Review of the judgment of the Court of Appeals in an unpublished opinion filed July 14, 2006. Appeal from Rooks district court; EDWARD E. BOUKER, judge. Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed and remanded for a new trial.
1. Testimonial hearsay statements are inadmissible unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant.
2. New constitutional principles apply to any cases pending on direct appeal when the decision was issued.
3. Appellate courts apply a de novo standard of review when considering issues pertaining to the Confrontation Clause of the Sixth Amendment to the United States Constitution.
4. To determine whether the defendant has been given an opportunity for cross-examination sufficient to satisfy the requirements of Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), we will analyze each case based on the facts of the case.
5. The Confrontation Clause under the Sixth Amendment to the United States Constitution guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.
6. Under the facts of this case, the defendant was not given an opportunity to cross-examine the unavailable declarant.
7. The erroneous admission of hearsay in violation of a defendant's right to confrontation is subject to a harmless error analysis.
8. The harmless error analysis of the erroneous admission of hearsay in violation of a defendant's right to confrontation is dependent on the following factors: the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution's case.
The opinion of the court was delivered by: Rosen, J.
The State petitioned this court to review the Court of Appeals' decision reversing Billy Ray Noah's convictions of four counts of aggravated indecent liberties. The State claims that the Court of Appeals erred when it concluded that the district court had improperly admitted hearsay statements from the child victim in violation of Crawford v. Washington, 541 U.S. 36, 158 L.Ed. 2d 177, 124 S.Ct. 1354 (2004).
Because we are not addressing the sufficiency of the evidence, we will limit our recitation of the facts to those necessary for the resolution of the issue before us. When T.C. was 11 years old, she told her brother that Noah, a longtime family friend, had been touching her "private spot." T.C.'s brother informed T.C.'s mother and stepfather. T.C.'s mother asked T.C. about Noah, and T.C. told her mother that Noah had been putting his hands down her pants and his finger in her vagina.
T.C.'s mother reported T.C.'s allegations of abuse to Rooks County Undersheriff Duane Pfannenstiel, who contacted Social and Rehabilitation Services (SRS) worker Tamra Portenier. Portenier interviewed T.C. and her family in their home. Pfannenstiel accompanied Portenier during the interviews to observe the process. Although Pfannenstiel was dressed in civilian clothing, he was certain that T.C. knew he was a law enforcement officer. T.C. informed Portenier that the incidents occurred between April 15, 2000, when T.C. was 9 years old, and June 28, 2002, when T.C. was 11 years old. Although T.C. could not recall how many times Noah had touched her, she was able to recount seven specific incidents which Portenier documented in her report.
The State charged Noah with four counts of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A), and one count of lewd and lascivious behavior in violation of K.S.A. 21-3508(a)(2).
The State called T.C. as a witness at the preliminary hearing. The trial court permitted T.C. to have her mother with her while she testified. The prosecutor questioned T.C. only about the first incident she reported to Portenier. During cross-examination regarding some of the alleged incidents, T.C. became emotional. The district court ordered two recesses to allow T.C. to compose herself. Nevertheless, the cross-examination was cut short when T.C. began crying and was unable to continue testifying.
Following T.C.'s preliminary hearing testimony, the State moved to disqualify T.C. as a witness pursuant to K.S.A. 60-460(dd). The trial court continued the preliminary hearing and ordered a psychological evaluation of T.C. to determine the probability, nature, and extent of any psychological injury she could suffer if she testified again. Noah objected to the State's motion to declare T.C. unavailable as a witness.
Marie Shields, an evaluator with the High Plains Mental Health Center, interviewed T.C. and concluded that T.C. would not be able to testify without "freezing up." Based on this evidence, the district court ruled that T.C. was unavailable as a witness. Concluding that the statements T.C. made to her brother, her mother, and Portenier were reliable and not induced by threats or promises, the district court held that T.C.'s statements to all parties were admissible pursuant to K.S.A. 60-460(dd).
A jury convicted Noah of four counts of aggravated indecent liberties, and he appealed to the Court of Appeals. The Court of Appeals reversed Noah's convictions and remanded the matter for a new trial, concluding that the admission of T.C.'s hearsay statements violated Noah's Sixth Amendment right to confrontation. State v. Noah, No. 91,353, unpublished opinion filed July 14, 2006. We granted the State's petition for review.
The State claims that the Court of Appeals erred in reversing Noah's four convictions of aggravated indecent liberties. Although the State concedes that T.C.'s hearsay statements to Portenier and Shields were testimonial under Crawford, 541 U.S. 36, the State argues that the statements were admissible because ...