State Of Washington, Respondent V T.t., Appellant (Majority)
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1` 1 L. ED COURT OF APPEAL. aMIC1110N Ti 2013 OCT 29 A' 9: 47 IN THE COURT OF APPEALS OF THE STATE OF W DIVISION II No. 428E STATE OF WASHINGTON, Respondent, V. UNPUBLISHED OPINION T.T., Appellant. JOHANSON, J. TT1 Following an earlier direct appeal and remand for further proceedings, his first degree again appeals child rape juvenile court adjudication. He primarily argues that the juvenile court erred by conducting a supplemental hearing on remand instead of holding a new trial. Because our 2010 decision reversed TT' s adjudication due to a confrontation clause violation and we declined to reach TT' s remaining claims, a new trial was required when we remand[ ed] for further proceedings." Accordingly, we reverse and again remand for a new trial. FACTS In 2008, the juvenile noted at 157 Wn. App. court adjudicated TT guilty 1011, 2010 WL 2927453, at * 1. of first degree child rape. State v. T.T., On appeal, TT argued that the juvenile court had violated his confrontation clause rights by admitting child hearsay testimony when the State failed to ask the victim at trial about his ( the victim' s) out -of court statements. In 2010, we - held that the juvenile court violated RCW 9A.44. 120 and TT' s rights under the federal and state 1 We use initials to protect minors' privacy. No. 42861 -0 -II - T.T., 2010 WL 2927453, confrontational clauses. be dismissed with prejudice, 3. Although TT requested that his charges T.T., 2010 WL 2927453, disagreed. we at * at * 3. Because the evidence at trial, including the erroneously admitted hearsay was sufficient to support proof of the elements of first degree child rape beyond a reasonable doubt, we reversed TT' s adjudication based solely the on confrontation violation, declined to reach TT' s other arguments, and remanded for further proceedings. T.T., 2010 WL 2927453, at * 3. At a hearing on remand, the juvenile court noted that .it had reviewed the State' s trial memorandum and our 2010 opinion, and had spoken with the State and with defense counsel the day before. in " further additional Both parties interpreted our 2010 decision ( 1) to direct the juvenile court to engage proceedings" which " would be most appropriately handled by the State presenting the child testimony regarding hearsay statements" and ( 2) to not direct the juvenile court to conduct a new trial. Verbatim Report Proceedings ( Nov. 22, 2011) at 18. The State then called the child victim to the stand and asked him several questions about the alleged incident and his out - - ourt statements. Defense counsel was afforded cross- examination. of c After the State rested, TT moved to dismiss arguing that the victim' s lack of memory could not support introduction of the child hearsay statements. The juvenile court denied TT' s motion, ruling that the confrontation clause. and the Clary test were satisfied because the child victim took the juvenile court stand again and was about asked questions adjudicated TT guilty of his first degree prior c of - ourt out - child rape. statements.. The TT again appeals his adjudication. 2 T.T., 2010 WL 2927453, at * 2 ( citing State v. 1999)). 2 Clark, 139 Wn.2d 152, 159, 985 P. 2d 377 No. 42861 -0 -I1 ANALYSIS TT argues that he was entitled to a new trial on remand and that the juvenile court erred by conducting only a supplemental hearing. 3 We agree. A new trial on remand was necessary because our prior decision reversed based solely on confrontation clause grounds and, thus, neither reached nor resolved TT' s other arguments on appeal. RAP 12. 2 provides, in part, " The appellate court may reverse, affirm, or modify the decision being reviewed and take any other action as the merits of the case and the interest of justice may all require." the issues in When an appellate court reverses a judgment and makes no final ruling on a case, the usual procedure contemplated is a new trial. "` This is true when it is fairly apparent from the court' s discussion of the case that the cause is remanded with that object in view. "' State v. Jones, 148 Wn.2d 719, 722, 62 P. 3d 887 ( 2003) ( 92 Wn.2d 586, 588, 599 P. 2d 1282 ( 1979)). remand " for further manner" consistent with our opinion, " issue necessary to proceedings" resolve the or quoting Elliot v. Peterson, Division One of this court has held that when we instruct a trial court to enter judgment " in any lawful we expect the court to exercise its authority to decide any State v. Schwab, 134 Wn. App. 635, 645, 141 case on remand." P. 3d 658 ( 2006), aff'd, 163 Wn.2d 664, 185 P. 3d 1151 ( 2008). But such language does not give the trial court the authority to decide that a new trial is not necessary when our decision has signaled that the remand is for a new trial. See Jones, 148 Wn.2d at 722. 