State v. Larson

472 N.W.2d 120, 1991 Minn. LEXIS 165, 1991 WL 124910

• Court: Supreme Court of Minnesota
• Decided: July 12, 1991
• Docket: C2-88-2379
• Status: Published

Opinions

COYNE, Justice.

In State v. Larson, 453 N.W.2d 42 (Minn. 1990), we affirmed the child sex abuse conviction of the defendant against a number of contentions, including the contention that extrajudicial statements by the complainant were improperly admitted against the defendant in violation of his right of confrontation. We decided Larson on March 23, 1990, and denied defendant’s petition for rehearing on May 15, 1990. Subsequently, on June 27, 1990, the United States Supreme Court filed its opinion in Idaho v. Wright, — U.S. —, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). Then on October 1,1990, the United States Supreme Court granted defendant’s petition for a writ of certiorari, vacated the judgment of this court and remanded the case to this court for “further consideration in light of” the Wright case. Larson v. Minnesota, — U.S. —, 111 S.Ct. 29, 112 L.Ed.2d 7 (1990). The parties thereafter filed further briefs and oral argument was held. After careful reconsideration of the case in light of Wright, we reaffirm the judgment of conviction.

In late April of 1987 complainant, B., not quite 4 years old, complained to her mother of vaginal soreness and burning urination. On May 1, B.’s mother, who had custody of the child subject to defendant father’s visitation privileges, took her to a family practice clinic for diagnosis and treatment. The physician’s assistant, who conducted the examination, saw redness and swelling around the vaginal opening. Suspecting abuse, the examiner, after assuring B. that she was there to “assist her,” asked B. if anyone other than her mother or herself had touched her vaginal area. B. initially responded “no” and turned away. When the examiner repeated the question, B. said “yes,” that “Daddy” had touched her there. When the examiner asked whether her daddy had touched her there to help wipe her or dry her, B. said “yes,” but then, when asked “where,” pointed to her abdomen. When asked with what he had touched her, B. replied that “Daddy” had touched her “between [the] legs” with “his bone” that “came out of his pants.” Asked whether this had happened before, B. said “yes,” that “he laid me on the couch and he rubbed my belly * * * until my skin came off.” B. further stated that it hurt “because he pressed hard against her tummy and hugged her real hard,” and that she had asked him to stop. She further described feeling wet on her abdomen and having to wipe herself dry afterwards. Although B. apparently told her mother when the examiner briefly left the room that she was “only kidding,” B. immediately recanted this to the examiner and explained that “she didn’t want to have her father in trouble.” Indeed, the examiner observed that B. was “very nervous and very protective of her father,” whom B. “obviously loved.”

Visits were temporarily discontinued pursuant to a court order obtained on May 2 in the district court in the county where defendant resides.

On May 7, B. made equally damaging statements to a child protection specialist.

Defendant retained an attorney and obtained a court order in June allowing supervised visits.

A doctor who talked with B. four times as part of a psychological evaluation concluded that there was a “high probability” that she had been involved in “inappropriate sexual activity.”

Nonetheless, on July 31, 1987, the court ordered reinstatement of defendant’s unsupervised visitation privileges.

In August B. began weekly psychotherapy with Dr. Susan Lund, a clinical psychologist specializing in the treatment of abused children who is employed at Midwest Children’s Resources Center. These one hour long weekly sessions, conducted largely outside the mother’s presence, were for the purpose of therapy, not substantiating the existence of abuse. During a session held on October 22, 1987, B., prompted by Dr. Lund’s questions about B.’s trouble with waking and with nightmares, particularly at defendant’s house, said that defendant “pushed at her with his penis and wiggled his penis on her.” Using anatomically correct dolls, B. demonstrated by pushing the father doll’s penis “at her [doll’s] vaginal area” and “wigglfing] his penis horizontally across the clitoris.” B. said that this “felt warm and nice.” She said it happened during the recently reinstated unsupervised visits.

