Opinion
No. 4-168 / 03-1675
April 14, 2004.
Appeal from the Iowa District Court for Polk County, William A. Price, Associate Juvenile Judge.
A.J.S., Jr., appeals the order adjudicating him delinquent on the ground he committed second-degree sexual assault. AFFIRMED.
Michelle Saveraid of Bull Law Office, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, John Sarcone, County Attorney, and Michelle Chenoweth, Assistant County Attorney, for appellee.
Kayla Stratton, Juvenile Public Defender, for minor child.
Considered by Huitink, P.J., and Vogel and Mahan, JJ.
Artee S. appeals the order adjudicating him delinquent on the ground he committed second-degree sexual assault. He contends the court erred in the admission of a videotaped interview with the victim and in the admission of pajama pants worn by the victim during the assault. Finding no abuse of discretion in the admission of evidence nor violation of Artee's constitutional rights, we affirm.
I. Background Facts and Proceedings.
In November of 2002, eleven-year-old Brendan was placed in foster care at the home of Karen Clinton, where he shared a room with another foster child, twelve-year-old Artee. After spending time with his relatives in December of 2002, Brendan informed them Artee had forced a pen into his anus, leaving a hole in his pajama bottoms. By February, when the Iowa Department of Human Services (DHS) became aware of Brendan's claims, he was removed from the foster home. The DHS social worker who investigated observed that Brendan's pajama bottoms had a small hole in the rear.
Later that month, an interviewer with the Regional Child Protection Center spoke with Brendan and made a videotape of the interview. In that interview, Brendan claimed not only that Artee had inserted a "pen up [his] butt," but also that Artee forced Brendan to perform oral sex on him, that Artee performed oral sex on Brendan, and that Artee inserted his penis into Brendan's anus. Brendan also told the interviewer that Artee had threatened that he would "hunt him down and kill him" if he ever told anyone about the abuse.
Based on Brendan's accusations, the State filed a petition in the Polk County Juvenile Court alleging Artee had committed two delinquent acts of second-degree sexual abuse, in violation of Iowa Code sections 709.1(1), 709.1(3), and 709.3(2) (2001). In response to Artee's request to take Brendan's deposition, the State filed a Motion for Witness Protective Order, seeking to avoid having Brendan give such a deposition. The motion alleged Brendan could not testify without suffering severe emotional trauma. The juvenile court granted the protective order, finding Brendan "psychologically unavailable" to testify. It also ruled that the tape containing Brendan's statements with the forensic interviewer would be admissible at the adjudicatory hearing. Following the hearing, the court adjudicated Artee as delinquent, based on the two acts of second-degree sexual abuse. Artee appeals this ruling, contending (1) the court abused its discretion in admitting the videotaped interview into evidence, (2) admission of the videotape violated the Confrontation Clause, and (3) the court abused its discretion in allowing the pajama bottoms into evidence.
II. Scope of Review.
We generally review the admissibility of evidence for abuse of discretion. State v. Rojas, 524 N.W.2d 659, 662 (Iowa 1994). An abuse of discretion means on grounds or for reasons clearly untenable or unreasonable. State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995). Our review of Artee's Sixth Amendment right to confrontation claim, however, is de novo. State v. Gregg, 464 N.W.2d 431, 432 (Iowa 1990).
III. Admission of the Videotape.
As noted, the juvenile court admitted the victim's videotaped interview with the forensic interviewer into evidence. Artee contests the admission of this evidence on two grounds. We will address each in turn.
Artee first challenges the evidence on hearsay grounds. Iowa Code section 915.38(3) (2003) provides that the
[C]ourt may . . . admit into evidence the recorded statements of a child . . . describing sexual contact performed with or on the child . . . if the court determines that the recorded statements substantially comport with the requirements for admission under rule of evidence 5.803(24) or 5.804( b)(5).
