Constitutional Law--right of confrontation--nontestimonial hearsay--sexual abuse--
statements of children conveyed through foster and adoptive parents--catchall exception_-
unavailable witness
The trial court did not err in a multiple first-degree sex offense and multiple counts of
indecent liberties case involving defendant mother's three sons by admitting the statements by
the sons as conveyed through their foster and adoptive parents, because: (1) defendant waived
her right to confront two of the boys whose statements were admitted under the catchall
exception based on circumstantial guarantees of trustworthiness when defendant failed to call
these two boys to testify; (2) none of the challenged statements constituted formal statements to
police or other government officers; (3) although defendant implies the foster parents played a
quasi-governmental role since they recorded the boys' statements and conveyed the statements to
both DSS and the police, the statements are not the type of formal testimonial statements
envisioned by the U.S. Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004); and (4)
the boy whose statements were admitted based on the fact that he was an unavailable witness
made statements spontaneously to his foster mother, who was one of the people closest to him,
without the reasonable belief that the statements would be used at a subsequent trial, and
statements made to family, friends, and acquaintances without an intention for use at trial have
consistently been held not to be testimonial.
Attorney General Roy Cooper, by Assistant Attorney General
Laura E. Crumpler, for the State.
J. Clark Fischer for defendant-appellant.
McGEE, Judge.
Kimberly Knowles Brigman (defendant) was convicted of eighteen
counts of first-degree sex offense and twenty-seven counts of
indecent liberties with her three sons, for which she was sentenced
to 576 to 715 months in prison.
Defendant appeals.
The State's evidence tended to show that Rockwell Chief ofPolice Hugh W. Bost, Jr. (Chief Bost) responded to a call reporting
unattended children in Rockwell, North Carolina on 15 April 2002.
He found three boys, J.B., A.B., and N.B. (collectively the boys),
ranging in age from a toddler to a pre-schooler, playing in the
street. All of the boys were dirty, and the youngest was naked
except for a baby t-shirt. After learning the boys' names, Chief
Bost knew that defendant was their mother, and returned them to
defendant's home.
Later that day, Marcus Landy (Landy) of Rowan County Child
Protective Services investigated the incident. He found
defendant's home to be "filthy," and described seeing spoiled food
on the kitchen table and on the stove. Landy testified that the
house had a "very strong urine odor," and that the three boys were
dirty and their feet were black. He further testified that the
youngest boy, N.B., had feces "smeared down his legs." Landy
removed the boys from the home and placed them in foster care.
J.B. and A.B. were placed with Ms. M.; N.B. was placed with Mr. and
Mrs. A.
Ms. M. testified that on 12 June 2002, she overheard J.B.
saying, "[l]ick me, lick me." She then observed J.B. pulling A.B.
down on top of him. J.B. told Ms. M. that he and A.B. were playing
the "puppy game." J.B. further explained that the boys had played
this game with defendant and defendant's husband; the game involved
all of them licking each other's genitalia. Ms. M. told J.B. and
A.B. to separate, called to her husband to continue making dinner,
and returned to talk with J.B. and A.B. She saw J.B. on top ofA.B., "humping" him. She again asked the boys what they were
doing, and J.B. said they were "getting ready to play the picture
game." J.B. explained that the boys would pose while defendant and
defendant's husband took pictures of them. J.B. and A.B.
demonstrated the poses, which were all sexually explicit. When
asked how they were dressed for the "picture game," J.B. responded
that they were naked.
Ms. M. reported to the Rowan County Department of Social
Services (DSS) that she thought "there was more going on with the
boys other than just neglect." After talking with DSS, Ms. M.
continued to talk with the boys and attempted to tape-record the
conversation. The tape was inaudible, but Ms. M. wrote down notes
of the conversation immediately after it occurred. The boys told
Ms. M. that they, defendant, and defendant's husband would start
with the "picture game," and "the winner of the game got to do all
the licking, and that they all ended up being winners."
Ms. M. testified that following this 12 June 2002 incident,
J.B. became increasingly sexually active with A.B., which upset
A.B. Both J.B. and A.B. began mental health counseling.
Ultimately, the decision was made to separate J.B. and A.B. J.B.
went to live with Ms. P., who later adopted him. A.B. continued to
live with Ms. M. temporarily, but was eventually adopted by Mr. and
Mrs. A., who also had custody of N.B.
It was determined that N.B. also needed counseling after Mr.
and Mrs. A. observed N.B. trying to put toy keys in his rectum on
18 June 2002. N.B. "used the keys to the point that he excitedhimself and urinated on the couch." When asked what he was doing,
N.B. cried and said he was sorry. Mr. and Mrs. A. began to record
their observations. They noted on several occasions that N.B.
stated that defendant had "hurt his butt" or hurt his penis. Mr.
