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HomeMy WebLinkAboutCP-21-CR-2510-2004 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-2510-2004 : : CANDICE STARUH : IN RE: OPINION PURSUANT TO RULE 1925 In this case, the defendant was convicted by a jury on June 27, 2006, of charges of third degree murder, aggravated assault, and endangering the welfare of children. On September 5, 2006, she was sentenced to an aggregate prison term of eighteen to forty years. Post-sentence motions have since been denied. The defendant has appealed. This case arises out of the death of three-year-old Jordan Jackson on October 27, 2003. The state police became involved when medical personnel from the Carlisle Hospital reported that the death appeared suspicious. The police observed that Jordan had extensive bruising over his entire body. In her statement to police, the defendant contended that Jordan’s injuries were sustained when he fell off a stool and hit his head. The forensic evidence, however, suggested otherwise. The coroner, in fact, determined that, given the nature and extent of the bruising and trauma to the head and neck, the death was as a result of homicide. The trial of this case featured, among other things, the testimony of Kamden Jackson. Kamden was born in September of 1999 and was six years old at the time of the trial. He was four years old at the time his brother died. Kamden presented as an extremely articulate child. When asked, he knew not only the name of the President, George Bush, but of his wife, Laura. He was aware of the conflict in Iraq and was otherwise remarkably oriented for CP-21-CR-2510-2004 his age. He demonstrated an important understanding of the need to tell the truth. Kamden then testified before the jury by way of closed-circuit video. He described that his mother, the defendant, had “pushed” Jordan who then “looked a little bit purple. And he puked before, and then after that he died.” N.T. 184. Following Kamden’s testimony, others, including Kamden’s foster mother, testified as to statements that Kamden had made consistent with his trial testimony to the effect that his mother was directly involved in Jordan’s death. In the first of three matters complained of on appeal, the defendant contends that the admission of these statements violated her rights of confrontation under the Sixth Amendment of the United States Constitution as more fully described in Crawford v. Washington, 541 U.S. 36 (2004) and Idaho vs. Wright, 497 U.S. 805 (1990). In this case, following Kamden’s testimony, statements previously made by Kamden were entered into evidence through three different witnesses. Tina Eisenhart, Kamden’s foster mother, testified that when Kamden came into her care she knew nothing about the death of his brother. Within two days of Kamden’s arrival, he began to discuss with her the circumstances of Jordan’s death. Ms. Eisenhart testified that she thereafter kept a written log containing his statements. Jason Sullivan, an employee of Cumberland County Children and Youth, also testified and indicated that his mother pushed Jordan on the day that he died and, in Mr. Sullivan’s presence, told his mother “I saw you.” These statements were not made in response to any question and were consistent with Kamden’s other statements. 2 CP-21-CR-2510-2004 Finally, the Commonwealth presented the testimony of Karen Helfman who conducted an interview with Kamden at the Children’s Resource Center on November 24, 2003. The investigating officer, Trooper Chris Manetta, was present and observed the interview through a one-way glass from a different room. During that interview, Kamden indicated that Jordan was struck by his mother immediately prior to his death. The case of Crawford v. Washington, supra, involved a prosecution for assault and attempted murder. The defendant’s wife was a witness but was barred from testifying because of the Washington State Marital Privilege. The trial court allowed the state to play for the jury a tape-recorded statement given by the accused’s wife during police interrogation describing her husband’s stabbing of the victim. The state court upheld the admission of the wife’s statement because the statement bore particularized guarantees of trustworthiness. Despite the fact that the admission of the statement appeared to be in accord with then existing federal standards, the Supreme Court overruled Ohio v. Roberts, 448 U.S. 56 (1980) which allowed such statements with adequate indicia of reliability. See Crawford, supra, 541 U.S. at 42. Instead, the Court held that, where “testimonial” evidence was at issue, the Sixth Amendment required that the witness be unavailable and that there be a prior opportunity for cross-examination. See Id. at 59. The import of Crawford v. Washington, was discussed in detail, by the Superior Court, in the case of In the Interest of S.R., ____ A.2d ____, 2007 WL 841010, at *1 (Pa.Super. Mar. 21, 2007). In that case, L.K., a