State v. S.J.W.
State v. S.J.W.
Opinion of the Court
¶1 S.J.W. appeals his conviction for third degree rape. He contends that the juvenile court erred in ruling that the victim, W.M., who was 14 years old at the time of trial, was competent to testify under State v. Allen
¶2 W.M. is developmentally delayed due to a seizure disorder and requires constant supervision. During the fall of 2007, W.M.’s parents paid S.J.W., who was a neighbor and friend of W.M., to watch him once a week. At the time of the incident, both were 14 years old.
¶3 On October 3, 2007, S.J.W. watched W.M. for about 45 minutes until W.M.’s father returned from work about 5:50 p.m. W.M.’s father heard S.J.W. leaving the house and found his son in the bathroom dressing himself. When asked by his father what he was doing, W.M. replied, “I’m getting dressed. Like [S.J.W.].” Then he told his father S.J.W. had “stuck his pee-pee in his butt.” W.M. repeated this when his father asked him a second time.
¶4 After receiving a call from W.M.’s father, S.J.W.’s mother returned with S.J.W. to W.M.’s house around 6:15 p.m. W.M.’s father phoned the police and spoke with Officer Patrick Horn. Horn also spoke with S.J.W. over the phone, and according to Horn, S.J.W. admitted having sexual contact with W.M. When Horn arrived at the house, W.M.’s father stated that he wanted to file a report but not do “anything further.” Horn then asked to speak with S.J.W. and his mother privately, and W.M.’s father showed them to the master bedroom. S.J.W.’s mother closed the door, and she and Horn stood a few feet from S.J.W., who sat on the bed.
¶5 Horn testified that he read S.J.W. his Miranda rights before questioning him. But W.M.’s father and S.J.W.’s mother testified that Horn advised S.J.W. of his Miranda rights after questioning him, and the court found their testimony credible. At the interview, S.J.W. chose not to answer some of Horn’s questions, but he admitted having oral and anal intercourse with W.M. He also told Horn that
¶6 Horn next interviewed W.M. and both of his parents in the bedroom.
¶7 At the CrR 3.5 confession hearing on May 2, 2008, the court ruled that Horn’s interview with S.J.W. was noncustodial based on the following facts: (1) S.J.W. was in a private residence, (2) S.J.W. did not answer some of Horn’s questions, (3) S.J.W.’s mother was present during the interview, (4) S.J.W.’s mother shut the bedroom door at the start of the interview and later opened the door to call W.M.’s father into the room when she became upset, (5) W.M.’s father remained in the room, and (6) S.J.W.’s mother terminated the interview when Horn attempted to obtain a written statement. The court concluded that S.J.W.’s statements at the interview were voluntary and admissible.
¶8 At the competency hearing on May 6, 2008, S.J.W. called Dr. Sidney Sparks, W.M.’s pediatrician. On direct examination, Sparks was asked, “[W]hen you question a child, is there a particular manner in which you go about it?” The State objected, and the court sustained, stating that it was “not so concerned about how [W.M.] was questioned.” Sparks then described W.M.’s abilities, opining that he functioned at a mental level comparable to a four- to
I don’t know that I’ve ever specifically thought about whether he knows the difference between true and not true. I have thought about whether he is able to relate to me all the pieces of information I need and whether I can trust the ones he gives. Particularly in regard to time, he has difficulty.
f9 W.M.’s father also testified that it “takes a while to get a true, accurate story out of [W.M.].” For example, he stated that his son once said that they had been at a park in the evening when, in reality, they had been there in the morning. Another time, W.M. talked about an airplane trip to Milwaukee that they had never taken. Similarly, after a football game, W.M. told his father that certain people had been there when they had not. W.M.’s father did not specify when these events occurred.
¶10 W.M.’s mother provided other examples in her testimony. She related how W.M. had been able to remember a baseball score but inaccurately reported that the Mariners won “because he wants them to win.” She also described how W.M. often does not remember what he ate for lunch. On another occasion, W.M. was unable to repeat information to a doctor immediately after it was given to him. Although he remembered the information “perfectly” the next day, he could not recall it after that day. W.M.’s mother did not specify when these events occurred.
