575 N.E.2d 981 (Ind. 1991), 71S03-9106-CR-498, Brady v. State

Docket Nº:71S03-9106-CR-498.
Citation:575 N.E.2d 981
Party Name:Michael BRADY, Appellant, v. STATE of Indiana, Appellee.
Case Date:June 28, 1991
Court:Supreme Court of Indiana
 
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Page 981

575 N.E.2d 981 (Ind. 1991)

Michael BRADY, Appellant,

v.

STATE of Indiana, Appellee.

No. 71S03-9106-CR-498.

Supreme Court of Indiana.

June 28, 1991

Page 982

Anthony V. Luber, South Bend, for appellant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

Page 983

PETITION FOR TRANSFER

DeBRULER, Justice.

Following a jury trial, appellant Michael Brady was convicted of child molesting, a Class C felony, I.C. 35-42-4-3(b), and received a sentence of seven years. A divided Court of Appeals affirmed appellant's conviction and corresponding sentence. Brady v. State (1989), Ind.App., 540 N.E.2d 59 (Hoffman, J., dissenting).

Appellant now brings this petition to transfer. We now grant transfer and reverse. The points raised in appellant's petition include the contention that I.C. 35-37-4-8, 1 which authorizes the use of videotaped testimony of child witnesses at trial is unconstitutional. Appellant also asserts that the videotaped testimony should not have been admitted into evidence because appellant's right to cross-examine the witness was compromised. In addition to considering these particular points, we further find it necessary to consider appellant's claim that the evidence presented at trial was insufficient to support his conviction and that the verdict was therefore contrary to law.

T.B. was born on June 22, 1982. Appellant is her natural father. Appellant and T.B.'s mother, Carla Myers, were married at the time of her birth but were subsequently

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divorced in November of 1983. Carla Myers married Mark Myers following her divorce from appellant. T.B. lived with Carla Myers, Mark Myers, and Jason Skeen, Carla's son from a previous unrelated marriage.

The charging information stated that appellant fondled and touched T.B. with the intent to arouse his sexual desires on or about the fourth day of April, 1986, to on or about the fifth day of April, 1986. Pursuant to a court visitation order in effect in April of 1986, T.B. spent Friday night, April 4, and Saturday night, April 5, with appellant at the home of appellant's mother, Rosemary Brady. Appellant returned T.B. to Carla Myers's home on Sunday, April 6, at 6:00 p.m.

On Monday morning, one of T.B.'s teachers discovered T.B. hiding in the bathroom closet and complaining that her "gina" hurt. The teacher called Mark Myers and he came and took T.B. home. This event brought about a prompt physical examination of the child by a physician. The physician observed a large hematoma on the right labia majora, a deep laceration which followed the line between the labia majora and the labia minora, and a rather deep tear that extended downward toward the anus. One of these lacerations was inside the vagina while the other was outside the vagina. The physician's opinion was that these injuries were caused by sexual abuse.

During the three months following the discovery of the child's injury, the child made several statements to investigators that it had been appellant who had hurt her. Charges were subsequently filed July 8, 1986.

On January 30, 1987, the State, pursuant to I.C. 35-37-4-8, moved the court to order that T.B.'s testimony be videotaped for use at trial. The parties submitted briefs on the constitutionality of this statute and on February 10, a hearing was held to resolve this issue. The trial court ruled that I.C. 35-37-4-8 was constitutional and denied appellant's motion to deny the State's request to videotape T.B.'s testimony. On February 13, the trial court ruled that it was more likely than not that it would be traumatic for T.B. to testify in court and ordered that the videotape testimony be taken.

On March 14, 1987, T.B.'s videotape testimony was taken and was subsequently admitted at trial over appellant's objection and viewed by the jury. The tape had been taken at home in T.B.'s kitchen and bedroom. The judge, prosecutor, defense attorney, investigator, T.B.'s mother, and the operator of the video equipment were present during the videotaping. The videotape session lasted approximately two hours. Appellant was situated in the garage of the house, and he was able to see and hear T.B. via closed circuit television as she was questioned. Appellant was also able to speak with defense counsel by a microphone hook-up. T.B. was not able to see or hear appellant and was not aware of his presence. Mark Myers was permitted to view T.B.'s testimony via closed circuit television in the garage with appellant. In sum, the trial court scrupulously followed the statute.

