Opinion
No. 52794-1-I.
May 30, 2006.
Petition for relief from personal restraint. Granted by unpublished opinion per Ellington, J., concurred in by Baker and Cox, JJ.
Counsel for Petitioner(s), Dean Vernon Salzer (Appearing Pro Se), #783490, Airway Heights Correction Center, P.O. Box 1899, Airway Heights, WA 99001-1899.
Kathryn A. Russell Selk, Russell Selk Law Office, 1037 NE 65th St Box 135, Seattle, WA 98115-6655.
Counsel for Respondent(s), J. Andrew Toynbee, Lewis County Prosecuting Atty Ofc, M/S Pr001, 360 NW North St, Chehalis, WA 98532-1925.
Dean Salzer was convicted of two counts of first degree child rape. He contends he was denied the constitutional right to present a defense. He also argues that his trial counsel was ineffective on various grounds, and that the court erred in limiting defense expert testimony regarding suggestibility of children.
We agree that the exclusion of certain evidence prejudiced Salzer's right to present a defense. We therefore grant his personal restraint petition and remand for a new trial. In light of this disposition, we do not reach Salzer's claims of ineffective assistance, but because the issue may arise upon retrial, we address, and reject, Salzer's claim regarding limitation on expert testimony.
FACTS
Tina and Dean Salzer were married in July 1992. They experienced periodic difficulties in their marriage. Their only child, C.S., was born in September 1993. According to Tina, the problems with the marriage were unremarkable, and she had no reason to be antagonistic to Salzer. According to Salzer, in July 1997, he gave Tina an ultimatum that she had to work on the marriage or he would seek a divorce. He had previously told her that if the marriage dissolved, he would seek custody of C.S. Tina denied Salzer had given her any ultimatum, and testified that as of July 1997, she felt the marriage was strong despite some earlier problems. Tina's problems included diagnosed bipolar disorder, voluntary hospitalization for depression, marijuana and cocaine use, and two convictions for driving under the influence. After the initial disclosures of abuse, Tina was arrested again for driving under the influence with C.S. in the car, and was convicted of a misdemeanor for leaving C.S. unattended in the car while she went into a casino to drink and gamble. Tina acknowledged all of this in a dissolution deposition taken before Salzer's criminal trial.
Because the defendant and his ex-wife share the same last name, this opinion refers to Tina Salzer by her first name for the sake of clarity.
Tina testified to C.S.'s disclosures as follows. Near the end of July, she was giving C.S. a bath when C.S. said she had a `tiny twinkle' (`twinkle' being C.S.'s word for her vagina). Tina asked who had said that, and C.S. answered `Carl.' Although she knew C.S. and her five-year-old cousin Carl had been found in a closet with their private parts exposed, Tina nonetheless asked, "What adult told you you had a tiny twinkle?" C.S. replied that her daddy had. Tina asked where this had occurred, and C.S. said "her daddy and her were in the bedroom . . . playing blocks and that he had pulled down or asked her to pull down her shorts and show him her twinkle and he pulled down his pants and showed her his pee pee." Tina then asked, "Did your daddy touch your twinkle?" and C.S. replied, "Yes." When Tina asked, "Did he put his finger inside your twinkle?" C.S. said, "Yes, and it was wet this time." Report of Proceedings (RP) (July 6, 1998) at 10-14.
Approximately a week later, Tina reported this conversation to police and Child Protective Services (CPS), and obtained a protection order. Deputy Sheriff Mike Hirte met Tina and C.S. at the CPS office and tried to verify Tina's report, but C.S. would not repeat the allegations. (Tina testified that she and Deputy Hirte had a brief affair during the investigation.) That same day, Tina took C.S. to Dr. Richard Kennedy, a psychologist who, after an hour and a half interview, gathered statements from C.S. that her father had touched her vaginal area, in the living room and at an unspecified location outside on some unspecified dates. Also according to Tina, C.S. made additional statements over the next few months, saying at various times that Salzer `kissed her twinkle, put a balloon on his pee pee and put it in her mouth,' `had her touch his pee pee,' `put a balloon on his pee pee and he rubbed it on her twinkle, . . . and tried to put it in her bottom and . . . it hurt really bad.' RP (July 6, 1998) at 20, 22.