¶11 The State did not call any witnesses, and the trial court did not examine W.M. Based on the evidence presented, the court found W.M. competent. The court first explained that in applying the Allen test, the burden to demonstrate W.M.’s incompetency rested on S.J.W. “When a child is over 14, there is a presumption that that child is competent. So there has to be the burden on the person who is saying that person is not competent to show by a
[T]he types of issues you’re bringing up go to the credibility of this particular witness. . . .
But I’ve not heard anything about the “events in question.” I’ve heard about lunches. I’ve heard about a Mariners game. I heard about some other situations which are, you know, troubling. And I think will be troubling to a jury. But not necessarily about the events in question. And that’s what I have to look at.
As long as the child is able to demonstrate an independent recollection of the events in question and has the ability to describe them, then the child’s equivocal or inability to recall details or to recall other things goes to the weight of the testimony.
. . . There just has not been that finding by a preponderance of the evidence that the child is unable to recollect the events in question.
¶12 At the bench trial on the next day, the State called W.M. W.M. testified that Horn had come to his house “because [S.J.W.] put his peanuts in my butt.” When asked to clarify what he meant by “peanuts,” W.M. pointed to his groin. The prosecutor then asked W.M. whether he consented to having sexual intercourse with S.J.W.
Q: What did you tell [S.J.W.]?
A: Stop. Stop doing that.
Q: Why did you tell him to stop doing that?
A: Because he was doing something to me.
Q: Did you want him to do that?
A: No.
After intercourse, W.M. said, “I cried.” But W.M. gave inconsistent answers when asked if he had performed oral intercourse on S.J.W. He also said that when he told S.J.W. to stop, he was playing video games. Later, he said he was playing basketball.
¶13 Additional witnesses called by the State included W.M.’s father, Horn, and Carl Seim, a police detective who
¶14 The court found S.J.W. guilty of third degree rape under RCW 9A.44.060(l)(a).
Discussion
I. Competency Determination
¶15 S.J.W. contests the court’s competency ruling on grounds that it erred in placing the burden on him to establish W.M.’s incompetency. He argues that when the
¶16 In Washington, “[t]he competency of a child witness is presumed by statute.”
The following persons shall not be competent to testify:
(1) Those who are of unsound mind, or intoxicated at the time of their production for examination, and
(2) Those who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly.[7]
When the competency of a child witness is challenged, the trial court applies the test for determining child competency set forth in Allen. Under this test, the child must demonstrate
(1) an understanding of the obligation to speak the truth on the witness stand, (2) the mental capacity at the time of the occurrence to receive an accurate impression of the matter about which the witness is to testify, (3) a memory sufficient to retain an independent recollection of the occurrence, (4) the capacity to express in words the witness’ memory of the*922 occurrence, and (5) the capacity to understand simple questions about it.[8]
Determining the child’s ability to meet these five Allen factors rests primarily with the trial judge, who must find that all five factors are met before the child can be declared competent.
¶17 Consistent with the framework discussed above, when the competency of a child witness is challenged, the burden of proving the child’s competency rests on the party calling the child.
¶20 This error, however, does not warrant reversal in this case. “Although a trial court determines competence pretrial, on appeal we will examine the entire record to review that determination.”
¶21 S.J.W. points to inconsistencies in W.M.’s testimony regarding oral intercourse and other details. According to S.J.W., these inconsistencies revealed W.M.’s incompetency at trial and required the court to strike his testimony. But these inconsistencies in W.M.’s testimony go only to his credibility, not to admissibility.
¶22 In upholding the trial court’s competency ruling, we also reject S.J.W.’s contention that the court erred in failing to consider evidence of memory taint.
¶23 In sum, the court erred in holding that S.J.W. carried the burden of proving W.M. was incompetent to testify. This error, however, does not require reversal because W.M.’s trial testimony shows that he was competent under the five Allen factors.
II. Noncustodial Interrogation
¶24 S.J.W. argues that the court erred in admitting statements he made to Horn because they were made during a custodial interrogation and required Miranda warnings.
¶25 Under the federal and state constitutions, a juvenile possesses rights against self-incrimination.
