State v. Brooks

STATE OF WASHINGTON, Respondent, v. JOHN MICHAEL BROOKS, Defendant.

No. 51298-0-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

July 9, 2019

UNPUBLISHED OPINION

SUTTON, J. — John M. Brooks appeals his jury trial convictions for two counts of first degree rape of a child. We hold that under RCW 2.28.150, the trial court had the authority to permit an adult witness to testify at a Ryan¹ child-hearsay hearing via Skype,² that the jury instructions as a whole ensured that Brooks was not denied his right to a unanimous verdict, and that defense counsel's failure to make a contemporaneous objection to the State's rebuttal argument was not deficient representation in light of defense counsel's post-argument objection and motion for mistrial. We further hold that Brooks's claims in his Statement of Additional Grounds for Review³ (SAG) either have no merit or cannot be reviewed because they relate to matters outside the record. Accordingly, we affirm.

FACTS

I. CHARGES

In April 2016, six-year-old AB was living with her step-grandmother Sherri Brooks in Washington State because her father, Brooks, had moved to Virginia for a new job. Sherri⁴ contacted law enforcement and reported that AB had disclosed that Brooks had been having inappropriate sexual contact with her.

The State charged Brooks with two counts of first degree rape of a child-domestic violence.

II. MOTION TO PRESENT SKYPE TESTIMONY AT RYAN HEARING

In January 2017, the State moved to allow AB and her mother Randi, who were then living in Texas, to testify at the Ryan child hearsay hearing using Skype to avoid unnecessary travel. Counsel who was standing in for Brooks's original defense counsel responded that he did not object to the use of Skype testimony at the Ryan hearing.

Noting that the Ryan hearing was only an evidentiary hearing, the trial court granted permission for the Skype testimony "given the distances involved and the nature of the hearing." 1 Report of Proceedings (RP) (Jan. 10, 2017) at 5. The trial court also commented that "[t]he rules ha[d] changed to allow the [c]ourt to make this decision." 1 RP (Jan. 10, 2017) at 5.

The Ryan hearing was delayed by the departure of Brooks's original defense counsel and appointment of new counsel. Seven months after the trial court ruled on the Skype testimony, Brooks's new counsel objected to the trial court's ruling. The trial court characterized this objection as a motion for reconsideration.

At a hearing on the motion for reconsideration, defense counsel objected to the use of Skype testimony by AB, Randi, or AB's counselor Courtney Each at the Ryan hearing. The State asserted that Skype was appropriate because the Ryan hearing was merely an evidentiary hearing and the testimony at this hearing was not "evidence." 1 RP (Oct. 10, 2017) at 13.

In addressing witnesses other than AB, the trial court stated,

I think that case law and the change of the court rule [sic] it's pretty clear that the [c]ourt can make that call based on a number of factors, including convenience to the [c]ourt, to the parties, and to the witnesses. Given that these witnesses are located, as I recall, in the State of Nevada[,] this is a relatively-short hearing that occurs well prior to the trial and makes it rather difficult to—for everybody here for both of those (sic).

1 RP (Oct. 10, 2017) at 13.

The trial court further stated that the witnesses were "some distance away" and the use of Skype did not change "the process for either party or for the fact finder." 1 RP (Oct. 10, 2017) at 14. The trial court also noted that Skype still offered Brooks "the full opportunity to question those individuals; everybody gets not only to hear what they have to say but to see them as they say it." 1 RP (Oct. 10, 2017) at 13-14.

III. RYAN HEARING

AB, Each, Randi, Sherri, and forensic interviewers John Hancock and Samantha Mitchell testified at the Ryan hearing. Each, AB's therapist, was the only witness who testified by Skype.

The trial court ruled that AB was competent to testify. It also ruled that Each, Randi, Sherri, Hancock, and Mitchell could testify about AB's statements to them.

IV. TRIAL

At trial, AB, Sherri, Randi, Hancock, Mitchell, and Each testified for the State. Brooks and his grandmother Beulah Brooks testified for the defense.

A. STATE'S EVIDENCE

AB testified that Brooks had engaged in numerous separate incidents of sexual contact with her, including oral sex and penile/vaginal contact.