four-year-old, had alleged that S.R., a 3 CP-21-CR-2510-2004 juvenile, had molested her. L.K. became hysterical on the witness stand and was unable to testify. The court determined that L.K. was then unavailable as a witness. Testimony was then offered from L.K.’s mother who testified as to various statements made by L.K. in support of a conviction. The next witness in the case was Jacqueline Block, employed by the Philadelphia Children’s Alliance, as a “forensic interview specialist.” Ms. Block was contacted by the police to carry out an interview with L.K. There, as in the matter sub judice, Block conducted the interview alone but while a Philadelphia police officer was observing the interview through a one-way mirror. See In re S.R.,2007 WL 841010, at *1-2. After engaging in a lengthy discussion of Crawford v. Washington, supra, as well as Davis v. Washington, ____ U.S. ____, 126 S.Ct. 226 (2006) the court determined that L.K.’s statements to Ms. Block were “testimonial” and therefore admission of those statements under the Tender Years Statute violated the Sixth Amendment Right to confrontation. See Id. at *5-6. In contrast, the Court determined that B.K.’s questioning of L.K. led the Court to conclude that B.K.’s statements were “non-testimonial” and, therefore, admissible. See Id. at *6. In the even more recent case of Com. v. Alshouse, ____ A.2d ____, 2007 WL 1139424 (Pa.Super. April 18, 2007), the Court dealt with the Tender Years Hearsay Act, 42 Pa.C.S.A. 5989.1, as governed by Crawford v. Washington, supra. That case involved an assault, by Rickey Lee Alshouse, on a minor, J.A., at Mr. Alshouse’s residence. The events surrounding the assault were observed by J.A.’s four-year-old sister, A.A. In fact, the 4 CP-21-CR-2510-2004 defendant, Rickey Alshouse, informed a CYS caseworker that A.A. could have possibly been responsible for J.A.’s injuries. The caseworker, John Geist, decided to interview A.A. During the interview, A.A. made statements which incriminated Mr. Alshouse. Thereafter, A.A. was interviewed by Dr. Allen Ryen, a licensed child psychologist. During the interview, A.A. then demonstrated how J.A. had been injured. See Alshouse, 2007 WL 1139424, at *5-6. After these interviews, the defendant was arrested and charged with aggravated assault and other offenses. At the trial of the case, it does not appear that A.A. testified. Instead, the trial court allowed both Mr. Geist and Dr. Ryen to testify about A.A.’s statements. In addition, the trial court admitted testimony from a pediatrician, Dr. Holly Davis. Dr. Davis opined that the injury to J.A. was consistent with the description given by A.A. as to how it was sustained. See Id. at *2. After considerable discussion of recent developments in the U.S. Supreme Court, the Superior Court, in Alshouse, concluded that Mr. Geist’s testimony was non-testimonial and therefore admissible. The Court concluded that the primary purpose of the interview was not to bolster the prosecution of Mr. Alshouse but, rather, to explore Mr. Alshouse’s allegation that A.A. was somehow responsible for J.A.’s broken arm. The Court went on to conclude that the evidence of record was insufficient to determine whether A.A.’s statements to Dr. Ryen were testimonial as it was impossible to determine what Dr. Ryen’s primary purpose was in conducting the interview. Even assuming, however, that the evidence was testimonial, the Court went on to conclude that its admission was harmless error. See Id. at *5-8. 5 CP-21-CR-2510-2004 It should be noted that, in all the foregoing cases, the child witnesses were unavailable and not subject to cross-examination. We are satisfied that this distinction is critical in this case. As noted above, Justice Scalia grounds his determination that a statement is inadmissible “testimonial” hearsay on the basis that the witness is not available. was See Crawford, 541 U.S. at 42. In this case, Kamden available and, in fact, subject to cross-examination. In any event, Kamden’s initial statements to his step-mother and his accusation of his mother in the presence of a child welfare worker cannot be said to be testimonial. These statements were not produced as a result of an interview, let alone an interview designed to aid in the prosecution of the defendant. In certain contexts, Kamden’s statements at the Children’s Resource Center could be considered to be testimonial. In this case, however, Kamden had already testified at the point in the trial when his statements to Ms. Helfrin were revealed. The testimony is, thus, at worst, an indication that Kamden had made some prior consonant statement subject, perhaps, to Pa. Rule of Evidence 613 but not to the confrontation problem posed by Crawford v. Washington, supra. Even if Crawford is somehow implicated, we believe admission of this testimony was harmless, if error, because Kamden and two other witnesses had already testified as to what the child had observed. As observed by Chief