Petition for Writ of Certiorari — Eldredge v. Utah
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Ss-i 42677 .
| Supreme Court, U.S.
FILED
= |] Ma 30-9
4] JOSEPH F. SPANIOL, UR,
“ ae ’ CLERK
IN THE ' ——
SUPREME COURT OF THE UNITED STATES
October Term, 1988
RICHARD M. ELDREDGE,
Petitioner,
VS.
STATE OF UTAH,
Respondent.
Petition for Writ of Certiorari
to the Utah Supreme Court.
STEWART M. HANSON, JR.
MICHAEL W. HOMER
(Ccunsel of Record)
CHARLES P. SAMPSON
PAUL M. SIMMONS
SUITTER AXLAND ARMSTRONG & HANSON
175 South West Temple, Suite 700
Salt Lake City, Utah 84101-1480
Telephone: (801) 532-7300
Counsel for Petitioner
QUESTIONS PRESENTED
1. Whether the application of Utah Code
Ann. §§ 76-5-410 and -411 in a trial for actions occurring
before their enactment violated the ex post facto clause of
article I, section 10 of the United States Constitution and the
due process clause of the Fourteenth Amendment.
2. Whether the admission into evidence of
hearsay statements of a child witness without considering
their reliability, as required by Utah Code Ann. § 76-5-411,
violates the Sixth Amendment's confrontation clause, as
applied to the states by the Fourteenth Amendment.
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED onsccicciccsisccnuswanaewe i
TABLE GP CU ERINE S| scesinessxsssrcavsamscraseiense eee ii
TABLE OP AUT Eee ee oiinsieiicacasesqesscnsentanseeeaeeeee li
OPINION OF THE COURT BEUOW. .......+.cssecssasacnuanos 2
FUSE EN ov icwikkbivnndccnncekacestaseeuceesasceus Sone 2
RELEVANT CONSTITUTIONAL PROVISIONS
PICU SUA FEB iciiccssssccccsscssennsaisuee eee -
TP e RES SG FORE CASES «. ccscsscnncrsceeevaneen eee 4
REASONS FOR GRANTING THE PETITION ............... 9
26. & Bl.” 8, rrr mrr rr pre 20
PA UT APEIK 5 nincicesvenenvnesusevesstsivateveneen Gap eeeen wee:
Opinion of the Utah Supreme Court.................. A-1
Order Denying Petition for Rehearing .............. A-26
TABLE OF AUTHORITIES
Cases
ew rr Fe oe, OO, 2796 (1988)........06........cc00000. 18
Davis v. Alaska, 415 U.S. 308 (1974)..........ccccccee 15
Delaware v. Fensterer, 474 U.S. 15 (1985)................... 17
Dutton v. Evans, 400 U.S. 74 (1970)... 14
Hopt v. Utah, 110 U.S. 574 (1884)..00..... oc 12
Miller v. Florida, 482 U.S. 423 (1987)............000085. 10, 11
Ohio v. Roberts, 448 U.S. 56 (1980)............0..00005. 14, 18
Pointer v. Texas, 380 U.S. 400 (1965)............00.00.0000 es 13
Smith v. Illinois, 390 U.S. 129 (1968) ............0..0cceeeeee 15
State v. Rimmasch, No. 20760, slip op.
Ee ae ee
State v. Sanchez, 11 Utah 2d 429, 361 P.2d 174 (1961).... 16
State v. Wilkerson, 612 P.2d 362 (Utah 1980)............... 11
United States v. Lightly, 677 F.2d 1027 (4th Cir. 1982).... 16
United States v. Owens, 484 U.S. 554, 108 S.
Neen een csuwncccavsccevenscees 17
Walker v. State, 433 So.2d 469 (Ala. 1983) .................. 13
Weaver v, Graham, 450 U.S. 24 (1981) ...................... 1]
111
Constitutional Provisions
United States Constitution, Article I, Section 10...........2, 10
United States Constitution,
SERENE FAVIIETIITIOEE noc cok cas cc cvandcascac ds BO, 12. 15, 14
United States Constitution,..
Fourteenth Amendment.................. 2,9, 10, 12, 13
Court Rules
Federal Rule of Evidence 801 Advisory Committee Note
OR IN EI oo va choc nn cane oasca Gp ecndeccncsascax 14
ten Beebe OF TEV iC GUIS aoc cc cuca vccousccansaccxsucaucncene 16
LFGGi Sues Cie ORES occ etc or oe 16
Utah Rule of Evidence 8O1(c) ...........ccccccccccccccccccccsccs 14
Utah Rule of Evidence 804(a)(3)........................cccecece 17
Statutes
Alaska Stat. § 12.40.110 (Supp. 1988)...........000000000000.. 10
Arizona Rev. Stat. Ann. § 13-1416 (Supp. 1988)............ 10
Arkansas Stat. Ann. § 16-41-101, Rule 803(25) (1987)..... 10
California Evidence Code § 1228 (West Supp. 1989)........ 10)
Colorado Rev. Stat. § 13-25-129 (1987) .................00.6¢ 10
Florida Stat. Ann. § 90.803(23) (West Supp. 1989)......... 10
iV
NE A MD 8 Ue CEO Be cnaanensscaseneasunidhiadatsvasasss 10)
Illinois Ann. Stat. ch. 38 | 115-10
CCT - EGE SUID. TIE) ssc cccacnsencvcecasconsiscces 10
Indiana Code Ann. § 35-37-4-6 (Burns Supp. 1988)........ 10
Kansas Stat. Ann. § 60-460(dd) (Supp. 1988) ............... 10
Maine Rev. Stat. Ann. tit. 15, § 1205 (Supp. 1988)......... 10
Minnesota Stat. § 260.156 (West Supp. 1989) ............... 10
Minnesota Stat. § 595.02(3) (West 1988) ............. ates 10
Mississippi Code Ann. § 13-1-403 (Supp. 1988) ............ 10
Missouri Ann. Stat. § 491.060(2) (Vernon Supp. 1989)...... 9
Missouri Ann. Stat. § 491.075 (Vernon Supp. 1989)........ 10
ee I RE, WE ods va cvacncanhunwecncacsuckaedeskaxnennss 1]
Oklahoma Stat. Ann. tit. 12, § 2803.1 (West Supp. 1989).. 10
42 Pennsylvania Cons. Stat. Ann. § 5986
NEI IIE, UPD San ccesiceehericssdevavenssasseas 10
South Dakota Codified Laws Ann. § 19-16-38 (1987)....... 10
Texas Code Crim. Proc. Ann. art. 38.072
CGIIE , FFs cos seccksscavsncesccesiasse scarce 10
es eee ek sudan chan ke cannsiianuseadena wan 2
Be eo |: | ra 3, 6, 9-13, 16
Utah Code Ann. § 76-5-411......................3, 8-16, 18, 19
Utah Code Ann. § 78-24-2(2) (1977) ............ccccceseeceess 1]
i onl
Washington Rev. Code Ann. § 9A.44.120 (1988)........... 10
Other Authorities
Comment, Confronting Child Victims of Sex Abuse:
The Unconstitutionality of the Sexual Abuse Hearsay
Exception, 7 U. Puget Sound L. Rev. 387 (1984) ........... 16
Elman, Response, 100 Harv. L. Rev. 1949 (1987)............ 4
3 J. Weinstein & M. Berger, Weinstein's Evidence
q 602[01] (1988).......c0sscneeeneeeWeenhWeeReNGseNAENS SS NSHASON eS 14
vi
No.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1988
RICHARD M. ELDREDGE,
Petitioner, -
VS.
STATE OF UTAH,
Respondent.
Petition for Writ of Certiorari
to the Utah Supreme Court.
Petitioner, Richard M. Eldredge, respectfully petitions
this Court for a writ of certiorari to review the judgment and opinion
of the Utah Supreme Court in this case.
BT
OPINION OF THE COURT BELOW
The opinion of the Utah Supreme Court, State
v. Eldredge, appears in the Appendix hereto, p. A-1.
JURISDICTION
The opinion of the Utah Supreme Court
affirming the Petitioner's conviction was filed on February |,
1989 (see Appendix, p. A-1), and the Petitioner's timely filed
Petition for Rehearing was denied on March 30, 1989 (see
Appendix, p. A-28).
The jurisdiction of this Court is invoked
pursuant to 28 U.S.C. § 1257(a).
RELEVANT CONSTITUTIONAL PROVISIONS
AND STATUTES
Article I, section 10 of the United States
Constitution provides in pertinent part:
No State shall... pass any .. . ex post facto
Law .
The Sixth Amendment to the United States
Constitution provides in pertinent part:
In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the
witnesses against him....
The Fourteenth Amendment to the United
States Constitution provides in pertinent part:
No State shall . . . deprive any person of life,
liberty or property, without due process of law ....
Nw
At the time of trial, section 76-5-410 of the
Utah Code read:!
Notwithstanding any other provision of law or
rule of evidence, a child victim of sexual abuse, under
the age of ten, shall be considered a competent
witness and shall be allowed to testify without prior
qualification in any judicial proceeding. The trier of
fact shall be permitted to determine the weight and
credibility to be given to the testimony.
At the time of trial, section 76-5-411 of the
Utah Code read:2
(1) Notwithstanding any other provision
of law or rule of evidence, a child victim's out of
court statement regarding sexual abuse of the child is
admissible into evidence though it does not qualify
under an existing hearsay exception, so long as:
(1) the child testifies; or (2) in the event the child
does not testify, there is other corroborative evidence
of the abuse. Before admitting such a statement into
evidence, the judge shall determine whether the
general purposes of the evidence are such that the
interest of justice will best be served by admission of
the statement into evidence. In addition, the court
shall consider the age and maturity of the child, the
nature and duration of the abuse, the relationship of
the child to the offender, the reliability of the
assertion, and the reliability of the child witness, in
deciding whether to admit such a statement.
| The statute was amended in 1985 to delete the phrases “Notwithstanding
any other provision of law or rule of evidence” and “be permitted to” and to
make minor changes in phraseology.
2 Section 76-5-411 was amended in 1985 and again in 1988, but “any
changes pertinent to this case do not appear to have been of substance.” State
v, Eldredge, No. 20558, slip op. at 4 n.3 (infra at A-5 n.3) (Utah Feb. 1.
1989)
| aaa
(2) A statement may be admitted under
this exception only if the proponent of it makes
known to the adverse party sufficiently in advance of
the trial or hearing to provide the adverse party with
an opportunity to prepare to meet it, his intenticn in
offering the statement, and the particulars of it.
(3) For purposes of this section, a child is
a person under the age of ten.
| STATEMENT OF THE CASE
This case arose out of an ex-wife's claim,
made in the heat of an ongoing dispute over visitation nights,
that her former husband had abused their child. While the
allegations roared, the proof whispered.> The facts relevant
to this Petition are as follows:
In October 1981, the Petitioner, Richard M.
Eldredge ("Eldredge"), and his wife, Suzanne, were
divorced. At the time, they had a two-year-old son named
| Zachary. Mrs. Eldredge was awarded custody of Zachary,
| and Eldredge was awarded reasonable visitation rights.
