State v. Blackburn

STATE_V_BLACKBURN.92-192; 162 Vt. 21; 643 A.2d 224

[Opinion Filed May 14, 1993]

[Motion for Reargument Denied May 3, 1994]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-192


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 1, Windham Circuit

 Roger Blackburn                              February Term, 1993



 Paul F. Hudson, J.

 Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant Attorney
    General, Montpelier, for plaintiff-appellee

 E.M. Allen, Defender General, and William Nelson, Appellate Attorney,
    Montpelier, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      MORSE, J.     Roger Blackburn was convicted of lewd and lascivious
 conduct with a child.  See 13 V.S.A. { 2602.  He appeals his conviction on
 the ground that hearsay statements made by the child to a Social and
 Rehabilitation Services (SRS) caseworker and a police officer were not
 admissible under V.R.E. 804a because taken in "preparation for a legal
 proceeding."  We affirm.
      Defendant is the father of the victim, who was two-and-a-half years
 old at the time of the crime.  After defendant's marriage failed, the child
 resided with her mother.  Defendant was allowed frequent visitation with his
 daughter.  During the post-separation period, the parents fought.
      Defendant was the first to express concern about the child's behavior
 and development, particularly her toilet training, bottle feeding, and other
 supposed effects of the separation, and he brought her to a child therapist.
 The therapist met twice with the child with a different parent present at
 each interview.  She found that the child was unusually articulate with a
 relatively long attention span, was developmentally advanced, and was "very
 much her own person."  She concluded that the child was "doing very well"
 and that the parents, with whom she met jointly, should not be concerned
 about her adjustment to her parents' separation.
      Shortly thereafter, the mother reported that the child was having
 nightmares and resisting her diapers being changed by anyone other than her
 mother.  She became reluctant to visit with her father.  When asked by
 mother if anyone had hurt her, the child answered that her father had.  The
 babysitter also reported difficulty in changing the child's diapers, and
 said that the child had told her that a Mickey Mouse puppet would remove her
 clothes while she was visiting father.  She described a game called "naked
 girl" which she and her father would play.  The therapist reported suspected
 child abuse to SRS.
      SRS began an investigation.  Caseworker Patricia Quinney interviewed
 the child on four occasions.  The first time Quinney conducted the interview
 with the child and mother at their home.  The following visit, the child
 utilized a puppet to show them the "naked girl" game she said she played
 with her father, and that during the game both she and her father were
 naked.  She described defendant touching her genitals, rubbing his penis
 against her, and rubbing his nose against her vagina.  Quinney reported the
 situation to the police.
      Quinney brought Sergeant Joseph Pineau of the Brattleboro Police
 Department to the next interview because she believed that the statements
 concerning the abuse "had to be stated in front of a police officer . . . .
 [T]hey had to hear it from her, not from me."  On that occasion, the child
 showed Quinney and Pineau what happened to her using anatomically correct
 dolls, and simulated intercourse between the two dolls.  Otherwise, the
 child did not reveal anything relevant to the investigation except when
 asked if she knew the difference between truth and falsehood.  They believed
 she had not been coached and was telling the truth.  The trial court
 characterized the meeting as "fairly unproductive."
      The final interview took place at the police station.  Both Quinney
 and Pineau were present, as well as a female police officer.  The interview
 was videotaped.  The first portion of the interview was characterized as
 "unproductive," just as the third interview had largely been.  During a
 break in the interview, however, the child spontaneously told Pineau details
 of the sexual contact by defendant and, spreading her legs to illustrate,
 told him that defendant touched her vagina with his hands and his penis.
 Pineau then obtained a search warrant for defendant's apartment, where a
 Mickey Mouse puppet and child's crown were seized.  Defendant was charged
 with lewd and lascivious conduct with a child.
      By pretrial motion, the prosecution filed notice of intent to use the
 child's hearsay statements under V.R.E. 804a.  Rule 804a allows statements
 by a child ten years of age or younger to be admitted in a prosecution for
 lewd and lascivious conduct where the court determines that (1) the child is
 a putative victim of lewd or lascivious conduct and the statement relates to
 the crime; (2) "the statements were not taken in preparation for a legal
 proceeding" or made prior to a defendant's V.R.Cr.P. 5 proceeding; (3) the
 child is available to testify; and (4) "the time, content, and circumstances
 of the statements provide substantial indicia of trustworthiness."  V.R.E.
 804a(a)(1)-(4).  Defendant objected, claiming, in part, that the videotaped
 statements at the police station were made in "preparation for a legal
 proceeding," contrary to V.R.E. 804a(a)(2). The State prevailed.
      At trial, the jury was shown the videotape of the police station