A. testified that N.B. said defendant had inserted keys or fingers
into N.B.'s rectum, that defendant and defendant's husband had
"bitten" his, J.B.'s, and A.B.'s penises. Mrs. A. testified that
after she and Mr. A. had custody of A.B., A.B. stated that
defendant's husband had "pulled, pinched, rubbed and licked" A.B.'s
penis and that defendant's husband had put his penis in A.B.'s
mouth.
Other evidence presented by the State at trial corroborated
sexual abuse of the boys. Dr. Rosalina Conroy, a pediatrician,
testified as an expert in pediatric medicine. She examined all
three boys in July 2002, and concluded that all of them had been
sexually abused or had symptoms consistent with sexual abuse.
Defendant's written statement was also read into evidence by
a police detective. The statement detailed defendant's
participation in sexual abuse of all three boys. The statement
described defendant's husband having defendant undress the boys and
having the boys pose naked in sexual poses for photographs. The
statement also described defendant holding "the boys' butt cheeks
apart" while defendant's husband inserted fingers or toys into the
boys' rectums, and described defendant being forced to touch the
boys' penises and to hold the boys while defendant's husband
engaged, and attempted to engage, in anal sexual intercourse withthe boys. Defendant wrote in her statement that her husband forced
her to participate in these acts by threatening to kill her.
Defendant wrote that her husband first threatened her with a knife,
but eventually got a gun, which defendant's husband would have "in
the boys' room to intimidate [defendant]." Defendant did not
present any evidence at trial.
Defendant's sole assignment of error on appeal is that the
trial court erred in admitting the statements by the boys as
conveyed through their foster and adoptive parents.
P
rior to
trial, the State moved to admit hearsay statements the boys made to
their foster and adoptive parents, pursuant to Rules 803(24) and
804(b)(5) of the North Carolina Rules of Evidence. The trial court
conducted a voir dire hearing and determined that hearsay
statements by J.B. to his foster mother were admissible pursuant to
N.C. Gen. Stat. § 8C-1, Rule 804(b)(5) because J.B. was unavailable
as a witness since he had testified that he did not remember "the
subject matter of his statement[.]" N.C. Gen. Stat. § 8C-1, Rule
804(a)(3) (2003). The trial court did not find A.B. and N.B.
unavailable as witnesses, but nevertheless admitted hearsay
statements by A.B. and N.B. made to their foster and adoptive
parents under the catchall hearsay exception, N.C. Gen. Stat. § 8C-
1, Rule 803(24). Defendant had the opportunity to cross-examine
the boys during voir dire.
Defendant does not challenge the trial court's findings of
fact or the trial court's ruling at the voir dire hearing. Rather,
defendant argues that the statements by the boys were testimonial,and thus were inadmissible as a matter of law under Crawford v.
Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). "Where
testimonial evidence is at issue, . . . the Sixth Amendment demands
what the common law required: unavailability and a prior
opportunity for cross-examination." Id. at 68, 158 L. Ed. 2d at
203. In analyzing a Crawford claim, we must determine: "(1)
whether the evidence admitted was testimonial in nature; (2)
whether the trial court properly ruled the declarant was
unavailable; and (3) whether defendant had an opportunity to
cross-examine the declarant." State v. Clark, 165 N.C. App. 279,
283, 598 S.E.2d 213, 217, disc. review denied, 358 N.C. 734, 601
S.E.2d 866 (2004).
On the first question, the United States Supreme Court in
Crawford chose to "leave for another day any effort to spell out a
comprehensive definition of 'testimonial.'" Crawford, 541 U.S. at
68, 158 L. Ed. 2d at 203. However, the Court said at a minimum,
the term "testimonial" covered "prior testimony at a preliminary
hearing, before a grand jury, or at a former trial," including ex
parte statements made in court, affidavits, depositions,
confessions, and other "pretrial statements that declarants would
reasonably expect to be used prosecutorially[.]" Id. at 51 & 68,
158 L. Ed. 2d at 193 & 203. Additionally, the Court identified
"[s]tatements taken by police officers in the course of
interrogations" as being testimonial. Id. The Supreme Court did
not define "interrogation" with any particularity in Crawford,
other than to say that a recorded statement made to police byCrawford's wife, "knowingly given in response to structured police
questioning, [qualified] under any conceivable definition [of
interrogation.]" Id. at 53 n.4, 158 L. Ed. 2d at 194 n.4. The
Court did specify, however, that it was using "interrogation" in
its colloquial, not technical legal sense. Id.
