Appeal from Sedgwick district court; JOHN J. KISNER, JR., judge. Judgment of the Court of Appeals reversing and remanding with directions to the district court is affirmed. Judgment of the district court is reversed and remanded with directions.
1. The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "'[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" The Sixth Amendment is applied to the States through the Fourteenth Amendment. Similarly, the Kansas Constitution Bill of Rights, § 10, provides a criminal defendant the right "to meet the witnesses face to face."
2. Whether a defendant's right to confrontation has been violated is a question of law subject to unlimited review.
3. If the declarant is unavailable to testify at trial, and the declarant's statement is testimonial, then the testimony is not admissible unless the defendant had a prior opportunity to cross-examine the declarant.
4. In determining whether a statement is testimonial, an appellate court applies an objective, totality of the circumstances test.
5. Confrontation Clause violations are subject to the constitutional harmless error analysis under Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705,
The opinion of the court was delivered by: Nuss, J.
Review of the judgment of the Court of Appeals in 35 Kan. App. 2d 241, 129 P.3d 646 (2006).
A jury convicted Elroy D. Henderson of one count of aggravated indecent liberties with a child. On appeal, Henderson primarily argued his confrontation rights were violated when the jury was allowed to watch a videotaped interview of the 3-year-old victim without her testifying at trial. The Court of Appeals agreed. After holding that sufficient evidence remained to support his conviction, it reversed and remanded for a new trial. State v. Henderson, 35 Kan. App. 2d 241, 129 P.3d 646 (2006). Both the State and Henderson petitioned this court for review under K.S.A. 20-3018(b).
The issues on appeal, and our accompanying holdings, are as follows:
1. Was Henderson's right to confrontation violated when the jury watched the videotaped interview? Yes.
2. Did Henderson forfeit his right to confrontation by essentially making the victim witness unavailable to testify due to her young age? No.
3. Absent the videotaped interview, is the remaining evidence sufficient to support Henderson's conviction? Yes.
Accordingly, we reverse and remand for a new trial.
At the end of February 2003, Jami I. (Mother) noticed a discharge from the vagina of her 3-year-old daughter F.J.I. In addition to the discharge, F.J.I. had complained her stomach and "potty place" were hurting. Because Mother believed F.J.I. probably had a bladder infection, she scheduled an appointment at the Wichita Clinic for March 3. The examination that day revealed a urinary tract infection. Test results available 3 days later revealed F.J.I. had gonorrhea. Mother was informed of these results on March 6 by the clinic's nurse practitioner, Jean Harris.
Harris suspected child abuse. Because she knew she was required to report her suspicions and would be asked by Child Protective Services about possible perpetrators, Harris asked Mother if she knew of any possible molester of her daughter. According to Harris, Mother said that only her ex-boyfriend Elroy D. Henderson, a/k/a "Donte" or "Tae," had had unsupervised access to F.J.I.
According to Mother's later trial testimony, early in the morning on February 24, 2003, she and Henderson had had unprotected consensual intercourse at her house. Later that day while Mother was at work, Henderson and F.J.I. were alone together from 8:30 a.m. to 3 p.m.
After Mother's discussion with Harris on March 6 at the clinic, while there she submitted a vaginal culture of her own for testing. That same day Harris called Child Protective Services of the Kansas Department of Social and Rehabilitation Services (SRS) to make her report. According to Mother's testimony, Mother called SRS and was later contacted by Detective Cherney of the Sedgwick County Sheriff's Office. As confirmed by Detective Cherney's later probable cause affidavit, on that day he and SRS social worker Lori Chandler -- both members of the Exploited and Missing Children Unit (EMCU) -- were notified of a 3-year-old female, F.J.I., who had been diagnosed with gonorrhea.
According to Cherney's affidavit, the next day, March 7, he and Chandler interviewed F.J.I.'s mother. The interview occurred at a state office building in Wichita. The affidavit asserted that Mother told Cherney that she had brought her 3-year-old daughter to the Wichita Clinic on March 3 because she was complaining about pain in her vaginal area. Mother gave Cherney a copy of the test results which showed positive for gonorrhea.
Cherney's affidavit also asserted that Mother asked F.J.I. who touched her "potty in a bad way." F.J.I. replied, "Tae touched my potty with his ding ding." Mother told Cherney and Chandler that "Tae" was the nickname of her ex-boyfriend Henderson.
According to the affidavit, Mother told Cherney that she had broken up with Henderson in January 2003, but got back together with him the following month. Henderson came to her house around February 24, 2003, to baby sit F.J.I. and her son, and Mother had unprotected sexual intercourse with him during the week of February 24. Mother told Cherney that Henderson had been alone with F.J.I. and her son at her house.
F.J.I. was also interviewed at the state office building by Cherney and Chandler. Mother was present during the interview, which was video and audiotaped. At trial, Mother denied making any attempt before the interview to tell F.J.I. who had molested her, to suggest Henderson was the perpetrator, or to indicate in any fashion what to tell the detectives.
During the interview, F.J.I. was asked to name various parts of the body based upon a drawing of a girl; F.J.I. identified several parts. She called her backside a "body" and her front genital area a "potty."
The following then occurred, as transcribed by Cherney from the tape:
"LC [Chandler]: Are you a girl?
"FI [victim]: Uh huh (positive).
"LC: You are? Did you know that girls have three parts that nobody should touch?
"LC: You didn't know that, okay. Well you know what? There's three. Look this one. What's this?
"FI: Hhm, I told you it's a body.
"LC: A body, you're right. That's what you said. It's a body and that nobody is supposed to touch us on our body. Did you know that?
"FI: Tae touched my body and it was hurting.
"FI: It goes on [F.J.I.'s] body.
"FI: Uh huh. (Positive)."
When asked where she was when Tae touched her, F.J.I. responded that she was hiding behind her mother's bed at her Grandma's house because she "[did not] want Tae to touch [her]."
Chandler also presented a diagram of a male to F.J.I..
"LC: Okay, I'm going to show you a picture of a boy, okay?
"LC: . . and I want you to show me where, what a ding ding is, cause I don't know what a ding ding is. Will you help me with that?
"FI: Uh huh (positive). What's on your page?
"LC: Okay, I want you to help me with this one.
"LC: Okay, where, what is a ding ding? What's a ding ding?