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Vaska v. State (7/25/2003) ap-1890
Vaska v. State (7/25/2003) ap-1890
NOTICE
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opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STANLEY J. VASKA, )
) Court of Appeals No. A-
8232
Appellant, ) Trial
Court No. 4BE-S95-111 CR
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1890 - July 25, 2003]
)
Appeal from the Superior Court, Fourth Judi
cial District, Bethel, Ray M. Funk, Judge.
Appearances: Margi A. Mock, Assistant Public
Defender and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Kenneth
M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Stanley J. Vaska was convicted of sexual abuse of a
minor in the first degree1 for sexually penetrating his niece,
T.E., who was about three years old at the time of the alleged
offense. The only evidence the State had to establish that Vaska
committed the sexual abuse were T.E.s hearsay statements, which
she made shortly after the alleged offense. When she testified
at trial, several years after the alleged abuse, T.E. had no
memory of the abuse or of her prior statements. Vaska contends
that T.E.s statements were inadmissible hearsay and that
admitting them violated the Confrontation Clauses of the United
States and Alaska Constitutions. We conclude that T.E.s
statements were admissible as prior inconsistent statements and
that admission of these statements did not violate Vaskas right
of confrontation. We accordingly affirm Vaskas conviction.
The State alleged that in the spring of 1994, when T.E.
was about three years old, her uncle, Vaska, sexually penetrated
her. A jury convicted Vaska, but this court reversed his
conviction and remanded the case for further proceedings.2 The
State retried Vaska.
At Vaskas second trial, T.E. testified that she was ten
years old and had just finished the fourth grade. After the
State asked her a few general background questions about her
age, the name of her parents, and the need for her to tell the
truth she explained that she could not remember anything that
happened before the third grade. At this point, the State
indicated that it had no further questions for T.E. Vaskas
attorney stated that he had no cross-examination for T.E.
The States evidence that Vaska committed sexual abuse
against T.E. was based primarily on T.E.s hearsay statements from
several years before identifying Vaska as having sexually abused
her. The State presented the statements through the testimony of
two witnesses, Olga Evan, who was T.E.s mother, and Dr. Donald R.
Burgess, who interviewed and examined T.E. for sexual abuse.
Evan testified that in the spring of 1994, T.E. began
having mood swings. Evan questioned T.E., and T.E. told her that
her girl hurt. According to Evan, T.E. used the phrase her girl
to refer to her vagina. When Evan asked who hurt her, T.E.
stated that a ga-ga hurt her. Evan testified that T.E.s term ga-
ga was a reference to monsters. After further questioning, T.E.
told Evan that M.V.s dad hurt her. M.V.s dad was Vaska. Evan
testified that some time later, when T.E. saw Vaska, T.E. said,
Theres the ga-ga. Based upon this information, Evan suspected
Vaska had abused her daughter and took her to a medical clinic
for a physical examination.
Dr. Burgess, a medical doctor, was qualified at Vaskas
trial as an expert in pediatrics and child sexual abuse
examinations. Dr. Burgess was working in the emergency
department at the Yukon Kuskokwim Delta Regional Hospital in
Bethel on May 6, 1994. Based on a claim that T.E. made four days
earlier to a health aid in Russian Mission that her bottom was
hurting, the health aids subsequent discovery of yellow-green
discharge from T.E.s vaginal area, and Evans concerns, Dr.
Burgess interviewed and examined T.E. at the hospital.
During the course of the interview, T.E. informed Dr.
Burgess that her bottom and her girl were hurting. In an attempt
to verify the information and to more accurately determine where
T.E. was hurting, Dr. Burgess asked T.E. to place her fingers in
the area that hurt on an anatomically correct female doll. In
response to his question, Dr. Burgess testified that T.E. placed
her finger in the dolls vagina. When he then asked T.E. who hurt
her, T.E. told him that M.V.s daddys ga-ga (which was Vaska) hurt
her. Dr. Burgess testified that in his opinion, T.E.s hymen had
been damaged by a large object.
Vaska testified at trial and denied sexually abusing
T.E. But the jury convicted Vaska of sexual abuse of a minor in
the first degree. Vaska now appeals his conviction, arguing that
Superior Court Judge Ray M. Funk erred in admitting T.E.s hearsay
statements through the testimony of Evan and Dr. Burgess.
While the record is not completely clear, it appears
that, over Vaskas objection, Judge Funk found that T.E. was,
under Alaska Rule of Evidence 804(a)(3), unavailable to testify
because of her lack of memory. Judge Funk also found that T.E.s
prior hearsay statements to Evan identifying Vaska as her abuser
were admissible under the hearsay catchall exception of Rule
804(b)(5). He admitted Dr. Burgesss testimony about T.E.s
statements identifying Vaska as the person who abused her because
Vaska did not object.