However, Eldredge never enjoyed reasonable visitation
rights. Shortly after the divorce decree was entered, Eldredge
had to seck an order to show cause to enforce his visitation
rights. Despite Mrs. Eldredge's resistance, Eldredge took
Zachary on various occasions.
In June 1982, Mrs. Eldredge remarried. The
following week Mrs. Eldredge, now Mrs. Sanchez, sought to
have her divorce decree modified to limit Eldredge's visitation
rights with Zachary to once every twenty-seven days because
Eldredge had allegedly tried to turn Zachary against his
mother and her new husband. Mrs. Sanchez's amended
petition to modify the decree said nothing about any alleged
sexual abuse, even though all of the statements and actions of
Zachary that Mrs. Sanchez claims led her to conclude that
Zachary had been sexually abused, had already occurred.
3 Ci. Elman, Response, 100 Harv. L. Rev. 1949, 1952 (1987).
4
From January to April 1983, Mrs. Sanchez denied Eldredge
visitation altogether for the purported reason that Zachary had
pneumonia or tuberculosis. (Zachary never had tuberculosis
but did develop walking pneumonia in March 1983.) The
court heard Mrs. Sanchez's amended petition on April 14,
1983, and ordered that visitation resume. Nothing in the
visitation order suggests anything about sexual abuse, even
though every alleged incident of sexual abuse for which
Eldredge was ultimately convicted had occurred before the
visitation hearing.
Having failed to curtail Eldredge's visitation
rights, in July 1983 Mrs. Sanchez reported to the Salt Lake
County Sheriff's Office that she suspected that Eldredge had
sexually abused Zachary. This was the first suggestion of
sexual abuse. Mrs. Sanchez based her allegation on the
following facts: After some of his visits with Eldredge,
Zachary had diarrhea. On one occasion, after returning from
a visit with Eldredge and while his mother was changing his
diaper, Zachary said to his mother, "Look at my pee-pee.
Look at it. Taste it. It is good." (Zachary was two years old
at the time.) On four other occasions, after visits with his
father, Zachary took his clothes off and acted like a dog.
The Sheriff's Office referred Mrs. Sanchez to
Thomas G. -Harrison, a clinical social worker. Zachary's
stepfather took him to see Mr. Harrison in August 1983 and
told Mr. Harrison that Eldredge had been sexually abusing
Zachary during visitation. At the time Mr. Harrison
interviewed Zachary concerning the alleged incidents of
sexual abuse, Zachary was not yet four years old. Based on
one interview with Zachary and a "History of Sexual
Behavior" compiled by Mrs. Sanchez, describing various
statements and actions that Zachary made of a sexual nature,
Mr. Harrison concluded that Zachary had been involved in
sexual activities with Eldredge and wrote a letter to the
Sheriff's Office stating his conclusions.
On April 3, 1984, a criminal information was
filed against Eldredge, charging him with twenty counts of
sodomy upon a child. All but four of those counts were later
dismissed for lack of evidence. The four counts were all
5
based on events that allegedly occurred between March and
December 1982. The probable cause statement giving rise to
the information was based on Mr. Harrison's letter and
statements by Mrs. Sanchez to the effect that Zachary had
exhibited signs of "trauma," including diarrhea, after visiting
his father and that Zachary had told her on numerous
occasions that Eldredge had touched and licked Zachary's
penis.4
Eldredge's trial commenced on September 26,
1984. Before any evidence was preserited, the court denied
Eldredge's motion to conduct an in-camera examination of
Zachary to review Zachary's competency, his ability to
understand the truth and his personai knowledge of the events
in question. The trial court's ruling was based on a newly-
enacted statute--Utah Code Ann. § 76-5-410--which made a
child victim of sexual abuse a competent witness and required
that he be allowed to testify without prior qualification.
Without any prior foundational examination of Zachary, the
court also granted the State's motion to conduct the
examination of Zachary by leading questions.
Zachary testified at trial, but his testimony was
inconclusive. He was barely five years old at the time. He
showed confusion when asked such simple things as his
name. He changed his story often and rarely gave the same
answer to the same question. As often as not, his response to
a question was, "It's hard to think." In response to the
prosecutor's leading questions, Zachary testified that his
father had touched and licked his "wienie" and that Zachary
had done the same to his father. However, on redirect
examination, Zachary denied it. On cross-examination,
Zachary said that he was testifying from what others had
talked to him about and not from his own recollection. When
Zachary was asked about his visits with Mr. Harrison, he
could not even remember the circumstances of his most recent
visit.
4 There was evidence of only one such statement at tnal, and that statement
was allegedly made well after Mrs. Sanchez had accused Eldredge of abusing
Zachary.
i
= The other evidence at trial showed the
following:
1. Zachary had once asked his
mother, while she was changing his diaper, to look at
and taste his "pee-pee."
2. Zachary often acted very emotional
after visiting his father and sometimes had diarrhea
after visitations. (The evidence also showed that
Zachary had a problem with diarrhea since he was
two or three months old and had had diarrhea during
the first three months of 1983, when Eldredge did not
see him.)
3. Zachary occasionally took off his
clothes and pretended to be a dog after visitation.
(The evidence also showed that Zachary had first
acted this way in August or September 1981, before
his parents were ever divorced.)
4. On his visits with Mr. Harrison,
Zachary would perform "inappropriate play" with
anatomically correct dolls.
5. On his visits with Mr. Harrison,
Zachary would turn-pale and act either agitated or
lethargic when discussing sexual matters and would
sometimes relieve himself in his pants. (Mr. Harrison
testified that there was no data connecting
uncontrolled urination and defecation with sexual
abuse and that any such connection was just
speculation.)
Had this been all the evidence in the case, the
court would have had to discharge Eldredge. However, the
court also admitted certain hearsay statements of Zachary,
principal of which were the following:
1. Mrs Sanchez testified that Zachary
told her in October 1983--ten months after the alleged
event and three months after she had told the Sheriff's
7
Office that Eldredge had abused Zachary--that he and
his father played a game called "frisky" in which they
would lick each other's penises.
2. Mr. Harrison testified that Zachary
told him that he played "frisky" with his father and
that each would lick the other's bottom and penis.
3. Mr. Harrison testified that Zachary
told him that Eldredge would make his penis hard by
squeezing, stroking and flicking it.
4. Mr. Harrison testified that Zachary
said that Eldredge had told him never to “tell anyone
about penis" and had told him that he could not tell
anyone the truth because he did not know what the
truth was.
Over Eldredge's objections, these statements
were offered and admitted under section 76-5-411 of the Utah
Code, which was enacted in 1983--after all of the alleged
occurrences for which Eldredge was convicted. Section 76-
5-411 made admissible "a child victim's out-of-court
statement regarding sexual abuse of the child" even though it
did not qualify under an existing hearsay exception, so long
as the child testified or there was other corroborative evidence
of the abuse. Before such a statement could be admitted into
evidence, however, the statute required the judge to
"determine whether the general purposes of the evidence are
such that the interest of justice will best be served by
admission of the statement into evidence” and to consider "the
age and maturity of the child, the nature and duration of the
abuse, the relationship of the child to the offender, the
reliability of the assertion, and the reliability of the child
witness." The trial court did not make the required
determination, nor did it consider the factors listed.
The defendant was convicted on all four
counts of the amended information. His motion for a new
trial was denied, and he was sentenced to an indeterminate
term of from five years to life on each count, with the
sentences to run concurrently.
8
On appeal to the Utah Supreme Court, the
defendant raised numerous issues, including his claims that
the retroactive application of sections 76-5-410 and -411 to
his case violated his rights under the ex post facto clause and
that the trial court's application of section 76-5-411 violated
his confrontation rights under the Sixth and Fourteenth
Amendments--claims that he had first raised by his pretrial
Motion to Limit Testimony, which was denied. By a 3-2
decision, the Utah Supreme Court affirmed Eldredge's
convictions. The court first rejected Eldredge's ex post facto
and confrontation claims. Then, in the face of a record replete
with proper objections, see State v. Eldredge, No. 20558,
slip op. at 16-18 (infra at A-19 through -21) (Howe, J.,
dissenting), the court found that any claim based on the trial
court’s misapplication of section 76-5-411 had not been
properly preserved and analyzed it under the plain error rule.
Under the two-step plain error analysis that the court adopted,
Eldredge had to first show that it should have been obvious to
the trial court that it was committing error when it admitted
the hearsay statements without making the statutorily required
determination, and, second, that the error affected his
substantial rights. The court did not reach the second
question because it found that the error was not obvious or
"plain."
REASONS FOR GRANTING THE PETITION
This case involves a conflict between two
important social issues: the need to deal with child sexual
abuse and the need to protect the constitutional rights of an
accused.
P In response to public outcry over child sexual
abuse, the legislatures of at least twenty states, including
Utah, have passed legislation designed to facilitate the
prosecution of alleged child sexual abusers by relaxing
evidentiary standards.° In the process, legislatures have
5 For a child competency statute similar to Utah Code Ann. § 76-5-410, see
Mo. Ann. Stat. § 491.060(2) (Vernon Supp. 1989). For hearsay exception
9
tried to safeguard the constitutional rights of the accused.
However, where, as here, the statutes are applied
retrospectively and are not followed, those rights are violated.
e The Petitioner was convicted of four
counts of forcible sodomy upon a child. All of the alleged
crimes took place in 1982. In 1983, the Utah Legislature
passed two new statutes--Utah Code Ann. §§ 76-5-410 and -
411--designed to make convictions of child sexual abusers
easier. The trial court's retroactive application of sections 76-
5-410 and -411 in this case violated the constitutional
prohibition against ex post facto laws, U.S. Const. art. I, §
10, and the ‘due process clause of the Fourteenth
Amendment.®
This Court long ago stated that the ex_post
facto prohibition applied to “[e]very law that alters the legal
rules of evidence, and receives less, or different testimony,
than the law required at the time of the commission of the
offense, in order to convict the offender." Calder v. Bull, 3
U.S. (3 Dall.) 386, 390 (1798), quoted in Miller v. Florida,
482 U.S. 423, 429 (1987). The Utah Supreme Court labeled
this pronouncement "dicta" which "has long since been
rejected.” State v. Eldredge, No. 20558, slip op. at 6 n.6
(infra at A-8 n.6). This Court should grant the petition for
certiorari to determine whether there is anything left of
statutes similar to Utah Code Ann. § 76-5-411, see Alaska Stat. § 12.40.110
(Supp. 1988); Ariz. Rev. Stat. Ann. § 13-1416 (Supp. 1988); Ark. Stat. Ann.
§ 16-41-101, Rule 803 (25) (1987); Cal. Evid. Code § 1228 (West Supp.
1989); Colo. Rev. Stat. § 13-25-129 (1987); Fla. Stat. Ann. § 90.803 (23)
(West Supp. 1989); Idaho Code § 19-3024 (1987); Ill. Ann. Stat. ch. 38 ¥
115-10 (Smith-Hurd Supp. 1988); Ind. Code Ann. § 35-37-4-6 (Burns Supp.
1988); Kan. Stat. Ann. § 60-460(dd) (Supp. 1988); Me. Rev. Stat. Ann. tit.
