Troy P., Matter of

• Decision Date: 27 October 1992
• Docket Number: No. 13361,13361
• Citation: 114 N.M. 525,842 P.2d 742,1992 NMCA 120
• Parties: In the Matter of TROY P., a child, Respondent-Appellant.
• Court: Court of Appeals of New Mexico

Page 742

842 P.2d 742

114 N.M. 525

In the Matter of TROY P., a child, Respondent-Appellant.

No. 13361.

Court of Appeals of New Mexico.

Oct. 27, 1992.

[114 N.M. 526] Tom Udall, Atty. Gen., Margaret McLean, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Appellate Defender, Amme M. Hogan, Asst. Appellate Defender, Santa Fe, for respondent-appellant.

OPINION

BLACK, Judge.

Respondent appeals from an adjudication of delinquency based on a determination by a jury that he committed the act of criminal sexual contact of a minor. On appeal, he argues that the trial court erred in allowing the introduction into evidence of a hearsay statement by the alleged victim, a four-year-old girl, to her mother and a videotape of an interview between the alleged victim and a social worker. Respondent contends that the statement to the mother and the videotape were inadmissible hearsay and that their use at trial violated the right to confront his accusers, guaranteed to him by the Sixth Amendment to the United States Constitution.

We hold that the admission of the videotape violated the requirements of the Confrontation Clause. U.S. Const. amend. VI. Accordingly, we reverse the determination of delinquency and remand this case for a new trial.

FACTS.

During the relevant time, the parents of the little girl were separated and child custody was a subject of contention. Her father had custody of the little girl and her siblings during the week; her mother had custody on the weekend. During the period they lived with their father, the younger children went to a babysitter's apartment during the work day.

At the conclusion of a weekend in February of 1991, the little girl told her mother that she didn't want to go back with her father, and started to cry. After questioning, she said someone had "touched" her. Her mother did not believe her and proceeded with the usual custody arrangement. On March 3, 1991, the mother informed the child she was returning to her father, and the child began screaming and crying. After being soothed the little girl repeated the allegation she was "touched," and eventually identified her babysitter's son, Respondent, as the perpetrator. On this occasion her mother called the police. Following advice from the police, Mother took the four-year-old girl to a doctor, who examined her. The girl again identified the perpetrator as Respondent.

On March 8, 1991, a delinquency petition was filed against Respondent. On March 11, at the request of a juvenile probation officer, a social worker conducted what the parties have labelled a "courtesy interview," apparently a common practice in this type of situation. The social worker recorded this "interview" on videotape. Under persistent questioning by the social worker, the little girl described the incident, somewhat inconsistently, and identified the perpetrator as Respondent.

In May 1991, the children's court attorney served notice on Respondent that he intended to use hearsay at the trial, specifically the testimony of the little girl's mother and the social worker concerning the statements that the little girl made to them. The notice specifically referred to the State's intent to introduce in evidence the videotape of the social worker's interview with the alleged victim. A few days later, Respondent filed a motion in limine challenging the use at trial of the hearsay evidence referred to in the State's notice.

The trial court held an evidentiary hearing on the motion. During the hearing, the little girl was called briefly to the stand, but refused to communicate with the prosecuting attorney. At this hearing, the trial judge asked the prosecutor why he had failed to proceed under SCRA 1986, 10-217, which sets forth the procedure by which a videotaped deposition may be taken in this situation. The prosecutor responded that he had tried to question the little girl earlier, but she would not communicate with him, and that he believed the same thing would occur in a deposition with both counsel attempting to question the little girl. In addition, the trial court heard testimony from the little girl's mother, the doctor, and the social worker. The following day, the trial court filed a written order denying the motion in limine and ruling that the statements and videotape were admissible. The written order set out the circumstances on which the trial court based its ruling, without differentiating between statements made to the mother, the doctor, and the social worker.

At trial, the State presented two witnesses: the little girl's mother and the social worker. In addition, the trial court allowed the State to play the videotape of the interview between the social worker and the little girl for the jury. At the conclusion of the videotape, the little girl was held up and the social worker merely identified her before she was whisked out of the courtroom without any chance for cross-examination.