Hennepin County, the county of the mother’s residence, obtained an order assuming custody of both B. and her younger brother and terminating defendant’s visitation privileges. A social worker and a police officer interviewed B. in November. The prosecution was commenced in December of 1987 in Martin County where the abuse occurred.

The pre-trial suppression hearing was held in June of 1988 shortly before trial was to commence. That hearing was held on the state’s motion for permission to use the extrajudicial statements of B. and on defendant’s motion to suppress the statements on the ground that admitting them would violate defendant’s right of confrontation. For purposes of the suppression hearing the parties stipulated that B., then 5, was incompetent to testify. The trial court rejected defendant’s arguments in favor of suppression and ruled that the statements were admissible under Minn.Stat. § 595.02, subd. 3 (1988). Afterward, the trial court granted the defense a continuance so that the defense could try to obtain expert testimony and also so the defense could decide whether to call B. to testify.

At the reconvened suppression hearing in August, shortly before the rescheduled trial date, defendant renewed his suppression motion, relying on Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). The trial court ruled that Coy did not apply.

On the first day of trial defendant made a continuing objection to the statements on the ground that their admission would violate his right of confrontation. Defendant also said he intended to call B. as a witness. The trial court therefore conducted an in-chambers competency hearing and determined that B. was competent, thereby enabling defendant to call B. as a witness if he wished. Defendant, however, decided not to call B. as a witness.

In our earlier decision we held, inter alia,1 that the statements were admissible under Minn.R.Evid. 803(24) (the residual exception) and Minn.R.Evid. 803(4) (statements for purpose of medical diagnosis or treatment) and that the statements were sufficiently reliable to satisfy the confrontation clause. But, since our decision preceded the United States Supreme Court’s decision in Wright, we did not have the benefit of the Wright analysis, an analysis on which we relied in upholding the admission of extrajudicial statements of a child sex abuse victim in State v. Lanam, 459 N.W.2d 656 (Minn.1990), cert. denied, — U.S. —, 111 S.Ct. 693, 112 L.Ed.2d 684 (1991).

In Wright there were two girls involved, one 5½ and the other 2½ years old. The older girl told her father’s female companion, Goodman, that her mother’s boyfriend, Giles, had had sexual intercourse with her while her mother covered her mouth and held her down. She said she had seen them do the same thing to her younger sister. Goodman reported the matter to the police and took the older daughter to the hospital, where a medical examination revealed evidence of sexual abuse. Police and welfare officials then took the younger daughter into custody. The same doctor who had examined the older daughter examined the younger daughter.

The main issue in Wright, for our purposes, was whether the admission at trial under the Idaho residual exception to the hearsay rule of statements made by the younger girl to the doctor violated the mother’s right of confrontation. The Court reaffirmed that the “indicia of reliability” requirement of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), generally can be met by either of two ways: by demonstrating that the extrajudicial statement “falls within a firmly rooted hearsay exception,” or by showing that the statement has “particular guarantees of trustworthiness.” Wright, 110 S.Ct. at 3147. The Court cited the “excited utterance,” “dying declaration” and “medical treatment” exceptions to the hearsay rule as firmly-rooted hearsay exceptions, but concluded that the so-called residual hearsay exception, illustrated by Minn.R.Evid. 803(24), is not firmly rooted for confrontation clause purposes. Id. at 3147-49. Since the state in Wright conceded that the younger daughter’s statements did not fall within a firmly-rooted exception, the Court proceeded to analyze whether the statements possessed “particular guarantees of trustworthiness.” Id. at 3148. The Court said that trustworthiness guarantees must be shown from the totality of the circumstances that surround the actual making of the statement, not evidence corroborating the statement. Id. at 3148-49. As we said in Lanam in our summary of Wright:

“[T]he 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.”

