.P. on a charge of first-degree sexual abuse.

At trial, Buehler and McGowan testified regarding their actions during the investigation. Although the State had planned to have the victim testify, it advised the circuit court that the victim would be unable to testify. After hearing expert testimony to the effect that forcing the victim to testify could result in emotional trauma to the victim, the circuit court determined that the victim was "unavailable to testify," and that his out-of-court statements to Buehler were admissible under § 15-25-32, Ala.Code 1975. Over the objection of defense counsel, Buehler was permitted to testify regarding the victim's statements to her.³

Two other witnesses also testified — M.B.L. and L.A.B. Both witnesses testified that T.P. had at one time been married to their aunt. Both witnesses — who were adults at the time of this trial — testified that while they were children T.P. had sexually abused them. The circuit court instructed the jury that M.B.L. and L.A.B.'s testimony could not be considered as evidence of T.P.'s guilt in the present case. Instead, the court advised, the evidence was being offered in order to establish T.P.'s motive, opportunity, intent, preparation, or plan, or that the contact did not occur as a result of mistake or accident.

The defense presented no witnesses. At the close of all the evidence, the circuit court instructed the jury on the law applicable to T.P.'s case. The jury returned a verdict finding T.P. guilty of first-degree sexual abuse. This appeal followed.

T.P. argues that the circuit court committed reversible error in admitting the victim's out-of-court statements into evidence because, he says, the requirements of § 15-25-32 were not met. Alternatively, T.P. argues that the recent United States Supreme Court decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), mandates that his conviction be reversed because, he says, the admission of this testimony violated his rights under the Confrontation Clause to the Sixth Amendment of the United States Constitution. Although Crawford was decided after T.P.'s trial occurred, its holding is nevertheless applicable to this case: "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final...." Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).

In Crawford, the United States Supreme Court held that the admission of a wife's out-of-court statements to police officers, regarding an incident in which the defendant, her husband, allegedly stabbed the victim, violated the Confrontation Clause. The Supreme Court stated that an out-of-court statement by a witness that is testimonial is barred under the Confrontation Clause, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness, regardless of whether the statement is deemed reliable by the trial court, abrogating its previous holding in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

Although this Court has applied the holding in Crawford v. Washington, to nontestimonial hearsay, see, e.g., Perkins v. State, 897 So.2d 457 (Ala.Crim.App.2004); and Smith v. State, 898 So.2d 907 (Ala.Crim.App.2004), this is the first occasion we have had to address the holding in Crawford v. Washington as it applies to testimonial hearsay.

The Confrontation Clause, as contained in the Sixth Amendment to the United States Constitution, provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." In Ohio v. Roberts, the United States Supreme Court noted: "If one were to read this language literally, it would require, on objection, the exclusion of any statement made by a declarant not present at trial.... But, if thus applied, the Clause would abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme." 448 U.S. at 63, 100 S.Ct. 2531. Instead, the Court established a two-part analysis for determining whether certain testimony violated the Confrontation Clause; this analysis focused on the necessity and reliability of the testimony. The Roberts court held that a hearsay statement satisfied the Sixth Amendment's Confrontation Clause, despite a lack of face-to-face confrontation and cross-examination, so long as (1) the declarant is unavailable and (2) the hearsay statement "bears adequate `indicia of reliability.'" 448 U.S. at 66, 100 S.Ct. 2531. "Reliability 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. Later decisions by the Supreme Court refined its holding in Ohio v. Roberts, appearing to reject the "unavailability" prong of that test. See White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), and United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986). Nevertheless, this framework governed the interplay between hearsay and the Confrontation Clause, until the decision in Crawford v. Washington, which revisited the Court's holding in Ohio v. Roberts. See, e.g., Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999); White v. Illinois, supra; Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). The framework required courts to identify and evaluate the factors that bore upon the reliability of a hearsay statement.

Alabama law authorizes the admission of an out-of-court statement made by a child under the age of 12 under certain circumstances....