In the present case, defendant does not argue that the boys'
statements were prior testimony. Rather, defendant argues that
these challenged statements were testimonial because they were
elicited in a manner similar to formalized police questioning.
Specifically, regarding the statements by J.B. and A.B., defendant
contends that because Ms. M. tape-recorded an interview with the
boys and provided this evidence to DSS and police investigators,
"this hearsay evidence was far more akin to the type of police
action at issue in Crawford than [to] 'an off-hand, overheard
remark.'" See Crawford, 541 U.S. at 51, 158 L. Ed. 2d at 192
("[N]ot all hearsay implicates the Sixth Amendment's core concerns.
An off-hand, overheard remark might be unreliable evidence and thus
a good candidate for exclusion under hearsay rules, but it bears
little resemblance to the civil-law abuses the Confrontation Clause
targeted."). Similarly, defendant contends that the statements
made by N.B., as testified to by Mr. & Mrs. A, were also akin to
"official investigations" in that they were "reduced to notes which
were provided to the prosecution." We are not persuaded by
defendant's arguments.
First, we note that defendant's arguments only pertain to
statements made by J.B. because he was the only witness determinedto be unavailable by the trial court. The trial court specifically
found that "regarding [A.B.'s and N.B.'s] testimony, that they do
not fit within the definition of unavailability under the statute."
The trial court ruled that the statements of A.B. and N.B. were
admissible hearsay under Rule 803(24), which provides that hearsay
evidence may be admitted, "even though the declarant is available
as a witness[,]" if it has "circumstantial guarantees of
trustworthiness," and
if the court determines that (A) the statement
is offered as evidence of a material fact; (B)
the statement is more probative on the point
for which it is offered than any other
evidence which the proponent can procure
through reasonable efforts; and (C) the
general purposes of these rules and the
interests of justice will best be served by
admission of the statement into evidence.
N.C. Gen. Stat. § 8C-1, Rule 803(24) (2003). Crawford revised the
standard for admissibility of hearsay evidence under the
Confrontation Clause of the Sixth Amendment of the United States
Constitution only when the witness is unavailable. Crawford, 541
U.S. at 60-69, 158 L. Ed. 2d at 198-203. A defendant's right to
confront defendant's accuser is not compromised when the declarant
is available to testify. However, a defendant may waive this right
"by simply failing to exercise it at the trial." State v. Splawn,
23 N.C. App. 14, 18, 208 S.E.2d 242, 245 (stating that a
defendant's confrontational rights may be waived "by an accused's
counsel acting in his behalf"), cert. denied, 286 N.C. 214, 209
S.E.2d 318 (1974). In the present case, A.B. and N.B. were
"available" to testify, although neither the State nor defendantcalled them to testify. Defendant therefore waived her right to
confront A.B. and N.B., and defendant's arguments as they relate to
the statements made by A.B. and N.B. are overruled.
Second, and more importantly, none of the challenged
statements constituted formal statements to police or other
government officers.
(See footnote 1)
Courts in some other states have held
statements made by children to social workers or police
investigators to be testimonial where the evidence suggested that
"the government was purposefully creating formalized statements for
potential use at trial." Robert P. Mosteller, Crawford v.
Washington: Encouraging and Ensuring the Confrontation of
Witnesses, 39 U. Rich. L. Rev. 511, 538 (2005); see also People v.
Vigil, 104 P.3d 258, 262 (Colo. App. 2004) (holding a videotaped
statement given by a child to a police officer who had told the
child she was a police officer, had ascertained that the child knew
the difference between the truth and a lie, and had told the child
to tell the truth, to be testimonial), cert. granted on this issue
(Colo. 20 December 2004) (unpublished opinion) (appeal pending);
Snowden v. State, 846 A.2d 36, 47 (Md. App. 2004) (statements made
by children conveyed through a social worker held to be testimonial
when the statements were taken by the social worker with the
expressed purpose of developing the social worker's testimony in a
child abuse case), aff'd, 867 A.2d 314 (Md. 2005). However, thestatements in the present case were not procured by a government
officer. See People v. Geno, 683 N.W.2d 687, 692 (Mich. App. 2004)
(concluding that a child's statement to the executive director of
a children's assessment center, who was not a government employee,
was not testimonial), appeal denied, 688 N.W.2d 829 (Mich. 2004).
Rather, in the present case, the statements were made to the boys'
foster parents. Although defendant implies that the foster parents
played a quasi-governmental role because they recorded the boys'
statements and conveyed the statements to both DSS and the police,
we do not find the statements in the present case to be the formal
testimonial statements envisioned by the U.S. Supreme Court in
Crawford.