Respondent presented the babysitter, who testified that the little girl had returned from her mother's in November with medicine for a urinary infection. When the babysitter asked about it, the little girl told her she had "private pains" because the mother's boyfriend had touched her. The little girl's father also testified that the little girl had told him her mother's boyfriend had touched her. In addition, Respondent presented a witness who testified that during the period of time in question, Respondent had been working during most of the hours that he could have had contact with the little girl.

The jury determined that Respondent had committed the act in question, and Respondent was adjudicated delinquent.

I. ADMISSION OF THE VIDEOTAPE VIOLATED RESPONDENT'S RIGHT OF CONFRONTATION.

Respondent argues his constitutional right to confront the witnesses against him was violated by the admission of the social worker's videotaped interrogation of the little girl. We agree.

The Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him." This requirement is made applicable to the states through the Fourteenth Amendment to the United States Constitution. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); State v. Garcia, 95 N.M. 246, 620 P.2d 1271 (1980).

In sixteenth century England, magistrates interrogated witnesses before the trial, and at the trial proof was usually given by reading statements, affidavits, and letters from absent witnesses and accomplices. White v. Illinois, 502 U.S. 112 S.Ct. 736, 745, 116 L.Ed.2d 848, 862-63 (1992) (Thomas, J., concurring in part). The Sixth Amendment right to confront one's accusers was designed to prevent such practices. Id.; Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 339-40, 39 L.Ed. 409 (1895); Burke v. State, 820 P.2d 1344, 1352 (Okla.Crim.App.1991) (Lumpkin, J., specially concurring). The courtesy interview here resembles those methods of ex parte presentation of a witness's allegations.

The trial court apparently admitted the video testimony in this case on the basis of the "residual exception" to the hearsay rule. See SCRA 1986, 11-804(B)(6). The residual exception is not a well-established exception to the hearsay rule and the Confrontation Clause therefore requires it be analyzed very stringently before admitting out-of-court statements in criminal cases. State v. Barela, 97 N.M. 723, 643 P.2d 287 (Ct.App.1982).

In overruling Respondent's objections in this case, the trial court relied on Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). Wright involved the admission of hearsay statements made by a two-and-one-half-year-old girl to a physician investigating child sexual abuse. The Supreme Court specifically held such hearsay should not have been admitted, despite Idaho's residual hearsay exception which, like New Mexico's, was copied from Federal Rule of Evidence 803(24).

The Wright majority specifically addressed the dangers of reliance upon the residual exception to the hearsay rule in criminal cases. Since statements under the residual hearsay clause "do not share the same tradition of reliability that supports the admissibility of statements under a firmly rooted hearsay exception," such statements are " 'presumptively unreliable and inadmissible for Confrontation Clause purposes.' " Wright, 497 U.S. at 818, 110 S.Ct. at 3148, 111 L.Ed.2d at 653-54 (quoting Lee v. Illinois, 476 U.S. 530, 543, 106 S.Ct. 2056, 2063, 90 L.Ed.2d 514 (1986)). "Thus, unless an affirmative reason, arising from the circumstances in which the statement was made, provides a basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the Confrontation Clause requires exclusion of the out-of-court statement." Wright, 497 U.S. at 821, 110 S.Ct. at 3150, 111 L.Ed.2d at 656.

In the present case we believe the totality of circumstances provides even less of a showing of " 'particularized guarantees of trustworthiness' " than in Wright. Id. at 815, 110 S.Ct. at 3146, 111 L.Ed.2d at 652 (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980)). In reviewing the videotape, it is clear that the social worker, like the doctor in Wright, was well aware of the allegations against Respondent, and she referred to her notes on several occasions when the little girl was unresponsive or "inappropriate" in her responses. Numerous legal commentators have pointed out the danger of suggestive interviewing procedures in child sexual abuse cases. See, e.g., John R. Christiansen, The Testimony of Child Witnesses: Fact, Fantasy, and the Influence of Pretrial Interviews, 62 Wash.L.Rev. 705 (1987); Thomas L. Feher, The Alleged Molestation Victim, the Rules of Evidence, and the Constitution: Should Children Really Be Seen and Not Heard?, 14 Am.J.Crim.L. 227, 230-33 (1988...