See State v. Brown, 341 N.W.2d 10, 13 (Iowa 1983) (referring to these rules of evidence as the residual or catchall exceptions to the hearsay rule). The requirements for admissibility under the residual exception are five-fold: trustworthiness, materiality, necessity, service of the interests of justice, and notice. Id. at 14.
Upon review of the videotape, we believe it has sufficient circumstantial guarantees of trustworthiness. First, the interviewer and Brendan discussed the meaning of "truth vs. lie," "right vs. wrong," and "real vs. pretend." It is evident from the videotape that Brendan fully understood the distinction between these terms.
Moreover, as the Iowa Supreme Court found when affirming the admission of a similar videotape in State v. Rojas, the interviewer here asked the victim open-ended, non-leading questions. See Rojas, 524 N.W.2d at 663. Every time Brendan offered descriptions about particular acts of abuse by Artee, he did so voluntarily. They were not the result of leading questions. Throughout the lengthy interview, Brendan's story was detailed and consistent in the critical facts. We also reiterate sentiments expressed by our supreme court in Rojas that the "videotape is more reliable than many other forms of hearsay because the trier of fact could observe for itself how the questions were asked, what the declarant said, and the declarant's demeanor." Rojas, 524 N.W.2d at 663.
Finally, as to the other prerequisites to admission under the residual hearsay exceptions, we conclude they are established here as well. Because in the videotape Brendan details the alleged acts of abuse committed by Artee, the materiality requirement is clearly met. We also reject Artee's contention the court could have required Brendan to testify via closed circuit television or by recorded deposition. Because the expert opinion on this question was that Brendan would be severely traumatized by being forced to discuss the abuse in any forum, we do not believe these were reasonable alternatives. Thus, based largely on our conclusion regarding the trustworthiness of the tape, along with appropriate showing of necessity, we conclude admission of the videotape serves the interests of justice. In conclusion, we hold the juvenile court properly admitted and considered the videotape.
B. Confrontation Clause.
We next address Artee's contention the admission of the videotape violated the Confrontation Clause of the Sixth Amendment to the United States Constitution. In particular, he maintains the court improperly concluded Brendan was "psychologically unavailable to testify."
The Sixth Amendment guarantees a defendant the right "to be confronted with the witnesses against him." The Confrontation Clause has been interpreted as guaranteeing "the defendant a face-to-face meeting with witnesses appearing before the trier of fact." Coy v. Iowa, 487 U.S. 1012, 1016, 108 S.Ct. 2798, 2801, 101 L.Ed.2d 857, 864 (1988). The Confrontation Clause reflects a preference for face-to-face confrontation at trial. Ohio v. Roberts, 448 U.S. 56, 63, 100, 100 S.Ct. 2531, 2537 65 L.Ed.2d 597, 606 (1980). However, the rights conferred by the Confrontation Clause are not absolute and may give way to other important interests. Coy, 487 U.S. at 1020, 108 S.Ct. at 2803, 101 L. Ed.2d at 866. In Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666, 678 (1990), the Supreme Court concluded the protection of a child witness from trauma was one public policy that may be sufficiently important, at least in some cases, to outweigh a defendant's right to face his or her accusers in court. Id. at 853, 110 S.Ct. at 3167, 111 L. Ed.2d at 683.
In State v. Castaneda, 621 N.W.2d 435 (Iowa 2001), our supreme court addressed, in dicta, Castaneda's claim the district court violated his constitutional right to confront witnesses against him when it ruled that the jury could consider the victim's videotaped interview. Id. at 443. That case directs that courts must answer two questions in a case such as this: (1) was Brendan unavailable to testify, and (2) does the videotaped interview exhibit "particularized guarantees of trustworthiness." Id. Castaneda also counsels that "psychological unavailability" must exist to such a degree as to render the witness' attendance, or his testifying, relatively impossible and not merely inconvenient. Id. at 446 (citing People v. Gomez, 26 Cal.App.3d 225, 230, 103 Cal.Rptr. 80, 83-84 (1972)). Courts must take into consideration
1) the probability of psychological injury as a result of testifying, (2) the degree of anticipated injury, (3) the expected duration of the injury, and (4) whether the expected psychological injury is substantially greater than the reaction of the average victim of a rape. Id at 447 (citing Warren v. U.S., 436 A.2d 821, 830 n. 18 (D.C. 1981)).