15, § 1205 (Supp. 1988); Minn. Stat. §§ 260.156 (West Supp. 1989) &
595.02 (3) (West 1988); Miss. Code Ann. § 13-1-403 (Supp. 1988); Mo.
Ann. Stat. § 491.075 (Vernon Supp. 1989); Okla. Stat. Ann. tit. 12, § 2803.1
(West Supp. 1989); 42 Pa. Cons. Stat. Ann. § 5986 (Purdon Supp. 1988);
S.D. Codified Laws Ann. § 19-16-38 (1987); Tex. Code Crim. Proc. Ann. art.
38.072 (Vernon Supp. 1989); Wash. Rev. Code Ann. § 9A.44.120 (1988).
6 “If a state legislature is barred by the Ex Post Facto Clause from passing ...
a law, it must follow that a State ... Court is barred by the Due Process Clause
from achieving precisely the same result by judicial construction.” Bouie v.
City of Columbia, 378 U.S. 347, 353-54 (1964).
10
Calder's "dicta" in light of the Court's subsequent decisions,
including Miller v. Florida, 482 U.S. 423 (1987) (which
quoted Calder approvingly), and Beazell v. Ohio, 269 U.S.
167 (1925).
The Court later clarified the scope of the ex
post facto clause. No ex post facto violation occurs if the
change effected by a statute is "merely procedural." Weaver
vy. Graham, 450 U.S. 24, 29 n.12 (1981). However, if an
alteration, although procedural in form, alters a substantial
right, it cannot be applied retrospectively. Id. Whether
“alterations of procedure" are "of sufficient moment" to
violate the ex post facto clause is a question of degree.
Beazell v. Ohio, 269 U.S. 167, 171 (1925).
In 1982, when the crimes for which Eldredge
was convicted allegedly occurred, under Utah law children
under the age of ten were incompetent to testify absent prior
qualification showing their competence in fact. Utah Code
Ann. § 78-24-2(2) (1977); State v. Wilkerson, 612 P.2d
362, 364 (Utah 1980). In 1983, the Utah Legislature enacted
section 76-5-410 of the Utah Code, which allows a child
victim of sexual abuse to testify in any judicial proceeding
without prior qualification, regardless of his competency in
fact.
Under Utah law as it existed in 1982, hearsay
Statements were inadmissible unless they fit within a
recognized exception to the hearsay rule. In 1983, the Utah
Legislature also enacted section 76-5-411, which made
admissible a child victim's hearsay statements regarding
sexual abuse if the child testified, regardless of whether the
statement qualified under an existing hearsay exception.
Sections 76-5-410 and -411 were part of the
Child Kidnaping and Sexual Abuse Act, 1983 Utah Laws ch.
88, which, besides changing existing evidence rules, created
new offenses, see, e.g., id. §§ 18-20, 22 & 24, did away
with certain defenses, id. § 2, restricted probation and
suspension of sentences for certain offenses, id. § 7, created
more severe penalties for certain felonies, id. §§ 8 & 9, and
required registration by sex offenders, id. § 42. All of these
11
———
ee
measures were designed to make easier the apprehension and
conviction of child sexual abusers and make their punishment
more severe. State v. Rimmasch, No. 20760, slip op. at 1-2
(Utah May 17, 1989).
Standing alone, section 76-5-410 may not
implicate the ex post facto clause if applied retroactively. See
Hopt v. Utah, 110 U.S. 574 (1884) (a statute enlarging the
class of persons competent to testify can be applied ex post
facto). However, given its clear purpose and its effect when
applied in conjunction with section 76-5-411, the statute
cannot constitutionally be applied retrospectively.
If Zachary had been called to testify under the
statute in effect when the alleged crimes were committed,
Eldredge could have insisted that he be prequalified as a
witness to determine whether he was capable of accurately
perceiving, remembering and relating the pertinent facts and
whether he had a sense of moral duty to tell the truth.
Zachary's trial testimony suggested that he was in fact not a
competent witness. Eldredge was precluded from
challenging Zachary's competency, however, by the
retroactive application of section 76-5-410. And the
retroactive application of section 76-5-411 allowed hearsay
statements of the incompetent child witness--made at a time
when he was even less competent--to be admitted into
evidence merely because he also testified at the trial.
The retroactive application of the two statutes
together deprived Eldredge of a substantial right and violated
the ex post facto clause by allowing Eldredge to be convicted
on different testimony than the law required at the time he
allegedly committed the offenses--namely, the hearsay
statements of an incompetent child witness that did "not
qualify under an existing hearsay exception." Moreover, for
the reasons discussed infra, the operation of the two statutes
in tandem also deprived Eldredge of his confrontation rights
under the Sixth and Fourteenth Amendments by depriving
him of a meaningful opportunity to test the reliability of the
hearsay statements.
ee
Because the formerly inadmissible hearsay
was the only evidence on which a conviction could properly
be based, but for the trial court's retrospective application of
the Utah statutes, Eldredge would have been acquitted. Such
a change in the applicable law clearly deprived him of a
substantial right: "[W]here guilt or innocence turns on the
application of the [newly enacted] law, therefor affecting and
disadvantaging the defendant in the most substantial manner
possible," the ex post facto prohibition is vioiated. Walker v.
State, 433 So.2d 469, 473 (Ala. 1983). The retroactive
application of sections 76-5-410 and -411 worked such a
substantial disadvantage to Eldredge's rights as to violate the
ex post facto clause.
2. The trial court's failure to consider the
reliability of Zachary's hearsay statements before admitting
them, as required by Utah Code Ann. § 76-5-411, violated
the Petitioner's rights under the confrontation clause of the
Sixth Amendment.’
This is not a case where there was objective,
physical evidence of sexual abuse or where there was other
corroborative evidence of either the fact of abuse or the
identity of the alleged abuser. This is not a case where the
evidence of abuse was immediately reported. This is not a
case where there was clear, unambiguous testimony from the
alleged victim of the abuse or where the alleged child victim
was allowed to relate his observations and experiences in
response to neutral questions without having his responses
contaminated by countless interviews, counseling sessions
and leading questions. Nor is this a case where the accuser
lacked an ulterior motive. Rather, it is a case where the
accused was convicted solely on the basis of hearsay
statements.
Under these circumstances, the Sixth
Amendment's confrontation clause, as well as Utah Code
Ann. § 76-5-411, required the trial court to determine
whether the hearsay statements bore sufficient indicia of
7? The Sixth Amendment's confrontation clause applies to the states under the
Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403 (1965).
13
reliability before admitting them into evidence. The trial
court's failure to do so violated the Petitioner's constitutional
rights.8
The confrontation clause of the Sixth
Amendment provides that "in all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the
witnesses against him." Read literally, the confrontation
clause would exclude all hearsay statements at trial. Such a
result is clearly “unintended and too extreme." Qhio v.
Roberts, 448 U.S. 56, 63 (1980). However, this Court has
recognized that the confrontation clause places important
limits on those hearsay statements that can be admitted into
evidence. Id.
The limits on the admissibility of hearsay
under both the Sixth Amendment and rules of evidence stem
from the inherently unreliable nature of hearsay. By
definition, hearsay is not the best available evidence. it is a
statement other than one made by the declarant while
testifying at trial and thus one that does not comply "with all
the ideal conditions for testifying," which are designed to
bring out the truth. See Fed. R. Evid. 801 Advisory
Committee Note on subdivision (c). See also Utah R. Evid.
801(c). The evidence is doubly defective where, as here, it is
once removed, that is, where it comes in through the
testimony of someone other than the declarant, since "the
possibility of distortion increases with transfers of
testimony." 3 J. Weinstein & M. Berger, Weinstein's
Evidence § 602[01] (1988).
To assure that the confrontation clause fulfills
its "mission" of advancing "the accuracy of the truth-
determining process in criminal trials," Dutton v, Evans, 400
U.S. 74, 89 (1970) (plurality opinion), a hearsay statement
must possess some “indicia of reliability." Roberts, 448
U.S. at 66.
8
Eldredge does not claim that Utah Code Ann. § 76-5-411 is facially
unconstitutional. Rather, he claims that, if the statute could be applied in his
case, the trial court's failure to make the determination required by the statute
deprived him of his Sixth Amendment rights.
14
The Utah legislature tried to comply with this
requirement when it passed section 76-5-411. Under section
76-5-411, before an alleged child victim's out-of-court
statements can be admitted into evidence, either the child must
testify, or there must be other corroborative evidence of the
abuse. In this case, there was not other corroborative
evidence of the abuse, so the child's hearsay statements were
only admissible because he testified.
Ordinarily, if the hearsay statement comes in
through the declarant at trial, there are sufficient indicia of
reliability because the declarant testifies under oath, subject to
cross-examination and in the presence of the jury, who can
see his demeanor and judge his credibility. Although cross-
examination usually satisfies the requirements of the
confrontation clause, see, e.g., California v. Green, 399
U.S. 149, 158 (1970), this Court has never said that those
requirements are met simply because the declarant takes the
stand at trial. See, e.g., Davis v. Alaska, 415 U.S. 308
(1974) (right of confrontation violated where witness was not
subject to cross-examination as to his juvenile record); Smith
v. Illinois, 390 U.S. 129 (1968) (confrontation violation
where defendant was barred from asking a prosecution
witness his name and address).-
The Utah legislature recognized the dangers in
admitting the hearsay statements of a child victim simply
because he testifies and required, under section 76-5-411,
that the trial court consider the reliability of the statements and
determine whether their admission would best serve the
interest of justice before admitting the statements, regardless
of whether or not the child declarant testified.
This case illustrates the dangers of admitting
through the testimony of a third party the hearsay statements
of a child witness without first determining whether the
statements have sufficient indicia of reliability.
a. The child witness may be incompetent,
even though he is allowed to testify. Zachary's frequent
changes in his trial testimony suggest that he may not have
Ps)
remembered the events in question, may not have been able to
distinguish completely between fact and make-believe or may
not have fully understood his obligation to tell the truth--
minimum requirements for competency.? See, e.g., United
States v. Lightly, 677 F.2d 1027, 1028 (4th Cir. 1982); State
v. Sanchez, 11 Utah 2d 429, 361 P.2d 174, 175 (1961);
Utah R. Evid. 602 & 603. Indeed, the only reason that
Zachary was allowed to testify without a prior determination
as to his competency was because newly enacted section 76-
5-410 conclusively presumed that a child victim of sexual
abuse under the age of ten was a competent witness and
required that he "be allowed to testify without prior
qualification." Eldredge was precluded by the statute and the
trial court's ruling from challenging Zachary's competency.
And the two new statutes--Utah Code Ann. § 76-5-410,
allowing Zachary to testify regardless of his actual
competency, and Utah Code Ann. § 76-5-411, allowing into
evidence his hearsay statements simply because he testified--
placed Eldredge in a Catch-22 situation. He could not keep
Zachary from testifying on the grounds of incompetency,
and, because Zachary testified, his most unreliable, untested
and untestable hearsay statements--made over a year before,
when he was even less competent--were admitted. The trial
court's application of the two statutes in this case deprived
Eldredge of a meaningful opportunity to test the reliability of
Zachary's hearsay statements. And, to the extent that
application permitted the admission of the otherwise
inadmissible hearsay statements of an incompetent witness, it
violated Eldredge's confrontation rights. See Comment,
Confronting Child Victims of Sex Abuse: The
Unconstitutionality of the Sexual Abuse Hearsay Exception,
7 U. Puget Sound L. Rev. 387 (1984).
b. The child may in fact be unavailable
for cross-examination regarding the hearsay statements.