Approximately a month after the initial interview with Dr. Kennedy, Tina took C.S. to the Sexual Assault Clinic at St. Peter's Hospital in Olympia. Nurse-practitioner Nancy Young-Diaz conducted a colposcopic examination of C.S. Part of C.S.'s hymen appeared to be diminished. There were no other signs of trauma, but Young-Diaz and the reviewing doctor, Dr. Hall, opined that a penetrating trauma caused the diminution. Upon questioning, C.S. told Young-Diaz that Carl and her father had touched her `twinkle,' but said she had never seen her father's `pee-pee.' RP (July 8, 1998) at 127, 140.
Shortly thereafter Tina took C.S. to be interviewed by Christine Kaitlyn, a clinical therapist with the Sexual Assault Center of St. Peter's Hospital. Despite using what she acknowledged were disfavored interview techniques, Kaitlyn was unable to get C.S. to make clear disclosures of sexual abuse. Kaitlyn told Tina to bring C.S. back only if C.S. had something to say. A week later, Tina returned with C.S. This time, C.S. disclosed that Salzer had touched her privates in various ways and at various times. But these disclosures came only after Kaitlyn used leading and suggestive techniques that caused Kaitlyn herself to characterize the interview as `poor.' RP (July 8, 1998) at 64. C.S. also failed to answer questions in a way that demonstrated she understood the difference between the truth and a lie, and her disclosures included allegations that Salzer had touched her improperly on a bridge in her backyard that does not exist. She also referred to a man in the mirror telling her not to tell, and at one point, when asked when the touching occurred, said `tomorrow.' RP (July 8, 1998) at 103.
Dr. Kennedy became C.S.'s therapist. Because he was acting as her treating therapist rather than in a forensic capacity, he did not attempt to further investigate her ability to discern the truth from a lie. During some sessions, she did not disclose abuse. During other sessions, she disclosed abuse consistent with what she had told Kaitlyn, and disclosed additional incidents that appeared to be fanciful. During at least one of these sessions, Tina was in the room with C.S. and Dr. Kennedy.
The State ultimately charged Salzer with two counts of first degree child rape.
At a pretrial hearing on motions in limine, the State sought to exclude evidence of Tina's history of arrests and convictions for various misdemeanors, including negligent driving, driving under the influence, and leaving C.S. unattended in a car outside a casino. Salzer responded that the information was central to the defense theory that Tina implanted false ideas of abuse in C.S. because she feared Salzer would get custody in a dissolution proceeding. The court excluded the evidence, and also granted the State's motion to limit cross-examination of Tina regarding her acknowledged use of illegal and prescribed drugs, confining questions to whether she was using drugs at the specific times she heard C.S.'s various statements of abuse. The court also limited inquiry into the effects of Tina's bipolar disorder. Finally, the court granted the State's motion to prohibit the defense expert, Dr. Yuille, from offering an opinion on the general suggestibility of children.
C.S. did not testify. The State's case was presented through the medical evidence and the above witnesses who described C.S.'s statements to them. The defense called Dr. Yuille as an expert on child interview techniques; he testified to his opinions of the quality of the interviews engaged in by the various State's witnesses. Dr. Soderstrom, a gynecologist, testified that C.S.'s hymen was not abnormal and there was no evidence her vagina had ever been penetrated. Other witnesses testified that Tina knew Salzer intended to seek custody of C.S. in the event of a dissolution. Salzer testified, and denied the charges.
The jury convicted Salzer on both counts. In his direct appeal, Salzer challenged the trial court's limitation on the inquiries about Tina's drug and alcohol use, the suppression of evidence of Tina's conviction for leaving C.S. unattended, and the limitation on Dr. Yuille's testimony, and contended the prosecutor committed misconduct in closing argument. Division Two rejected his contentions and affirmed. Salzer thereafter filed this personal restraint petition, which was transferred to this court.
State v. Salzer, noted at 105 Wn. App. 1017, 2001 Wash. App. LEXIS 1079.
