Appeal from Superior Court of Snohomish County. Docket No: 93-1-01013-8. Date filed: 06/29/94. Judge signing: Hon. Anita L. Farris.
Petition for Review Denied May 6, 1997,
Authored by Ann L. Ellington. Concurring: H. Joseph Coleman, Walter E. Webster.
The opinion of the court was delivered by: Ellington
ELLINGTON, J. -- Vincent Grasso was convicted of child rape and molestation. We find that the child hearsay evidence was properly admitted, that the admission of a videotape documenting one of R.'s therapy sessions was not unduly cumulative, that Grasso was not denied effective assistance of counsel, that misconduct does not require reversal, and that Grasso's exceptional sentence was justified on grounds of abuse of trust and particular vulnerability. The State concedes that the court erred by imposing restitution more than 60 days beyond sentencing. We therefore confirm the conviction and sentence, and vacate the restitution order.
This opinion has no precedential value and will be filed according to the rules of the court. See RCW 2.06.040; RAP 10.4(h). The facts are known to the parties and will be mentioned only as necessary for an understanding of this opinion.
Admission of Child Hearsay Statements
The first question is whether the court erred in admitting child hearsay statements because questions to the child were unduly suggestive. We review admission of such statements for an abuse of discretion and find none here.
Child hearsay statements are admissible when a child testifies and the court finds sufficient indicia of reliability. RCW 9A.44.120; see also State v. Ryan, 103 Wash. 2d 165, 175-76, 691 P.2d 197 (1984) (listing factors). Statements made in response to questioning are generally not considered spontaneous, and such lack of spontaneity weighs against reliability. See Ryan, 103 Wash. 2d at 176. Statements made in response to non-leading questions, however, are considered spontaneous and reliable. See, e.g., State v. Young, 62 Wash. App. 895, 901, 817 P.2d 412 (1991). A determination of reliability under Ryan is reviewed for an abuse of discretion. State v. Pham, 75 Wash. App. 626, 631, 879 P.2d 321 (1994), rev. denied, 126 Wash. 2d 1002, 891 P.2d 37 (1995).
Grasso contends that Keating-Harvey's questioning was suggestive because her goal was to have R. verbalize feelings related to Grasso's abuse. Such a goal, however, would only taint the hearsay if it influenced the therapist's questioning, which is not the case here. Keating-Harvey asked R. to distinguish good and bad touches, but did not direct the child to speak of genital touching or to implicate Grasso.
Grasso argues that because Keating-Harvey relayed her knowledge of Grasso's touching problem to R., the resulting hearsay was unreliable. We do not agree. More than two months had elapsed between the relaying of this information in the first therapy session and the child's statement in the fifth session. Any suggestiveness was so attenuated as to be non-existent.
Grasso has challenged the child hearsay for suggestiveness only. We find none. Admission of the statements was not an abuse of the trial court's discretion.
Grasso makes a variety of ineffective assistance of counsel claims, none of which satisfies the test for ineffective assistance. An ineffective assistance of counsel claim requires a showing of deficient performance and resulting prejudice. Deficient performance is proven if counsel's conduct fell below an objective standard of reasonableness. Prejudice requires a reasonable probability that the outcome would have been different but for counsel's errors. State v. McFarland, 127 Wash. 2d 322, 334-35, 899 P.2d 1251 (1995). A legitimate trial strategy cannot serve as a basis for a claim of ineffective assistance. State v. Lord, 117 Wash. 2d 829, 883, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856, 113 S. Ct. 164, 121 L. Ed. 2d 112 (1992). Because counsel's performance is presumed adequate, the defendant must show an absence of legitimate strategic reasons to support the challenged conduct. McFarland, 127 Wash. 2d at 336. When the challenged conduct is a decision not to call a witness, the defendant must show that counsel failed to conduct a proper investigation. State v. Thomas, 109 Wash. 2d 222, 230, 743 P.2d ...