3 Because we reverse his adjudication and remand for a new trial, we do not reach his ineffective assistance of counsel claim. We also do not reach the insufficiency of the evidence argument because we addressed this issue in our 2010 decision and concluded there was sufficient evidence. 3 No. 42861 -0 -II This case has important similarities In Jones, the Supreme Court reversed the to Jones. trial court' s refusal to grant Jones a new trial after Division One of this court had reversed for a discovery violation and remanded to the trial court. Jones, 148 Wn.2d at 720. Before trial, Jones had sought discovery of an internal police investigation but the trial court denied his request. 721. Jones, 148 Wn.2d at investigation files were After a jury found him guilty, Jones appealed arguing that the police discoverable. Jones, 148 Wn.2d at And Division One agreed, 721. explaining that the trial court should have at least performed an in- camera examination, and remanded - or proceedings " consistent with f its opinion." Jones, 148 Wn.2d at 721. Division One also noted that it need not reach Jones' s remaining arguments because it was reversing on the discovery violation. Jones, 148 Wn.2d at 722. On remand, the trial court held an in- camera hearing and decided the investigation files were discoverable; but it ruled that the information would not have changed the trial' s outcome, refused to conduct a new trial over Jones' s objection, and left the earlier convictions intact. Jones, 148 Wn.2d that on remand at Jones appealed again and our Supreme Court reversed, holding 721 -22. the trial court' s failure to hold trial a new was error. Jones, 148 Wn.2d at 722. The Supreme Court explained that in the first appeal Division One was dealing with an appeal as of right under both our court rules and I, section 22 of the state constitution, and, article therefore, its declining to reach all of Jones' s arguments " plainly signaled the court' s intent that the remand be for a new trial." decided the remaining issues at Jones, 148 Wn.2d or explained why it at 722. Otherwise, Division One would have was not obligated to do so. Jones, 148 Wn.2d 722. " Furthermore, [ Division One] gave specific instructions to the trial court on remand to determine whether the information was privileged 0 and to what extent, if any, discovery No. 42861 -0 -II limitations would be necessary. Those instructions were meaningless unless the court was contemplating a new trial, at which a jury would determine the weight, if any, to give to the new Jones, 148 Wn.2d at 722. evidence." Like in Jones, one of TT' because the our prior opinion ( s several arguments, ( 1) dealt with an appeal as of right, ( 3) indicated that we need not address TT' s remaining arguments we reversed on confrontation clause grounds, ( confrontation clause violation, and ( 2927453, * 3. 2) addressed only 5) remanded " 4) gave specific instructions to address for further proceedings." T.T., 2010 WL In similar circumstances, the Supreme Court held that under the court rules and the state constitution, not addressing all of Jones' s arguments was a plain signal that the court intended a remand for a new trial rather than just a hearing to address the discovery issue. Jones, 148 Wn.2d at 722.4 The State argues here that a new trial was not necessary because our prior decision did not clearly direct the juvenile court on remand we did a not remanded] remanded directly say that new for further- proceedings." for " proceedings trial to was conduct a new necessary, but we T.T., 2010 WL 2927453, consistent with its opinion." trial. 5 The State is correct that did say at * 3. we " reverse[ d] and Division One in Jones Jones, 148 Wn.2d at 721. After noting that the usual procedure contemplated is a new trial, the Supreme Court determined that Division 4 But TT' s case also differs from Jones because ( 1) TT is a juvenile and therefore not entitled to These distinctions, a jury trial on remand and ( 2) TT agreed to the supplemental proceedings. however, do not alter our application of Jones' s rationale here. 5 The State also argues that because both parties agreed with the juvenile court' s reading of our prior opinion, we should agree that a new trial was not required. The State fails to cite any supporting authority for this argument so we consider it no further. RAP 10. 3( State v. Thomas, 150 Wn.2d 821, 874, 83 P. 3d 970 ( 2004). 5 a)( 6), ( b); see also No. 42861 -0 -II One had " plainly" meaningful signaled its intention for distinction between the language a new trial. we used and 722. We see no Jones, 148 Wn.2d at the language in Jones. We reject used the State' s argument. Because our prior opinion on direct review did not address all of TT' s arguments and because d] and remand[ ed] intent that a new we " reverse[ we signaled our trial for further proceedings," was required on remand. T.T., 2010 WL 2927453, at * 3, Accordingly, we reverse and again remand for a new trial. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. il Johanson, J We coner: Worswick, C rel
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