Opinion
No. 62162-9-I.
January 18, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Island County, No. 07-1-00179-5, Vickie I. Churchill, J., entered July 10, 2008.
Reversed and remanded by unpublished opinion per Leach, J., concurred in by Dwyer, C.J., and Grosse, J.
RCW 9A.44.150 describes limited circumstances when a child witness may testify in a criminal proceeding via one-way closed-circuit television outside the presence of the accused. Although the Washington Supreme Court has held this statute does not violate the federal and state confrontation clauses, Bryon Koeller asks us to reverse his conviction for first degree rape of a child, contending the United States Supreme Court's decision in Crawford v. Washington renders RCW 9A.44.150 unconstitutional. In the alternative, Koeller argues that the closed-circuit television procedure was not available because substantial evidence does not support the trial court's finding that the victim would suffer serious emotional distress if required to testify in Koeller's presence. While we reject his argument based on Crawford, we agree with Koeller that the record does not support the trial court's finding. Accordingly, we reverse and remand.
State v. Foster, 135 Wn.2d 441, 957 P.2d 712 (1998).
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d. 177 (2004).
We need not address the remaining assignments of error relating to Koeller's rape conviction. We note, however, that the trial court admitted expert testimony that VM suffered from post-traumatic stress syndrome. The testimony by VM's counselor amounted to an impermissible opinion about VM's credibility and Koeller's guilt. Even if this evidence was not used as Koeller suggests, we are confident that any error that may have occurred will not be repeated on remand.
FACTS
V.M. was born on February 22, 2003. From May 2004 until March 2007, V.M.'s mother, Elizabeth Williams, paid Beth and Bryon Koeller to baby-sit V.M. During this period, V.M. spent the majority of his time with the Koellers, often staying overnight. Beth Koeller primarily took care of V.M., along with DK and NK, the Koellers' two sons, who were around V.M.'s age. Occasionally, Bryon Koeller watched the boys alone. When the relationship between Williams and the Koellers became strained, Williams took V.M. to stay with her mother, Patricia Wood, in Oregon.
On May 19, 2007, Wood called Detective Teri Gardner from the Oak Harbor Police Department to report sexualized behavior from V.M. V.M. had told Wood that he and a cousin were "[s]ucking pee-pees." When Wood asked V.M. if he "suck[ed] pee-pees before," he answered, "Yes. With Mr. [Koeller] and [N.K.], but not [D.K.]." Wood called Gardner about one month later to report further sexualized behavior from V.M. Wood subsequently informed Williams about V.M.'s disclosures of sexual abuse.
On July 16, 2007, Nurse Practitioner Joanne Mettler examined V.M. at Harborview Medical Center at Wood's request. While Mettler reported a normal physical exam, she concluded that V.M. had been sexually abused based on his statements that Koeller had molested him in the shower. After the examination, Williams and V.M. met with Gardner. Officer Renee Mueller interviewed V.M., and Gardner recorded the interview. According to Mueller, V.M. made disclosures.
The recording was played at Koeller's trial.
On July 24, 2007, the State charged Koeller with first degree rape of a child, alleging that Koeller had raped V.M. sometime between June 1, 2004, and March 31, 2007. At the pretrial hearing on March 5, 2008, the State asked the court to find V.M. competent. The State also requested that V.M. be allowed to testify via closed-circuit television under RCW 9A.44.150. Defense counsel objected, and the prosecutor urged the court to enter the required statutory findings. Based primarily on Williams's testimony, the trial court found that requiring V.M. to testify in front of Koeller would cause him to suffer serious emotional distress. The court also found that the other statutory requirements had been met and ruled that V.M. could testify via closed-circuit television.
V.M., the prosecutor, and defense counsel were placed in an interview room next to the courtroom, and a live video image was broadcast into the courtroom. A makeshift two-way system using telephones allowed the judge to communicate with the attorneys. A similar arrangement using cellular phones provided communication between Koeller and his counsel. When defense counsel reported that he could not hear V.M., V.M. was excused from testifying that day.
Defense counsel complained that the arrangement did not allow Koeller to pass written notes to him, so he could not listen to Koeller and VM at the same time. The court responded that counsel could ask for a recess.
The next day, the State recalled V.M. V.M. promised to tell the truth and said that he felt "bad" when he did not tell the truth. V.M. testified about staying at the Koellers' house, recalling the names of everyone living in the house, as well as the location of the computer. When asked if he "remember[ed] talking about sucking pee-pees," V.M. answered, "No." When asked if Koeller had hurt him, V.M. said that Koeller "made me puke by doing something really mean to me." When pressed further, VM said he could not remember. The court later ruled that VM was competent.
