State v. Naucke

¶1dissenting.

¶2I respectfully dissent.

¶3Section 491.680, RSMo 1986, permits the State to use prerecorded testimony of an alleged child victim of sexual abuse “in lieu of the child’s personal appearance ... at trial.” Section 491.680.2. The statute permits the use of the prerecorded testimony of the child even though the child is available to testify. The only condition imposed on the use of the videotape at trial instead of live, in-person testimony is that the trial judge consider whether the child witness will be emotionally or psychologically traumatized “if required to testify in open court or to be brought into the personal presence of the defendant.” Id.

¶4This case raises two foundational constitutional questions which must be answered. The first is whether the use of a videotaped statement of an alleged child victim of sexual molestation in lieu of the child’s personal appearance at trial violates the Confrontation Clause. The United States Supreme Court has not answered this question directly. We can, however, extrapolate from the Supreme Court’s decision in Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).1

¶5Craigholds that a Maryland procedure for allowing a child victim to testify in a child sexual abuse case outside the defendant’s physical presence does not violate the Confrontation Clause provided there is a case-specific finding by the trial court that the child witness will suffer serious emotional distress if required to testify in the presence of the defendant. As Section 491.680 does not, the Maryland statute expressly required that the emotional trauma facing the child be “serious.” Md.Cts. & Jud.Proc.Code Ann § 9-102(a)(l)(ii) (1989). Craigrelies on the Maryland Supreme Court’s definition of “serious,” in upholding Maryland statute. “Serious” emotional impact on the child must be “more than de minimis, i.e., more than ‘mere nervousness or excitement or some reluctance to testify.’ ” Craig, 497 U.S. at -, 110 S.Ct. at 3169, quoting Wildermuth v. State, 310 Md. 496, 524, 530 A.2d 275, 286 (1987). Further Craigrequires that the trial court find that the child witness will be traumatized, not by the courtroom generally, but specifically by the presence of the defendant. Craigthus stands for the proposition that the Confrontation Clause is not offended when a child witness, whom the trial court finds will suffer serious emotional distress from confronting a defendant face-to-face, testifies live, via closed circuit television, at trial.

¶6Once Craigdetermines that live testimony televised by closed circuit television is constitutionally acceptable, there remains little basis to conclude that previously *464videotaped testimony shown the jury by television is different for purposes of the Confrontation Clause. Indeed, if one speaks in terms of the manner in which testimony is presented to the jury, there is no essential difference between a live, closed circuit telecast of a child’s testimony and a televised broadcast of the child’s videotaped testimony taken at a prior time. In both cases, the jury views the testimony by the same method, a television screen. Spigarolo v. Meachum, 934 F.2d 19 (2 Cir. 1991), agrees. In that case, the United States Court of Appeals rejected the defendant’s claim that “his constitutional rights were violated because the videotape was made before the jury was sworn and was not ‘live’ as was the one-way closed circuit procedure in Craig.” Id. at 24.

¶7Having determined that Craigpermits the use of videotaped testimony at trial if the trial court finds that the emotional trauma facing the child from a face-to-face confrontation with the defendant is serious, the majority is left with the task of showing how Naucke’s conviction meets Craigstandards. The majority salvages this conviction from the Sixth Amendment attack only by a collection of judicial glosses and assumptions, not supported by the record in this case.

¶8First: No one can seriously dispute that Section 491.680 violates the teachings of Craig; the statute permits use of videotaped testimony in lieu of live testimony if open court will traumatize the child. The statute also permits use of videotaped testimony in lieu of live testimony if there is any showing of emotional or psychological trauma. Indeed, under the standardless language of the statute, the trial judge need not find any emotional trauma; he or she must only “consider” whether such trauma may be present. Craigcountenances neither policy. Craigpermits non-face-to-face confrontation only if the presence of the defendant will cause the child witness serious trauma.

¶9Second: To heal this constitutional infirmity, the majority turns to State v. Sanchez, 752 S.W.2d 319 (Mo. banc 1988). Sanchez’ dicta speculates that under appropriate facts, the emotional trauma facing a child might be so serious as to render a child unavailable to testify as a witness. Sanchezprovides no standard for determining whether a witness is unavailable.