459 N.W.2d at 661 (citing Wright, 110 S.Ct. at 3149-52). Other circumstances identified by the Court in Wright include the “mental state” of the child at the time the statements were made and the “consistent repetition” of the child’s statements during the same interview or conversation. 110 S.Ct. at 3150. In addition to considering whether the child had an apparent motive to fabricate, it would seem that the Court could consider whether the child had an apparent motive to speak truthfully. State v. Conklin, 444 N.W.2d 268, 276 (Minn. 1989) (case preceding Wright).

Mosteller, Child Sexual Abuse and Statements for the Purpose of Medical Diagnosis or Treatment, 67 N.C.L.Rev. 257 (1989), cited in Wright, 110 S.Ct. at 3149, points out that the federal rule corresponding to Minn.R.Evid. 803(4) (statements for purpose of medical diagnosis or treatment) is broader than the traditional or long-standing “medical treatment” exception and suggests that possibly only statements covered by the “core” part of Rule 803(4) are admissible without a showing of particularized guarantees of trustworthiness. We believe that the key hearsay evidence in this case, B.’s statements to the medical assistant, falls within the “core” part of Rule 803(4) and should be admissible without any additional showing of particular guarantees of trustworthiness. However, we need not decide the point because we are convinced, after considering the factors surrounding B.’s making of the statements to the assistant, that the statements possessed particular guarantees of trustworthiness.²

One key factor is that, unlike the declar-ant in Wright, there is nothing to indicate that B. was taken to the family practice clinic for any purpose other than to have a doctor examine her and determine the reason for the vaginal soreness and burning urination she was experiencing. B. knew she was being examined in a doctor’s office and had the same “selfish” treatment-related motive³ to speak the truth that anyone has when one goes to a doctor’s office sincerely inquiring about one or more symptoms. Second, before beginning the exam the physician’s assistant had no preconceived notion that abuse had occurred or that defendant had committed the abuse. Third, on examination the assistant, a person of both experience and presumed integrity, apparently immediately suspected abuse. Fourth, the questions the assistant asked were not the kind of questions that would prompt a child to fabricate the response the questions elicited, including B.’s statement that “Daddy” had touched her “between the legs” with his “bone” that “came out of his pants.” Fifth, the story B. told had an immediately apparent “ring of credibility” to it and was not the sort of story that a child of that age would be expected to fabricate. Sixth, B. had no apparent motive to fabricate the claim of abuse. Indeed, just the opposite, she made it clear that she did not want to hurt defendant. Seventh, the assistant, who as we said before is a person of experience and presumed integrity, obviously believed the child.

Of B.’s statements, those made to the physician’s assistant clearly were key. B.’s subsequent statements were largely cumulative evidence, evidence which at a minimum was admissible for the non-hearsay purpose of showing that B. was consistent in her allegations of abuse by defendant. See Minn.R.Evid. 801(c) (defining “hearsay” as a statement, other than one made by the declarant while testifying at the trial or hearing, “offered in evidence to prove the truth of the matter asserted”). Although we conclude that any error in admitting the subsequent other statements as substantive evidence of guilt was harmless beyond a reasonable doubt, we nonetheless have analyzed the admission of these statements under Wright.

