Opinion
No. 56837-0-I.
November 13, 2006.
Appeal from a judgment of the Superior Court for King County, No. 01-1-10124-9, Michael Heavey, J., entered August 19, 2005.
Counsel for Appellant(s), Elaine L. Winters, Washington Appellate Project, Seattle, WA.
Counsel for Respondent(s), Dennis John Mccurdy, King County Prosecutor's Office, Seattle, WA.
Affirmed by unpublished per curiam opinion.
A trial court has broad discretion to limit cross-examination because of concern for, among other things, the witness's safety. When L.W., the alleged victim, suffered a physical and emotional breakdown on the stand after over two hours of cross-examination and her counselor said that she had no memory of being on the stand or of the breakdown, the trial court's determination that she was unavailable for further testimony was within the court's discretion. And even if the trial court's decision was erroneous, it was harmless when viewed in light of all the evidence. We affirm.
FACTS
On September 7, 2001, 13-year-old L.W. told her brother that their sister's boyfriend, Darnell Hagans, had sexually assaulted her. L.W.'s brother called their sister, who came home and confronted Hagans and called the police. Hagans left before the police arrived. L.W. was taken to Harborview Medical Center for examination. Joanne Tilton, a sexual assault nurse examiner, took swabs from L.W.'s inner thigh, chest, and stomach because L.W. said that Hagans had kissed or touched her in these places.
After Hagans' first trial resulted in a hung jury, a second trial was held in the summer of 2005. L.W. reluctantly testified, stating that Hagans touched her under her shirt, kissed her stomach and chest, and touched and penetrated her vagina. Hagans threatened to hurt L.W.'s family if she told anyone. Tilton and Christine Heideman, a social worker at Harborview, testified that L.W. told them about the incident. William Stubbs, a forensic scientist at the Washington State Patrol Crime Laboratory, testified that he analyzed the swabs taken by Tilton and that Hagans' DNA was on those from L.W.'s abdomen and chest.
After approximately two and one-half hours of cross-examination, L.W. stated: "That was my last question. I'm leaving now." 2 Report of Proceedings (RP) (July 7, 2005) at 57. The judge told L.W. that they needed her for ten more minutes. L.W. said she would stay, but that "Everything you guys ask me, I don't know. Okay?" 2 RP (July 7, 2005) at 59. The judge told her to answer the questions. When defense counsel asked a question, L.W.'s eyes rolled back in her head, tears began to stream down her face, and she became nonresponsive. Eventually L.W.'s brother and victim advocate were able to help her to leave the courtroom.
After L.W. left, the judge stated that they could not rely on her coming back, but noted that they got within the ten-minute limit that he had imposed. The judge told defense counsel to make an offer of proof if he felt that his right to cross-examination had been denied.
On the next day of trial, the prosecutor noted that L.W. had not returned to court. Defense counsel said that the appropriate thing to do was to bring L.W. back, noting that she had done this in the prior trial, but that she had always calmed down and been able to continue. The prosecutor said that L.W. had not wanted to testify in this trial, that he had truncated direct-examination because of L.W.'s emotional state and ability to continue, and that her recent breakdown was much more severe than that at the prior trial. Further, the prosecutor stated that he had spoken with L.W.'s counselor, who said that L.W. had no memory of the most recent breakdown. And while it would be possible to force L.W. to come to court, there were serious concerns about her mental health and physical state, given her condition on the day of her breakdown.
The judge acknowledged concern over her state and said that "she had definitely gone over the edge", and that it would not "be helpful to put her over the edge again," so they should seek alternative ways of addressing the situation. RP (July 11, 2005) at 7. Defense counsel responded that while it would be a poor substitute for L.W.'s live testimony, reading the offer of proof consisting of part of L.W.'s testimony in the prior trial would be the next best thing. The offer of proof was read into evidence, and the jury convicted Hagans of second degree child rape. Hagans appeals.
DISCUSSION
Hagans contends that the trial court's decision that L.W. was unavailable limited cross-examination and violated his right to confront adverse witnesses. The State argues that the trial court did not err in deeming L.W. unavailable, and even if the trial court erred, the error was harmless.