Justice Reinquist, in Crawford v. Washington, the majority opinion leaves the door open for a harmless error analysis. See 541 U.S. at 208. The second matter complained of on appeal is stated by the defendant as follows: The Court erred in denying Defendant the opportunity to call Lois Staruh the other adult present at the time of the murder, to the stand, as either she had no Fifth Amendment privilege to assert, as the Commonwealth had allowed her to plead out previously to a charge arising from the same factual transaction(s) in question 6 CP-21-CR-2510-2004 at defendant’s trial, or even if she had such a right, the jury should have heard her invoke the fifth, and/or at least her out of Court statements to investigator Everhart should have been admitted, as she was then “unavailable.” It being noted that she did confess to the crime to the investigator. It is true that the defendant’s mother, Lois Staruh (hereinafter Lois), was also charged in connection with the death of Jordan Jackson. She later pled guilty to a single count of endangering the welfare of a child. In connection with that plea, Lois did not admit to causing any physical harm to the victim. Until shortly before the defendant’s trial began in June of 2006, she had never made any type of admission of guilt in connection with the victim’s physical injuries that caused his death. However, beginning shortly before the trial and continuing through it, Lois made a series of statements to a defense investigator that implicated herself in the murder. At trial, the defense sought to call Lois as a witness despite being informed that she intended to exert 1 her Fifth Amendment privilege against self-incrimination if she was called. Lois was called to the witness stand outside the presence of the jury and indicated that she would exert the privilege. We refused the defendant’s request to allow her to exert the privilege in the presence of a jury. The defendant then attempted to introduce Lois’s out-of-court statements to the defense investigator. We sustained the Commonwealth’s objection to this proffer. For over thirty years, Pennsylvania law has provided that the trial court may refuse to allow a party to call a witness when that party knows that the witness will exert the Fifth 1 Staruh had similarly informed the Commonwealth before the defendant’s trial that she would exert the privilege if called by the prosecution. 7 CP-21-CR-2510-2004 Amendment privilege against self-incrimination. Com. v. Collins, 616 A.2d 1012, 1014 (Pa.Super. 1992) citing Com. v. Greene, 285 A.2d 865 (Pa. 1971). The reason for this principle is that “[n]either side has the right to benefit from any inferences the jury may draw simply from the witness’ assertion of the privilege.” Collins, 616 A.2d at 1014-1015. In Namet v. United States, 373 U.S. 179 (1963), the United States Supreme Court had faced the question of whether a federal prosecutor could question accomplices knowing that they were likely to claim the Fifth Amendment privilege. The Court concluded that there had been no reversible error because the prosecutor justifiably believed that these witnesses did not have a valid Fifth Amendment claim. The Court observed, however, that it was possible that the prosecution may commit reversible error where it called a witness whom it knew would invoke the privilege solely to create the impression of “guilty by association.” Id. at 186-188. The Greene court expanded upon this principle, applying it equally to both the prosecution and the defense. See Greene, Supra, at 867. The result was a blanket rule giving the trial court discretion to exclude such testimony in virtually all situations. Despite earlier 2 criticism of the Greene principle by the appellate courts, the Pennsylvania Supreme Court has recently cited the case with approval. See Com. v. Champney, 832 A.2d 403, 415 (Pa. 2003); see also Com. v. Lambert, 765 A.2d 302, 337 (Pa.Super. 2000) (following Greene). In short, where it is readily apparent, as in this case, that the witness intends to invoke the privilege if called, the court may refuse to allow the witness to testify. The defendant next attempted to admit Lois’s admissions to the defense investigator. 2 See Collins, 616 A.2d at 1017 (urging the Supreme Court to revisit the Greene decision); Com. v. Sims, 521 A.2d 391, 396 (Pa. 1987) (questing the wisdom of the Greene decision). 