 interview and told the substance of the other interviews.  Defendant
 testified, denying the charges.  He said he did not undress in front of the
 child or touch her in a sexual manner.  He testified that he used the
 Mickey Mouse puppet during diapering as a game, and would tickle her and
 nuzzle her, and sometimes give her "raspberries" during diaper changing.
 The "naked girl" game, according to him, was simply the child dancing and
 running around after a diaper change, singing "I'm a naked girl."  Defendant
 was nevertheless convicted.
      The only issue on appeal is whether the child's statements with a
 police officer present, especially the one videotaped at the police station,
 were "taken in preparation for a legal proceeding" under subsection (2) of
 Rule 804a(a).  Defendant argues that because the substance of the suspected
 abuse had already been confirmed during the first several interviews, the
 primary purpose of the final interviews was to confirm the child's account
 and to preserve it on videotape, the sole use of which was to show the jury
 at trial.
      We have previously determined that institution of an SRS investigation
 does not necessarily trigger the commencement of legal proceedings, even
 though the investigation often results in criminal charges against an
 accused.  State v. Duffy, ___ Vt. ___, ___, 605 A.2d 533, 534-35 (1992).
 Moreover, more than one interview does not necessarily mean that more recent
 interviews are "in preparation for a legal proceeding."  Cf. In re M.B., ___
 Vt. ___, ___, 605 A.2d 515, 518 (1992) (upholding finding that three
 interviews by SRS were conducted for investigatory purposes).  SRS involve-
 ment in such investigations is not primarily to gather evidence to
 incriminate or exonerate a suspect, but to protect the child.  State v.
 Duffy at ___, 605 A.2d  at 535.
      We recognize that the more interviews conducted, the line separating
 what constitutes investigation from what constitutes trial preparation
 becomes increasingly ill-defined and difficult to draw.  Rather than draw a
 hard and fast line, the factual circumstances as interpreted by the trial
 court must govern and will not be disturbed on appeal unless clearly
 erroneous.  State v. Zaccaro, 154 Vt. 83, 86, 574 A.2d 1256, 1258 (1990).
 We must be careful not to interpret the "preparation" language too narrowly
 or too broadly.  If read too broadly, every factual inquiry would be in
 preparation for legal proceedings and the rule would never be invoked.  On
 the other hand, too narrow a view would permit investigators to conduct
 interviews until satisfied nothing was left to do in preparation for trial.
 Either interpretation would strip the rule of its intended purpose.
      The difficulty in determining when child hearsay testimony may properly
 be used at trial is illustrated by the legislative history underlying the
 law.  Initially promulgated as V.R.E. 803(24), the rule was intended "to
 safeguard the right of confrontation while at the same time curing the fre-
 quent problem of lack of corroboration caused by traditional hearsay rules."
 Reporter's Notes to V.R.E. 804a.  As the bill progressed through the legis-
 lative process, it first required that child hearsay originate solely before
 arraignment.  At one point, the wording was altered by requiring that the
 statements be made to someone other than a police officer or social worker
 investigating the alleged abuse.  The language ended up requiring that hear-
 say not be "taken in preparation for a legal proceeding" or taken before
 arraignment.
      Although the State argues that the legislature could have specifically
 excluded statements made to a police officer or a social worker, or limited
 the admissible hearsay testimony to the initial disclosure only, we are not
 convinced that argument gets us very far in deciding this case.  The rule
 necessitates a certain degree of flexibility.  Often the motives for inter-
 viewing a child are mixed.  It then becomes a matter of weighing the
 motives.  Where the child's testimony against a potential defendant is clear
 and consistent and further interviews simply repeat or preserve what has
 already been said, the only reasonable view may be that preparing legal
 proceedings was the primary focus.
      We hold that the proper inquiry under V.R.E. 804a(a)(2) to determine if
 the child's statements are "taken in preparation of a legal proceeding" is
 whether an objective view of the totality of the circumstances indicate
 that the statements were gathered primarily for reasons other than prepara-
 tion for a legal proceeding.  If so, subpart (2) is satisfied.  If not, the
 child hearsay is not admissible.
      Here, the trial court determined that the videotaped interview, as the
 interviews before it, occurred while the case was still in the investigatory
 stage.  We conclude that the court's finding that the child's statements at
 the police station were not "taken in preparation of a legal proceeding" is
 supported by the evidence.  It was reasonable to have the police investigate
 directly and not base criminal action on SRS's merely telling the police
 about the child's statements.  Pineau testified that he thought the several
 interviews at the child's home were "nothing that we could base a case on"
 and, along with Quinney, decided to "change the atmosphere of the
 interview" in the hope that the child would talk more.
      Affirmed.



                                    FOR THE COURT:


                                    Associate Justice