Even though a declarant testifies at trial, he may be
“unavailable” for purposes of the hearsay rule if he does not
remember his prior, out-of-court statement. See Utah R.
9 Indeed, were Zachary competent to testify regarding the alleged abuse, there
would have been no need to admit his hearsay statements. Those statements
would have been merely cumulative.
16
Evid. 804(a)(3). In this case, when Eldredge's trial attorney
asked Zachary about critical circumstances of his visits with
Mr. Harrison, Zachary answered that he could not remember.
It is not surprising that a five-year-old would not remember
statements he had allegedly made a year before concerning
events that had happened a year before that. But that same
lack of memory precluded Eldredge from cross-examining
Zachary concerning his prior, hearsay statements and thus
deprived Eldredge of his confrontation rights. '°
¢. Because the staternents come from a
third party and not from the child declarant, the tner of fact
may give them undue weight. If a child testifies and his
testimony, like Zachary's, is equivocal, contradictory and
confused, the jury may give it little weight. However, when
a hearsay statement is admitted not through the testimony of
the child but through the testimony of an articulate, polished
professional, the jury may accord it great weight (especially
where, as here, the expert was also allowed, over Eldredge's
objection, to give his opinion as to the truthfulness of
Zachary's statements).!! Under such circumstances, the
jury's foremost concern is the witness's credibility and not
the declarant's.
For all of these reasons, it is not enough that a
child witness simply take the stand.!2_ Before his hearsay
10 Eldredge’s inability to cross-examine Zachary concerning the hearsay
statements distinguishes this case from State v, Nelson, 725 P.2d 1353 (Utah
1986), in which the Utah Supreme Court held that the defendant's
confrontation rights were not violated where he had a full and fair opportunity
to cross-examine the child declarant concerning her hearsay statements and
simply chose not to do so,
11 The Utah Supreme Court has recently held that, as a matter of state
evidence law, such testimony constitutes reversible error. State v. Rimmasch,
No, 20760, slip op. at 5 (Utah May 17, 1989)
12 Also, for all of these reasons this case is different from United States v,
Owens, 484 U.S. 554, 108 S. Ct. 838 (1988), and Delaware v. Fensterer, 474
U.S. 15 (1985). In both of those cases, the hearsay statements came in
through the testimony of the declarant himself, who was a competent witness
Although the declarant could not remember at tal the basis for his prior, out
of-court statement, he could remember making the statement and was subject
lo cross-examination concerning the meaning of the statement and the
circumstances at the time he made the statement.
17
Statements may be admitted into evidence, they should have
some other indicia of reliability.
This Court has found sufficient indicia of
reliability “where the evidence falls within a firmly rooted
hearsay exception." Ohio v. Roberts, 448 U.S. at 66. In this
case, the prosecution did not claim and neither the trial court
nor the appellate court found that the hearsay statements came
within any "firmly rooted" exception. The only basis for
admitting the statements was section 76-5-411 of the Utah
Code, and an exception created by a statute enacted only a
year before trial "could hardly be viewed as firmly rooted."
Coy v. Iowa, 108 S. Ct. 2798, 2803 (1988).
Section 76-5-411, like similar statutes in other
jurisdictions, was intended to satisfy constitutional
requirements by requiring the trial court to consider the
circumstances surrounding the hearsay statement and to
determine whether admission of the statement would best
serve the interest of justice before admitting the statement into
evidence, regardless of whether or not the child declarant
testifies. See State v. Nelson, 725 P.2d 1353, 1356 n.3
(Utah 1986); State v. Myatt, 237 Kan. 17, 697 P.2d 836,
842 (1985). Given the dangers inherent in hearsay
statements by young children, it was incumbent on the trial
court to make the statutorily required determination before
admitting the statements. The Utah Supreme Court has
repeatedly emphasized the importance of such an inquiry in
the face of constitutional challenges to the application of the
statute. See State v. Eldredge, No. 20558, slip op. at 7-8
(infra at A-9 through -10); State v. Fulton, 742 P.2d 1208,
1219 n.16 (Utah 1987); Nelson, 725 P.2d at 1356 n.3. Yet
the trial court failed to consider any of the factors listed in the
statute.!> If it had, it would have excluded the hearsay
testimony in the "interest of justice.”
13° The Petitioner does not claim that the confrontation clause
constituuionalizes the list of factors in section 76-5-411. He simply claims
that, where the prosecution offers a hearsay statement that does not fit within
a firmly rooted exception to the hearsay rule, the trial court is required to
consider the reliability of the statement under all of the surrounding facts and
circumstances before allowing the statement into evidence.
18
ee
All of the factors set forth in the statute
militated against admission of the hearsay statements:
Zachary was not yet four years old when the first statements
were allegedly made, and the statements related to events that
had occurred as much as seventeen months before that, when
Zachary was two years old. Moreover, Zachary often lived
in a fantasy world peopled with imaginary friends. He often
pretended to be animals, including a unicorn, a mouse and a
red bull, as well as adog. The alleged abuse, like Eldredge's
visitations, was sporadic and had not occurred for the seven
months preceding any allegation of abuse. Moreover,
although serious, the nature of the alleged abuse was not such
that it would have physically harmed Zachary, imprinting the
alleged events on his memory. At trial, Zachary showed a
loving and trusting relationship with his father. The hearsay
statements about which Mr. Harrison testified were extracted
from Zachary after Mrs. Sanchez had already accused
Eldredge of sexual abuse and were made in the course of
therapy sessions involving potentially suggestive methods
which Mr. Harrison could not clearly recall and of which he
did not keep detailed notes. Finally, Zachary's mother
testified that she would not believe Zachary if he said that
Eldredge had hit him unless she had other proof.!4
|
Had the trial court considered any of the |
factors listed in section 76-5-411 and made the required
determination, it would have concluded that the offered
hearsay statements were too unreliable to be admitted. The
trial court's failure to make the required determination |
deprived Eldredge of his Sixth and Fourteenth Amendment
rights by allowing him to be convicted based on hearsay
statements lacking any indicia of reliability.
14 The only other evidence going to the reliability of the hearsay statements
was Mr. Harrison’s testimony that Zachary’s generalized symptoms and
psychological characteristics were consistent with a profile of a sexually-
abused child. The Utah Supreme Court has recently held that “the necessary
threshold reliability of such testimony has yet to be established” and that its
reliability must be established before it can be admitted into evidence. State
v. Rimmasch, No. 20760, slip op. at 24 (Utah May 17, 1989).
19
CONCLUSION
Because of the seriousness of the offense and
the problems of proof associated with it, courts should be
especially vigilant in protecting the constitutional rights of
accused child sex abusers. The petition for writ of certiorari
should be granted.
Respectfully submitted,
STEWART M. HANSON, JR..
MICHAEL W. HOMER
(Counsel of Record)
CHARLES P. SAMPSON
PAUL M. SIMMONS
of and for
SUITTER AXLAND ARMSTRONG & HANSON
Counsel for Petitioner
MAY 1989
20
CERTIFICATE OF MAILING
The undersigned hereby certifies that on the
__ day of May, 1989, three copies of the foregoing
Petition for Writ of Certiorari to the Utah Supreme Court
were deposited in a United States mailbox, with first-class
postage prepaid, addressed to counsel of record for the
Respondent:
R. PAUL VAN DAM
Attorney General
SANDRA L. SJOGREN
Assistant Attorney General
236 State Capitol
Salt Lake City, Utah 84114
The undersigned further certifies that all parties
required to be served have been served.
STEWART M. HANSON, JR
MICHAEL W. HOMER
(Counsel of Record)
CHARLES P. SAMPSON
PAUL M. SIMMONS
of and for
SUITTER AXLAND ARMSTRONG & HANSON
175 South West Temple #700
Salt Lake City, UT 84101-1480
Telephone: (801) 532-7300
Counsel for Petitioner
—_aS~
—N
—N
IN THE SUPREME COURT OF THE STATE OF UTAH
State of Utah, No. 20558
Plaintiff and Appellee,
FILED
Vv. February 1, 1989
Richard M. Eldredge,
Defendant and Appellant. Geoffrey J. Butler,
Clerk
Third District, Salt Lake County
The Honorable Homer F. Wilkinson
Attorneys: Stewart M. Hanson, Jr., Michael W. Homer,
Salt Lake City, for defendant
R. Paul Van Dam, Sandra L. Sjogren, Salt Lake City, for
plaintiff
ZIMMERMAN, Justice:
Defendant Richard M. Eldredge appeals from his jury
conviction of four counts of sodomy on a child, in violation of
section 76-5-403 of the Code. He makes several claims of
error relating to, inter alia, the following: admission of the
child victim’s testimony and hearsay statements, exclusion of
polygraph evidence and evidence of a witness's bias,
sufficiency of the evidence, and failure to grant a motion for a
new trial or an arrest of judgment based on exculpatory
evidence discovered after trial. We affirm.
When Eldredge’s son was two years old, Eldredge and
the boy’s mother, Suzanne Sanchez, separated and then
divorced. Sanchez was awarded custody of their son, and
Eldredge was granted visitation rights. At a hearing held a
A-1 No. 20558
year and a half later, Sanchez unsuccessfully sought
modification of the divorce decree to reduce the frequency of
Eldredge's visits. Within a few months of the hearing,
Sanchez reported to the sheriff’s office that she suspected
Eldredge of sexually abusing their son.
Shortly after that report was made, Thomas Harrison,
a social worker and director of the Child Sexual Abuse
Program in the Department of Psychiatry at Primary
Children’s Medical Center, interviewed the boy and concluded
that he was probably the victim of sexual abuse. Harrison
immediately reported this conclusion to the sheriff’s office and
began treating the child, which he continued to do for
approximately one year.
Eldredge was charged and tried on four counts of
sodomy on a child, a first degree felony. See Utah Code Ann.
§ 76-5-403 (Supp. 1979). At trial, several witnesses,
including the victim, the victim’s mother, and Harrison,
testified for the prosecution. The boy, then five years old,
used anatomically correct dolls to demonstrate his testimony of
oral sexual abuse. Although his testimony was somewhat
confused and contradictory, the boy did state that he was
telling the truth when he testified that Eldredge had committed
the oral sodomy.
Sanchez testified that her son had exhibited bizarre
behavior and symptoms of illness shortly after returning from
various visits with Eldredge. Specifically, she said that on one
occasion, the child told her to look at and taste his penis
because it tasted good. And on several occasions after visits,
the boy demonstrated disassociative behavior such as lapsing
into unresponsive states during which he removed all of his
clothing and pretended to be a dog, appeared to be stunned, or
sobbed uncontrollably. Immediately after visits, the child was
often pale and vomited or had diarrhea, according to Sanchez’s
testimony.
