State v. Lanam

459 N.W.2d 656, 1990 Minn. LEXIS 231, 1990 WL 113489

• Court: Supreme Court of Minnesota
• Decided: August 10, 1990
• Docket: C8-89-95
• Status: Published

Opinions

KEITH, Justice.

Defendant, David G. Lanam, was found guilty by a district court jury of two counts of criminal sexual conduct in the first degree, Minn.Stat. § 609.342, subd. 1(a), (e)(i) (1988), for sexually abusing a 3-year-old girl while he was babysitting with her and her brothers. He received a 43-month prison sentence, which has been stayed pending appeal. The main issue is whether the trial court violated state law or the state or federal constitution in admitting out-of-court statements of the child, who was determined by the trial court to be incompetent to testify at trial, concerning the abuse. The court of appeals affirmed. State v. Lanam, 444 N.W.2d 882 (Minn.App.1989). We also affirm.

The abuse occurred during the fall of 1987 but did not come to light until later, after the child, S, was removed from her mother’s care and placed in foster care with a woman who had been providing daycare, Sharon Carlson. In response to a report that the child might have been sexually abused, Carlson read her the book Private Zones, a book aimed at teaching children the difference between “good touch” and “bad touch.” The following Monday, May 2, 1988, Carlson overheard S telling Carlson’s own child that someone had touched her private zone. When Carlson questioned her, S said “David” had done it. She then related the details of what happened, saying he had touched her “in the hole” and had “peed” in her mouth and she had “spitted it out.” S said that when she had cried because it hurt, he had slapped and spanked her and told her not to tell anyone. S said that “David” did it while babysitting at her mother's house.

A police officer and a social worker met with her and, using anatomically correct dolls, S showed them what happened. A medical examination on May 3 confirmed that S had been sexually abused. The doctor noted scarring on S’s hymen and an enlarged vaginal opening. She ruled out any disease or other condition as possible causes.

The only “David” whom Carlson knew was defendant, David Lanam, who on several occasions had picked up S and her siblings from Carlson’s house when the children were there for daycare. When Carlson asked some questions to identify who “David” was, S described him as the “David” who worked for “Pizza Hut,” a generic term S used for all pizza places. She said he lived near her house and often sat with her at her mother’s house. S subsequently pointed out defendant’s house one day as they drove by it. She also identified defendant one day as the “David” when she saw him accidentally in the hall at the courthouse on the day of a hearing.

The key issue at defendant’s trial was the issue of identity, with the defense claiming that S might have been referring to another “David” who had sat with her, David Richardson. Richardson testified, however, that he had babysat with the children only before mid-September — ie., apparently before the abuse occurred — and that he had sat with the children only at his house in the presence of his sister and mother. Moreover, he neither worked for a pizza place nor lived near S’s mother’s house. S was declared incompetent to testify but her statements were admitted substantively under Minn.Stat. § 595.02, subd. 3 (1988). Other evidence was admitted showing that defendant, and not David Richardson, fit the description provided by S: (a) evidence that defendant worked at Domino’s Pizza and that the child called all pizza places “Pizza Hut,” (b) evidence that defendant lived near S’s mother’s house, (c) evidence that only defendant, and not David Richardson, sat with her at her mother’s house, and (d) evidence concerning S’s seeing and identifying defendant in the halls of the courthouse.

1. The main issue which we address is whether the admission of S’s out-of-court statements violated defendant’s right of confrontation, guaranteed by both the Minnesota constitution and the federal constitution. Defendant contends that S’s incompetence to testify is not equivalent to unavailability and that therefore her statements should not have been admitted against him without giving him a chance to cross-examine her. He also argues that even if she was unavailable, her statements were unreliable and should not have been admitted.

S’s statements were admitted pursuant to Minn.Stat. § 595.02, subd. 3 (1988), which provides:

An out-of-court statement made by a child under the age of ten years * * * alleging, explaining, denying, or describing any act of sexual contact or penetration performed with or on the child or any act of physical abuse of the child * * * not otherwise admissible by statute or rule of evidence, is admissible as substantive evidence if:

(a) the court or person authorized to receive evidence finds, in a hearing conducted outside of the presence of the jury, that the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made provide sufficient indicia of reliability; and

(b) the child * * * either:

(i) testifies at the proceedings; or

(ii) is unavailable as a witness and there is corroborative evidence of the act; and

(c) the proponent of the statement notifies the adverse party of the proponent’s intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence to provide the adverse party with a fair opportunity to prepare to meet the statement.