The statements made by J.B. were made spontaneously to one of
the people closest to him, his foster mother. "[S]tatements made
to family, friends, and acquaintances without an intention for use
at trial have consistently been held not to be testimonial."
Mosteller, 39 U. Rich. L. Rev. at 540. For example, our Court has
held that statements made by a victim of an armed burglary to his
wife and daughter before he died were not testimonial, but were
personal conversations, unlikely to have been made with the belief
that the statements would be used prosecutorially. State v.
Blackstock, 165 N.C. App. 50, 62, 598 S.E.2d 412, 420 (2004), disc.
review denied, ___ N.C. ___, 610 S.E.2d 208 (2005). See also State
v. Rivera, 844 A.2d 191, 202 (Conn. 2004) (holding that a
declarant's statement to his nephew about the declarant's
involvement with the defendant was not testimonial because "thecircumstances under which the statement was made would not lead an
objective witness reasonably to believe that the statement would be
available for use at a later trial").
Some of J.B.'s statements to Ms. M. were arguably solicited by
Ms. M. after she ended her telephone conversation with DSS and
while she was trying to tape-record the conversation. However, the
information conveyed during this part of the conversation was first
revealed prior to Ms. M.'s telephone call to DSS. The only new
information obtained was that J.B. told Ms. M. that "the winner of
the [picture] game got to do all the licking, and that they all
ended up being winners." The majority of the evidence from this 12
June 2002 conversation was revealed because Ms. M. asked J.B. and
A.B. what they were doing after she observed J.B. pulling A.B. onto
him, asking A.B. to lick him, and observed J.B. "humping" A.B.
J.B.'s statements were spontaneous answers to Ms. M.'s open-ended
inquiries. No evidence suggests that J.B. made these statements
with the idea that they would be used prosecutorially.
Additionally, J.B.'s age raises the question as to whether he
was even capable of reasonably believing that these statements
would be used at trial. We recognize that this argument was
rejected by the Colorado Court of Appeals in Vigil, 104 P.3d at
262, but note that the facts in Vigil were significantly different
than those in the case before us. In Vigil, the challenged
statement came from a seven-year-old child during a videotaped
interview with a police officer who had "extensive training in the
particular interrogation techniques required for interviewingchildren." Id. at 262. The interviewer had told the child that
she was a police officer and had asked the child what the child
thought should happen to the defendant, to which the child
responded that the defendant should go to jail. Id. The police
officer then told the child that the child would need to talk to a
district attorney who was going to try to put the defendant in
jail. Id. at 263. The trial court determined that "[t]his
discussion, together with the interviewer's emphasis at the outset
regarding the need to be truthful, would indicate to an objective
person in the child's position that the statements were intended
for use at a later proceeding that would lead to punishment of [the
defendant]." Id.
In the present case, not only were none of the challenged
statements made directly to a police officer, but also J.B. was
younger than the child in Vigil. J.B. was not quite six years old
at the time he made these statements and was less likely to
understand the potential for his statements to be used
prosecutorially than the child in Vigil. Also, unlike the child in
Vigil, J.B. did not make any statements indicating that he
understood the consequences of his statements or how they might be
used to put defendant in jail. For instance, nothing in the record
suggests that J.B. was asked what he thought should happen to
defendant. Nor was J.B. given the opportunity to talk to a
district attorney who would be trying to put defendant in jail.
Finally, J.B. did not seem to know that what defendant and
defendant's husband were making the boys do constituted criminalactivity. Ms. M. testified that J.B. seemed surprised that Ms. M.
did not know that the boys were naked when they had played "the
picture game" with defendant and defendant's husband. This
surprise suggests that J.B. was making these statements to his
foster mother innocently, without the purpose of the statements
being used at defendant's subsequent trial. When this evidence is
taken together, it is highly implausible that J.B. reasonably
believed that his statements to his foster mother would be used
prosecutorially. Since J.B.'s statements were made to a person
close to him, and without the reasonable belief that the statements
would be used at a subsequent trial, we conclude that the
statements were not testimonial.
As such, we need not address "whether the trial court properly
ruled [that] the declarant [J.B.] was unavailable" or "whether
defendant had an opportunity to cross-examine the declarant." See
Clark, 165 N.C. App. at 283, 598 S.E.2d at 217. Moreover, "[w]here
nontestimonial hearsay is at issue, it is wholly consistent with
the Framers' design to afford the States flexibility in their
development of hearsay law[.]" Crawford, 541 U.S. at 68, 158 L.
Ed. 2d at 203. The trial court did not err in admitting these
challenged statements as hearsay exceptions. As defendant does not
challenge the trial court's admission of this evidence on any
additional grounds, we find no error.
No error.
Judges WYNN and TYSON concur.
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