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STATE v. McCLANAHAN
July 12, 1990.
STATE OF KANSAS, Appellee,
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[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)
Presently pertinent are these statutory provisions:
"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 . . .
"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 . . .
"(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  the child is disqualified or
unavailable as a witness,  the statement is
apparently reliable and  the child was not induced
to make the statement falsely by use of threats or
"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.
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
"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
"[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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