Although defense counsel again objected to the cellular phone arrangement, he tested the cellular phone connection and reported that it worked. The court noted that Koeller could communicate freely with co-counsel Darrin Hall, who was seated next to Koeller, and stated that a recess would be called upon any signal from Hall. The State concedes, however, that the record does not describe the equipment system used on this day.
Koeller's trial commenced March 18, 2008. VM testified that he did not remember any alleged abuse, admitting only that Koeller had done "bad things." The jury was unable to reach a verdict, and the court declared a mistrial.
Koeller's second trial began on May 13, 2008. A number of the court's previous rulings from the March pretrial hearings were renewed, including the rulings allowing closed-circuit television testimony. In contrast to the first trial, VM testified via closed-circuit television that Koeller "put his pee-pee in my mouth and I don't remember what he did to my bottom." The jury found Koeller guilty of first degree rape of a child. He appeals.
ANALYSIS
Koeller contends that RCW 9A.44.150 violates the confrontation clause of the Sixth Amendment based on Crawford. A statute is presumed to be constitutional. The challenging party has the burden of proving its unconstitutionality beyond a reasonable doubt.
State v. Shafer, 156 Wn.2d 381, 387, 128 P.3d 87 (2006).
Shafer, 156 Wn.2d at 387.
In 1990, the Washington Legislature enacted RCW 9A.44.150 to permit a child witness to testify via one-way closed-circuit television under specified limited conditions. Later that year, the United States Supreme Court in Maryland v. Craig held that a substantially similar Maryland statute did not violate the confrontation clause of the Sixth Amendment. In 1998, the Washington Supreme Court inState v. Foster held that RCW 9A.44.150 did not violate the confrontation clauses of the Sixth Amendment and article I, section 22 of the Washington Constitution.
"A side-by-side comparison of [RCW 9A.44.150] and the Maryland . . . statute[] shows that the statutes differ somewhat in wording, but that the essence of the two statutes is the same. If anything, the Washington statute seems a bit more restrictive, and a bit more deferential to the defendant's right to confrontation." 5C Karl B. Tegland, Washington Practice: Evidence: Law and Practice § 1300.22, at 538 (5th ed. 2007).
135 Wn.2d 441, 470, 957 P.2d 712 (1998).
Koeller acknowledges the holdings in Craig andFoster. He argues, however, that the Supreme Court overruled Craig by implication when it decidedCrawford in 2004. In Craig, the United States Supreme Court upheld a Maryland statute that permitted an alleged child abuse victim to testify by one-way closed-circuit television after the court determined that testimony by a child victim in the courtroom would cause the child to suffer serious emotional distress such that the child could not reasonably communicate. In doing so, the Craig Court noted that, despite denying a face-to-face confrontation, the Maryland statute preserved "all of the other elements of the confrontation" by requiring the child witness to testify under oath subject to full cross-examination and by allowing the judge, jury, and the defendant to view the witness's demeanor during the testimony. The Court also recognized that the well-being of child abuse witnesses was a compelling State's interest that could outweigh a defendant's confrontation rights if the State made an adequate showing of necessity.
Craig, 497 U.S. at 840-41.
Craig, 497 U.S. at 851.
Craig, 497 U.S. at 853.
In Crawford, the Court considered the admissibility of tape-recorded statements made to the police by a witness who did not testify at trial. The Crawford Court held that the confrontation clause barred these out-of-court testimonial statements unless the witness was unavailable and the defendant had a prior opportunity to cross-examine the witness. The Court declined to follow Ohio v. Roberts, which had allowed the hearsay testimony of an unavailable witness provided the testimony fit within a firmly rooted hearsay exception or otherwise contained adequate indicia of reliability.
Crawford, 541 U.S. at 38.
Crawford, 541 U.S. at 59.
448 U.S. 56, 63, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980).
Crawford, 541 U.S. at 63-65.
