Vaska v. State, A-8232.
| Decision Date | 25 July 2003 |
| Docket Number | No. A-8232.,A-8232. |
| Citation | 74 P.3d 225 |
| Parties | Stanley J. VASKA, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Court of Appeals |
Margi A. Mock, Assistant Public Defender and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
Stanley J. Vaska was convicted of sexual abuse of a minor in the first degree1 for sexually penetrating his niece, T.E., who was about three years old at the time of the alleged offense. The only evidence the State had to establish that Vaska committed the sexual abuse were T.E.'s hearsay statements, which she made shortly after the alleged offense. When she testified at trial, several years after the alleged abuse, T.E. had no memory of the abuse or of her prior statements. Vaska contends that T.E.'s statements were inadmissible hearsay and that admitting them violated the Confrontation Clauses of the United States and Alaska Constitutions. We conclude that T.E.'s statements were admissible as prior inconsistent statements and that admission of these statements did not violate Vaska's right of confrontation. We accordingly affirm Vaska's conviction.
The State alleged that in the spring of 1994, when T.E. was about three years old, her uncle, Vaska, sexually penetrated her. A jury convicted Vaska, but this court reversed his conviction and remanded the case for further proceedings.2 The State retried Vaska.
At Vaska's second trial, T.E. testified that she was ten years old and had just finished the fourth grade. After the State asked her a few general background questions—about her age, the name of her parents, and the need for her to tell the truth—she explained that she could not remember anything that happened before the third grade. At this point, the State indicated that it had no further questions for T.E. Vaska's attorney stated that he had no cross-examination for T.E.
The State's evidence that Vaska committed sexual abuse against T.E. was based primarily on T.E.'s hearsay statements from several years before identifying Vaska as having sexually abused her. The State presented the statements through the testimony of two witnesses, Olga Evan, who was T.E.'s mother, and Dr. Donald R. Burgess, who interviewed and examined T.E. for sexual abuse.
Evan testified that in the spring of 1994, T.E. began having mood swings. Evan questioned T.E., and T.E. told her that "her girl" hurt. According to Evan, T.E. used the phrase "her girl" to refer to her vagina. When Evan asked who hurt her, T.E. stated that a "ga-ga" hurt her. Evan testified that T.E.'s term "ga-ga" was a reference to monsters. After further questioning, T.E. told Evan that M.V.'s dad hurt her. M.V.'s dad was Vaska. Evan testified that some time later, when T.E. saw Vaska, T.E. said, "There's the ga-ga." Based upon this information, Evan suspected Vaska had abused her daughter and took her to a medical clinic for a physical examination.
Dr. Burgess, a medical doctor, was qualified at Vaska's trial as an expert in pediatrics and child sexual abuse examinations. Dr. Burgess was working in the emergency department at the Yukon Kuskokwim Delta Regional Hospital in Bethel on May 6, 1994. Based on a claim that T.E. made four days earlier to a health aid in Russian Mission that her bottom was hurting, the health aid's subsequent discovery of yellow-green discharge from T.E.'s vaginal area, and Evan's concerns, Dr. Burgess interviewed and examined T.E. at the hospital.
During the course of the interview, T.E. informed Dr. Burgess that her bottom and "her girl" were hurting. In an attempt to verify the information and to more accurately determine where T.E. was hurting, Dr. Burgess asked T.E. to place her fingers in the area that hurt on an anatomically correct female doll. In response to his question, Dr. Burgess testified that T.E. placed her finger in the doll's vagina. When he then asked T.E. who hurt her, T.E. told him that M.V.'s daddy's ga-ga (which was Vaska) hurt her. Dr. Burgess testified that in his opinion, T.E.'s hymen had been damaged by a large object.
Vaska testified at trial and denied sexually abusing T.E. But the jury convicted Vaska of sexual abuse of a minor in the first degree. Vaska now appeals his conviction, arguing that Superior Court Judge Ray M. Funk erred in admitting T.E.'s hearsay statements through the testimony of Evan and Dr. Burgess.
While the record is not completely clear, it appears that, over Vaska's objection, Judge Funk found that T.E. was, under Alaska Rule of Evidence 804(a)(3), unavailable to testify because of her lack of memory. Judge Funk also found that T.E.'s prior hearsay statements to Evan identifying Vaska as her abuser were admissible under the hearsay "catchall exception" of Rule 804(b)(5). He admitted Dr. Burgess's testimony about T.E.'s statements identifying Vaska as the person who abused her because Vaska did not object.