¶10Third: To fill the void still remaining— the lack of a standard for determining whether the trauma facing the child witness is serious within the meaning of Craig— the Court reasons: The trial court could not have found this child unavailable if the emotional trauma facing her were not serious. The trial court found this child unavailable as a witness. Therefore, the trauma facing the child in this case was serious.

¶11Voila! The statute now requires exactly what Craigrequires, despite the absence of any language within the statute to support Craigrequirements. Section 491.-680.2, as amended by the Court, now reads:

In determining whether or not to allow such motion, the court shall consider the elements of the offense charged and [shall find] the emotional or psychological trauma to the child if required to testify in open-court or to be brought into the personal presence of the defendant [is so serious that it renders the child witness unavailable]. Such recording shall be retained by the prosecuting attorney and shall be admissible in lieu of the child’s personal appearance and testimony at preliminary hearings and at trial, conflicting provisions of section 544.270, RSMo, notwithstanding. A transcript of such testimony shall be made as soon as possible after the completion of such deposition and shall be provided to the defendant together with all other discoverable materials.

¶12The statute as written by the Court no doubt meets the standards set out in Craig. However, it is not the statute adopted by the legislature, approved by the Governor, or relied on by the trial judge in this case. It is one thing for a court to supply a definition for a statutory term. After all, it was the Maryland Supreme Court’s definition of “serious” in Wildermuth, 310 Md. at 524, 530 A.2d 275, that permitted Craigto rule as it did. It is quite another for the *465Court to supply a missing word to save a conviction.

¶13Having imaginatively parried the Confrontation Clause attack, the Court faces a second question: Whether the presentation of section 491.680 testimony violates the Missouri Constitution.

¶14The Sixth Amendment’s Confrontation Clause guarantees the accused the right “to be confronted with the witnesses against him.” [Emphasis added.] Article I, section 18(a) of the Missouri Constitution assures every person accused of a crime the right “to meet the witnesses against him face to face.” [Emphasis added.] Appellant claims, of course, that the textual differences between the Missouri Constitution’s and the Confrontation Clause requires a different analysis and a different result.

¶15Until this case I would have agreed with the. majority’s repeated, but question-begging assertion that the contours of the Sixth Amendment Confrontation Clause are identical to those of Missouri’s face-to-face guarantee, but only because I had not imagined, and this Court had not faced, a statutory procedure that so clearly abrogates a constitutional guarantee. In State v. Hester, 801 S.W.2d 695, 697 (Mo. banc 1991), this Court wrote, “[e]ach time our courts have compared the state and federal constitutional provisions, they have concluded that article I, section 18(a) of the Missouri Constitution protects the same rights as the Sixth Amendment of the United States Constitution.” State v. Schaal, 806 S.W.2d 659 (Mo. banc 1991), considers the constitutionality of Section 492.304. That statute permits the use of visual and aural recordings as evidence at trial where specified conditions are met. One of those conditions is that “the child is available to testify.” Section 492.304.1(8). Schaalquotes Hesterfor the proposition that “[t]he confrontation rights protected by the Missouri Constitution are the same as those protected by the Sixth Amendment of the United States Constitution.” Schaal, 806 S.W.2d at 662. But Schaalconcludes that neither Craig, nor Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), applies because the child witness is available to testify at trial. Availability of the witness is part of the factual fabric of Schaal; Schaal depends on the child’s availability in upholding the constitutionality of Section 492.304 against an article I, section 18(a) attack.

¶16It is beyond serious dispute that the texts of the Confrontation Clause and article I, section 18(a), are different. The majority does not face this distinction directly. Instead the majority claims that article I, section 18(b), of the Missouri Constitution, permits the use of the very type of deposition contemplated by Section 491.680. Article I, section 18(b), provides:

Upon a hearing and finding by the circuit court in any case wherein the accused is charged with a felony, that it is necessary to take the deposition of any witness within the state, other than defendant and spouse, in order to preserve the testimony, and on condition that the court make such orders as will fully protect the rights of personal confrontation and cross-examination of the witness by defendant, the state may take the deposition of such witness, and either party may use the same at the trial, as in civil cases, provided there has been substantial compliance with such orders.

¶17[Emphasis added.] Section 18(b), the majority reasons, is an exception to the “face to face” requirement of section 18(a). And so it is.