Although Judge Funk admitted T.E.s hearsay statement to
Evan under Evidence Rule 804(b)(5), on appeal, the State argues
that T.E.s statement was admissible under Evidence Rule
801(d)(1)(A). This rule provides: A statement is not hearsay if
... the declarant testifies at the trial or hearing and the
statement is inconsistent with the declarants testimony. The
State relies on our recent decision in Wassilie v. State,3
pointing out that this court may affirm a correct ruling of law
by a trial court, regardless of the reasons advanced by the trial
court, if there exists independent grounds which, as a matter of
law, support the trial courts conclusion.4
In Wassilie, the defendant was convicted of felony
assault for assaulting his mother and father.5 His conviction
rested in part on the hearsay statement that his father, who was
over ninety years old, had given to the police shortly after the
assault.6 The father testified at trial but had no memory of
this prior statement or the circumstances surrounding it.7 The
State presented the testimony of Chief Alexie who had interviewed
Wassilies father on the night of the alleged assault.8 According
to Chief Alexie, the father said that Wassilie had beaten him and
his wife.9 The father described the beatings.10 The trial judge
admitted the fathers statements to Chief Alexie as prior
inconsistent statements, and we upheld that finding on appeal.11
We stated:
If a witness claims not to remember the
substance of a prior statement at trial, the
witnesss trial testimony is inconsistent with
the prior statement for purposes of Rule
801(d)(1)(A). It is irrelevant for purposes
of the rule whether the claimed memory loss
is genuine or feigned because the claimed
lacked memory at trial (whether genuine or
feigned) is inconsistent with the witnesss
earlier claim to remember.[12]
Our decision in Wassilie supports the conclusion that T.E.s
statements to her mother, Olga Evan, were admissible as prior
inconsistent statements.
The Confrontation Clause of the Sixth Amendment to the
United States Constitution gives a defendant in a criminal trial
the right to be confronted with the witnesses against him. A
similar right is provided in Article 1, Section 11 of the Alaska
Constitution. Vaska argues that admitting T.E.s hearsay
statements identifying him as the person who molested her
violated his rights under both the state and federal
Confrontation Clauses.
Our analysis of the Confrontation Clause begins with
the leading case of United States v. Owens.13 In Owens, a
correctional counselor at a federal prison, John Foster, was
attacked and brutally beaten with a metal pipe.14 His memory was
severely impaired.15 At one point, while he was in the hospital,
Foster was able to describe the attack to an F.B.I. agent.16 He
named Owens as his attacker, and he identified Owens from a
photographic lineup.17 At trial, Foster could describe his
activities before the attack, and he remembered feeling the blows
to his head.18 He also remembered identifying Owens as his
assailant to the F.B.I. agent.19 But he could not remember
seeing Owens during the assault, nor could he say whether
hospital visitors might have suggested to him that Owens was his
assailant.20 Owens argued that Fosters lack of memory about the
assault meant that he was unable to meaningfully cross-examine
Foster.21 He argued that this limitation on his cross-
examination violated the Confrontation Clause of the Sixth
Amendment to the United States Constitution and that Fosters
statement to the F.B.I. agent was inadmissible hearsay.22
The United States Supreme Court rejected these
arguments.23 The Court concluded that admission of Fosters
hearsay identification of Owens as the person who assaulted him
did not violate the Confrontation Clause or Federal Rule of
Evidence 802, which generally excludes hearsay.24 The Court
held that neither the Confrontation Clause nor Federal Rule of
Evidence 802 is violated by admission of an identification
statement of a witness who is unable, because of a memory loss,
to testify concerning the basis for the identification.25
Vaska points out that Owens is distinguishable from his
case because Foster was able to testify about the assault and
about his identification of Owens. In contrast, T.E. had no
recollection of the assault, her identification of Vaska, or her
prior statement. Vaskas case appears to push the Confrontation
Clause to its limits. But our reading of Owens is that the
United States Supreme Court adopted the view that the
Confrontation Clause only requires the hearsay declarant to
testify and be available for cross-examination. The fact that
T.E. could not shed any light on whether the incident about which
the statement was made occurred, whether she made the statement,
or the circumstances under which she made the statement would not
constitute a violation of the Confrontation Clause.
In the majority opinion in Owens, written by Justice
Scalia, the Court adopts the analysis of Justice Harlan, which he
set out in a concurring opinion in California v. Green.26 In
Green, Justice Harlan stated:
[T]here is no confrontation reason why the
prosecution should not use a witness prior
inconsistent statement for the truth of the
matters therein asserted. Here the
prosecution has produced its witness ... and
made him available for trial confrontation.