  1. RIGHT OF CONFRONTATION

    1. Constitutionality of Statute Under the Federal Constitution

      Appellant maintains that this statute is unconstitutional on its face as it infringes upon his right to confront the witnesses against him as guaranteed by the Sixth Amendment of the United States Constitution and Article I, Sec. 13 of the Indiana Constitution. In considering appellant's constitutional challenges, we accord the statute with every reasonable presumption supporting its validity and place the burden upon the party challenging it to show unconstitutionality. Johnson v. St. Vincent Hospital, Inc. (1980), 273 Ind. 374, 404 N.E.2d 585. Before a statute will be declared repugnant to the Constitution, the claim of unconstitutionality must have been fully litigated in a suitable adversary atmosphere and its fatal constitutional defects must be clearly apparent. Board of Comm'rs. v. Kokomo City Plan Comm'n. (1975), 263 Ind. 282, 330 N.E.2d 92. Furthermore, a statute will not be declared void as unconstitutional if only part of the

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      statute is unconstitutional and that part may be excised without altering the meaning of the statute or if the statute is subject to a reasonable construction which renders it constitutional.

      The right of confrontation is a fundamental right ensured by the Sixth Amendment, made applicable to the states through the Fourteenth Amendment, wherein it provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Article I, Sec. 13 of the Indiana Constitution provides that "[i]n all criminal prosecutions, the accused shall have the right ... to meet the witnesses face to face...." In Miller v. State (1987), Ind., 517 N.E.2d 64, this Court upheld the constitutionality of a former version of this statute against claims under both of these constitutional provisions, while holding that a videotaped statement of a child witness had been erroneously admitted because of the absence of any opportunity for cross-examination. The statutory provisions at issue in the present appeal, however, are significantly different.

      The right of confrontation under the Sixth Amendment is honored where "the defense is given a full and fair opportunity to probe and expose [testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony." Delaware v. Fensterer, 474 U.S. 15, 22, 106 S.Ct. 292, 295, 88 L.Ed.2d 15, 21 (1985) (per curiam) (quoted in Maryland v. Craig, 497 U.S. ----, 110 S.Ct. 3157, 3164, 111 L.Ed.2d 666, 679 (1990)). In Craig, the Supreme Court went on to state that "we have never insisted on an actual face-to-face encounter at trial in every instance in which testimony is admitted against a defendant." Craig, 497 U.S. at ----, 110 S.Ct. at 3164, 111 L.Ed.2d at 680 (emphasis in original). Thus, the defendant's opportunity for cross-examination has been interpreted as being the essential purpose of the federal confrontation right.

      The statute in question in this case is similar to the Maryland statute which was reviewed by the United States Supreme Court in Craig. 2 The Supreme Court upheld the constitutionality of the Maryland statute as it found that the admission of the child victim's live testimony at the time of trial, transmitted to the courtroom and the trier of fact via one-way closed circuit television, was consonant with the Confrontation Clause. The Supreme Court noted:

      We find it significant ... that Maryland's procedure preserves all of the other

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      elements of the confrontation right: the child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by videotape monitor) the demeanor (and body) of the witness as he or she testifies.

      Id. at ----, 110 S.Ct. at 3166, 111 L.Ed.2d at 682. The Supreme Court went on to state that in some cases the State's interest in protecting a child witness from serious emotional distress and trauma occasioned by testifying in the courtroom and in the presence of the defendant may outweigh a defendant's right to face his or her accusers in court, thus permitting the direct and cross-examination of the child witness to be conducted at a location outside the courtroom, connected to the courtroom by one-way closed circuit television, while the defendant and the trier of fact remain in the courtroom and view the witness on a television screen. In such instances, the Supreme Court concluded that it was not necessary that the child witness be able to view, to hear, or otherwise perceive the presence of the defendant, who is viewing and listening in at the time. That Court, however, did not consider whether such examination could take place at some time before trial, be recorded on videotape, and be subsequently replayed for the trier of fact at trial.

      The Indiana statute is, in most respects, like the Maryland statute which the Supreme Court upheld in Craig. Our statute contains...

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