The State argues that Crawford did not overruleCraig by implication, citing three decisions from other jurisdictions. We find the reasoning and analysis ofState v. Blanchette persuasive. InBlanchette, the Kansas Court of Appeals rejected the defendant's argument that a Kansas statute "almost identical" to the Maryland statute in Craig was unconstitutional based on Crawford. In distinguishing Crawford, the court pointed out that "[c]losed-circuit television testimony differs from testimonial hearsay because the witness is available and subject to cross-examination." TheBlanchette court further stated, "The holding inCrawford is limited to testimonial hearsay where the defendant is denied an opportunity to cross-examine the witness, so Crawford should not apply to closed-circuit television testimony." The court noted that the constitutionality of the Kansas statute did not rest on theRoberts reliability test rejected in Crawford. As support for its conclusion, the Blanchette court relied heavily on State v. Henriod and cited several other post-Crawford decisions.
State v. Blanchette, 35 Kan. App. 2d 686, 134 P.3d 19 (2006); State v. Henriod, 2006 UT 11, 131 P.3d 232; State v. Griffin, 202 S.W.3d 670 (Mo. App. 2006). All three cases reach the same result, butGriffin applies a slightly different rationale.
35 Kan. App. 2d 686, 134 P.3d 19 (2006).
Blanchette, 35 Kan. App. 2d at 698-99.
Blanchette, 35 Kan. App. 2d at 698-99.
Blanchette, 35 Kan. App. 2d at 697.
Blanchette, 35 Kan. App.2d at 699.
2006 UT 11, 131 P.3d 232. In Henriod, the Utah Supreme Court noted that the Crawford majority opinion "not only failed to explicitly overrule Craig, but also failed to even mention it. Moreover, we do not believeCrawford implicitly overruled Craig because neither the majority nor the concurrence even discussed out-of-court testimony by child witnesses." Henriod, 131 P.3d at 237. The Henriod court further noted that
our own review of post-Crawford cases has not revealed any case holding that Crawford overruled Craig or applying Crawford to anything other than testimonial hearsay. See, e.g., United States v. Kappell, 418 F.3d 550, 554-55 (6th Cir. 2005) (favorably citing both Craig and Crawford and finding that children's testimony did not violate defendant's confrontation rights, even though testimony took place in a different room, because the defendant acquiesced, and Crawford only applied to testimonial hearsay of persons who did not testify at trial); United States v. Bordeaux, 400 F.3d 548, 554-57 (8th Cir. 2005) (applying Craig to hold that the district court's allowance of two-way, closed circuit television did not satisfy Craig and was therefore unconstitutional, and applying Crawford to child's out-of-court statements to forensic interviewer); Hammond v. United States, 880 A.2d 1066, 1099 (D.C. App. 2005) (noting that Crawford only abrogated Roberts where testimonial hearsay statements were concerned, and the Roberts reliability test was still viable in other contexts).
Henriod, 131 P.3d at 238.
See also Williams v. United States, 859 A.2d 130 (D.C. 2004) (holding that five-year-old victim's testimony via closed-circuit television was warranted); Ahmed v. United States, 856 A.2d 560 (D.C. 2004) (holding defendant's confrontation rights were not violated when the trial court allowed child victim to testify outside the presence of the defendant via closed-circuit television); Barnes v. State, 165 S.W.3d 75 (Tex. App. 2005) (record supported constitutionally required findings necessary for minor child to testify via closed-circuit television).
Koeller's position is unconvincing. He cites no authority to support his reading and application of Crawford — that closed-circuit television testimony of a child abuse witness violates the confrontation clause because "the Sixth Amendment [is] subject only to those exceptions established at the time of its ratification in 1791." In addition, Koeller fails to distinguish Blanchette, claiming only that it does not "examine in any depth the questions of whether `virtual' cross-examination provides reliable testimony." Notably, Koeller concedes that "defense counsel had the opportunity to cross-examine V.M." He also concedes that "Crawford did not expressly overruleCraig."
Because overruling by implication is disfavored and because the weight of authority supports the State's position, we conclude that Craig controls this case. Koeller's challenge to the constitutionality of RCW 9A.44.150 fails.
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (1989) ("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.").
Koeller alternatively challenges the sufficiency of the evidence to support the court's finding that V.M. would suffer serious emotional distress if required to testify in Koeller's presence. First, Koeller contends that the court must either observe or interview V.M. or receive expert testimony before it can make this finding. This argument presents a question of law that we review de novo. Second, he contends that substantial evidence does not support the trial court's finding. We reject Koeller's claim that the trial court must personally observe the child or receive expert testimony but agree that substantial evidence does not support its finding.
