State v. Clark , 139 Wash. 2d 152 ( 1999 )

Sanders, J.

When Thomas Clark’s eight-year-old stepdaughter took the witness stand and recanted her prior allegations that Clark had molested her, only hearsay accounts of her prior statements and an otherwise uncorroborated confession stood between Clark and dismissal óf the charges. But these were enough for the jury to convict Clark and for the Court of Appeals to affirm.

We granted review to determine whether the confrontation clause of the Sixth Amendment to the United States Constitution is offended by the introduction of child hearsay statements under RCW 9A.44.120 in a case such as this where the child who made the hearsay statements is called as a witness, provides nonevasive answers to questions about the alleged incidents and testifies that her hearsay statements were lies, and whereafter the defendant is given a full opportunity to cross-examine her. Following United States v. Owens, 484 U.S. 554, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988) and California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970), we hold such circumstances do not violate the requirements of the confrontation clause and we affirm the Court of Appeals.

I

FACTS

E. was born on June 30, 1987, and grew up believing Clark to be her biological father.

On March 29, 1995, shortly after Clark moved out of E.’s home, E. (who was then seven years old) told her schoolteacher that her dad might have to go to jail because of something he did. The teacher referred E. to a school interventionist. E. told the interventionist Clark made her touch his penis three or four times. The interventionist called Child Protective Services to report E.’s allegations.

On April 10, 1995, a prosecutor child-interviewer talked with E. E. told the interviewer that she had gone into the basement of her house whereupon Clark had initiated the sexual contact she had previously reported. E. told the interviewer Clark had sexual contact with her six times and that Clark told her if anyone heard what had happened, he would have to go to jail.

On April 25, 1995, Clark voluntarily confessed to a police officer that on three occasions he had woken up to find E. masturbating him and he had allowed it to go on until he ejaculated. Clark was subsequently charged with three counts of first degree child molestation under RCW 9A.44-.083.

A hearing was held on June 21, 1995, to establish if the hearsay statements made by E. to various adults (including the prosecutor’s child-interviewer) were admissible under RCW 9A.44.120. E. testified under oath that the sexualized activity previously described had in fact occurred. The trial court found the prior hearsay statements E. made were sufficiently reliable to satisfy the criteria laid out in State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984), thereby rendering the hearsay statements admissible under RCW 9A.44-.120, the child hearsay statute.

At trial the school interventionist and the child-interviewer testified to the hearsay statements made to them by E. Clark did not object. E. was then sworn in as a witness. E. testified she had seen Clark’s penis once, but she denied ever touching it. However she did admit to telling the school interventionist, the prosecutor’s child-interviewer, and the hearing judge that sexual contact had occurred. She further testified her previous statements that Clark made her touch his penis were lies, and she always knew those statements were lies, but didn’t know why she had lied. E. was cross-examined about the statements and then admitted she had lied to get Clark in trouble because he left her family without a phone or a car.

The jury convicted Clark on all three counts of first degree child molestation. Clark appealed his conviction on several grounds. The Court of Appeals affirmed, holding inter alia that Clark’s rights under the federal confrontation clause were not violated. State v. Clark, 91 Wn. App. 69, 76, 954 P.2d 956, review granted in part, 136 Wn.2d 1019, 969 P.2d 1064 (1998). Clark petitioned for review on several grounds, but a majority of this court granted review “limited to the confrontation issue.” State v. Clark, 136 Wn.2d 1019, 969 P.2d 1064 (1998).

II

ISSUE FOR REVIEW

The state argues Clark’s failure to object to the admission of the child hearsay statements at trial precludes him from raising the issue on review. Indeed, the state frames the issue before us as “[wjhether fairness dictates that the long-standing contemporaneous objection rule that is recognized by virtually every jurisdiction in the United States [should] be preserved?” Supplemental Br. of Resp’t at 1.

The state is correct that an issue must normally be raised in the trial court before it may be considered on appeal. RAP 2.5(a); State v. Paysse, 80 Wash. 603, 608, 142 P. 3 (1914) (“It is a principle, applicable to criminal as well as civil cases, that objections to evidence or matters or proceedings occurring at the trial, not going to the jurisdiction of the court, must be presented to and ruled upon by the trial court before they can be made available upon appeal.”). However RAP 2.5(a)(3) excepts “manifest error affecting a constitutional right,” allowing us to consider an error of constitutional magnitude even though that issue was not raised at trial. ¹ The state’s argument that we cannot address the issue raised by Clark on appeal for the first time therefore fails to the extent that Clark raises a constitutional issue.