ANALYSIS
To obtain relief through collateral review, Salzer must show he was actually and substantially prejudiced by a constitutional violation, or that nonconstitutional error occurred constituting a fundamental defect that inherently resulted in a complete miscarriage of justice. In re Personal Restraint of Markel, 154 Wn.2d 262, 267, 111 P.3d 249 (2005). Salzer bears the burden of establishing prejudice by a preponderance of the evidence. In re Personal Restraint of St. Pierre, 118 Wn.2d 321, 328, 823 P.2d 492 (1992).
Salzer contends the court's rulings granting the prosecutor's motions in limine had the effect of depriving him of his constitutional right to present a defense.
Salzer's theory of the case was that after his ultimatum about ending their marriage, Tina fabricated and implanted the abuse story because she knew Salzer would seek custody of C.S. Salzer contends that although he was permitted to introduce evidence of his threat to divorce Tina and his intent to seek custody of C.S., the court's rulings substantially limited his ability to establish that his threat to seek custody had a powerful factual basis providing Tina a motive to implant the abuse story. The exposure of a witness's motivation is `a proper and important function of the constitutionally protected right of cross-examination.' Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). Thus criminal defendants have a constitutional right to impeach prosecution witnesses with evidence of bias, id. at 316-18, and it is reversible error to deny a defendant the right to establish the bias of the chief prosecution witness by independent evidence. State v. Spencer, 111 Wn. App. 401, 408, 45 P.3d 209 (2002). Where a case stands or falls on the jury's belief or disbelief of one central witness, that witness's credibility or motive must be subject to close scrutiny. State v. Wilder, 4 Wn. App. 850, 854, 486 P.2d 319 (1971).
This issue was not determined on Salzer's direct appeal. The court held the exclusion of evidence was within the court's discretion under the rules of evidence, but did not address any constitutional arguments. Salzer, 2001 Wash. App. LEXIS 1079, at *14-15. Thus the court did not decide the question presented in this personal restraint petition. See In re Haverty, 101 Wn.2d 498, 503, 681 P.2d 835 (1984) ("[F]or the issue to have been previously heard and determined, it must be found that: (1) [T]he same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.") (quoting Sanders v. United States, 373 U.S. 1, 15, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963)).
The constitutional right to present a defense will, in certain circumstances, override application of a statute or evidentiary rule. The court must balance the interest promoted by the statute or rule against the interests of the defendant in offering the evidence. See, e.g., State v. Baird, 83 Wn. App. 477, 482-83, 922 P.2d 157 (1996) (constitutional considerations overcame provisions of Privacy Act); see also State v. York, 28 Wn. App. 33, 37, 621 P.2d 784 (1980) (citing Berger v. California, 393 U.S. 314, 315, 89 S. Ct. 540, 21 L. Ed. 2d 508 (1969) (`denial or diminution [of the constitutional right to cross-examine] calls into question the integrity of the fact-finding process and requires the competing interests to be closely examined.')). Thus an analysis of evidentiary rules is insufficient when the issue involves a defendant's constitutional rights.
In State v. Peterson, 2 Wn. App. 464, 465, 469 P.2d 980 (1970), the defendant sought to establish that allegations of indecent liberties with a minor were a fabrication initiated by the victim's older sister. The trial court limited cross-examination of the mother regarding the older sister's motives and involvement in initiating the complaint. Reasoning that a defendant should be given great latitude in cross-examining a prosecution witness to show motive or credibility, Division Two of this court reversed, stating: `Failure to permit the defendant reasonably to pursue a valid theory constituted error which seriously jeopardized his defense to a heinous crime.' Id. at 467; see also York, 28 Wn. App. at 34-37 (reversible error to exclude evidence probative of chief prosecution's witness's motivation to fabricate allegations, noting that the witness's questionable credibility was `the very essence of the defense.').
A challenge to Tina's credibility was central to the defense theory of the case. Her drug and alcohol abuse, mental health issues, and encounters with the law were likely to be central issues in a dissolution trial. Although Salzer was permitted to present evidence of his threat to seek custody, the court excluded the evidence that might have allowed the jury to determine whether it was likely Tina regarded the threat as a serious one.