1. Unavailability
The federal and state constitutions grant criminal defendants the right to confront the witnesses against them. U.S. Const. amend. VI; Wash. Const. art. 1, § 22. In general, the scope of cross-examination is within the broad discretion of the trial court. State v. Roberts, 25 Wn. App. 830, 834, 611 P.2d 1297 (1980). The constitutional guarantee "is generally satisfied when the defense is given a full and fair opportunity to probe and expose [the] infirmities" of the witness's testimony. Delaware v. Fensterer, 474 U.S. 15, 22, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985). "Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested." Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). But a witness's prior testimonial statement may be admitted when the witness is "unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 1365, 158 L. Ed. 2d 177 (2004). And a trial court can impose reasonable limits on cross-examination "based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness's safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986).
Hagans asserts that there was an insufficient factual basis for the determination that L.W. was unavailable for further testimony. He contends that the State offered no information regarding L.W.'s condition when trial resumed after her breakdown. But the prosecutor said L.W.'s counselor had indicated that L.W. had no memory of having the breakdown, indicating the severity and fragility of her mental and emotional state. He also said that the breakdown was more severe than a similar incident that occurred in the first trial. Although he noted that it would be possible to physically force her to return to court, he stated that this would not be fruitful and that he had serious concerns about L.W.'s mental health and physical state if she did return. The trial court noted from its own observation that L.W. "had definitely gone over the edge". RP (July 11, 2005) at 7. There was a sufficient factual basis to determine that L.W. was unavailable.
Hagans cites several out-of-state cases where a witness became unable to testify due to death or physical incapacity while on the witness stand. But in each of these cases, the incapacity occurred before cross-examination began. In this case, L.W. underwent almost three hours of cross-examination before she broke down. And although Hagans points out that a defendant may be entitled to a mistrial or to strike the witness's testimony, he did not request a mistrial and declined to strike L.W.'s testimony.
In addition, defense counsel included those areas that he sought to cover in cross-examination in his offer of proof. The offer of proof was a transcript of L.W.'s testimony in the previous trial. And since the trial court accepted the offer of proof into evidence at defense counsel's request, counsel was able to present that cross-examination of L.W. to the jury. Hagans also argues that the State failed to demonstrate that L.W.'s prior trial testimony was admissible under Washington evidence rules; however, because he sought admission of the testimony, he cannot claim error by this means. Hagans' right to cross-examination was limited, but it was not violated.
2. Harmless Error
In determining whether violation of the right to confrontation was harmless, the appellate court must decide "whether the not-fully-impeached evidence might have affected the reliability of the fact[-]finding process at trial." Van Arsdall, 475 U.S. at 684. Where a trial court denies a defendant's right to confrontation, the court on appeal must determine "whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt." Van Arsdall, 475 U.S. at 684. Factors important to this determination include the importance of the witness's testimony to the State's case, whether the testimony is cumulative, whether there is evidence corroborating or contradicting the witness's testimony on material points, the extent of cross-examination that was permitted, and the strength of the State's case in general. Van Arsdall, 475 U.S. at 684.
In this case, L.W. was the victim, and her testimony was important to the State's case. But other witnesses, including the sexual assault nurse examiner and the detective, testified that L.W. said Hagans had sexually assaulted her. And the DNA analysis established that some of the saliva samples taken from L.W.'s body were Hagans'. Further, the trial court gave Hagans ample opportunity to cross-examine L.W. In almost three hours, defense counsel succeeded in pointing out numerous inconsistencies in L.W.'s testimony and past statements, and L.W. admitted that she had lied many times in the past. And at least one subject included in the offer of proof — L.W.'s attitude toward Hagans' picking her up from school — was addressed during cross-examination before her breakdown. We conclude that if the trial court erred in limiting cross-examination, this error was harmless.
3. Witness Credibility
In his statement of additional grounds for review, Hagans challenges the credibility of L.W. and her brother. But credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
4. Chain of Custody
Hagans asserts that the chain of custody for the rape kit was destroyed when an employee of the evidence unit told a detective that the kit was not there. But the hand-written documentation of the chain of custody showed that the kit was in fact in the evidence freezer and that it had not been removed from the evidence unit before it was taken to the crime lab for analysis. The chain of custody was not broken.
CONCLUSION
Affirmed.
DWYER and GROSSE, JJ., concur.