State v. Ulestad

¶ 1 Billy Joe Ulestad appeals his convictions for two counts of first degree child molestation. Ulestad argues that the trial court denied him his constitutional right to counsel when it allowed the victim to testify at a Ryan1 hearing and at the trial via one-way television without providing constant communication between him and his attorney.1 2 Holding that the trial court must strictly follow the statute governing closed circuit victim testimony and failed to do so here, we reverse. Armstrong, J. — FACTS ¶ 2 The State charged Ulestad with four counts of first degree child molestation for incidents with five-year-old 212 N.G.3 Additionally, the State charged Ulestad with one count of first degree child molestation and one count of attempted first degree child molestation for incidents with N.G.’s half-sister A.4 ¶ 3 At a hearing to determine the admissibility of N.G.’s statements to her mother, cousin, and the police,5 N.G. would not or could not testify in Ulestad’s presence. The court ruled that she could testify via closed circuit television as RCW 9A.44.150 allows.6 Although the statute requires the court to provide the defendant with constant communication with his attorney, generally via a headset, the trial court lacked the technology to provide such contact. Instead, the trial court placed Ulestad in separate chambers with a television monitor showing the proceedings as they occurred. Two custody officers accompanied him. The trial court instructed the officers to stop the proceedings if at any time Ulestad wished to speak with his attorney. Ulestad objected to the ruling. ¶ 4 At trial, N.G. again could not testify in Ulestad’s presence. The State moved to allow N.G.’s testimony via closed circuit television. Ulestad objected, arguing that the State had failed to meet the foundational requirements of RCW 9A.44.150. At a hearing outside the jury’s presence, the court heard testimony about N.G.’s ability to testify in court. The police, N.G.’s mother, and the State testified that N.G. was unwilling to even enter the courtroom with Ulestad. The trial court ruled this sufficient and allowed the remote testimony. 213 ¶ 5 The court placed N.G. and the attorneys in separate chambers; Ulestad, the judge, and the jury remained in the courtroom. The court instructed that if counsel wanted to object to any of N.G.’s testimony, he could do so on the record. The judge would then lean through the door to the room where N.G. was, hear the objection, and then rule from the bench. Again, the trial court did not provide constant communication between Ulestad and his attorney. Instead, the court directed Ulestad to stop the proceedings if he wanted to speak with his attorney. ¶ 6 The jury convicted Ulestad of two counts of first degree child molestation for the incidents with N.G. ANALYSIS ¶ 7 Ulestad argues that the trial court denied him his constitutionally protected right to counsel when it failed to provide him with means to constantly communicate with his attorney during N.G.’s testimony. ¶ 8 RCW 9A.44.150 allows a witness to testify by closed circuit television if the court determines that requiring a child under the age of 10 to testify in the defendant’s presence would be unduly traumatic to the victim. State v. Foster, 135 Wn.2d 441, 444, 957 P.2d 712 (1998). The statute provides in part: (1) On motion of the prosecuting attorney in a criminal proceeding, the court may order that a child under the age of ten may testify in a room outside the presence of the defendant and the jury while one-way closed circuit television equipment simultaneously projects the child’s testimony into another room so the defendant and the jury can watch and hear the child testify if: (a) The testimony will describe an act or attempted act of sexual contact performed with or on the child by another. (c) The court finds by substantial evidence, in a hearing conducted outside the presence of the jury, that requiring the child to testify in the presence of the defendant will cause the 214 child to suffer serious emotional or mental distress that will prevent the child from reasonably communicating at the trial. (h) When the court allows the child to testify outside the presence of the defendant, the defendant can communicate constantly with the defense attorney by electronic transmission and be granted reasonable court recesses during the child’s testimony for person-to-person consultation with the defense attorney. RCW 9A.44.150(l)(a), (c), (h) (emphasis added). ¶ 9 The statute touches rights guaranteed by the sixth amendment to the United States Constitution and article I, section 22 of the Washington Constitution. These rights include the right to counsel at every critical step in the adjudication process. Coleman v. Alabama, 399 U.S. 1, 7, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970) (citing Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct. 55, 77 L. Ed. 2d 158 (1932)). We closely monitor any limitations on these constitutional rights. Coleman, 399 U.S. at 7. ¶ 10 In Foster, the Washington Supreme Court rejected a confrontation clause challenge to RCW 9A.44.150. Foster, 135 Wn.2d at 444. The court reasoned that the “use of closed-circuit testimony, when necessary and under the procedures and protections outlined in RCW 9A.44.150, does not violate a defendant’s right to confront the witnesses against him.” Foster, 135 Wn.2d at 470. Important to the court’s decision were the statute’s protective procedures, including the right to “constant communication with defense counsel by electronic means.” Foster, 135 Wn.2d at 469. ¶ 11 The constitutional right to assistance of counsel includes the “opportunity for private and continual discussions between defendant and his attorney during the trial.” State v. Hartzog, 96 Wn.2d 383, 402, 635 P.2d 694 (1981); see also Geders v. United States, 425 U.S. 80, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976); Perry v. Leeke, 488 U.S. 272, 109 S. Ct. 594, 102 L. Ed. 2d 624 (1989). And except for a limited right to control attorney-client communication 215 when the defendant is testifying, any interference with the defendant’s right to continuously consult with his counsel during trial is reversible error without a showing of prejudice. Perry, 488 U.S. at 279-80. ¶ 12 The court failed to provide Ulestad with constant communication with his attorney as required by subsection (h) of RCW 9A.44.150. Instead, the court allowed Ulestad to communicate with his attorney only by stopping the proceedings. But this is delayed, not constant communication. Moreover, to talk with his attorney, Ulestad had to signal his intent to do so in front of the jury and interrupt the trial. Such a procedure carries substantial risk that the defendant will be intimidated from exercising even this limited communication with his attorney. We hold that the trial court erred in failing to strictly follow the constant communication requirement of RCW 9A.44.150. The error is reversible without a showing of prejudice. ¶ 13 We reverse and remand. Morgan, A.C.J., concurs. Footnotes [1] State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984). [2] Ulestad raises several assignments of error. Because we find reversible error here, we address this issue only. [3] Ulestad lived with N.G., her mother, and N.G.’s half-sister A. at the time of the incidents. The accusations against Ulestad arose when N.G.’s mother came home to find N.G. and Ulestad sleeping on the couch. She confronted N.G., who eventually admitted that Ulestad had touched N.G. on her “private” and that he had made her touch his penis. Report of Proceedings at 268-70, 276-81. [4] A. testified that Ulestad had molested her three times, beginning when she was nine years old. The jury acquitted Ulestad of these charges. [5] The trial court ultimately ruled her statements admissible. [6] RCW 9A.44.150 allows sexual abuse victims under the age of 10 to testify in a room outside the defendant’s presence via one-way closed circuit television.