Of B.’s other statements, those made to the child protection specialist on May 7, to Dr. Lund during therapy, and to the social worker and the police officer on November 24 — the least troubling, of course, are the ones made to Dr. Lund during therapy. Those statements were for the purpose of therapy, not the purpose of substantiating the existence of abuse, and were admissible under the “medical treatment” exception, Rule 803(4), which is a firmly-rooted hearsay exception. However, even if the statements were not admissible pursuant to a firmly-rooted hearsay exception, there were “particular guarantees of trustworthiness” sufficient to satisfy the Wright confrontation clause analysis. On October 22, 1987, Dr. Lund was questioning B. about B.’s trouble with waking and with nightmares, particularly at defendant’s house, when B. said that defendant “pushed at her with his penis and wiggled his penis at her.” B., of course, had a “selfish” treatment-related motive for being truthful with Dr. Lund since the purpose of the weekly sessions, of which B. was obviously aware, was to provide therapy for B. Moreover, there is nothing in the record to indicate that Dr. Lund used leading or suggestive questions. Indeed, the weekly sessions began in August and it was not until October 22 that Dr. Lund, using nonleading questions during the discussion of nightmares, elicited the statements. B.’s “acting out” of rescue themes, e.g., adult female dolls rescuing trapped child dolls, immediately following her revelations further enhances the reliability of the statements, as does the fact that B.’s behavior at the time she made the statements was, in the doctor’s considerable experience, consistent with that of sexually abused children of that age. In addition, B.’s statements and her demonstration of the sexual abuse using the dolls were certainly not what one would expect from a child of B.’s age who had not been sexually abused. State v. Sorenson, 143 Wis.2d 226, 246, 421 N.W.2d 77, 86 (1988), the case cited in Wright for this factor, expressly noted the reliability engendered by a child’s crude depiction of sexual abuse with anatomically correct dolls and a child’s description of wiping herself off. Here, B. used the dolls to demonstrate in detail the positions and movements of defendant and herself during the alleged abuse.

The case is almost as strong for the admission of B.’s statements to the child protection specialist on May 7. The child protection specialist testified as to her awareness of the problem of using leading questions with children and there is no indication that she used leading or suggestive questions. B. said that “someone” had put his penis “between her legs and up her butt.” She used anatomically correct dolls to demonstrate the abuse, showing herself on her back and her abuser “on top of her, face-to-face.” B. would not say who that “someone” was because “she loved her Daddy and she didn’t want him to get into trouble.” But she said the abuse happened on the living room couch “in her Daddy’s house.” Later, while crying quite heavily, she volunteered that even though “her Daddy had promised it would never happen again and he was sorry,” the abuse had reoccurred. In concluding that B.’s statements to the child protection specialist were admissible under the Wright analysis, we rely on some of the factors that we cited in our analysis of the statements to the medical assistant during the initial examination and the statements to the clinical psychologist during the weekly therapy sessions: nonleading questions were asked; the child seemed not motivated to “get” defendant but rather to protect him; the conduct described and demonstrated was not the kind of conduct a child that age would normally be able to describe and demonstrate unless the child had been the victim of sexual abuse. We also note that B.’s emotional state (“crying hysterically”) upon making the allegations to the child protection specialist reinforces our conclusion that the statements were sufficiently reliable for confrontation clause purposes.

While we cannot say that B.’s statements to the social worker on November 24 were unreliable, because some of the factors indicating reliability were present, we are nevertheless reluctant to conclude that the statements made on that day were sufficiently reliable to satisfy the Wright test. The initial questions by the police officer, who was present and participated in the interview, were leading questions that began with the premise that “Daddy hurt” B. The questions asked by the participants were often repetitive and leading, B.’s responses were not particularly spontaneous, and B.’s emotional state appeared almost completely unaffected by her revelations at that time. Because of these factors as well as the documented dangers ⁴ of the “tag team” approach to interviewing children and the repeated questioning of children and because of the ambiguity in B.’s responses, the circumstances do not sufficiently establish the reliability of these particular statements under Wright. However, any error in admitting the statements made on November 24 clearly was harmless error beyond a reasonable doubt.

We conclude that all of the extrajudicial statements except those statements made on November 24 were properly admitted under the Wright analysis, and we are satisfied that defendant received a fair trial and was properly convicted of the offense in question. We therefore reaffirm the judgment of conviction.

Affirmed.