Because Clark failed to object below and because our review is limited to the confrontation issue, we must distinguish between the interpretation of RCW 9A.44.120² and the question of whether the proceedings at this trial satisfied the requirements of the confrontation clause. These are separate issues because a statute may provide greater protection than that guaranteed by the Constitution. The focus in this case is therefore not upon the requirements of the statute but rather the guarantees of the confrontation clause, and whether the proceedings at trial violated Clark’s constitutional rights. RCW 9A.44.120 is relevant only to the extent it was the vehicle for the introduction of the child hearsay statements at trial³ and whether that statute met with compliance is beyond the limited scope of review allowed by a majority of our court.

Furthermore we grant the state’s motion to strike portions of the petitioner’s supplemental brief which raise the alleged lack of corpus delicti because this issue is outside the scope of review which is explicitly limited to the confrontation issue.

Ill

ANALYSIS

The confrontation clause of the Sixth Amendment to the United States Constitution was not violated by the introduction of child hearsay statements in the circumstances of this case.

The Sixth Amendment to the United States Constitution provides “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The confrontation clause applies to state courts through the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965), and guarantees a criminal defendant the opportunity to cross-examine adverse witnesses. See, e.g., Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965).

Citing United States v. Owens, 484 U.S. 554, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988) and California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970), the state argues Clark’s opportunity to cross-examine E. at trial about her hearsay statements satisfied the burdens of the confrontation clause.

In Owens the witness, who was an assault victim, identified the defendant as his attacker. However, the witness’s injuries affected his memory and at trial he testified that although he could remember identifying the defendant, he could not remember seeing him at the time of the assault. The Supreme Court held the confrontation clause was not violated by the admission of the hearsay statement of the witness who had no independent recollection of the defendant as his assailant. The court held it was not necessary to examine the hearsay statement for “indicia of reliability” when the person who made the hearsay statement testified in court and was fully cross-examined. In such circumstances, the court reasoned, the confrontation clause was satisfied by the “traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness’ demeanor.” Owens, 484 U.S. at 560.

In Green the Supreme Court considered a California statute which under certain circumstances permitted the admission of a witness’s hearsay statement which was inconsistent with that witness’s testimony at trial. The court held the statute did not violate the confrontation clause provided the defendant had a full opportunity to cross-examine the witness at trial. The court stated:

[T]he Confrontation Clause does not require excluding from evidence the prior statements of a witness who concedes making the statements, and who may be asked to defend or otherwise explain the inconsistency between his prior and his present version of the events in question, thus opening himself to full cross-examination at trial as to both stories.

Green, 399 U.S. at 164.

Under Owens and Green the admission of hearsay statements will not violate the confrontation clause if the hearsay declarant is a witness at trial, is asked about the event and the hearsay statement, and the defendant is provided an opportunity for full cross-examination. Here E. (the hearsay declarant) testified at trial about the alleged incident, acknowledged her hearsay statements, and then claimed they were lies. Clark was given an opportunity to fully cross-examine her. The facts of the current case therefore satisfy the requirements of the confrontation clause of the Sixth Amendment as laid out in Owens and Green.

Clark argues Owens and Green should be distinguished from the present case, stating:

Neither Owens nor Green stands for the proposition that the admission of unreliable hearsay testimony does not violate the Confrontation Clause where the witness is effectively unavailable as a witness at trial.

Supplemental Br. of Pet’r at 9. This argument would have some force but for the fact Clark’s characterization of E. as an “effectively unavailable” witness is incorrect. E. was not only sworn in as a witness at trial, asked about the alleged incidents, and provided answers to the questions put to her, but she was actually cross-examined. She was not only available but was probably the best witness for the defense. We cannot distinguish Owens and Green.

