Appeal from Superior Court of Chelan County. Docket No: 94-1-00246-6. Date filed: 11/02/94. Judge signing: Hon. Ted W. Small Jr.
Authored by Dennis J. Sweeney. Concurring: John A. Schultheis, Stephen M. Brown.
The opinion of the court was delivered by: Sweeney
SWEENEY, C.J. The Sixth Amendment to the United States Constitution affords any criminal defendant the right "to be confronted with the witnesses against him." The Washington State Constitution guarantees "the accused" the right "to meet the witnesses against him face to face . . . ."
Const. art. I, sec. 22 (amend. 10). In this child molestation case, the State introduced evidence against Connie C. through her husband's written confession. There is no showing that Mr. C. was unavailable to testify at trial. The question presented is whether Mrs. C. was denied her right to confrontation and, if so, whether the denial was harmless error. We conclude that she was denied her right to confrontation and that the denial was not harmless. We accordingly reverse her conviction and remand for retrial.
The C. family moved to Wenatchee from Moses Lake in 1988. The youngest daughter, J.D., was admitted to Pine Crest Hospital for psychiatric evaluation on May 20, 1994. She disclosed to the Pine Crest staff that she had been sexually abused by her father. Pine Crest reported this information to Child Protective Services, which notified Wenatchee law enforcement. The next day, Mr. C. talked to a Wenatchee detective. Mr. C. admitted molesting each of his daughters, S.J., J.L. and J.D., regularly and frequently from the age of two to the present. The detective prepared a written statement including Mr. C.'s admissions, which Mr. C. read and signed. The State then charged him with 23 counts of rape, incest, and child molestation. He pleaded guilty on all counts. His written statement provided the factual basis for the plea.
The detective interviewed S.J. and J.L. Based on what they told him, Mrs. C. was charged as an accomplice to Mr. C. The State's position was that Mrs. C. had general or specific knowledge of Mr. C.'s sexual abuse of J.L., S.J., and J.D. And she facilitated his crimes by providing the family home. She pleaded not guilty. At her trial, Mr. C.'s statement on plea of guilty, including his written statement, was admitted into evidence and read three times. There was no showing that Mr. C. was not available to testify.
The jury found Mrs. C. guilty on all 23 counts. The court imposed an exceptional sentence of 560 months. She appeals.
Confrontation Clause. Mrs. C. did not challenge the admission of Mr. C.'s statement as a denial of her right to confrontation in the trial court. Because the issue is of constitutional magnitude, we consider the assignment of error. State v. Scott, 110 Wash. 2d 682, 688, 757 P.2d 492 (1988).
The right to confront witnesses is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 22 of the Washington State Constitution. State v. Johnson, 61 Wash. App. 539, 549, 811 P.2d 687 (1991). Hearsay implicating a criminal defendant is admissible only if the declarant is unavailable and the statement bears adequate indicia of reliability. See Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980); State v. Whelchel, 115 Wash. 2d 708, 715, 801 P.2d 948 (1990).
The State argues that Mr. C.'s confession was properly admitted under RCW 5.44.040 as a certified public record. The statute permits admission of "copies of all records and documents . . . on file" in this state when certified by "respective officers having by law the custody thereof . . . ." RCW 5.44.040. The State relies on State v. Monson, 113 Wash. 2d 833, 784 P.2d 485 (1989) for the proposition that public records do not require a showing of unavailability. We disagree with the State's assumption that a confession is a public record.
To be an admissible public record under the statute, a report or document prepared by a public official must contain facts and not Conclusions involving the exercise of judgment or discretion or the expression of opinion. The subject matter must relate to facts which are of a public nature, it must be retained for the benefit of the public and there must be express statutory authority to compile the report.
Steel v. Johnson, 9 Wash. 2d 347, 358, 115 P.2d 145 (1941). Driving records have been held admissible under the statute since they are "a classic example of a public record kept pursuant to statute, for the benefit of the public and available for public inspection." State v. Monson, 53 Wash. App. 854, 858, 771 P.2d 359, aff'd, 113 Wash. 2d 833, 784 P.2d 485 (1989); see generally Steel, 9 Wash. 2d at 358 (report made for internal department use not public record); State v. Bolen, 142 Wash. 653, 663, 254 P. 445 (1927)(fingerprint records of war department properly admitted as public record); State v. Malone, 9 Wash. App. 122, 130, 511 P.2d 67 (abstract of driving record properly admitted ...