¶26 S.J.W. contends that the interview was custodial because no reasonable person would have believed he was free to leave under the circumstances. Relying on State v. D.R.,
¶27 But D.R. is distinguishable. In that case, a detective interviewed 14-year-old D.R. regarding allegations of incest with his sister.
¶28 Although S.J.W. was not told he could leave, unlike the “naturally coercive” setting in D.R., the interview here took place in a private residence familiar to S.J.W. In addition, S.J.W.’s mother was present. Significantly, she called W.M.’s father into the room when she became upset and she terminated the interview when Horn attempted to obtain a written statement. While Horn did not tell S.J.W. that he could refuse to answer his questions, S.J.W. chose not to answer some of Horn’s questions. Finally, unlike the interrogation in D.R., Horn’s interview was not “obviously accusatory” in nature. Under these circumstances, we conclude that the interview was noncustodial for the purposes of Miranda and that S.J.W.’s statements were admissible.
Conclusion
¶29 In applying the Allen test for child competency, the trial court erred in placing the burden on S.J.W. to show W.M.’s incompetency. But this error does not require reversal because an independent review of W.M.’s trial testimony establishes that all five Allen factors were satisfied. The court also acted within its discretion when it did not strike W.M.’s testimony, and it properly admitted statements made by S.J.W. during a noncustodial interview. S.J.W.’s third degree rape conviction is affirmed.
Agid and Lau, JJ., concur.
Review granted at 166 Wn.2d 1024 (2009).
70 Wn.2d 690, 424 P.2d 1021 (1967). In determining the competency of a mentally disabled 14-year-old, the test set forth in Allen applies. See State v. Wyse, 71 Wn.2d 434, 437, 429 P.2d 121 (1967) (applying Allen test to a 14-year-old mentally disabled female, alleged by the defendant to have a mental age less than 10 years old).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
W.M.’s mother arrived at the house during Horn’s interview with S.J.W.
RCW 9A.44.060 provides the elements of third degree rape:
(1) Aperson is guilty of rape in the third degree when, under circumstances not constituting rape in the first or second degrees, such person engages in sexual intercourse with another person, not married to the perpetrator:
(a) Where the victim did not consent as defined in RCW 9A.44.010(7), to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim’s words or conduct.
RCW 9A.44.010(7) states that consent means that “at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact.”
State v. C.M.B., 130 Wn. App. 841, 843, 125 P.3d 211 (2005).
ER 601 similarly states that “[e]very person is competent to be a witness except as otherwise provided by statute or by court rule.”
7 CrR 6.12(c) similarly provides:
The following persons are incompetent to testify: (1) Those who aire of unsound mind, or intoxicated at the time of their production for examination; and (2) children who do not have the capacity of receiving just impressions of the facts about which they are examined or who do not have the capacity of relating them truly.
8 State v. C.J., 148 Wn.2d 672, 682, 63 P.3d 765 (2003) (citing State v. Swan, 114 Wn.2d 613, 645, 790 P.2d 610 (1990)).
In re Dependency of A.E.P., 135 Wn.2d 208, 223, 956 P.2d 297 (1998); State v. Sardinia, 42 Wn. App. 533, 536, 713 P.2d 122 (1986).
State v. Avila, 78 Wn. App. 731, 735-36, 899 P.2d 11 (1995).
State v. Karpenski, 94 Wn. App. 80, 101-02, 971 P.2d 553 (1999), abrogated on other grounds by C.J., 148 Wn.2d 672. Although the trial court did not examine W.M. at the competency hearing, it considered the testimony of defense witnesses in determining W.M.’s competency. The abuse of discretion standard is appropriate since the trial court’s information is superior to the appellate court’s. See Karpenski, 94 Wn. App. at 105.
See also 5A Karl B. Tegland, Washington Practice: Evidence Law and Practice § 601.6, at 299 (5th ed. 2007) (“The court has no obligation to determine the child’s competency unless the child’s competency is challenged. If the child’s competency is challenged, however, the burden shifts to the proponent to establish the child’s competence by a preponderance of the evidence.” (footnote omitted)); 13B Seth A. Fine, Washington Practice: Criminal Law § 2413, at 19 (2d ed. Supp. 2008-09) (“The court is not required to hold a competency hearing absent any challenge to a witness’s competency. If there is a challenge, a party who offers a child’s testimony must establish the child’s competency by a preponderance of the evidence.” (footnote omitted)).