For purposes of this subdivision, an out-of-court statement includes video, audio, or other recorded statements. An unavailable witness includes an incompetent witness.

Although we have the primary responsibility under the separation of powers doctrine for the regulation of evidentiary matters, we have enforced reasonable statutory rules of evidence as a matter of comity if the rules are not in conflict with the Minnesota Rules of Evidence. State v. Dana, 422 N.W.2d 246, 249 (Minn.1988). Relevant cases of this court interpreting and applying the statute include: State v. Conklin, 444 N.W.2d 268 (Minn.1989); State v. Dana, 422 N.W.2d 246 (Minn.1988); State v. Burns, 394 N.W.2d 495 (Minn.1986).

Most recently, in State v. Larson, 453 N.W.2d 42 (Minn.1990), we chose not to decide whether to construe the statute as not requiring the state to call a child de-clarant who is available. Instead, we held that the statements in that case were admissible under Minn.R.Evid. 803(24) and 803(4) even though the nontestifying de-clarant was available. In so doing we noted that the United States Supreme Court in United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986), had made it clear that the unavailability of the declar-ant is not always prerequisite to admission of hearsay evidence against the defendant in every criminal case. Larson, 453 N.W.2d at 45-46. We also held that in future cases of that kind the state must, when expressly requested by the defendant to do so, call in its case-in-chief an available witness whose hearsay statements are being admitted against the defendant. Id. at 47.

In this case the defendant concedes that the statements were admissible under the statute but contends that S's incompetence as a witness is not the equivalent of unavailability for the purpose of confrontation clause analysis. He also contends that the statements were unreliable. We see no point in discussing whether a demonstration of unavailability was required in this case, as defendant argues. Suffice it to say, although unavailability is not always prerequisite to the admission of hearsay in a criminal case, it seems clear that the United States Supreme Court is willing to admit any kind of hearsay statement despite the confrontation clause if the declarant is unavailable and the statement is sufficiently reliable. Idaho v. Wright, — U.S.-, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); 4 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 800[04] (1988) (interpreting Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980)). A witness’ testimony may be unavailable at trial for many reasons, including “incompetence, the * * * Rules of Evidence grounds for unavailability, the danger of severe psychological injury to a child victim from testifying, and an unwillingness or inability to testify.” M. Graham, The Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship, 72 Minn.L.Rev. 523, 554 (1988). See Minn. Stat. § 595.02, subd. 1(1) (1988); Minn.R. Evid, 804(a).

A witness is not “unavailable” under Roberts unless the prosecutor has made a “good faith effort” to produce the witness. Ohio v. Roberts, 448 U.S. at 74-75, 100 S.Ct. at 2543. In this case the prosecutor clearly wanted to use S’s testimony at trial and produced S at the required competency hearing. When the trial court ruled S incompetent, the prosecutor differed with the trial court as to the meaning of S’s responses, apparently in an effort to persuade the court that she was competent. The defense, on the other hand, did not object to the determination that she was incompetent. Under these circumstances and based on the record and all the other facts, we conclude that S was unavailable for the purpose of confrontation clause analysis. In other words, to use the words of the United States Supreme Court in Idaho v. Wright, — U.S. -, -, 110 S.Ct. 3139, 3147, 111 L.Ed.2d 638 (1990), without deciding that the general requirement of unavailability applies, “to the extent the unavailability requirement applies in this case, [the child] was an unavailable witness within the meaning of the Confrontation Clause.”

We also reject defendant’s argument that S’s out-of-court statements were unreliable. Specifically, defendant argues that S’s incompetence to testify concerning the abuse indicates that her out-of-court statements concerning the abuse were of questionable reliability.