¶18But the majority apparently reasons that the presence of the word “confrontation” in both the Confrontation Clause and section 18(b) makes the decision in Craigboth relevant and controlling for purposes of section 18(b). I disagree.

¶19In my view, this Court’s deference to Craigis both unfortunate and incorrect in light of the textual differences between the constitutions. The people of Missouri intended depositions under section 18(b) to require the same face-to-face confrontation as would be required at trial. There is no other explanation for the presence of the word “personal” in section 18(b). In my *466view, section 18(b) permits the use of a deposition at trial against a criminal defendant only if that deposition was taken under the same constitutional assurances that mark face-to-face confrontation at trial.

¶20To rely on section 18(b), the majority must ignore the word “personal” in article I, section 18(b), as it modifies “confrontation.” By ignoring “personal,” the majority transforms section 18(b) into a rule of discovery instead of a constitutional assurance that the guarantee of face-to-face confrontation will continue to be honored when a deposition is taken by the State to preserve testimony.

¶21Article I, section 18(b), as amended by the Court, now reads:

Upon a hearing and finding by the circuit court in any case wherein the accused is charged with a felony, that it is necessary to take the deposition of any witness within the state, other than defendant and spouse, in order to preserve the testimony, and on condition that the court make such orders as will fully protect the rights of personal confrontation [as defined by Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157 [111 L.Ed.2d 666] (1990) ] and cross-examination of the witness by defendant, the state may take the deposition of such witness, and either party may use the same at the trial, as in civil cases, provided there has been substantial compliance with such orders.

¶22With respect, the majority’s need to manipulate the trial court’s conclusions by selectively assuming legal conclusions, providing missing language, and ignoring words in the Missouri Constitution proves too much. The majority assumes that the trial court’s seventy-word finding is founded on the same reasoning it required the majority nearly 6,000 words to explain. This is so despite the trial court’s unequivocal statement that its conclusions are “under Section 491.680,” not Craig. To me, it is obvious that this conviction cannot stand; it relies on an unconstitutional statute. No amount of post hoc justification saves the conviction from its constitutional infirmity.

¶23If the Constitution no longer meets the needs of a society that, quite properly, wishes to protect children from perverted adults, it can be changed. The Constitution cannot be changed, however, behind the closed doors of the judicial branch, no matter how well-intentioned or wise the changes we suggest might be. Changing the Constitution remains the people’s business.

¶24Possessing both an understanding of and an agreement with the policy the Court wishes to adopt, I must nevertheless respectfully dissent. The Constitution will not permit the majority’s result.

¶27dissenting.

¶28The principal opinion represents a logical and scholarly approach to the very difficult problem of securing evidence from young children who are the alleged victims of sexual abuse by adults. Volumes of recent authority demonstrate that some modification of traditional procedural requirements is appropriate. Courts differ as to the extent of permissible deviation. The Supreme Court of the United States has discussed problems in the context of the Sixth Amendment’s protection of the accused’s right “to be confronted with the witnesses against him.” Cf. Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988); Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). We must deal also with art. I, § 18(a), of the Missouri Constitution, which grants the accused the right “to meet the witnesses against him face to face.” I believe that the framers of our constitution chose the words they did in order to emphasize the importance of the right. This opinion represents my views as to how we should interpret the provisions of our own constitution. I regret that I am unable to concur fully.

¶29There are four features of testimony in open court: (1) the jury can see the witness; (2) the defendant can see the witness; (3) the witness can see the defendant; and (4) the jury can see the defendant. This last feature surely is not essential. Juries, no doubt, observe the defendant while a witness is testifying, if the format of the courtroom will permit it, but they are sup*467posed to watch and listen to the witness. The defendant, moreover, could opt to be absent from all or part of the trial. Although historically it might be thought important that the witness look the defendant in the eye while testifying, Craigeliminated the third requirement upon a substantial showing of necessity. But Craigsuggests that a procedure that allows a witness to testify without facing the defendant must reproduce courtroom conditions as nearly as possible.

