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STATE v. McCLANAHAN

July 12, 1990.

STATE OF KANSAS, Appellee,
v.
THOMAS L. McCLANAHAN, Appellant.



Defendant Thomas L. McClanahan appeals from his jury conviction of indecent liberties with a child (K.S.A. 1989 Supp. 21-3503[1][a] or [b]) committed in November to December 1987.

At trial, the State introduced damning hearsay evidence, testimonial evidence of out-of-court statements made by the child victim declarant, L.S., to prove the truth of the matter stated. The evidence was admitted under the K.S.A. 1989 Supp. 60-460(dd) hearsay exception.

Presently pertinent are these statutory provisions:
K.S.A. 60-407
  "Except as otherwise provided by statute (a) every person is qualified to be a witness, and . . . (c) no person is disqualified to testify to any matter . . . ."

[14 Kan. App. 2d 411]

     

  K.S.A. 60-417

 
"A person is disqualified to be a witness if the judge finds that . . . the proposed witness is incapable of expressing himself or herself concerning the matter so as to be understood by the judge and jury. . . ."
K.S.A. 1989 Supp. 60-460
"Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
. . . .
"(dd) . . . In a criminal proceeding . . . a statement made by a child, to prove the crime . . . if:
"(1) The child is alleged to be a victim of the crime . . .; and
"(2) The trial judge finds, after a hearing on the matter, that [1] the child is disqualified or unavailable as a witness, [2] the statement is apparently reliable and [3] the child was not induced to make the statement falsely by use of threats or promises."
K.S.A. 60-459
"As used in K.S.A. [1989 Supp.] 60-460, its exceptions and in this section:
. . . .
"(g) `Unavailable as a witness' includes situations where the witness is . . . (2) disqualified from testifying to the matter. . . ."
  The child victim, L.S., was approximately five years and six months of age at the time of the alleged offense. She was approximately five years and eight months of age when the preliminary hearing was held some two months later, in February 1988, and six years and seven months of age when the case was tried in January 1989.

  At the preliminary hearing, L.S. was questioned by the State and defense counsel. Based upon her responses and, in particular, her demonstrated inability to respond to posited inquiries, the trial judge held that L.S. was not "competent" to testify as a witness. In effect, the trial judge ruled that L.S. was disqualified to be a witness upon a finding that she was "incapable of expressing . . . herself . . . so as to be understood." See K.S.A. 60-417. Thus, in February 1988, she was held to then be "unavailable as a witness" as K.S.A. 60-459(g)(2) defines that phrase. Accordingly, it was held in February 1988 that L.S. then was a child victim that was "disqualified or unavailable as a witness" for the purposes of the K.S.A. 1989 Supp. 60-460(dd) hearsay exception.

[14 Kan. App. 2d 412]

     

  When the case came on for trial in January 1989, some eleven months after the preliminary hearing, a "dd hearing" was conducted prior to the State's proffer of the challenged hearsay evidence. At that hearing, the trial judge found and held that the child victim hearsay evidence to be proffered by the State involved statements made by L.S. that were apparently reliable and that L.S. had not been induced to make them falsely by threat or promise. See K.S.A. 1989 Supp. 60-460(dd).

  Of particular importance, at the January 1989 trial "dd hearing," the trial judge declined to again consider the question whether L.S. was disqualified or unavailable to be a witness. Instead, the trial judge ruled that having found in February 1988 that L.S. then was "disqualified to be a witness," she continued to be disqualified or unavailable as a witness in January 1989.

  At the February 1988 preliminary hearing, the trial judge had stated:
"Four times she was unable to answer the question as to where he touched her, and we proceeded to reduce her to something less than the cheerful little girl that first came into the courtroom.
"I determine from what I witnessed in the courtroom here from the witness stand that that child is incompetent to testify about the allegations set forth with regard to sexual abuse on the part of this defendant. She is therefore unavailable. . . ."
  The transcript of the trial "dd hearing" in January 1989 reports this:
 
"[DEFENSE COUNSEL]: . . . With regard to [L.S.'] out-of-court declaration, there's been no showing that she's unavailable as of today. . . . [T]his Court has no competent evidence upon which it can conclude that as of this day she's unavailable. . . . [I]t has been almost one year since the Court last took a look at [L.S.], and she has had an opportunity to mature to the point that it would be pure speculation for the Court to extrapolate what she may have demonstrated in February of '88 is exactly the same as it is now. . . .
. . . .
  "[THE COURT:] . . . [Counsel] raises [a] . . . legal question, which I would paraphrase as what requirement is there upon the Court to update a Double D hearing to shortly before the actual trial. In this case there was considerable delay from the initial preliminary hearing, . . . for good reason, . . . now here we are again in January . . . and eleven ...

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