In determining competency of a child, the trial court must determine whether the child understands the nature and obligations of an oath and whether the child has “the capacity to remember or to relate truthfully facts respecting which the child is examined.” Minn.Stat. § 595.02, subd. 1(1) (1988). The latter requirement does not mean that the court is to question the child on the details of possible testimony, but rather means that the court should determine in a general way whether the child remembers or can relate events truthfully. The jury will judge the child’s credibility and decide the weight to assign the testimony. A competency hearing is not a credibility hearing. Competency concerns the child’s ability to be truthful and to understand the importance of telling the truth in court. It also concerns the child’s ability to remember and relate events. Whether a child is easily led goes more to credibility than to competency. Even adults at trial become inconsistent upon cross-examination. It is the jury’s province to sort out the inconsistencies and determine credibility, the court’s province to determine competency. Where the court is in doubt as to the child’s competency, it is best to err on the side of determining the child to be competent.

In concluding that S was incompetent, the trial court made certain statements which defendant argues cast doubt on the reliability of S’s out-of-court statements describing the abuse. In support of this argument, defendant relies on State v. Ryan, 103 Wash.2d 165, 173, 691 P.2d 197, 203 (1984), but Ryan indicates that out-of-court statements by a child later determined to be incompetent to testify are unreliable only if the child was also incompetent at the time the statements were made. Id. Here, the trial court did not determine that S was incompetent at the time she made her statements about the abuse.

Whether or not a child’s statement is sufficiently reliable under section 595.02, subd. 3(a), requires, in the words of the statute, an examination of the “time, content, and circumstances of the statement and the reliability of the person to whom the statement is made.” See State v. Dana, 422 N.W.2d 246, 248-50 (Minn.1988) (holding hearsay statement of incompetent child admissible because it was reliable as determined by trial court looking at circumstances under which statement was made); cf. State v. Daniels, 380 N.W.2d 777, 783 (Minn.1986) (admitting excited utterances by young children despite their having been ruled incompetent to testify); State v. Gorman, 229 Minn. 524, 526-27, 40 N.W.2d 347, 348-49 (1949) (upholding admission of reliable excited utterance of child despite child’s having been ruled incompetent to testify); Ball v. Gessner, 185 Minn. 105, 108, 240 N.W. 100, 101 (1931) (upholding admission of hearsay as reliable although child incompetent to testify). More recently, in State v. Conklin, 444 N.W.2d 268, 276 (Minn.1989), we enumerated the factors that a trial court should consider in analyzing the reliability of out-of-court statements under the statute:

[T]he court must consider, among other things, the spontaneity of the statements, the consistency of the statements, the knowledge of the declarants, the motives of the declarant and witnesses to speak truthfully and the proximity in time between the statement and the events described. * * * The court also should consider possible suggestiveness created by leading questions, particularly by a parent or close authority figure; and should evaluate corroborating factors, such as whether the declarant has recanted or reaffirmed the statement and also any corroborating physical evidence.

