DISSENT

                            Opinion Information Sheet

Docket Number:       65205-8
Title of Case:       In RE the Welfare Of: A.E.P. & W.M.P., Minor Children.
                                        135 Wn.2d 208, 956 P.2d  297 (1998)

File Date:                    05/21/98
Oral Argument Date:  01/28/98
 

                                SOURCE OF APPEAL

Appeal from Superior Court,
            Mason County;
            93-7-00023-7
            Honorable Toni A. Sheldon, Judge.
 

                                    JUSTICES

Authored by James M. Dolliver
Concurring: Barbara Durham
            Charles Z. Smith
            Charles W. Johnson
            Barbara A. Madsen
            Gerry L. Alexander
            Richard B. Sanders
Dissenting: Philip A. Talmadge
            Richard P. Guy
 

                                COUNSEL OF RECORD

Counsel for Petitioner(s)
           Gary A. Preble
           Preble Law Firm
            2120 State Ave NE
            Olympia, WA  98506

Counsel for Respondent(s)
            Edward J. Dee
            Assistant Attorney General
            Offc of Attny. General
            PO Box 40124
            Olympia, WA  98504-0124

Amicus Curiae on behalf of Washington Associaiton of Criminal
            Gene M. Grantham
            Attorney At Law
            Ste 500 Maynard Bldg
            119 1st Ave S
            Seattle, WA  98104

Amicus Curiae on behalf of Washington Association of Prosecutin
            James M. Whisman
            King Co Prosecutor's Ofc
            516 3rd Ave  Rm W554
            Seattle, WA  98104
 

Majority by Dolliver, J.
Dissent by Talmadge, J.

No. 65205-8

     TALMADGE, J. (dissenting) -- I dissent in this case, not so much
because of my disagreement with the majority regarding the principles to be
applied in this case,1 but because the majority largely ignores the
standard of review for trial court decisions on child competency and the
admissibility of child hearsay.  The majority abandons the abuse of
discretion standard and undertakes a de novo weighing of the evidence on
review.  I do not believe this is an appropriate role for an appellate
court.

 A.  Competency of the Child

     The majority correctly applies the five-factor test for child
competency set forth in State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021
(1967).  In order to determine a young child is competent, the trial court
must determine the child has:

     (1) an understanding of the obligation to speak the truth on the
     witness stand; (2) the mental capacity at the time of the
     occurrence concerning which he is to testify, to receive an
     accurate impression of it; (3) a memory sufficient to retain an
     independent recollection of the occurrence; (4) the capacity to
     express in words his memory of the occurrence; and (5) the
     capacity to understand simple questions about it.

Allen, 70 Wn.2d at 692.  The majority also correctly notes the standard for
review of such decisions is a manifest abuse of discretion, citing State v.
Swan, 114 Wn.2d 613, 645, 790 P.2d 610 (1990).  Majority op. at 22.
However, Washington case law on appellate review has been even more direct
in discussing what constitutes proof of a manifest abuse of discretion.  As
the Court of Appeals stated in State v. Borland, 57 Wn. App. 7, 11, 786
P.2d 810, review denied, 114 Wn.2d 1026, 793 P.2d 974 (1990):

     There is probably no area of law where it is more necessary to
     place great reliance on the trial court's judgment than in
     assessing the competency of a child witness.  The trial judge is
     in a position to assess the body language, the hesitation or lack
     thereof, the manner of speaking, and all the intangibles that are
     significant in evaluation but are not reflected in a written
     record.

See also State v. Leavitt, 111 Wn.2d 66, 70, 758 P.2d 982 (1988).

     The trial judge in this case carefully assessed A.E.P.'s testimony
with all five Allen factors in mind.  The trial court determined the child
was competent to testify.

     Nevertheless, the majority substitutes its own judgment for the trial
court's that actually heard and saw the witnesses.  While the father in
this case points to isolated portions of the child's testimony that convey
the impression she was unable to differentiate lies from truth, the
entirety of her testimony indicates she understood her obligation to
testify truthfully.  See State v. L.J.M., 129 Wn.2d 386, 398, 918 P.2d 898
(1996).  She resisted defense counsel's attempts to elicit an admission the
incident never occurred.  The testimony also indicates she was able to form
present impressions of the incidents, and when they occurred, and recall
them consistently thereafter.  Given the fact she was five-years-old at the
time and her testimony took place over the course of several hours, it is
not surprising that she was at times unable to recall her responses to
pretrial statements.  Any inconsistency in the child's testimony was an
appropriate subject of cross-examination and related to its weight, rather
than her competency.  State v. Stange, 53 Wn. App. 638, 642, 769 P.2d 873,
review denied, 113 Wn.2d 1007, 779 P.2d 727 (1989).

     The majority's principal concern is that the child's testimony did not
relate specifically in time to the events.  With this the majority requires
a five-year-old to give an extraordinarily precise account of place, time,
and date with respect to past abusive conduct.  The majority's temporal
standard for child competency is nearly impossible for children of such
tender years to meet.  The majority effectively makes the testimony of many
young children inadmissible per se.  Rather than being dispositive of the
competency question, the ability or inability of the child to relate
abusive conduct to a specific time is simply another factor going to the
believability of the child's testimony.