Harrison testified that when he and the child discussed
sexual abuse, the boy exhibited the same types of
disassociative behavior and symptoms described by Sanchez.
The child lapsed into various imaginary animal
No. 20558 A-2
characterizations and expressly refused to be himself. He
suffered from enuresis and encopresis (uncontrolled urination
and defecation) and attributed his behavior to the imaginary
animals. Harrison then discussed professional literature on
child sexual abuse, compared the boy’s behaviors and
symptoms to those described in the literature, and concluded
that they were consistent with the child’s having been the
victim of sexual abuse.
Harrison also testified that during their therapy
sessions, the boy had described and demonstrated the physical
acts of abuse by using anatomically correct dolls and had
attributed the abuse to Eldredge. Harrison repeated various
other out-of-court statements made to him by the boy, such as
the child’s description of Eldredge’s erection and ejaculation.
He testified that such a young child’s ability to describe and
demonstrate sexual acts strongly indicated personal exposure
to and involvement in those acts and that in his opinion, the
boy was the victim of sexual abuse. Finally, he testified that it
was his opinion that the child’s statements made during
therapy were truthful, including his statements attributing the
sexual abuse to Eldredge.
Several witnesses testified for the defense. Eldredge
took the stand and denied the abuse. The jury found him
guilty, in October 1984, on all four counts. The trial court
sentenced him to four concurrent terms of imprisonment, each
for five years to life, under the first degree felony sentencing
provisions of the Code. See Utah Code Ann. §§ 76-3-203(1)
(1978). Eldredge appeals. We will consider his claims of
error seriatim.
Eldredge first asserts that the trial court’s retroactive
application of sections 76-5-410 and -411 of the Code ran
afoul of the federal ban on ex post facto laws because it
operated to narrow the scope of his federal constitutional right
to confront the witnesses against him.! See U.S. Const. art.
I Eldredge contends that article I, section 18 of the Utah Constitution affords
precisely the same protection as does the federal ex post facto provision.
Because Eldredge has done nothing more to brief this issue than cite one
inapposite case, we choose not to address the state provision. Our analysis is
A-3 No. 20558
I, § 10, amends. VI, XIV. Section 76-5-410 provides that a
child victim of sexual abuse shall be considered competent to
testify at trial without prior qualification.2 Utah Code Ann. §
76-5-410 (Supp. 1983). Section 76-5-411 makes such a
child’s out-of-court statements regarding the abuse admissible
if certain requirements are met, even if the evidence would
limited to the federal provision. See State v. Lafferty, 749 P.2d 1239, 1247
n.5 (Utah 1988); State v. Earl, 716 P.2d 803, 805-06 (Utah 1986).
2 At the time of Eldredge’s tnal, section 76-5-410 read as follows:
Notwithstanding any other provision of law or rule of
evidence, a child victim of sexual abuse, under the age of
ten, shall be considered a competent witness and shall be
allowed to testify without prior qualification in any judicial
proceeding. The trier of fact shall be permitted to
determine the weight and credibility to be given to the
testimony.
Utah Code Ann. § 76-5-410 (Supp. 1983). This language was altered
somewhat in 1985, but its substance does not appear to have been changed.
See Utah Code Ann. § 76-5-410 & compiler’s notes (Supp. 1988).
No. 20558 A-4
——e— —— ( Stree
otherwise be inadmissible hearsay.2 Utah Code Ann. § 76-5-
411 (Supp. 1983). Pursuant to these statutes, the child, who
was five years old at the time of trial, testified and some of his
out-of-court statements were admitted. Eldredge terms the trial
court’s reliance on sections 76-5-410 and -411 “ex post facto”
( because those statutes became effective after the crimes were
committed but before the trial.
The first step in resolving this claim is to determine the
scope of the federal constitutional prohibition against ex post
facto laws. The United States Supreme Court has defined as
ex post facto any law that operates to make criminal an act that
was innocent when done, to increase the punishment for a
crime after its commission, or to allow conviction on less
proof in amount or degree than was required when the offense
3 At the time of Eldredge's trial, section 76-5411 read as follows:
(1) Notwithstanding any other provision of law
or rule of evidence, a child victim's out of court statement
regarding sexual abuse of the child is admissible into
evidence though it does not qualify under an existing
hearsay exception, so long as: (1) the child testifies; or (2)
in the event the child does not testify, there is other
corroborative evidence of the abuse. Before admitting such
a statement into evidence, the judge shall determine
whether the general purposes of the evidence are such that
the interest of justice will best be served by admission of
the statement into evidence. In addition, the court shall
consider the age and maturity of the child, the nature and
duration of the abuse, the relationship of the child to the
offender, the reliability of the assertion, and the reliability
of the child witness, in deciding whether to admit such a
statement.
(2) A statement may be admitted under this
exception only if the proponent of it makes known to the
adverse party sufficiently in advance of the trial or hearing
to provide the adverse party with an opportunity to prepare
to meet it, his intention in offering the statement, and the
particulars of it.
(3) For purposes of this section, a child is a
person under the age of ten.
Utah Code Ann. § 76-5-411 (Supp. 1983). This language was modified in
1985 and again in 1988, but any changes pertinent to this case do not appear
to have been of substance. See State v. Nelson, 725 P.2d 1353, 1355 nn.2 &
3 (Utah 1986); Utah Code Ann. § 76-5-411 & compiler's notes (Supp. 1988).
A-5 No, 20558
was committed.4 See Dobbert v, Florida, 432 U.S. 282, 292-
94, reh’g denied, 434 U.S. 882 (1977); Beazell v. Ohio, 269
U.S. 167, 169-70 (1925); Thompson _v. Missouri, 171 U.S.
380, 383-85, 387 (1898); Hopt v. Utah, 110 U.S. 574, 589-
9( (1884). Under this definition, “|s]tatutes which simply
enlarge the class of persons who may be competent to testify
in criminal cases are not ex_post facto in their application to
prosecutions for crimes commited prior to their passage.”
Hopt, 110 U.S. at 589; accord Underwood vy, State, 111 Tex.
Crim. 124, 125, 12 S.W.2d 206, 206 (1927); State v.
Clevenger, 69 Wash. 2d 136, 140-42, 417 P.2d 626, 629-30
(1966); State v. Slider, 38 Wash. App. 689, 693-95, 688
P.2d 538, 541-42 (1984) (statute similar to section 76-5-411).
Similarly, the retroactive application of statutes that make
previously inadmissible evidence admissible is not ex post
facto. Thompson, 171 U.S. at 385, 387, reaffirmed in
Beazell, 269 U.S. at 170-71.
We must examine sections 76-5-410 and -411 in light
of these rules to determine whether their application was ex
post facto. Section 76-5-410 allows children to testify who
might otherwise have been disqualified under prior law. See
State_v. Fulton, 742 P.2d 1208, 1217 (Utah 1987), cert.
denied, 108 S. Ct. 777 (1988). On its face, section 76-5-410
can be characterized as merely enlarging the class of persons
competent to testify. And section 76-5-411 appears to do no
more than allow the admission of otherwise inadmissible
hearsay statements. Therefore, sections 76-5-410 and -411 do
not appear to fall within the Supreme Court’s definition of ex
post facto laws.
Eldredge, however, argues that the Supreme Court has
stated that the ex post facto provision prohibits retroactive
application of laws that operate to deny a substantial night in
existence when the crime was committed. See Weaver v.
Graham, 450 U.S. 24, 29 n.12 (1981); Thompson vy. Utah,
170 U.S. 343, 354-55 (1898); Kring v. Missouri, 107 U.S.
221, 232, 235-36 (1883). He contends that the application of
sections 76-5-410 and -411 to his case was prohibited by the
4
The federal constitution’s ex post facto provision applies only to penal
laws. See. e.g,, Kring v. Missouri, 107 U.S. 221, 225, 227 (1883)
No. 20558 A-6
ex post facto provision because it actually operated to deny his
federal constitutional right to confrontation as it existed at the
time the crimes were committed.
First, Eldredge contends that allowing his son to testify
pursuant to section 76-5-410 effectively denied him his right to
confrontation because when the boy took the stand, as the
statute permitted, his testimony was so equivocal and confused
as to make meaningful cross-examination impossible. We
disagree. A review of the record demonstrates that Eldredge’s
cross-examination was very effective, so effective that the
child recanted and denied the abuse. Therefore, we conclude
that section 76-5-410 did not operate to deny Eldredge’s
federal confrontation right. See State v. Marcum, 750 P.2d
599, 602-03 (Utah 1988).
Second, Eldredge argues that admission of his son’s
out-of-court statements pursuant to section 76-5-411 violated
his right to confrontation because he could not effectively
cross-examine the boy. This Court has held on several
occasions that the admission of such hearsay does not abridge
a defendant's right to confrontation if the child victim is
present and available to testify and be cross-examined.
Marcum, 750 P.2d at 603; State v. Loughton, 747 P.2d 426,
429 (Utah 1987); State v. Fulton, 742 P.2d at 1218-19; State
v. Nelson, 725 P.2d 1353, 1356 (Utah 1986). Moreover,
here the child actually testified and was cross-examined quite
effectively. Finally, this argument, like Eldredge’s argument
with respect to section 76-5-410, has previously been rejected
on similar facts. See Marcum, 750 P.2d at 602-03; Loughton,
747 P.2d at 429-30; Fulton, 742 P.2d at 1210-11, 1218-19 &
n.16; Nelson, 725 P.2d at 1356-57.
Because the Supreme Court’s definition of ex post
facto laws does not encompass sections 76-5-410 and -411
and because we do not find a denial of Eldredge’s right to
confrontation, we reject his claim that their application to his
case offended the ex post facto ban.>
5 This conclusion is not undermined by defense counsel's citation to dicta in
Calder v. Bull, 3 U.S. 386, 390 (1798), which indicated that retroactive
application of any change in the rules of evidence would be ex post facto.
A-7 No. 20558
Eldredge next claims that even if sections 76-5-410 and
-411 can be applied to his case, the trial court misinterpreted
their requirements and, as a result, misapplied both sections.
We first address Eldredge’s section 76-5-410 challenge, which
is based on Utah Rule of Evidence 602.
Rule 602 states that a witness may testify only to those
matters of which he or she has personal knowledge.© Eldredge
contends that under this rule, testimony of a witness must be
excluded if the witness’s memory of the subject matter of the
testimony is less than complete. He argues that his son’s
testimony indicated that the boy had virtually no memory of
the events charged. Therefore, Eldredge concludes, the
child’s testimony should have been excluded.
Rule 602 is not amenable to such a broad construction.
It merely requires that the witness have the opportunity and the
capacity to perceive the events in question. See State v.
Calamity, 735 P.2d 39, 42 (Utah 1987); Utah R. Evid. 602;
Fed. R. Evid. 602 advisory committee’s note; J. Weinstein &
M. Berger, Weinstein’s Evidence ]602[02] (1987). Here
there is no contention that the boy lacked personal knowledge
of the incidents of abuse; the only question is how well he
could remember the details.