The State contends there is no evidence that `Tina Salzer lied to maintain custody of her child or for any other reason.' Resp. Br. at 31. This may be true, but proves Salzer's point: the court excluded the very evidence Salzer was relying upon to make that very argument.
The constitution does not require the admission of irrelevant evidence. But here, the motive evidence was clearly relevant: the worse Tina's record as a mother, the more reason she would have to implant the stories of abuse, to ensure Salzer did not win a battle for custody. Exclusion of the motive evidence violated Salzer's right to present a defense. The remaining question is whether this violation resulted in actual and substantial prejudice. Markel, 154 Wn.2d at 267.
The theory that Tina had motive to implant and falsely report C.S.'s disclosure of abuse was not far-fetched. C.S.'s initial disclosures all flowed from Tina's leading questions. The disclosures to neutral investigators all were prompted by disfavored interview techniques and/or were ambiguous. As to the later disclosures, Tina's involvement continued. She wrote notes to C.S.'s therapist before each session detailing C.S.'s disclosures, and on at least one occasion, Tina was in the room during a session. Finally, C.S.'s disclosures included much that was fanciful and/or impossible.
Division Two in its opinion on direct review stated otherwise, but the record is clear that she was present at an interview on October 31, 1997. See RP (July 7, 1998) at 139.
We conclude that in these circumstances, Salzer was prejudiced by exclusion of the evidence of Tina's motive to implant false beliefs in C.S. Salzer is therefore entitled to a new trial.
Defense Expert Testimony. On direct appeal, Division Two rejected Salzer's claim that the court erred in excluding expert testimony about the general suggestibility of children. Salzer asks us to revisit this issue in light of the Supreme Court's recent analyses in State v. Willis, 151 Wn.2d 255, 87 P.3d 1164 (2004) and State v. Downing, 151 Wn.2d 265, 87 P.3d 1169 (2004). We reach this argument because it may arise upon remand, and hold that neither case affects the analysis here.
In State v. Swan, 114 Wn.2d 613, 656, 790 P.2d 610 (1990), the court upheld exclusion of such testimony, stating that `the argument that child interviews could be suggestive was amply aired during the cross examination of the State's witnesses and, as the trial court declared, was well within the understanding of the jury.' In Willis, the Supreme Court affirmed exclusion of expert testimony that went solely to general suggestibility, expressly declining to retreat from Swan: `We hew to our conclusion in Swan that the general principle that younger children are more susceptible to suggestion is `well within the understanding of the jury.' Willis, 151 Wn.2d at 261 (quoting Swan, 114 Wn.2d at 656). The court noted that in contrast, testimony regarding the impact of specific interview techniques on children's memories is admissible. Id. In Downing, the trial court denied a motion for continuance to secure expert testimony that meeting with other alleged victims might have tainted the victim's testimony. Downing, 151 Wn.2d at 274. The Supreme Court affirmed, in part because the trial court had not interpreted Swan as a complete bar to admissibility, but rather concluded there was no evidence of taint. Id.
Neither Willis nor Downing require us to revisit these questions here. Dr. Yuille was permitted to testify about accepted techniques for child interviews and departures from those techniques, which comports with Willis. Moreover, there was ample testimony regarding the suggestibility of children. Dr. Kennedy was allowed to testify, over the State's objection, to the problems of suggestibility in children, and although the court sustained the State's objection to Dr. Yuille's statement that `[c]hildren are very susceptible to suggestion, and they can be misled or confused,' the court did not strike the testimony, thus leaving it before the jury. See Swan, 114 Wn.2d at 659 (even when an objection is sustained, if the court does not grant a motion to strike or instruct the jury to disregard it, the testimony `thus remain[s] in the record for the jury's consideration.').
RP (July 8, 1998) at 55.
The court did not abuse its discretion in excluding Dr. Yuille's testimony as it related to the general suggestibility of children.
Reversed and remanded for a new trial.
COX and BAKER, JJ., Concur.