Subsequent to our decision in Conklin, the United States Supreme Court in two recent cases has dealt with important confrontation clause issues in the context of prosecutions for child abuse. In Maryland v. Craig, — U.S.-, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), a prosecution of a defendant for sexually abusing a 6-year-old child, the Court upheld the use of a closed-circuit television procedure to facilitate the child’s testimony after the trial court made a case-specific determination that the use of the procedure was necessary to protect the child from the emotional trauma of testifying in the defendant’s presence. Accord State v. Conklin, 444 N.W.2d 268, 272-74 (Minn.1989). More directly relevant to this case is the Court’s recent decision in Idaho v. Wright, — U.S.-, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). In Wright, the Court dealt with the issue of the admission pursuant to Idaho’s residual exception to the hearsay rule of out-of-court statements by a 2W-year-old child sex abuse victim who was ruled incompetent to testify at trial because she was not capable of communicating with the jury. The Court, as it has before, distinguished between extrajudicial statements admitted pursuant to a so-called firmly-rooted traditional exception to the hearsay rule (e.g., statements admissible pursuant to the “medical treatment” exception) and statements admissible pursuant to a residual exception which “accommodates ad hoc instances.” Id. at -, 110 S.Ct. at 3147. Statements admitted under a firmly-rooted exception satisfy the confrontation clause’s requirement of reliability “because of the weight accorded long-standing judicial and legislative experience in assessing the trustworthiness of certain types of out-of-court statements.” Id. at-, 110 S.Ct. at 3147. On the other hand, statements admissible under a state's residual exception satisfy the confrontation clause reliability requirement only if the state establishes that the totality of the circumstances surrounding the making of the statements show the statements were “sufficiently trustworthy” — that is, that it is “particularly likely” that the declarant was telling the truth at the time of making the statements. Id. at-, 110 S.Ct. at 3149-50. Stated differently, the focus is not on all the circumstances, including evidence at trial corroborating the child’s statements, but only on those circumstances actually surrounding the making of the statements. These circumstances include, but are not limited to, whether the statements were spontaneous, whether the person talking with the child had a preconceived idea of what the child should say, whether the statements were in response to leading or suggestive questions, whether the child had any apparent motive to fabricate, and whether the statements are the type of statements one would expect a child of that age to fabricate. Id. at-, 110 S.Ct. at 3449-52. Significantly, the Court rejected the contention that a child’s extrajudicial statements are per se unreliable for confrontation clause purposes on the ground that the trial court determined the child to be incompetent to testify at trial. Id. at -, 110 S.Ct. at 3151-52. Indeed, the Court said that although a child’s incompetence to testify at trial might be relevant to a determination of whether the child’s statements possessed particularized guarantees of trustworthiness, a trial court’s admission of the statements under a residual hearsay exception carries with it the implied determination that the child was capable of receiving just impressions of facts and relating them truthfully at the time of the making of the statement. Id. at-, 110 S.Ct. at 3151-52.

We believe that the trial court’s determination of reliability in this case was justified. S made her initial statement regarding the abuse spontaneously to other children in the foster home. Then, when questioned by her foster mother and others, she consistently described the abuse and said that “David” did it. Details varied, as did statements regarding exactly when the abuse happened, but the basic story remained unchanged. Carlson, the foster mother, had several children of her own, had been a foster mother for 20 years, and had no motive to falsely implicate defendant. When Carlson questioned S in a nonleading way, S said “David” had done it and described him as the “David” who worked for “Pizza Hut,” a generic term S used for all pizza places. S also said “David” lived near her house and often sat with her at her mother’s house. As we said earlier, S subsequently pointed out defendant’s house one day as they drove by it. She also identified defendant as the “David” when she saw him accidentally in the hall at the courthouse on the day of a hearing. Significantly, S had no apparent motive to fabricate. Further, the statements were not the type of statements one would expect a child of S’s age to fabricate. Considering the totality of the circumstances relating to the making of the statements, we conclude that the state’s evidence established that the child’s statements were sufficiently reliable for confrontation clause purposes.

Because S’s testimony was unavailable and because her out-of-court statements were sufficiently reliable, we conclude that the trial court properly admitted her statements pursuant to the statute and that defendant’s right of confrontation, guaranteed by both the Minnesota Constitution and the United States Constitution, was not violated.

2. Defendant’s only other contention is that the evidence was insufficient to support his convictions. The only real issue at the trial was whether it was defendant or the other “David” who committed the abuse. The foster mother, Carlson, believed that the “David” S was referring to was defendant because defendant had come to the house and picked up S and her siblings when the children were there for daycare. Other evidence was admitted showing that defendant, and not David Richardson, fit the description provided by S: (a) defendant worked at Domino’s Pizza, and S called all pizza places “Pizza Hut,” (b) defendant lived near S’s mother’s house, (c) only defendant, and not David Richardson, sat with S at her mother’s house, and (d) S identified defendant upon seeing him in the halls of the courthouse. Viewing the evidence in the light most favorable to the verdict and assuming the jury believed the witnesses for the state and disbelieved any contrary evidence, State v. Bias, 419 N.W.2d 480, 484 (Minn.1988), we conclude that the evidence was sufficient. The jury could give substantive effect to the statements of S and could believe Carlson’s testimony, the medical testimony, and Richardson’s testimony. The jury was free to disbelieve the testimony of defendant and S’s mother.

Affirmed.