Although Judge Funk admitted T.E.'s hearsay statement to Evan under Evidence Rule 804(b)(5), on appeal, the State argues that T.E.'s statement was admissible under Evidence Rule 801(d)(1)(A). This rule provides: "A statement is not hearsay if ... the declarant testifies at the trial or hearing and the statement is inconsistent with the declarant's testimony." The State relies on our recent decision in Wassilie v. State,3 pointing out that this court may affirm a correct ruling of law by a trial court, regardless of the reasons advanced by the trial court, "if there exists independent grounds which, as a matter of law, support the trial court's conclusion."4
In Wassilie, the defendant was convicted of felony assault for assaulting his mother and father.5 His conviction rested in part on the hearsay statement that his father, who was over ninety years old, had given to the police shortly after the assault.6 The father testified at trial but had no memory of this prior statement or the circumstances surrounding it.7 The State presented the testimony of Chief Alexie who had interviewed Wassilie's father on the night of the alleged assault.8 According to Chief Alexie, the father said that Wassilie had beaten him and his wife.9 The father described the beatings.10 The trial judge admitted the father's statements to Chief Alexie as prior inconsistent statements, and we upheld that finding on appeal.11 We stated:
If a witness claims not to remember the substance of a prior statement at trial, the witness's trial testimony is inconsistent with the prior statement for purposes of Rule 801(d)(1)(A). It is irrelevant for purposes of the rule whether the claimed memory loss is genuine or feigned because the claimed lacked memory at trial (whether genuine or feigned) is inconsistent with the witness's earlier claim to remember.[12]
Our decision in Wassilie supports the conclusion that T.E.'s statements to her mother, Olga Evan, were admissible as prior inconsistent statements.
The Confrontation Clause of the Sixth Amendment to the United States Constitution gives a defendant in a criminal trial the right "to be confronted with the witnesses against him." A similar right is provided in Article 1, Section 11 of the Alaska Constitution. Vaska argues that admitting T.E.'s hearsay statements identifying him as the person who molested her violated his rights under both the state and federal Confrontation Clauses.
Our analysis of the Confrontation Clause begins with the leading case of United States v. Owens.13 In Owens, a correctional counselor at a federal prison, John Foster, was attacked and brutally beaten with a metal pipe.14 His memory was severely impaired.15 At one point, while he was in the hospital, Foster was able to describe the attack to an F.B.I. agent.16 He named Owens as his attacker, and he identified Owens from a photographic lineup.17 At trial, Foster could describe his activities before the attack, and he remembered feeling the blows to his head.18 He also remembered identifying Owens as his assailant to the F.B.I. agent.19 But he could not remember seeing Owens during the assault, nor could he say whether hospital visitors might have suggested to him that Owens was his assailant.20 Owens argued that Foster's lack of memory about the assault meant that he was unable to meaningfully cross-examine Foster.21 He argued that this limitation on his cross-examination violated the Confrontation Clause of the Sixth Amendment to the United States Constitution and that Foster's statement to the F.B.I. agent was inadmissible hearsay.22
The United States Supreme Court rejected these arguments.23 The Court concluded that admission of Foster's hearsay identification of Owens as the person who assaulted him did not violate the Confrontation Clause or Federal Rule of Evidence 802, which generally excludes hearsay.24 The Court held that "neither the Confrontation Clause nor Federal Rule of Evidence 802 is violated by admission of an identification statement of a witness who is unable, because of a memory loss, to testify concerning the basis for the identification."25
Vaska points out that Owens is distinguishable from his case because Foster was able to testify about the assault and about his identification of Owens. In contrast, T.E. had no recollection of the assault, her identification of Vaska, or her prior statement. Vaska's case appears to push the Confrontation Clause to its limits. But our reading of Owens is that the United States Supreme Court adopted the view that the Confrontation Clause only requires the hearsay declarant to testify and be available for cross-examination. The fact that T.E. could not shed any light on whether the incident about which the statement was made occurred, whether she made the statement, or the circumstances under which she made the statement would...
To continue reading
Request your trial