Craig requires the trial court to find "that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant." RCW 9A.44.150(1)(c) similarly states that the court must find "by substantial evidence . . . that requiring the child witness to testify in the presence of the defendant will cause the child to suffer serious emotional or mental distress that will prevent the child from reasonably communicating at the trial." In making this finding, the trial court may consider
Craig, 497 U.S. at 856.
the child's age, physical health, emotional stability, expressions by the child of fear of testifying in open court or in front of the defendant, the relationship of the defendant to the child, and the court's observations of the child's inability to reasonably communicate in front of the defendant or in open court.
In Craig, the Supreme Court stated the Sixth Amendment does not require a court to interview or observe a child witness before allowing the child to testify outside of the accused's presence: "Although we think such evidentiary requirements could strengthen the grounds for use of protective measures, we decline to establish, as a matter of federal constitutional law, any such categorical evidentiary prerequisites for the use of the one-way television procedure." And in Foster, our Supreme Court determined that the court's observations of the child witness's demeanor — without any expert testimony — constituted substantial evidence satisfying RCW 9A.44.150(1)(c). Furthermore, RCW 9A.44.150(1)(c) does not contain any language stating that a court must interview a child witness or consider expert testimony before ruling on a motion for testimony via closed-circuit television. Since neither federal constitutional law nor the legislative intent reflected in RCW 9A.44.150(1)(c) require the evidentiary threshold prerequisite advocated by Koeller, we decline the invitation to impose one.
Craig, 497 U.S. at 860.
Foster, 135 Wn.2d at 471.
We review the trial court's finding that V.M. would suffer emotional harm sufficient to satisfy the standards ofCraig and RCW 9A.44.150(1)(c)) under the substantial evidence standard. "Substantial evidence exists when the record contains evidence of sufficient quantity to persuade a fair-minded, rational person that the declared premise is true."
Foster, 135 Wn.2d 441 at 470-72.
Foster, 135 Wn.2d at 471.
Here, the trial court found that V.M. would suffer distress if required to testify in Koeller's presence based primarily on Williams's testimony. According to Williams, V.M. suffered from nightmares and anxiety following his examination at Harborview. She stated that V.M.'s anxiety intensified in the shower, where he cried and screamed that he did not want to close his eyes. The following exchange took place between the prosecutor and Williams:
Q: What is [V.M.'s] behavior like when confronted by the possibility of talking about Mr. [Koeller]? What does he do? How does he act?
A: He — [h]e gets very nervous. He starts to kind of dance side to side and (indicating) he's unsettled. He doesn't like to make eye contact really with me. And he'll tell me that "Mr. [Koeller's] a bad guy."
. . . .
Q: What do you think your son's reaction will be to telling his story in front of family members?
A: I don't think that he would feel free to — to tell his story at all, or he would — He may not speak at all.
Q: Why do you think that?
A: Hm. Because it took him a year to tell me anything, really, about what happened. And it was in the car with him in the back seat, me in the front seat. There was no real eye-to-eye contact. And it took him a year, six months of counseling, to open up to that point with me, his mother.
Williams further testified that V.M. drew a picture of Koeller and explained to her, "That guy is Mr. [Koeller]. He's the bad guy. And there's this kid — kid is locked in the bag. And . . . he can't get out." The court concluded that this evidence satisfied the standards of Craig and RCW 9A.44.150(1)(c).
Williams's testimony reveals that V.M. felt negatively toward Koeller. But Williams provided no testimony that V.M. was afraid to testify in Koeller's presence. Instead, her testimony indicates that V.M. experienced trauma when recalling the alleged abuse. Her testimony also shows that V.M.'s anxiety increased when he was present in areas such as the shower and that V.M. had difficulty speaking about the incident in the presence of family members. Even when viewed most favorably to the State, Williams's statements do not constitute evidence of any trauma specifically caused by Koeller's presence. At oral argument, the State conceded that the record contains no written findings of fact or conclusions of law distinguishing whether V.M. would be traumatized by Koeller's presence as opposed to being generally traumatized by testifying about the abuse. Given the complete absence of any evidence connecting any distress experienced by V.M. to the presence of Koeller during V.M.'s testimony, the court's finding is not supported by substantial evidence. Admission of V.M.'s testimony by closed-circuit television violated Koeller's rights under the confrontation clause of the Sixth Amendment and article I, section 22 of the Washington Constitution.
CONCLUSION
Koeller's challenge to the constitutionality of RCW 9A.44.150 based on Crawford fails. We agree, however, that substantial evidence does not support the court's finding that V.M. would suffer serious emotional distress if required to testify in Koeller's presence.
Reversed and remanded for further proceedings consistent with this opinion.