¶30I would not go so far as Chief Justice Bobertson does. I am willing to follow the lead of Craigin allowing a deposition procedure under our own constitutional provision but would require the safeguards approved in Craig. That procedure provided the defendant with the means for continuing consultation with her attorney while the child testified. The technology for this expedient is readily available. I would mandate it. Denying the accused the ability to communicate with counsel as the witness testifies effectively removes the second feature of testimony in open court because the review of a deposition on videotape does not provide the defendant an adequate opportunity to observe the witness while testifying and to prepare for cross-examination. In expressing this view I do not believe that I am “straining at a gnat.”

¶31We have recognized that the right to counsel connotes “the right to freely communicate and to sit with ... counsel during trial or at least be so located that [attorney and client] are able to communicate without interruption.” State v. Hatfield, 465 S.W.2d 468, 469 (Mo.1971) (quotation omitted). While aspects of the statutory scheme embodied in §§ 491-680 and 491.685 offer the defendant broad protections, the phrase “contemporaneous cross examination” denotes an opportunity to cross examine immediately after the direct testimony is elicited. Cross-examination is often best when the iron is hot and a witness’s contradictions can be addressed at the moment. So I would insist on the Craigprocedure as a requirement of art. I, § 18(a) of our Constitution.

¶32I cannot accept the suggestion in the principal opinion that the “short delay ... before proceeding with the cross-examination cannot possibly jeopardize the effectiveness of the cross-examination_” My reaction is to the contrary. I would like to have my client’s reaction as the witness testifies. The defendant should be able to nudge counsel when the witness says something during the direct examination that calls for later probing. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), relied on in the principal opinion, dealt with prior statements by a witness who was available and testifying and is therefore not applicable to the concerns raised here.

¶33The fact that counsel in this case proceeded with cross-examination without requesting a break for consultation with the defendant may indicate that at least some attorneys would not view a break in the proceedings as a “luxury.” The procedure approved in the principal opinion forces counsel to choose between an immediate cross-examination and one informed by the accused’s comments and suggestions. Such a procedure is not justifiable when it would be easy to provide contemporaneous access to counsel. I believe we should mandate such access.

¶34The principal opinion finds significant that “the timing of the deposition [three days before the videotape was shown to the jury] ... made it essentially part of the trial.” This statement implicitly recognizes that, for confrontation purposes, admitting a pretrial deposition is somewhat less satisfactory than testimony before the court during trial without facing the defendant. I would be very cautious about departing from the traditional mode and would insist on ample safeguards.

¶35I cannot accept the mention of the Missouri statute in Craigas an indication of approval of our procedure by the Supreme Court of the United States. Our statute does not preclude the imposition of the Craigsafeguards and, therefore, does not on its face violate the defendant’s right to confrontation. The Craigopinion does not endorse procedures that vary from the one *468before the Court in that case. The defendant in Craigwas allowed continuing communication with counsel. Indeed, the Court found significant to its holding that the child witnesses “were subject to full cross-examination, and were able to be observed by the judge, jury, and defendant as they testified.” Craig, 110 S.Ct. at 3170. Without regard to Craig, furthermore, I would impose the procedure as a requirement of state law, in the implementation of our own constitutional mandate.

¶36In Brady v. State, 575 N.E.2d 981 (Ind.1991), our sibling Supreme Court dealt with a constitutional provision which, like ours, uses the phrase “face-to-face.” It held that the state provision is stricter than the federal model, by a vote of 3 to 2. The dissenters emphasized that the Indiana statute required the Craigprocedure. Thus none of the members of that court would endorse the procedure here approved.

¶37I do not disagree with the holding that the social worker could provide the needed testimony as to the trauma of testifying but am concerned lest such findings come too easily. Trial judges should be very reluctant to sanction departures from the traditional mode and should explore the possibility of presenting the victim’s testimony in the usual manner.

¶38I express one further concern. There is a severe problem if the jury is allowed to take the deposition tape with it and to play the tape during its deliberations. This is contrary to the usual practice with depositions, even though they may have been marked as exhibits. The statutory deposition procedure is a substitute for testimony and should not be given a preferred status by allowing the jury special access to it. If the jury wants to hear the deposition again it should ask the court, just as it might ask for the reading of some portion of the testimony heard in court. The judge could use discretion as to such requests. But I agree that this point is lost to the defendant for failure to preserve it.

¶39I agree with substantially everything else that is said in the principal opinion but, for failure to impose the Craigprocedure, would reverse and remand for new trial.