State v. Kuone
243 Kan. 218, 757 P.2d 289, 1988 Kan. LEXIS 121 (1988)
Rule of Law:
A child victim may be deemed "unavailable" as a witness for the purpose of admitting their hearsay statements under K.S.A. 60-460(dd) if there is significant medical testimony that testifying would likely cause the child to suffer severe, substantially greater, and non-trifling emotional or mental difficulties, such as a psychotic break, exceeding the reaction of an average victim.
Facts:
- Chris Kuone was convicted of indecent liberties with a child and aggravated criminal sodomy.
- The alleged victim, F.S., is an eleven-year-old mildly retarded child, functioning at a late first-to-early third-grade level.
- F.S. made consistent out-of-court statements to her special education teacher, mother, and an investigating police officer, describing Kuone's sexual activities with her and threats he made if she told anyone.
- F.S.'s special education teacher noticed F.S. became unusually unsociable, elusive, and appeared to stare into space, which prompted the teacher to question her.
- F.S.'s mother also observed a significant change in her daughter's behavior and discovered blood in F.S.'s underwear, though F.S. had not yet begun to menstruate.
- A child psychiatrist, Dr. Alan D. Megibow, examined F.S. before and after her preliminary examination testimony.
- Dr. Megibow noted a dramatic clinical difference, stating that F.S. was very disorganized, not fully in contact with reality, and disturbed in thinking after her court appearance, whereas before, there was no clinical evidence of psychotic functioning.
- Dr. Megibow opined that further court appearances would be extremely disorganizing for F.S. and would likely lead to another severe psychotic break requiring acute hospital entries and medication.
Procedural Posture:
- Chris Kuone was convicted by a jury in the Shawnee County District Court of indecent liberties with a child and aggravated criminal sodomy.
- The District Court sentenced Kuone to concurrent terms of not less than three nor more than ten years for indecent liberties, and not less than five nor more than twenty years for aggravated criminal sodomy.
- Kuone appealed his convictions to the Supreme Court of Kansas.
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Issue:
Does a child victim's severe emotional or mental illness, anticipated to result from testifying, qualify as "unavailability" under K.S.A. 60-460(dd), thereby allowing the admission of their out-of-court statements without violating the defendant's confrontation rights?
Opinions:
Majority - Miller, J.
Yes, a child victim's severe emotional or mental illness, anticipated to result from testifying, can qualify as "unavailability" under K.S.A. 60-460(dd), allowing the admission of their out-of-court statements without violating the defendant's confrontation rights. The court first found F.S.'s out-of-court statements reliable, citing their consistency, detail, and the circumstances under which they were made, coupled with F.S.'s behavioral changes and corroborating physical evidence. Regarding F.S.'s unavailability, the court clarified that K.S.A. 60-460(dd)(2) specifies "disqualified or unavailable" and that K.S.A. 60-459(g) defines "unavailable" to include being "unable to be present or to testify at the hearing because of death or then existing physical or mental illness," a definition broader than mere incompetence. The court distinguished its prior holding in State v. Myatt, noting that Myatt involved a stipulation of disqualification and did not exhaust the definition of unavailability. Citing Ohio v. Roberts and Kansas cases allowing unavailability due to physical illness, the court extended this principle to severe mental or emotional illness, adopting the standards from Warren v. United States and Burns v. Clusen. These standards require considering the probability, degree, and expected duration of psychological injury, and whether it's substantially greater than the average victim's reaction. Applying these factors, the court found ample competent evidence from Dr. Megibow's testimony, F.S.'s retardation, and her prior breakdown, to support the trial court's finding of unavailability. The court also addressed other issues raised by Kuone, finding that the exclusion of character evidence, though error, was harmless because it did not directly relate to the charged conduct. Similarly, requiring the defense to introduce the entire preliminary hearing transcript was error but harmless as the evidence was admissible and no substantial prejudice was demonstrated. Lastly, the court found no abuse of discretion in limiting the defendant's closing argument regarding the lack of charges against other alleged perpetrators, as such speculation was outside the scope of evidence and issues in the trial.
Dissenting - Allegrucci, J.
No, there was not ample competent evidence to support the trial court’s finding that F.S. was unavailable as a witness. Justice Allegrucci agreed with the Warren and Burns standards for psychological unavailability but contended that the critical factual support for applying these standards was absent. He argued that the degree of anticipated injury was not determinable with certainty, and Dr. Megibow's testimony, in some parts, compared F.S.'s trauma to that of average sexual assault victims, failing to establish it was "substantially greater." The dissent also noted the absence of evidence regarding the likely duration of F.S.'s mental condition, a key factor for unavailability. Furthermore, the trial court's finding that F.S. was "out of contact with reality" was at variance with Dr. Megibow's testimony that she was "more often than not" in contact with reality and consistently competent in recalling information. Finally, the dissent highlighted the State's failure to utilize alternative methods for obtaining F.S.'s testimony, such as using her preliminary hearing testimony or videotaping her testimony under K.S.A. 22-3434. These alternatives would have preserved the defendant's right to confrontation and significantly reduced stress for the child victim. The dissent concluded that the State failed to meet its burden of proving F.S.'s unavailability, given the availability of these less restrictive options and the importance of the constitutional right to confrontation.
Analysis:
This case significantly broadens the definition of witness "unavailability" in Kansas, particularly for child victims in sexual assault cases. By affirming that severe psychological trauma can render a witness unavailable, it provides a crucial mechanism for admitting child victims' testimony while attempting to balance the defendant's confrontation rights with the victim's well-being. This ruling sets a precedent that courts must consider the specific, severe, and measurable psychological impact of testifying on a child, rather than mere discomfort. Future cases will likely rely heavily on expert medical testimony to demonstrate that the anticipated psychological injury is substantially greater than typical and of a non-trifling duration to meet this standard.