We have previously explained, in a case dealing with
the competency of a child sexual abuse victim, that lapses in
memory are appropriately dealt with under Utah Rule of
Evidence 403, which provides for the exclusion of testimony
so unreliable that its potential for unfair prejudice substantially
outweighs its probative value. See State v. Fulton, 742 P.2d at
1218 & n.15; Utah R. Evid. 403; J. Weinstein & M. Berger,.
That dicta has long since been rejected in cases which defense counsel failed to
cite. See Beazell v. Ohio, 269 U.S. 167, 170-71 (1925); Thompson v.
Missouri, 171 U.S. 380, 382 (1898); Hopt v. Utah, 110 U.S. 574, 590
(1884).
6 Rule 602 provides in part: “A witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that he has personal
knowledge of the matter. Evidence to prove personal knowledge may, but
need not, consist of the testimony of the witness himself.” Utah R. Evid.
602.
No. 20558 A-&
Weinstein’s Evidence § 601[04] (1987). Because Eldredge
did not object to the child’s testimony on rule 403 grounds
either below or on appeal, we decline to address the question
of whether his testimony should have been excluded under that
rule.
Next, we address Eldredge’s claim that the trial court,
in admitting the boy’s out-of-court statements, misinterpreted
and misapplied section 76-5-411. As it read at the time of
Eldredge’s trial, that section required the trial court to
determine whether the child victim’s out-of-court statements
satisfied one of two alternative tests contained in subparts (1)
and (2) of subsection 76-5-411(1), as well as the test
contained in the last two sentences of that subsection. State v.
Nelson, 725 P.2d at 1355 n.3.. Subparts (1) and (2) required
either that the child testify or that other corroborative evidence
of the abuse exist. The last two sentences of subsection 76-5-
411(1) required the trial judge to determine whether the
interests of justice would be served by admission of the
Statement and to consider the child’s age and maturity, the
nature and duration of the alleged abuse, the child’s
reiationship to the accused, the statement’s reliability, and the
child’s reliability. Utah Code Ann. § 76-5-411 (Supp. 1983)
(quoted in footnote 3, supra).
As we observed in Nelson, the trial court must
consider not only the factors listed in subsection 76-5-411(1),
but also any other factors pertinent to a careful evaluation of
the reliability of the out-of-court statements.
Subsection 76-5-411(1) . . . addresses the
trustworthiness [of a child victim’s hearsay statements]
by listing a number of factors the trial judge must
consider before admitting such evidence. These
factors are intended to prompt a comprehensive inquiry
into all the circumstances surrounding the child’s out-
of-court statement in order to determine its reliability. It
is noteworthy that subsection 76-5-411(1) requires a
determination of reliability without regard to ... the
hearsay [declarant’s availability]. The importance of
such an inquiry cannot be overemphasized.
A-9 No. 20558
In any case involving a proffer of hearsay
Statements by a child victim, the trial court must make
an in-depth evaluation of the proposed testimony as
required by subsection 76-5-411(1). This inquiry may
require consideration of some matters not specifically
mentioned in the statute. For example, to determine
the reliability of the statement, a court should consider
how soon after the event it was given, whether the
Statement was spontaneous, the questions asked to
elicit it, the number of times the statement was repeated
or rehearsed, and whether the statement is reproduced
verbatim in court, viz., tape recording, video tape, or
otherwise.
725 P.2d at 1355 n.3 (citing Unif. R. Evid. 807 (1986
amendment to 1974 Unif. R. Evid.) (promulgated by National
Conference of Commissioners on Uniform State Laws)).
After considering all the relevant factors, the court
must make written findings and conclusions with respect to
each factor.
The -trtal—court should then enter findings and
conclusions regarding each of the factors listed in the
statute to explain its reasons for admitting or excluding
the testimony. Only when these steps are taken can a
defendant be assured that the statutorily required
appraisal has been made. Further, only when such
steps are taken can this Court properly perform its
appellate review function.
Nelson, 725 P.2d at 1355 n.3.
The trial court in this case did not make the required
findings, and Eldredge now apparently contends that the
child’s statements should not have been admitted absent the
findings. However, Eldredge neither requested that the
Nelson findings be made nor objected to the admission of
hearsay in their absence. Utah Rule of Evidence 103(a)
requires ‘‘a clear and definite objection” at trial to preserve an
evidentiary error for appeal. See State v._Malmrose, 649
No. 20558 A-10
—
P.2d 56, 58 (Utah 1982) (decided under former Utah Rule of
Evidence 4, a predecessor to rule 103).
In an attempt to meet that requirement, Eldredge points
out that his counsel did object to admission of the victim’s
testimony in the absence of a specific determination that the
victim was competent to testify. The findings required by
section 76-5-411 relate to the reliability of a victim’s out-of-
court statements, which is by no means equivalent to the
victim’s competency to testify at trial. State v. Fulton, 742
P.2d at 1219 n.16. An objection based on competency does
not call the trial court’s attention to the reliability issue. See
id.; cf, State v. McCardell, 652 P.2d 942, 947 (Utah 1982)
(foundation objection did not direct trial court’s attention to
potential prejudice). Therefore, we conclude that no proper
objection was made on this issue. In the absence of an
adequate objection, the error in applying section 76-5-411
cannot be considered on appeal. Marcum, 750 P.2d at 603.
Despite the failure to properly preserve the issue
below, Eldredge argues that we should reach the merits of his
claim because admitting the testimony without making the
required findings was plain error. Utah Rule of Evidence
103(d) provides: “Nothing in this rule precludes taking notice
of plain errors affecting substantial rights — they were
not brought to the attention of the court.”’ The first
requirement for a finding of plain error is that the error be
“plain,” i.e., from our examination of the record, we must be
able to say that it should have been obvious to a trial court that
it was committing error. See State v. Poe, 21 Utah 2d 113,
117-18, 441 P.2d 512, 514-15 (1968), appeal after remand,
24 Utah 2d 355, 471 P.2d 870 (1970); State v. Cobo, 90
Utah 89, 102, 60 P.2d 952, 958 (1936); cf. State v.
McCardell, 652 P.2d at 947 (incorrect objection did not bring
error to trial court’s attention; not plain error under former rule
4). The second and somewhat interrelated requirement for a
finding of plain error is that the error affect the substantial
7 This rule is substantially similar to former rule 4. See State v. Poe, 21 Utah
2d 113, 441 P.2d 512 (1968), appeal after remand, 24 Utah 2d 355, 471 P.2d
870 (1970); Utah R. Evid. 103(d) advisory committee's note.
A-1] No. 20558
rights of the accused, i.e., that the error be harmfu1.8 See
State v. Bullock. 699 P.2d 753, 756 (Utah 1985); State v.
Lesley, 672 P.2d 79, 81-82 (Utah 1983); State v. Gardunio,
652 P.2d 1342, 1344 (Utah 1982) (per curiam); State v. Poe,
21 Utah 2d at 117-18, 441 P.2d at 515; State v. Cobo, 90
Utah at 102, 60 P.2d at 958.9
We first address the question of the error’s plainness.
The rule that an error not called to the trial court’s attention will
be considered only if it can be shown to have been “plain”
permits rule 103(d) and rule 103(a) to coexist. The principle
underlying rule 103(a)’s requirement of “‘a timely objection
, Stating the specific ground of objection”’ is that in the
interest of orderly procedure, the trial court ought to be given
an opportunity to address a claimed error and, if appropriate,
8 We note that the two plain error requirements of obviousness and
harmfulness are related and that the obviousness requirement poses no rigid
and insurmountable barrier to review. For example, the mor@ harmful an
error is, the more likely an appellate court is to conclude that it was
objectively obvious, because a high degree of harmfulness might be
expected to attract a trial court’s attention. On the other hand, in
appropriate cases we can exercise our discretion to dispense with the
requirement of obviousness so that justice can be done, as when an error not
readily apparent to the court or counsel proves harmful in retrospect.
This observation should make academic Justice Stewart's concern
that the plain error requirements articulated here might frustrate our review of
harmful errors. If his arguments were taken literally, we could have no
articulated test for plain error and counsel would not know how to address the
question on appeal. But no such abandonment of the attempt to state a legal
standard is required. It is enough if we acknowledge, and the Bar and the
public understand, that we are trying to spell out the considerations that will
guide our discretion in determining whether to review a harmful error despite
a procedural default. At bottom, the plain error rule’s purpose is to permit us
to avoid injustice. No statement of the factors that are important to our
deliberations on the point should be read to limit our power to achieve that
end.
9 For an explanation of rule 103’s requiremen’ of harmfulness, see State v.
Bishop, 753 P.2d 439, 499 (Utah 1988) (Zimm.iman, J., concurring); State v.
Hackford, 737 P.2d 200, 204 n.] (Utah 1987); State v. Knight, 734 P.2d 913,
919-20 (Utah 1987); State v. Rammel, 721 P.2d 498, 500 (Utah 1986). These
cases establish that the harmfulness standard set forth in rule 103 is
substantively identical to that of Utah Rule of Criminal Procecure 30. E.g.,
Bishop, 753 P.2d at 499.
No. 20558 A-12
correct it. See McCardell, 652 P.2d at 947. Normally,
compliance by counsel with the contemporaneous objection
requirement of rule 103(a) is assured because of the severe
sanction that follows noncompliance: a refusal by the appellate
court to consider the issue. However, the premise of rule
103(d) is that the ends of justice must not be lost sight of in the
pursuit of procedural regularity and that when an error is plain,
a trial court can legitimately be said to have had a reasonable
opportunity to address and correct it, even in the absence of an
objection.
In light of the purposes of the plainness requirement,
can it fairly be said that the erroneousness of admitting the
hearsay evidence without having first made the required
findings should have been obvious to the trial court? The
language of section 76-5-411 does not expressly require
written findings regarding reliability, and the trial court did not
have the benefit of an appellate decision interpreting the
statute’s requirement--Nelson had not yet been decided. See
United States v. Petrozziello, 548 F.2d 20, 23 (Ist Cir. 1977),
cert. denied, 436 U.S. 947 (1978). We cannot conclude that
the need for written findings should have been obvious.
However, there is another closely related ground for exclusion
that may form a basis for Eldredge’s claim of error. Utah Rule
of Evidence 403 requires the exclusion of evidence if its
potential for unfair prejudice substantially outweighs its
probativeness. Under that rule, the question is whether the
hearsay evidence was sufficiently unreliable that it should have
been obvious to the trial judge that the testimony’s
probativeness was substantially outweighed by its potential for
unfair prejudice. On this record, we cannot say “yes.” 10
10 Other circumstances, however, might require a finding of plain error. For
example, in a case in which a child declarant had, when first confronted with
allegations of abuse, repeatedly denied that the abuse had taken place but
admitted it under repetitious and coercive questioning, the potential
unreliability of such hearsay and its consequent likelihood of causing unfair
prejudice should be apparent to a trial court. Similarly, if a therapist testified
to a child’s hearsay statements regarding instances of abuse that were made
during therapy sessions of which no records were kept, the unreliability of
such testimony might also be plain.