Sherri testified about AB's disclosures, which included statements that Brooks had engaged in cunnilingus and fellatio with AB, had rubbed his penis against her vagina and against her butt, and had engaged in intercourse with her. Sherri also testified that around the time of the disclosures, AB had complained of a sore bottom and crotch. When bathing AB, Sherri observed that AB's "crotch was red and raw." 6 RP (Nov. 1, 2017) at 149. Additionally, Sherri stated that AB revealed that Brooks made her promise to keep their activities secret and that she (Sherri) had once overheard Brooks ask AB if their secret was still "safe." 6 RP (Nov. 1, 2017) at 153.

Randi testified that AB's normally "happy, joyful" demeanor changed after living with her father. 8 RP (Nov. 2, 2017) at 73. Randi removed AB from Washington after learning of the sexual abuse allegations. AB subsequently disclosed to Randi that Brooks had "had sex" with her. 8 RP (Nov. 2, 2017) at 77. When Randi asked AB what she meant by "sex," AB had described vaginal intercourse. 8 RP (Nov. 2, 2017) at 77. AB also revealed that Brooks had "taught her how to play with [her vagina] and use toys and stuff." 8 RP (Nov. 2, 2017) at 79. Randi stated that since AB returned from living with Brooks, AB had been "acting out sexually." 8 RP (Nov. 2, 2017) at 82.

The State played Hancock's forensic interview with AB for the jury. During the interview, AB acknowledged that she and her father shared a secret, but she refused to reveal what the secret was and said that "something will happen" if she revealed the secret. 7 RP (Nov. 1, 2017) at 211. When it became clear that AB would not answer any more questions, Hancock terminated the interview.

The State also played Mitchell's forensic interview with AB for the jury. In this interview, AB disclosed to Mitchell that she (AB) had had "[s]ex" with her father and described performing fellatio on more than one occasion. 8 RP (Nov. 2, 2017) at 26. AB also admitted that she had once been caught watching pornography on a computer. 8 RP (Nov. 2, 2017) at 48.

Each testified that AB had consistently disclosed that Brooks had engaged in sexual contact with her numerous times and that this contact included oral sex and vaginal intercourse. AB also expressed fear that if her father was not found guilty, he might hurt her or hurt or kill her sister. Additionally, Each testified that sexual abuse victims can start engaging in "sexually-reactive behaviors, which would be anything from fondling/masturbation of themselves to using toys to even touching of other peers or adults within the home." 8 RP (Nov. 2, 2017) at 158.

Each also testified that part of her role as a therapist was to help child victims of sex abuse prepare for trial by allowing them to "process[] how they feel about [going to court] and overcoming any fears or worries so that they could feel more comfortable with the idea of coming to court." 8 RP (Nov. 2, 2017) at 107. Each stated that this process did not include coaching the child about what to say in court. Instead, the process often included teaching the child about the role each person plays in court and helping the child find a way to tell his or her story.

Each also testified that AB made some of her disclosures while they were working on making AB more comfortable with going to court. But Each asserted that when AB would start talking about the abuse, she (Each) would clarify that she was now being the therapist rather than roll playing with AB about the trial process.

B. DEFENSE EVIDENCE

Brooks's grandmother testified that in April 2015, she had discovered AB looking at pornography on her father's computer.

Brooks testified that the family had previously lived in Texas but that he had brought his daughters to Washington against Randi's wishes because he was afraid she would try to get custody of them in Texas. Brooks denied having any sexual contact with AB. He was aware that his grandmother had discovered AB watching pornography, and he knew that AB had once inadvertently opened a pornographic website on his computer while trying to look at video on another cites. But he denied ever intentionally exposing AB to pornography.

Brooks also testified about his younger daughter, CB. He stated that CB had speech development issues, that she had difficulty communicating, and that her ability to speak had improved while she was at preschool and she would possibly be able to start kindergarten on time.

C. CLOSING ARGUMENT

In closing argument, defense counsel argued that Each's therapy or Randi caused AB to become concerned that Brooks might kill CB. The State rebutted this statement with the following argument:

And let's think about then why it is that over a period of time after [AB's] finally processed her feelings about this man who repeatedly raped her over a year, why it is that she's scared for her little sister? This is a little girl who finally found her voice when she spoke with her grandmother after a couple of weeks of living there with her. This is a little girl who is finally processing and becoming able to talk to you people about it, about her feelings and about what happened to her. This is a little girl who has known her sister all her life, she has known that her sister has absolutely no voice, is incapable of talking.

So you ask why it is that she might be scared that the Defendant could do this to her little sister? Her sister can't talk to you about what happened to her, that is why. She doesn't want it to happen to her little sister

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