1 . In Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980), the Court set forth a "general approach” for determining when incriminating hearsay statements admissible under an exception to the hearsay rule satisfy the requirements of the Confrontation Clause. Under the general approach the prosecution "must either produce, or demonstrate the unavailability of, the declarant", 448 U.S. at 65, 100 S.Ct. at 2538, and must demonstrate that the declarant’s statement bears adequate “indicia of reliability,” 448 U.S. at 66, 100 S.Ct. at 2538. However, as we said in Larson I, the Court in United States v. Inadi, 475 U.S. 387, 394, 106 S.Ct. 1121, 1125-26, 89 L.Ed.2d 390 (1986), made it clear that "the unavailability of the declarant is not always prerequisite to admissibility of hearsay evidence against the defendant in a criminal case.” 453 N.W.2d at 46. In Inadi the Court made an exception to the general unavailability requirement in a case involving admission of statements by nontestifying but available co-conspirators of the defendant. The Court said that the unavailability rule was developed in cases involving admission of former testimony, where there is good reason for a rule of preference for the live testimony unless the witness is shown to be unavailable, specifically, "former testimony often is only a weaker substitute for live testimony [and] seldom has independent evidentiary significance of its own.” 475 U.S. at 394, 106 S.Ct. at 1126. The same logic does not apply equally to those extrajudicial statements which derive much of their significance from the context in which they are made, a context very different from trial. Id. at 395-96, 106 S.Ct. at 1126. The Court rejected an unavailability requirement in the Inadi context because it would impose a significant practical burden on the prosecution to insure the availability of declarants even where it was clear neither the prosecutor nor the defense wished to examine the declarants at trial. As the Court put it:

Any marginal protection to the defendant by forcing the government to call as witnesses those co-conspirator declarants who are available, willing to testify, hostile to the defense, and yet not already subpoenaed by the prosecution, when the defendant himself can call and cross-examine such declarants, cannot support an unavailability rule. We hold today that the Confrontation Clause does not embody such a rule.

Inadi, 475 U.S. at 399-400, 106 S.Ct. at 1128-29. We concluded that the same reasoning applied in this case. As we put it:

As in Inadi, it is not at all clear that it was in the interests of the defendant that the de-clarant be called by either side. It may well have been better for the defendant to go to the jury and challenge the ambiguity of the child's statements (when she said that the abuse occurred in defendant’s house but would not say who did it) than to have the child called and possibly testify in court that it was defendant who did it.

Larson I, 453 N.W.2d at 45-46.

Given the circumstances of the case — including the fact that the statements in question had independent evidentiary significance, the fact that the trial court had conducted a competency hearing and found B. to be competent after the defense expressed a desire to confront the child and cross-examine her, and the fact that the defense, after apparently considering the matter carefully, demonstrated that it did not wish to call B. — we concluded that the Inadi reasoning made equal sense in this context. Id. at 46.

However, because we recognized "that a defendant who wants to cross-examine an available child witness whose extrajudicial statements are being used by the state should not be compelled to call the child as a witness if the defendant would prefer that the state call the witness," we prospectively adopted a modified version of the approach suggested by Professor Westen and held that “in future cases of this 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." IcL at 47 (emphasis in original), citing Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv. L.Rev. 567, 617-18 (1978).

The interpretation of Roberts and Inadi by the dissenting justice, who was not a member of this court when we filed our earlier opinion, is at odds with that advanced by leading commentators. For example, Professor Haddad, in his analysis of these cases, concludes, contrary to the conclusion of the dissent, that the Supreme Court “has rejected the principle that prefers live testimony over hearsay when the hearsay declarant is available at the time of trial." J. Haddad, The Future of Confrontation Clause Developments, 81 J.Crim.L. & Criminology 77, 80-81 (1990). As Professor Haddad puts it, “After seemingly accepting" a rule of preference in ' Roberts, “the Supreme Court in Inadi held that the rule of preference applies only in a narrow class of cases.” Id. at 81. He goes further and suggests that “[t]he former testimony exception will likely stand practically alone as to the requirement that the prosecution demonstrate the hearsay declarant's unavailability.” Id. at 82.