A-13 No. 20558
Being unable to find that either the need for findings or
the fact that the evidence’s probativeness was outweighed by
its potential for unfair prejudice should have been apparent to
the trial court, we need not reach the second prong of the plain
error rule--whether the admission of hearsay statements
regarding instances of abuse that were made during therapy
sessions of which no records were kept, the unreliability of
such testimony might also be plain. hearsay had a substantial
impact on the verdict.!! And, because we do not find plain
error, we do not reach the merits of Eldredge’s claim. 12
Eldredge next claims that the victim’s therapist,
Thomas Harrison, should not have been qualified as an expert
in the diagnosis and treatment of child sexual abuse because he
is a social worker rather than a psychiatrist or psychologist.
Under Utah Rule of Evidence 702, trial courts have discretion
in determining the qualifications of expert witnesses. See,
v. Espinoza, 723 P.2d 420, 421 (Utah 1986); G.
Joseph, S. Saltzburgh & The Trial Evidence Committee of the
American Bar Association Section of Litigation, Evidence in
America; The Federal Rules in the States § 51.3, at 2 (1987).
And attaining a particular academic degree may be irrelevant to
the substance of the necessary training and experience. E.g.,
Jenkins v. United States, 307 F.2d 637, 644 (D.C. Cir.
1962) (en banc); Madison Granite Co, v. Industrial Comm'n,
138 Ariz. 573, 575-77, 676 P.2d 1, 3-5 (Ariz. App. 1983); 3
1] As we noted previously, the requirements of obviousness and harmfulness
are related and an error may be so harmful that we should exercise our
discretion to correct it regardless of the lack of either an objection or
objective obviousness. However, this is not a case in which we can say that
the error’s harmfulness was so great that either it alone should have caught the
trial court’s attention or we should exercise our discretion to dispense with the
requirement of obviousness in the interests of justice.
12 Although the trial court’s failure to make the written findings required by
section 76-5-411 was not plain error in this case, such a failure may well be in
another. For that reason, prosecutors would be wise to assure that a
defendant's failure to request such findings does not result in a reversal. The
obvious way for a prosecutor to prevent such a result is to make the request for
findings him- or herself. The most suitable vehicle for exploring the issues
raised by section 76-5-411 would be a hearing in limine. At such a hearing,
whether requested by the State or the accused, the State would have the burden
of establishing the reliability that the requirement of findings was designed to
assure.
No. 20558 A-14
J. Weinstein & M. Berger, Weinstein’s Evidence § 702[04], at
702-25, 702-51 (1987). Our review of the record convinces
us that Harrison has extensive qualifications in this area of
expertise and that the trial court did not abuse its discretion by
allowing him to testify.!3
Eldredge next claims that the trial court should have
admitted the results of polygraph examinations that he took
which would have bolstered his claim of innocence. A
stipulation between the State and the accused is presently
required for the admission of polygraph test results. State v.
Fulton, 742 P.2d at 1212; State v. Abel, 600 P 7d 994, 998-
99 (Utah 1979). The reason for this rule is that polygraph data
has not been shown to be sufficiently reliable to justify the
tendency of a fact finder to be overawed by the test results and
too willing to abdicate its difficult truth-finding function to an
expert and his or her machine. See Fulton, 742 P.2d at 1212;
Abel, 600 P.2d at 996-97; Utah R. Evid. 403, 702. The
rationale for admitting polygraph results with a stipulation is
not that the stipulation makes them any more reliable or any
less likely to dominate the fact-finding process, but that it
serves as a waiver. Id, at 997. There was no waiver in this
case because the State refused to stipulate to admission of the
polygraph results. Therefore, under Fulton and Abel, the
results were inadmissible.
Eldredge nevertheless argues that the polygraph results
should have been admitted as a quid pro quo to balance the
testimony of Thomas Harrison, who, in essence, functioned
as a human lie detector when he testified as to the credibility of
the victim’s out-of-court statements. Harrison’s opinion that
the child’s statements were truthful was not a proper subject
for testimony. However, the appropriate way for Eldredge to
address the problem of Harrison’s testimony would have been
to raise an objection and seek to exclude it, not to attempt to
counter the testimony with his own inadmissible polygraph
evidence. We must reject his argument for the admission of
the polygraph evidence.
13 The propriety of qualifying Harrison as an expert is unrelated to one of the
issues we address next, the propriety of the substance of his testimony.
A-15 No. 20558
Eldredge next argues that the trial court erred when it
limited the evidence demonstrating the bias of the victim’s
mother, Suzanne Sanchez. Eldredge contends that he was not
permitted to cross-examine Sanchez adequately or to present
direct evidence that she was motivated to testify against him by
a bitter visitation dispute. In State v. Hackford, 737 P.2d
200, 203 (Utah 1987), we held that evidence of prior conduct
showing a witness’s bias or motive to testify falsely is
admissible under Utah Rule of Evidence 608(c), subject to
possible exclusion under Utah Rule of Evidence 403 if its
potential for unfair prejudice outweighs its probativeness. We
also noted that under some circumstances, the improper
exclusion of such evidence may violate not only rule 608(c),
but also the right to confrontation guaranteed by the federal
constitution. Id. at 204; see Delaware v. Van Arsdall, 475
U.S. 673, 674, 677-79 (1986); U.S. Const. amends. VI,
XIV.
A review of the record in this case reveals neither an
abuse of discretion in applying the evidentiary rules nor a
violation of the constitutional right to confrontation. Defense
counsel was allowed to introduce evidence of the visitation
dispute, including evidence of Sanchez’s failure to make any
allegations of sexual abuse until after she had been ordered to
allow Eldredge his visitation rights. In closing argument,
defense counsel stressed heavily Sanchez's purported bias
against Eldredge and her motive to testify falsely, which
resulted from the visitation battle. Under these circumstances,
the trial court did not abuse its discretion or violate Eldredge’s
right to confrontation by refusing to allow cumulative evidence
on this issue. See Utah R. Evid. 403.
Moreover, even if it could be said that the trial court
had erred, any error was waived. When the issue of the
visitation dispute came up and the State objected to defense
counsel’s continuing the line of questioning, the court stated
that it was unwilling to allow counsel to elicit very much
testimony on the visitation dispute, but that it would rule on
the evidence’s admissibility on a question-by-question basis.
The trial court then admonished counsel to make a record by
No. 20558 A-16
—
asking the questions. After all this, defense counsel simply
desisted in this line of questioning, thus effectively waiving
this claim. See Utah R. Evid. 103(a).
Eldredge next asserts that the evidence at trial was
insufficient to support the jury’s verdict. In evaluating such a
claim, we must view the record evidence in the light most
favorable to the verdict. State v, Speer, 718 P.2d 383, 384-85
(Utah 1986) (citing State v. Petree, 659 P.2d 443, 444 (Utah
1983)); State v. Lamm, 606 P.2d 229, 231 (Utah 1980); State
v. Booker, 709 P.2d 342, 345 (Utah 1985). Having reviewed
the evidence in that light, we cannot say that as a matter of
law, the evidence was insufficient to sustain the verdict.
Eldredge next asserts that even if not one of the errors
he complains of requires reversal, their cumulative effect
denied him a fair trial. The concept of reversible cumulative
error does not apply to this case because we have been unable
to find any error. See State v. Bishop, 753 P.2d 439, 489
(Utah 1988); State v. Rammel, 721 P.2d 498, 501-02 (Utah
1986). We have rejected the claims of error reached on the
merits, and we have found that the remaining claims were
waived.
Finally, Eldredge claims that the trial court erred in
refusing to order a new trial or to arrest the judgment. He
asserts that the court should have granted him such relief
because Thomas Harrison, who played an important role in the
State’s case, stated after the conclusion of the trial that he was
unsure of Eldredge’s guilt. At trial, Harrison was not asked
and did not express an opinion as to Eldredge’s guilt. The
bulk of his testimony related to his conclusion that the child
had been abused by someone, although not necessarily by
Eldredge. He did testify that the victim attributed the abuse to
Eldredge and that he had no reason to doubt the child’s
truthfulness. The gist of Eldredge’s argument is that the State
knew of Harrison’s doubts about Eldredge’s guilt and should
have informed Eldredge so that he could have brought out
Harrison’s uncertainty at trial to create a reasonable doubt.
Therefore, the meritoriousness of Eldredge’s claim depends on
the admissibility of Harrison’s opinion regarding Eldredge’s
guilt.
A-17 No. 20558
The standards for arresting a judgment or granting a
new trial are set out in Utah Rules of Criminal Procedure 23
and 24(a). Rule 23 requires a trial court to arrest judgment on
the motion of the accused if the facts proved at trial do not
constitute a crime, if the accused is mentally ill, or for “other
good cause.” Utah R. Crim. P. 23. Rule 24(a) allows a trial
court to grant a new trial on the motion of the accused if any
error or impropriety in the trial had a “substantial adverse
impact” on the rights of the accused. Utah R. Crim. P. 24(a).
The question, then, is whether the facts recited above
constitute either good cause for the arrest of the judgment or an
error or impropriety that had a substantial adverse effect on
Eldredge’s rights.
Utah Rule of Evidence 702 governs the admissibility
of expert opinion testimony. See Utah R. Evid. 702. In
Kofford v. Flora, 744 P.2d 1343, 1347 (Utah 1987), this
Court held that a foundational showing establishing the
reliability of such evidence is required for its admission under
rule 702. Ata hearing on Eldredge’s post-trial motions, it was
shown that Harrison’s doubts were based solely on Eldredge’s
failure to confess. This is not a foundation adequate to
establish the reliability of any opinion as to Eldredge’s guilt
that Harrison might give at a new trial. Moreover, there is no
reason to believe that any opinion of Harrison’s as to
Eldredge’s guilt or innocence would be admissible, even if the
foundation were stronger. See, e.g., State v. Rammel. Thus
Harrison’s opinion regarding Eldredge’s guilt was
inadmissible under rule 702, and the trial court could properly
have denied Eldredge’s motion for a new trial or an arrest of
judgment on that ground.
We have considered Eldredge’s other claims and find
them to be without merit. The convictions are affirmed.
WE CONCUR:
Gordon R. Hall, Chief Justice Christine M. Durham, Justice
No. 20558 A-18
HOWE, Associate Chief Justice: (Dissenting)
I dissent on the ground that the trial court committed
reversible error in failing to make the determination required
by Utah Code Ann. § 76-5-411(2) (Supp. 1988) that “the
interest of justice will best be served by admission” of out-of-
court statements made by the child victim regarding sexual
abuse.
Six days prior to trial, the prosecutor served on
defendant’s counsel written notice of the State’s intent to use
hearsay testimony at the trial. That notice specifically stated
that it was given pursuant to section 76-5-411 and advised
defendant’s counsel that the child’s mother, his grandmother,
and Thomas Harrison would testify concerning statements
made to them by the child regarding sexual abuse. In
response, defendant’s counsel the following day filed his
written “Motion to Limit Testimony.” In that motion, he
moved the trial court for a pretrial order limiting the use of
hearsay testimony to which the State had given him notice.
The first three grounds for the motion were:
1. The proposed hearsay is inconsistent with the
child’s testimony at the preliminary hearing.
2. There is not corroborative evidence of the child’s
statements and the alleged hearsay statements
contradict the child’s testimony.
3. Because of the age of the child at the time of the
alleged offense the alleged statements are unreliable.