That, in my judgment, ... satisfies the Sixth
Amendment.
. . . .
The fact that the witness, though physically
available, cannot recall either the
underlying events that are the subject of an
extra-judicial statement or previous
testimony or recollect the circumstances
under which the statement was given, does not
have Sixth Amendment consequence. The
prosecution has no less fulfilled its
obligation simply because a witness has a
lapse of memory. The witness is, in my view,
available. To the extent that the witness
is, in a practical sense, unavailable for
cross-examination on the relevant facts, for
reasons stated [previously], I think
confrontation is nonetheless satisfied.[27]
It therefore appears to us, that under the United States
Constitution, the United States Supreme Court would hold that
Vaskas confrontation rights were not violated by the admission of
T.E.s hearsay statements identifying him as the person who
sexually molested her. Vaska has not argued that we should reach
a different result under the Alaska Constitution.28
We have reviewed federal and state cases that have
arisen since Owens to see if the subsequent judicial history
supports our reading of that case. In general, it appears that
the courts that have interpreted Owens have, at least in dicta,
reached an interpretation consistent with ours.29 Following
Wassilie and Owens, we conclude that T.E.s statements to Olga
Evan identifying Vaska as having sexually abused her were
admissible.30
Vaska also objects to Judge Funks decision to admit
T.E.s hearsay statements to Dr. Burgess in which T.E. identified
Vaska as the person who sexually assaulted her. In addition to
the Confrontation Clause argument we have previously rejected,
Vaska argues that the State was barred from eliciting testimony
from Dr. Burgess that T.E. identified Vaska as her abuser because
the statement was not made for the purpose of medical diagnosis
or treatment under Alaska Evidence Rule 803(4).31 But our review
of the record shows that Vaska did not make a timely specific
hearsay objection when Dr. Burgess testified that T.E. identified
Vaska as the person who abused her. From the record, Vaska
appears to have objected to Dr. Burgesss characterization of how
T.E. was playing with an anatomically correct female doll during
his medical examination of her rather than objecting to T.E.s
statement as inadmissible hearsay. As Judge Funk later found,
Vaska did not object on hearsay grounds. Hearsay evidence is
admissible if it is not objected to.32 Therefore, Judge Funk did
not err in admitting T.E.s statements to Dr. Burgess.
Conclusion
Because we conclude that Judge Funk did not err in
admitting T.E.s hearsay statements identifying Vaska as the
person who abused her, we affirm Vaskas conviction.
AFFIRMED.
_______________________________
1 AS 11.41.434(a)(1).
2 Vaska v. State, 955 P.2d 943 (Alaska App. 1998); Vaska v.
State, Alaska App. Memorandum Opinion and Judgment No. 4326, 2001
WL 21196 (Jan. 10, 2001).
3 57 P.3d 719 (Alaska App. 2002).
4 McGee v. State, 614 P.2d 800, 805-06 n.10 (Alaska 1980).
5 Wassilie, 57 P.3d at 720.
6 Id. at 722.
7 Id.
8 Id. at 721.
9 Id.
10 Id.
11 Id. at 721-23.
12 Id. at 723.
13 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988).
14 Id. at 556, 108 S.Ct. at 840.
15 Id.
16 Id. at 556, 108 S.Ct. at 841.
17 Id.
18 Id.
19 Id.
20 Id.
21 Id. at 557-61, 108 S.Ct. at 841-43.
22 Id.
23 Id. at 559, 564, 108 S.Ct. at 842, 845.
24 Id.
25 Id. at 564, 108 S.Ct. at 845.
26 Id. at 559, 108 S.Ct. at 842 (citing California v.
Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1930)
(Harlan, J. concurring)).
27 Green, 399 U.S. at 188-89, 90 S.Ct. at 1950-51.
28 See Alaska R. App. P. 212(c)(1); Aaron v. City of
Ketchikan, 927 P.2d 335, 336 (Alaska App. 1996) (quoting State v.
Zerkel, 900 P.2d 744, 758 n.8 (Alaska App. 1995) (When a
defendant asserts that the Alaska Constitution affords greater
protection than the corresponding provision of the Federal
Constitution, it is the defendants burden to demonstrate
something in the text, context, or history of the Alaska
Constitution that justifies this divergent interpretation.));
Peterson v. Mut. Life Ins. Co., 803 P.2d 406, 411 n.8 (Alaska
1990) (explaining that party must meaningfully brief issue).