Professor Michael Graham, in a perceptive article analyzing Roberts and Inadi, concludes that “Inadi supports the introduction of any available declarant’s statement simply because of the defendant’s ability to subpoena and examine the declarant as to the subject matter of the statement at trial." M. Graham, The Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship, 72 Minn.L.Rev. 523, 587 (1988). Professor Graham argues, however, for a rule requiring the prosecutor offering an out-of-court statement under either a hearsay exemption or exception to produce an available witness “if the circumstances surrounding the making of the statement indicate that it was accusatory when made.” Id. at 593. In fact, our earlier decision in this case went farther than this and adopted a prospective rule, as a matter of state evidentiary law rather than as a matter of constitutional law, requiring the prosecutor, when expressly requested by the defendant to do so, to call in the state's case-in-chief an available witness whose hearsay statements are being admitted against the defendant. Larson I, 453 N.W.2d at 47.

As noted by the editors of the Harvard Law Review, Wright focused on the issue of reliability, not on whether a showing of unavailability is a prerequisite to admission of a child’s hearsay statements. Note, 104 Harv.L.Rev. 129, 130-31, 138 (1990). Although they argue in favor of a narrowly-defined unavailability requirement in this context, they conclude that it is “unclear” from the several confrontation clause decisions of the Supreme Court whether a showing of unavailability is required. Id. at 138, n. 77. Indeed, the Court in Wright expressly said that it was not addressing the question. Wright, 110 S.Ct. at 3147. And since the Court declined to address the issue in Wright, it can hardly be said to have altered its position by the Wright decision. (It appears that the Court will address the question in People v. White, 198 Ill.App.3d 781, 144 Ill.Dec. 857, 556 N.E.2d 535, leave to appeal denied, 133 I11.2d 570, 149 Ill.Dec. 335, 561 N.E.2d 705 (1990), cert, granted, — U.S.-, 111 S.Ct. 1681, 114 L.Ed.2d 76 (1991)).

In any event, as we have said, our earlier decision in this case answered the concerns of those thoughtful analysts of the confrontation clause who have argued that if a witness is "available,” the prosecutor should have to produce the witness so that the defendant does not have to call the witness in order to confront and cross-examine the witness. We did this by requiring, prospectively, as a matter of state evi-dentiary law that when the defendant so requests, the prosecutor must call in the state’s case-in-chief an available witness whose hearsay statements are being admitted against the defendant. Interestingly, the Eighth Circuit in United States v. Massa, 740 F.2d 629, 640 n. 6 (8th Cir.1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985), concluded that Roberts does not require as much. It concluded that at most Roberts places a burden on the government to make a good faith effort to obtain the presence at trial of any witness whose out-of-court statements it is using against the defendant and that if the government obtains the declarant’s presence at trial, "it need not call the witness to testify." Id. Whether or not the Eighth Circuit’s analysis in Massa is correct really does not matter in this case, because, as we said, the defense not only did not ask the prosecutor to call the witness but, after apparently considering the matter carefully, made it clear that it did not wish to confront and cross-examine her.

2 . We disagree with any suggestion that the case should be remanded to the trial court so that the trial court in the first instance may analyze the case in terms of the Wright factors. The "heart of the matter of determining whether to admit hearsay is that unreliable evidence should be kept from the jury,” which is a “legal determination * * State v. Dana, 422 N.W.2d 246, 249 (Minn.1988). "Of course, if there is a question of fact relating to the admission of hearsay evidence,” then "the trial court will often receive evidence pro and con on the issue.” Id. Because there are no significant disputed factual issues relating to the circumstances surrounding the making of the statements in question, there is no need to remand to the trial court.

3 . See Mosteller, Child Sexual Abuse and Statements for the Purpose of Medical Diagnosis or Treatment, 67 N.C.L.Rev. 257, 260-61 (1989).

4 . See Minnesota Attorney General’s Report on Scott County Investigation, February 12, 1985.