8 CP-21-CR-2510-2004 We excluded these statements as inadmissible hearsay. The statements would be admissible, of course, only if found to fall under one of the several exceptions to the hearsay rule. The only plausible exception applicable in this case is the “statement against interest” exception, Pa. Rule of Evidence 804(b)(3). A “statement against interest” is defined as: A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. In a criminal case, a statement tending to expose the declarant to unless criminal liability is not admissible corroborating circumstances clearly indicate the trustworthiness of the statement. Id. (emphasis added). In the present case, Lois’s out-of-court statements, direct admissions of guilt, require corroborating circumstances that “clearly indicate the trustworthiness of the statement.” Id. In determining whether a “statement against interest” has the required corroboration, the trial court should consider the totality of the circumstances surrounding the statement. See Com. v . Robins, 812 A.2d 514, 527 (Pa. 2002). Here, the circumstances surrounding the statements demonstrate their untrustworthiness. They were made on the eve of the defendant’s trial, following a long period of time in which Lois did not admit to causing any of the victim’s physical injuries. In fact, Lois’s earlier guilty plea agreement specifically provided that she was not admitting to causing injuries. Finally, Lois made the statements only after meeting with the defendant over an extended period of time and, then, only to the defendant’s investigator. 9 CP-21-CR-2510-2004 Lastly, the defendant contends that we erred in not reopening her case and granting a new trial and/or a taint hearing based on after-discovered evidence. Specifically, there was information discovered after the trial relating to allegations of abuse perpetrated against Kamden Jackson while he was in the custody of Tina Eisenhart, another Commonwealth witness. Prior to the trial in this case, we had held hearings on the Commonwealth’s request to introduce certain statements made by four-year old Kamden Jackson pursuant to the Tender Years Statute, 42 Pa.C.S.A. 5985.1, and on the defendant’s allegations that Kamden’s statements had been tainted. We ruled that Kamden’s statements were admissible and that they were not tainted and that his testimony could be accomplished by the use of closed- circuit video technology. The Tender Years Statute provides that a child’s statements are admissible when the trial court finds that the time, content and circumstances of the statement show sufficient indicia of reliability. 43 Pa.C.S.A. 5985.1(a)(1). A number of factors may be considered when determining whether statements are sufficiently reliable. The court may consider such factors as spontaneity of the statement, consistency and repetition, the mental state of the declarant, motive to fabricate and whether the statements were in response to open-ended questions. See Com. v. Lyons, 833 A.2d 245, 255-256, (Pa.Super. 2003), appeal denied 879 A.2d 782 (Pa. 2005). In the present case, as previously noted, statements of Kamden were entered into evidence through three different witnesses. Tina Eisenhart, Kamden’s foster mother, testified that Kamden first came to live with the family on January 16, 2004. She knew very little 10 CP-21-CR-2510-2004 about the circumstances of Kamden being put into foster care and never questioned him about the circumstances. Within two days of his arrival at the Eisenhart residence, Kamden began to discuss the circumstances of Jordan’s death. Ms. Eisenhart was subsequently instructed to keep a written log of statements made by Kamden. The statements which she recorded were consistent with Kamden’s testimony at trial. The Commonwealth next presented statements made by Kamden to Cumberland County Children and Youth Employee, Jason Sullivan, during a visit with the defendant in April of 2004. Kamden told Sullivan that his mother had pushed Jordan on the day that he died and Kamden also told his mother, “I saw you.” This statement was not made in response to any question and was consistent with Kamden’s other statements. A third witness, Karen Helfman, testified regarding an interview with Kamden at the Children’s Resource Center in November of 2003. In the interview, which occurred more prior than a month to Kamden’s placement with the Eisenharts, he stated that his mother, the defendant, hit Jordan on the day he died. As can be seen from the videotape, these statements were in response to open-ended questions from a trained child forensic interviewer. Allegations of abuse at the hands of Kamden’s foster parents did not surface until late August of 2006. The testimony of Jeri Stahr of the Pennsylvania Department of Welfare regarding injuries to Kamden included the fact that she had reviewed extensive medical records. It is clear that Kamden had received regular medical checkups while in foster care. Ms. Stahr produced no evidence tying the August 2006 abuse of Kamden to his trial testimony nor was there any evidence that Kamden had recanted his statements about his brother’s death. 11 CP-21-CR-2510-2004 Despite these more recent incidents, we are satisfied that the indicia of reliability of Kamden’s statements remain. The statements that he made were spontaneous, consistent and made with no motive to fabricate. May 24, 2007 _______________________________ Kevin A. Hess, J. David Freed, Esquire District Attorney Karl Rominger, Esquire For the Defendant Court Administrator :rlm 12