135 Wn.2d 208, 956 P.2d 297 (1998).
A.E.P., 135 Wn.2d at 221.
A.E.P., 135 Wn.2d at 221.
A.E.P., 135 Wn.2d at 221.
A.E.P., 135 Wn.2d at 224.
A.E.P., 135 Wn.2d at 225.
A.E.P., 135 Wn.2d at 234.
A.E.P., 135 Wn.2d at 225 (quoting Allen, 70 Wn.2d at 692).
See also Jenkins v. Snohomish County Pub. Util. Dist. No. 1, 105 Wn.2d 99, 100-03, 713 P.2d 79 (1986) (reversing trial court’s competency determination based solely on the child’s deposition when the third Allen factor had not been met).
94 Wn. App. 80, 971 P.2d 553 (1999). Fine also cites Karpenski as standing for the proposition that the party calling the child witness must establish the child’s competency by a preponderance of the evidence. 13B Fine, at 19 (2d ed. Supp. 2008-09).
Karpenski, 94 Wn. App. at 106.
Karpenski, 94 Wn. App. at 103-04.
Karpenski, 94 Wn. App. at 103 (quoting State v. Borland, 57 Wn. App. 7, 10-11, 786 P.2d 810 (1990)).
Karpenski, 94 Wn. App. at 105-06.
Karpenski, 94 Wn. App. at 106.
97 Wn.2d 801, 650 P.2d 201 (1982).
Smith, 97 Wn.2d at 803.
Smith, 97 Wn.2d at 803.
Avila, 78 Wn. App. at 737; State v. Woods, 154 Wn.2d 613, 617, 114 P.3d 1174 (2005).
See Avila, 78 Wn. App. at 736 (ruling that first Allen factor was met when five-year-old responded affirmatively when asked if she understood the importance of telling the truth to the judge).
See Woods, 154 Wn.2d at 622 (stating that testimony about events contemporaneous with the nine-month period during which the abuse could have occurred was evidence supporting the second Allen factor).
See Sardinia, 42 Wn. App. at 537 (holding that a nine-year-old’s overall demeanor and the manner of her answers were sufficient to permit the trial court to infer that the second Allen factor was met).
See State v. Stange, 53 Wn. App. 638, 641-42, 769 P.2d 873 (1989).
See State v. Moorison, 43 Wn.2d 23, 33, 259 P.2d 1105 (1953) (holding that a trial court “could” strike a defendant’s testimony if the court is “convinced” that it mistakenly ruled on the defendant’s competency). We further note that the record contains no evidence that S.J.W. moved to strike W.M.’s testimony at trial.
See A.E.P., 135 Wn.2d at 230 (stating that evidence of memory taint may be considered at the competency hearing and negate a finding under the third Allen factor).
W.M.’s father and mother provided affidavits stating that Horn asked leading questions regarding consent and introduced concepts of being hurt by the intercourse.
97 Wn. App. 355, 357-58, 983 P.2d 1165 (1999).
Carol, 97 Wn. App. at 357-58.
U.S. Const. amend. V; Wash. Const. art. I, § 9; see RCW 13.40.140(8).
State v. Lorenz, 152 Wn.2d 22, 36, 93 P.3d 133 (2004) (citing State v. Harris, 106 Wn.2d 784, 789, 725 P.2d 975 (1986)).
Roberts v. United States, 445 U.S. 552, 560, 100 S. Ct. 1358, 63 L. Ed. 2d 622 (1980).
Lorenz, 152 Wn.2d at 36-37 (citing Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)).
Lorenz, 152 Wn.2d at 36 (citing State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997)).
84 Wn. App. 832, 930 P.2d 350 (1997).
D.R., 84 Wn. App. at 833-34.
D.R., 84 Wn. App. at 834.
D.R., 84 Wn. App. at 834.
D.R., 84 Wn. App. at 834 (first alteration in original).
D.R., 84 Wn. App. at 838.
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