Relying on State v. Rohrich, 132 Wn.2d 472, 939 P.2d 697 (1997), Clark argues the confrontation clause requires the hearsay declarant (in this case E.) to describe the alleged acts at trial or for the statements to be otherwise corroborated. Clark further argues E.’s testimony that her hearsay statements were lies meant that she did not “testify” at trial and so the requirements of RCW 9A.44.120 were not fulfilled.⁴

In Rohrich the state called as a witness an alleged victim of rape and child molestation and asked her only innocuous background questions, failing to ask her about the alleged sexual abuse. Rohrich, 132 Wn.2d at 474. She was not cross-examined and the defendant was convicted solely on the basis of hearsay statements the child witness had made to others. We affirmed reversal of the defendant’s conviction, stating:

An indispensable component of the Confrontation Clause’s preference for live testimony is cross-examination because of its central role in ascertaining the truth. The opportunity to cross-examine means more than affording the defendant the opportunity to hail the witness to court for examination. It requires the State to elicit the damaging testimony from the witness so the defendant may cross-examine if he so chooses. . . . The State’s failure to adequately draw out testimony from the child witness before admitting the child’s hearsay puts the defendant in “a constitutionally impermissible Catch-22” of calling the child for direct or waiving his confrontation rights.

Id. at 477-78 (citations and footnotes omitted) (quoting Lowery v. Collins, 996 F.2d 770, 771-72 (5th Cir. 1993)). The court then concluded the word “testifies” in RCW 9A.44.120 requires the child witness to take the stand and describe the alleged acts of sexual contact.

In State v. Foster, 135 Wn.2d 441, 957 P.2d 712 (1998) we approved Rohrich, stating:

In Rohrich we recognized that at the core of the right to confrontation is “a preference for live testimony.” We held that live testimony, under oath, subject to cross-examination, and under the watchful eyes of the jury maximizes the accuracy of the truth-seeking process in criminal trials.

Foster, 135 Wn.2d at 464 (citation omitted) (quoting Rohrich, 132 Wn.2d at 477).

But the facts of Rohrich must be distinguished from the present case. Although in Rohrich the preference for live testimony had been thwarted by not asking the child witness about the alleged occurrence or the hearsay statement, in the present case the preference for live testimony prevailed through direct examination on both points. In Rohrich the state avoided questioning the child witness about the alleged acts, thus directly preventing the defendant from cross-examining her. However in the present case there was no such evasion: The state asked E. about the alleged acts and she answered by denying they occurred. The state also asked E. about her prior hearsay statements which she acknowledged making but claimed were lies. Far from being placed in a constitutionally impermissible Catch-22 of calling the child for direct or waiving his confrontation rights, Clark had a full opportunity to cross-examine E. about the alleged acts and about her hearsay statements. The state did not seek to shield E. from difficult questions nor was she evasive in her answers. Indeed, while Clark may view conviction notwithstanding E.’s clear testimony that her hearsay statements were lies as a miscarriage of justice, it is nevertheless not a violation of the confrontation clause.

We hold that in the circumstances of this case the requirements of the confrontation clause as interpreted by the Supreme Court in United States v. Owens, 484 U.S. 554, and California v. Green, 399 U.S. 149, were fulfilled. Because we find there was no confrontation violation, we affirm the Court of Appeals.

Guy, C.J., and Smith, Madsen, Talmadge, and Ireland, JJ., concur.

1 This is consistent with the fact that we granted review on “the confrontation issue” only. State v. Clark, 136 Wn.2d 1019, 969 P.2d 1064 (1998).

2 RCW 9A.44.120 provides:

Admissibility of child’s statement — Conditions. A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, describing any attempted act of sexual contact with or on the child by another, or describing any act of physical abuse of the child by another that results in substantial bodily harm as defined by RCW 9A.04.110, not otherwise admissible by statute or court rule, is admissible in evidence in dependency proceedings under Title 13 RCW and criminal proceedings, including juvenile offense adjudications, in the courts of the state of Washington if:

(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and

(2) The child either:

(a) Testifies at the proceedings; or

(b) Is unavailable as a witness: PROVIDED, That when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party his or her intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings to provide the adverse party with a fair opportunity to prepare to meet the statement.

3 In State v. Ryan, 103 Wn.2d 165, 179, 691 P.2d 197 (1984), we held RCW 9A.44.120, which allows the introduction of hearsay statements of child sexual abuse victims, does not on its face violate the confrontation clause because the statute allows only for the admission of statements which have indicia of reliability.

4 To the extent that Clark argues the requirements of the child hearsay statute which are not mandated by the confrontation clause were not fulfilled, his argument fails because as previously mentioned we explicitly granted review only on the confrontation clause issue.