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Washington v. Foster

filed: April 29, 1996.

STATE OF WASHINGTON, RESPONDENT,
v.
BOYD ALLEN FOSTER, APPELLANT.



Superior Court County: King. Superior Court Cause No: 93-1-04274-1. Date filed in Superior Court: December 13, 1993. Superior Court Judge Signing: Hon. Patricia Aitken.

Written by: Judge Kennedy, Concurred by: Judge Webster, Judge Agid

Author: Kennedy

KENNEDY, A.C.J. -- Boyd Foster appeals his first degree child molestation conviction. The six-year old complaining witness was permitted to testify during the trial via one-way closed-circuit television. Foster claims that allowing such testimony violated his right to confront the child witness under the state and federal constitutions and deprived him of due process of law and his right to trial by jury. We disagree, and affirm the conviction.*fn1

The statute providing for testimony through closed-circuit television reads in pertinent part as follows:

On motion of the prosecuting attorney in a criminal proceeding, the court may order that a child under the age of ten may testify in a room outside the presence of the defendant and the jury while one-way closed-circuit television equipment simultaneously projects the child's testimony into another room so the defendant and the jury can watch and hear the child testify if:

(a) The testimony will describe an act or attempted act of sexual contact performed with or on the child by another or describe an act or attempted act of physical abuse against the child by another;

(b) The testimony is taken during the criminal proceeding;

(c) The court finds by substantial evidence, in a hearing conducted outside the presence of the jury, that requiring the child to testify in the presence of the defendant will cause the child to suffer serious emotional or mental distress that will prevent the child from reasonably communicating at the trial. If the defendant is excluded from the presence of the child, the jury must also be excluded;

(e) The court finds that the prosecutor has made all reasonable efforts to prepare the child for testifying, including informing the child or the child's parent or guardian about community counseling services, giving court tours and explaining the court process. If the prosecutor fails to demonstrate that preparations were implemented or the prosecutor in good faith attempted to implement them, the court shall deny the motion[.]

RCW 9A.44.150(1)(a), (b), (c) and (e).

In the present case two competency hearings were held, one in which the child witness was in Foster's presence in the courtroom, and the other by way of one-way closed-circuit television in which the child was out of Foster's presence, in the judge's chamber, accompanied by the prosecutor, defense counsel, and a victim's advocate. During the first competency hearing, after saying that she was six years old and in the first grade, and that she had gone to Kid's Court the previous Saturday, and after answering the prosecutor's questions about the difference between the truth and a lie, the child repeatedly responded that "maybe" she would be able to tell the truth about what happened, or that she "didn't know" if she would be able to do so. The prosecutor eventually elicited the reason for the child's trepidation:

Q. If I ask you what happened with Spud [Foster's nickname], will you tell me the truth or will you tell me a lie?

A. I don't know.

Q. If I tell [you] that you have to tell me the truth, will you tell me the truth?

A. I don't know.

Q. Is it because of the courtroom?

A. Yes.

Q. Are you feeling shy because Spud is here?

[objection to question as leading overruled]

Q. If you couldn't see Spud, would you be able to tell what happened?

A. Yes.

Q. If you couldn't see him, would you be able to tell me the truth about what happened?

A. Yes.

Q. It is because you can see him that you feel that you can't tell the truth?

A. Yes.

Q. You don't want to say anything about what happened, you don't want to talk about it, because you see him?

A. Yes.

Q. Are you afraid that something might happen if you tell the truth?

A. No.

Q. It's just because you see him, that makes you scared?

A. Yes.

Report of Proceedings, Vol. I ...


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