    The trial court made its decision based on the totality of the child's
testimony.  The lack of temporal connection was just one factor before it.
Nevertheless, the majority, based on this single, technical consideration
from the cold record on appeal, decides the trial court's decision was a
manifest abuse of discretion.  We should exercise the appropriate restraint
appellate courts have traditionally exercised in reviewing child competency
questions, and allow our trial courts to decide facts, as trial courts are
uniquely constituted to do.2

B.  Admissibility of Child Hearsay Under RCW 9A.44.120

     Given its ruling on the child's competency to testify, the majority
proceeds to analyze the admissibility of hearsay testimony regarding the
abuse of the child under RCW 9A.44.120 and State v. Ryan, 103 Wn.2d 165,
691 P.2d 197 (1984), the seminal case construing the statute.  In Ryan, we
set forth numerous factors bearing on the reliability of the out of court
declarations of the child, culling on factors established in both State v.
Parris, 98 Wn.2d 140, 654 P.2d 77 (1982), and Dutton v. Evans, 400 U.S. 74,
91 S. Ct. 210, 27 L. Ed. 2d 213 (1970).  Those factors have been considered
at length in numerous Washington cases.3  The majority here does not depart
from the Ryan factors.4

     The majority again fails, however, to set forth the appropriate
standard of review for determinations on the admissibility of child hearsay
under RCW 9A.44.120.  Washington courts have frequently indicated the trial
court is in the best position to make the determination of reliability of
the declarant's out of court statement, particularly as that court is the
only one to see the child and the other witnesses. Swan, 114 Wn.2d at 667;
State v. Pham, 75 Wn. App. 626, 631, 879 P.2d 321 (1994), review denied,
126 Wn.2d 1002, 891 P.2d 37 (1995); State v. Swanson, 62 Wn. App. 186, 191
n.1, 813 P.2d 614, review denied, 118 Wn.2d 1002, 822 P.2d 288 (1991).
Determinations of the admissibility of child hearsay testimony lie within
the sound discretion of the trial court and ordinarily will not be reversed
absent manifest abuse of discretion.  Pham, 75 Wn. App. at 631.

     In the present case, the trial court did not manifestly abuse its
discretion.  To the contrary:  the trial court was extraordinarily
conscientious in entering 33 pages of detailed findings of fact and
conclusions of law regarding the reliability of the child's out of court
statements.  The child had no apparent motive to lie and did not have an
untruthful character, her statements to Montgomery and Smith did not result
from leading or suggestive questions, and nothing in the timing of the
statements or her relationship with the persons to whom the statements were
made suggested unreliability.  Given the entire context of her statements,
the trial court reasonably concluded the hearsay was reliable and,
therefore, admissible.  I see no reason to depart from the trial court's
well-sustained findings of fact and conclusions of law on the reliability
question.

     Unless we are now willing to establish de novo review of all trial
court decisions regarding child competency and the admissibility of child
hearsay testimony under RCW 9A.44.120 as the operative standard for review,
I must respectfully disagree with the majority's conclusion here.
Appellate courts cannot readily assess the credibility and demeanor of
child witnesses.  The issues of child competency and child hearsay in child
abuse cases are extraordinarily difficult and sensitive, and the cases are
often very controversial and emotional.  The trial court here exhibited the
appropriate sensitivity and painstaking care in assessing the competency of
the child and the reliability of her out of court statements.  Nothing in
this record suggests the trial court engaged in a manifest abuse of its
discretion.  I would affirm the trial court's judgment. Return to beginning
 

1 For example, I emphatically agree with the majority that the
question of whether the interview of the child "tainted" the child's
testimony should be considered in the context of an assessment of the
competency of the child witness and the admissibility of the child's
hearsay testimony under RCW 9A.44.120.  I also agree with the majority that
any requirement of videotaping for child interviews awaits an appropriate
legislative direction rather than a legislative-style directive from this
Court.  Majority op. at 43. Return to text

2 "Nevertheless, the Supreme Courts, instead of enforcing this
principle rigidly, continue to revise rulings upon the competency of
children whom they have never seen or heard.  Time should not be wasted on
such a task."  2 John Henry Wigmore, Evidence in Trials at Common Law
507, at 598 (3d ed. 1940). Return to text

3 E.g., State v. Mitchell, 117 Wn.2d 521, 529, 817 P.2d 398 (1991),
overruled on other grounds by State v. Dent, 123 Wn.2d 467, 869 P.2d 392
(1994); State v. Gregory, 80 Wn. App. 516, 521, 910 P.2d 505, review
denied, 129 Wn.2d 1009, 917 P.2d 129 (1996); State v. Quigg, 72 Wn. App.
828, 835, 866 P.2d 655 (1994). Return to text

4 The decision of the United States Supreme Court in Idaho v. Wright,
497 U.S. 805, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990), on the
admissibility of child hearsay evidence does not compel modification of the
Ryan factors.

     Both amici, the Washington Association of Prosecuting Attorneys and
the Washington Association of Criminal Defense Lawyers, argue for
refinement of the Ryan factors.  Neither amicus, however, indicates the
Ryan factors foreclose assessment of the principal issues relating to
reliability of child hearsay testimony in a case of child sexual abuse.
For this reason, there is no pressing need to depart from the Ryan
formulation at this time. Return to text