29 See, e.g., Bugh v. Mitchell, 329 F.3d 496, 501-11 (6th
Cir. 2003) (concluding that trial court did not err in admitting
four-year-old child victims hearsay statements because she was
subject to cross-examination regarding her inability to remember
and her inarticulate responses); United States v. McHorse, 179
F.3d 889, 899-900 (10th Cir. 1999) (finding no Confrontation
Clause problem where child victim testified at trial but was
unable to recall defendants sexual abuse and defendant chose not
to cross-examine witness); United States v. Milton, 8 F.3d 39, 47
(D.C. Cir. 1993) (finding no Confrontation Clause violation and
upholding admission of prior statements under Federal Evidence
Rule 801(d)(1)(A) when witness testified at trial and was subject
to cross-examination but could not remember events or prior
statements); United States v. Martindale, 36 M.J. 870, 874-76 (N-
M Crim. App. 1993) (holding that twelve-year-old child who
testified he could not remember sexual abuse or his prior
statement to investigators, but was subject to cross-examination,
created no Confrontation Clause problem); Tucker v. State, 564
A.2d 1110, 1113, 1123-24 (Del. 1989) (concluding that because
child abuse victim was available for cross-examination, the
victims lack of memory did not violate the Confrontation Clause);
London v. State, 549 S.E.2d 394, 396-97 (Ga. 2001) (holding that
four-year-old child witnesss evasive, forgetful, and unresponsive
answers at trial made her prior inconsistent statements
admissible and that there was no Confrontation Clause problem
because defendant had opportunity for cross-examination); State
v. Jenkins, 23 P.3d 201, 203, 204-06 (Mont. 2001) (when witness,
who suffered from Alzheimers, testified at trial that she had no
memory of event and was subject to cross-examination, the court
held that the State properly introduced her prior inconsistent
statements under Montana Evidence Rule 801(d)(1)(A) and found no
Confrontation Clause violation under Owens); see also
Commonwealth v. Amirault, 535 N.E.2d 193, 202 (Mass. 1989)
(declining to address Owens but concluding that child victims
lack of memory presented no Confrontation Clause problem).
But cf. United States v. Spotted War Bonnet, 933 F.2d
1471, 1472-74 (8th Cir. 1991) (explaining that simply putting a
child on the stand, regardless of her mental maturity, is not
sufficient to eliminate all Confrontation Clause concerns[,] but
concluding that because the two child witnesses at issue were
competent, testified in open court, and were cross-examined by
defense counsel, the Confrontation Clause was not violated);
State v. Canady, 911 P.2d 104, 113-16 (Hawaii App. 1996) (holding
that because Hawaii Evidence Rule 802.1(1) requires that the
declarant [be] subject to cross-examination concerning the
subject matter of the declarants statement[,] Owens was
distinguishable and that Rule 802.1(1) requires that the witness
be subject to cross-examination about the subject matter of the
prior statement, that is, that the witness be capable of
testifying substantively about the event, allowing the trier of
fact to meaningfully compare the prior version of the event with
the version recounted at trial ... before the statement would be
admissible as substantive evidence of the matters stated
therein); State v. Rohrich, 939 P.2d 697, 698 (Wash. 1997)
(concluding that under Washingtons child hearsay statute, the
Confrontation Clause is violated when a child is called to
testify at trial but is not asked and does not answer any
questions relating to ... the acts of sexual contact alleged in
the hearsay); David Greenwald, The Forgetful Witness, 60 U. Chi.
L. Rev. 167, 186-87 (1993) (criticizing the Owens decision and
arguing that for Rule 801(d) purposes, the witness should have
some memory of making the prior statement); Robert P. Mosteller,
Remaking Confrontation Clause and Hearsay Doctrine Under the
Challenge of Child Sexual Abuse Prosecutions, 1993 U. Ill. L.
Rev. 691, 727-30 (1993) (critiquing the Owens decision, its
treatment of the Confrontation Clause, and its implication to the
hearsay rules).
30 See also Brandon v. State, 839 P.2d 400, 411-12 (Alaska
App. 1992) (affirming trial courts ruling allowing prior
inconsistent statements of three-year old witness who testified
at trial but who could not remember details of an assault and
holding there was no Confrontation Clause violation because child
was available for cross-examination).
31 See generally State v. Nollner, 749 P.2d 905, 908-09
(Alaska App. 1988); Sluka v. State, 717 P.2d 394, 398-99 (Alaska
App. 1986).
32 Hayes v. State, 581 P.2d 221, 222 n.2 (Alaska 1978);
Cassell v. State, 645 P.2d 219, 220-21 (Alaska App. 1982).