(Emphasis added.) Three other grounds were also stated: that
the use of the hearsay statements would deny defendant his
right of confrontation under the United States and Utah
Constitutions; that section 76-5-410, which makes the child a
competent witness, violates those constitutions since the child
is an incompetent witness; and that sections -409 and -410
should not be relied upon in this action since the alleged
A-19 No. 20558
offenses took place before their enactment and the admission
of the child’s testimony would be ex post facto and violate the
United States and Utah Constitutions.
The first three grounds of the motion quoted above
were Clearly based on the provision in section 76-5-411(2)
which provides that in determining whether to admit the out-
of-court statements of the child,
the judge shall consider the age and maturity of the
child, the nature and duration of the abuse, the
relationship of the child to the offender, and the
reliability of the assertion and of the child.
(Emphasis added.)
The motion was heard the morning of the first day of
trial. Much of the argument made by defense counsel and by
the prosecutor centered around whether the changes effected
by sections 76-5-410 and -411 were ex post facto. Defense
counsel also sought to have the court examine the child victim
in chambers to determine his competency to be a witness and
to restrict the use of leading questions to him. While these
arguments did not focus on the requirements of section 76-5-
411(2) set forth above, other argument did specifically focus
on the admissibility of the hearsay statements made by the
child and the effect of section -411. At one point, defense
counsel said:
I have filed a pretrial motion to limit them from using
hearsay, as soon as I received their notice to intend to
use the hearsay.
~ Later, the prosecutor said:
I would state, your honor, it is clear that this hearsay is
applicable to our situation. I would also add that it is
clear that the legislature intended that cases be handled
in this manner and I think in drafting the present
statute, the legislature was taking into account the
reliability, the inherent source of reliability that there is
in these sort of hearsay statements, where a child will
No. 20558 A-20
say to his mother after something has happened to him
something like in this case .. . . I would indicate to the
court that there is a certain inherent believability,
reliability, if you will, about this hearsay testimony that
makes it similar to the other hearsay exceptions. And I
believe this is why it has been treated differently and I
would suggest to the court that that is the intention.
In response, defense counsel stated:
What they [the prosecution] are attempting to use here
is a complete change in the rules. Under this section
411, it talks about hearsay. If you read that section of
the law, it is such a drastic change, they had to enact
certain procedures about the Judge’s findings. It is
such a change against the traditional laws about using
out-of-court hearsay statements in situations such as
this. ...
At the close of counsel’s argument, the court ruled that
“they can use the hearsay testimony. . . . The court is going to
grant to the defense the objection at the outset, a continuing
objection as to any hearsay questions which do come in
throughout the course of the examination of the child.” At trial,
defense counsel on at least two occasions objected to the
admission of out-of-court statements made by the child, and in
each case, the court overruled the objection based on its earlier
pretrial ruling.
In light of the above, I conclude that the trial court
should have been alerted to its duty to make the reliability
determination required by section 76-5-411(2). The court had
before it defendant’s written motion to limit testimony, which
was filed in response to the State’s notice of intent to use
hearsay statements made by the child. Three of the grounds of
defendant’s motion were that the child’s statements were
unreliable. Defendant's written motion, together with the
argument of both the prosecutor and defense counsel set out
above, should have alerted the trial court to the necessity of
making the determination required by section -411(2). As was
pointed out in State v. Nelson, 725 P.2d 1353 (Utah 1986),
A-21 No. 20558
the admission of a child victim’s hearsay statements constitutes
a drastic departure from our rules of evidence, and the
legislature intended that those statements be admissible only
after a very careful screening made by the trial court to
determine, among other things, their reliability. I agree with
the majority that because our decision in State v. Nelson had
not then been handed down, the trial court may not have
realized the necessity of making written findings. However, a
casual reading of section -411 makes it clear that the court
should make a determination of the reliability of the child
victim’s testimony. I find nothing in the record where the trial
court did so. The State concedes that the trial court did not
rule on the reliability of the child’s statements. The hearsay
statements were admitted without any screening to determine if
the “interests of justice will best be served” by their admission.
I strongly disagree with the majority that defense counsel did
not focus the trial court’s attention to reliability. Having made
a written motion to exclude the hearsay statements and having
referred the court to section -411 in his argument on that
' motion, it is difficult for me to understand what more he could
have done to exact a reliability determination from the trial
court. Our rules do not require counsel to object to the denial
of a motion by the court in order to preserve the point on
appeal, as the majority seems to require. ‘
Even if it is conceded that defendant did not sharply
fucus the trial court’s attention to the requirements of section -
411(2), | would hold that the error was plain error and that we
should reach it in this appeal. I believe that it was plain error
because the trial court had its attention called to sections -410
and -411, and it is inconceivable to me that a child abuse case,
with its radical departure from the rules of evidence, could be
tried without giving those sections notice. Even the most
cursory glance at section -411 would alert the trial court to the
necessity of determining the reliability of the child’s out-of-
court statements.
I conclude that this error was prejudicial. The child at
the time the alleged offenses occurred was only two years of
age. He was only five years of age at the time of trial. Thus,
in his testimony at trial, he was recalling incidents which
No. 20558 A-22
occurred between two and three years earlier. A few months
before the child turned three, his mother brought a petition to
modify the decree of divorce to limit defendant’s visitation
rights with the child. Even though her testimony at trial in the
instant case placed three of the alleged sexual abuse incidents
prior to the filing of her petition, nothing was mentioned or
Suggested in the petition about sexual abuse. Most
importantly, however, the child’s testimony continually
changed, and he contradicted himself to the point of even
denying that any abuse ever took place. There was no
independent evidence which corroborated that sexual abuse
ever took place other than statements the child allegedly made
to his mother, his grandmother, and Mr. Harrison. In view of
these circumstances, the section -411 determination as to the
reliability of the child’s out-of-court statements was
imperative.
Stewart, Justice, concurs in the dissenting opinion of
Associate Chief Justice Howe.
STEWART, Justice: (Dissenting)
I concur with Associate Chief Justice Howe’s
dissenting opinion. I write separately because I disagree with
the majority’s discussion of the plain error rule. The majority
States that the standard for determining whether there is plain
or manifest error is “from our examination of the record, we
must be able to say that it should have been obvious to a trial
court that it was committing error.” The requirement that the
error be plain to the trial court arises from the majority’s
concern that, while the ends of justice should “not be lost sight
of in the pursuit of procedural regularity,” nevertheless, the
trial court should “legitimately be said to have had a reasonable
opportunity to address and correct it, even in the absence of an
objection.”
A-23 No. 20558
The majority opinion quite properly points out that the
fundamental fairness of a trial may not be sacrificed to
procedural technicalities based upon a defendant's failure to
object in the trial court. However, if the majority’s language is
to be taken at face value, the implication of the majority rule is
that plain error--no matter how egregious—cannot be noticed
and acted upon by this Court if the trial court would not have
recognized the error as being plain.! In truth, this Court has
never adopted such a stingy application of the plain error
doctrine. It is also clear that we have never indicated that we
would search the record for error. It can hardly be maintained
that an appellate court in the proper conduct of its business
can, or should, spend the time searching for error in a case and
in effect re-lawyer the entire matter from the ground up. Quite
clearly, we have on a number of occasions noticed plain error
and reversed trial court rulings when it was perfectly obvious
that the error was not plain to the trial court. Indeed, in State
v. Wood, 648 P.2d 71 (Utah), cert. denied, 459 U.S. 988
(1982), we reversed the trial court’s standards for determining
when the death penalty should be applied even though the trial
court thought that it was carrying out the prior opinions of this
Court. Indeed, the trial court’s position in that case was not
without foundation. And in State v. Stenback, 78 Utah 350,
365, 2 P.2d 1050, 1056 (1931), this Court addressed a point
that had not been raised or argued on appeal, even though an
objection had been made in the trial court and improperly
sustained. Thus. the error, from the point of view of plain
| It is true that the majority attempts to hedge its rule by declaring that the
obviousness and harmfulness standards are related and by stating that “an error
may be so harmful that we should exercise our discretion to correct it
regardless of the lack of either an objection or objective obviousness.”
Majority opinion at note 11. Despite the majority's protestations that it is
merely attempting to articulate a test and “spell out the considerations that
will guide our discretion in determining whether to review a harmful error,” the
majority opinion does not clarify the standard of review to be applied in such
cases for either members of the bar or this Court. In fact, the majority opinion
sets one standard in the text and then retreats from that standard in footnotes.
Furthermore, the standard articulated in the text by the majority
erects an artificial barrier before defendants raising an issue on the basis of
plain error. In my view, the Court should not in the future use the majority's
procedural barrier to justify not reaching issues which should be reached on the
basis of plain error simply because a majority of the Court cannot agree that
the error was or should have been obvious to the trial court.
No. 20558 A-24
error analysis, was counsel’s failure to raise on appeal the trial
court’s error. Counsel’s error would not, and could not, have
been known by the trial court.
As far as plain error is concerned, the doctrine clearly
goes beyond the scope of rules of procedure. It is a doctrine
which goes to the very heart of the adjudicatory process and
therefore involves, at least in most cases, fundamental
constitutional questions. All that our cases have required by
way of standards for invoking the doctrine is the rather general
requirement that the error must be palpable and “made to
appear on the face of the record and to the manifest prejudice
of the accused... .” State v. Cobo, 90 Utah 89, 102, 60
P.2d 952, 958 (1936).
If the standard is drawn too narrowly, we simply put
off consideration of reversible error until the case returns on a
writ of habeas corpus. At that time, under the standards which
we employ in those cases, we would then be compelled to
entertain the question of whether the trial was fundamentally
fair, irrespective of whether there were appropriate objections.
See, e.g., Chess v. Smith, 617 P.2d 341 (Utah 1980). There
simply is no reason for delaying such an inquiry; indeed, the
whole thrust of criminal procedure in the area of appellate
review of criminal convictions has been to try to avoid, where
possible, collateral attacks on criminal convictions. For that
reason, it makes sense to address at the earliest possible stage
errors which might lead to reversals.
Furthermore, from the point of view of the liberty of
individuals involved, it is intolerable to tell those persons who
are imprisoned as a result of legal error that a procedural error
on the part of their attorney has resulted in the forfeiture of
rights, simply because the error, manifest though it may be,
was not plain to the trial judge. I certainly cannot embrace that
concept; I doubt that the majority embraces it, but it seems to
me that the effect of the majority opinion is to reach that result.
A-25 No. 20558
SUPREME COURT OF UTAH
STATE OF UTAH
SALT LAKE CITY, UTAH
March 30, 1989
OFFICE OF THE CLERK
Stewart M. Hanson, Jr.
Michael W. Homer
Suitter Axland Armstrong & Hanson
Attorneys at Law
175 South West Temple, 7th Floor
Salt Lake City, Utah 84101-1480
The State of Utah,
Plaintiff and Appellee,
Vv. No. 20558
Richard M. Eldredge,
Defendant and Appellant.
THIS DAY, Petition for Rehearing having been heretofore
considered, and the Court being sufficiently advised in the
premises, it is ordered that a rehearing be, and the same is,
denied.
Geoffrey J. Butler, Clerk
No. 20558 A-26
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.