Based on our de novo review of the record, we conclude the juvenile court properly determined Brendan to be psychologically unavailable to testify. The record reflects that Brendan is emotionally as well as physically fragile. His various diagnoses include cystic fibrosis, dysthmic disorder, attention deficit disorder, hyperactivity disorder, and oppositional defiant disorder. When asked whether Brendan would be able to testify via closed circuit at the hearing, Dr. Maria Ogden, Brendan's psychologist testified as follows:
I don't think he would be able to handle reliving or retelling any of the abuse that he's already . . . told us about. He's a very emotionally fragile young man who has not even been able in therapy more recently to talk about those events at all, had begged me please not to make him give details about nightmares or flashbacks because of the impact of that on him in the days or weeks that follow. He's realized that when he talks about it, he has a lot more flashbacks, he has a lot more nightmares. So it's something that causes him to regress further emotionally, to be retraumatized emotionally. It's like reliving it for him, not just when you're making him say it, but then the aftermath of that.
. . . .
I would say under no circumstances should he be made to have to talk about this abuse again, because he would be traumatized by having to go through that again, and this child does not need that. He's very emotionally fragile.
In addition, when asked to rate Brendan's level of damage if made to testify on a scale of one to ten, Dr. Ogden opined that it would be "above eight."
Based largely on this testimony, it appears probable that Brendan will suffer psychological harm if forced to testify, and it also is likely he will suffer a severe setback in therapy. Further, given Brendan's physical and emotional infirmities, we conclude his expected psychological injury would be substantially greater than the reaction of the average victim of a rape. Accordingly, we agree with the juvenile court's conclusion Brendan would be psychologically unavailable to testify.
As to the second issue of whether the videotape exhibits "particularized guarantees of trustworthiness," we reiterate our discussion of the trustworthiness made in the hearsay section of this opinion. Brendan's story in the videotape was consistent and detailed throughout, and the specific accusations of abuse were generally volunteered rather than as a result of leading, pointed questions. We thus conclude the admission of the videotape satisfied the requirements of the Confrontation Clause.
IV. Admissibility of the Pajama Bottoms.
Over Artee's chain-of-custody objection, the juvenile court allowed into evidence the pajama pants which contained the hole, allegedly caused when Artee pushed the pen through the fabric of the pants and into Brendan's anus. On appeal, Artee again contends the State failed to establish a chain of custody for the pajama pants. He notes that Brendan maintained custody of the pajama pants after the hole was discovered, but admits that "at nearly all times in this case, the pajama pants have been in the custody of a State's witness."
It is clear the "prosecution is required to show sufficient custody of physical evidence to establish that the article presented at trial is the same one taken from the defendant and that it has not been altered by intermeddlers." State v. Langlet, 283 N.W.2d 330, 336 (Iowa 1979). The flaw in Artee's argument, as pointed out by the State, is that a chain-of-custody objection does not apply to the period preceding the State's acquisition of the challenged exhibit. Here, as even Artee admits, the pajama pants were never in the possession of the State during the pendency of this case, but rather they traveled with Brendan from placement to placement. We therefore conclude the court did not abuse its discretion in rejecting Artee's misplaced chain-of-custody objection.
V. Conclusion.
We conclude the juvenile court did not abuse its discretion in admitting into evidence the videotape interview of Brendan. Further, the admission of the videotape satisfied the concerns and requirement of the Confrontation Clause. Finally, we conclude the court did not abuse its discretion in admitting the pajama pants. We therefore affirm Artee's delinquency adjudication.