Appeal in Pinal County Juvenile Action Nos. J-1123 and J-1124, Matter of

• Decision Date: 24 July 1985
• Docket Number: J-1124,CA-CIV,No. 2,J-1123,2
• Citation: 147 Ariz. 302,709 P.2d 1361
• Parties: In the Matter of the APPEAL IN PINAL COUNTY JUVENILE ACTION NOS.AND5319.
• Court: Arizona Court of Appeals

Page 1361

709 P.2d 1361

147 Ariz. 302

In the Matter of the APPEAL IN PINAL COUNTY JUVENILE ACTION NOS. J-1123 AND J-1124.

No. 2 CA-CIV 5319.

Court of Appeals of Arizona,

Division 2, Department B.

July 24, 1985.

Review Denied Nov. 5, 1985.

Roy A. Mendoza, Pinal County Atty. by Janet Keating and Ruth E. Koester, Florence, for appellee

David F. Alexander, Apache Junction, for appellant Juvenile Action J-1123.

Robertson & Villarreal, Ltd. by Michael Villarreal, Florence, for appellant Juvenile Action J-1124.

OPINION

HATHAWAY, Presiding Judge.

The juveniles appeal from a finding that they were delinquent and from their subsequent commitment to the Department of Corrections. Delinquency petitions were filed on July 2, 1984, alleging that the juveniles had committed second-degree murder in violation of A.R.S. § 13-1104. The evidence at the adjudication hearing, held on August 30, 1984, and September 5, 1984, showed that the appellant juveniles were found to have physically abused a three-year-old girl who subsequently died from a head injury. The State's primary witness was the victim's six-year-old brother. During the initial questioning of the brother, the court was convinced he was having difficulty testifying in the presence of the juveniles. After conducting an examination of the victim's brother, the court determined that the juveniles had threatened him if he told what the juveniles had done to his sister. A motion was made to exclude the juveniles from the courtroom during the brother's testimony and to allow the juveniles to watch the testimony on closed-circuit television from an adjoining jury room. The procedure was allowed by the trial court upon the showing that the six-year-old brother was competent to testify and that he, in fact, feared testifying in front of the juveniles because of threats made against him.

Appellant in cause No. J-1123 contends in his supplemental memorandum that the court violated Rule 19, Rules of Procedure for the Juvenile Court, 17A A.R.S., by excluding the juveniles during the portion of the adjudication hearing in which the six-year-old brother testified. Rule 19 states in pertinent part:

"The court may further excuse any party other than the child from any hearing, except that the child may be excluded in matters not involving the commission of an act which would be the violation of the criminal law if committed by an adult and the court may exclude the child at the request of the child's attorney." (emphasis added)

The appellant juvenile was not excluded from the proceedings within the meaning of Rule 19. The juveniles were placed in an adjoining room and were linked by video and audio transmission to the ongoing testimony. They were able to view the witness and hear the witness' testimony. Additionally, the record shows that the trial court made it clear that it would stop the proceedings at any time when counsel wished to leave the room to consult with their clients, and breaks in testimony were taken for that purpose. The juveniles were not "excluded" within the meaning of Rule 19, which obviously refers to proceedings where the juvenile is unaware of what is transpiring and, therefore, unable to aid counsel in his defense.

The more difficult question raised by both juvenile appellants is whether the procedure violated their constitutional right to confront the witness against them. Article 2, § 24, of the Arizona Constitution reads, in part:

"In criminal prosecutions, the accused shall have the right to appear and defend in person, and by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face...."

The Sixth Amendment to the United States Constitution provides, in part "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...."

The Confrontation Clause is a fundamental right to which the states are subject by reason of the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). However, the right of confrontation is not absolute. As early as 1895, the United States Supreme Court held that the right "must occasionally give way to considerations of public policy and the necessities of the case." Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895). In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Court stated:

"[T]he Confrontation Clause reflects a preference for face-to-face confrontation at trial, and that 'a primary interest secured by [the provision] is the right of cross-examination.'

....

The Court, however, has recognized that competing interests, if 'closely examined,' ... may warrant dispensing with confrontation at trial." 100 S.Ct. at 2537-2538 (citations omitted).

Wigmore analyzes the right to confrontation as follows:

"Now confrontation is, in its main aspect, merely another term for the test of cross-examination. It is the preliminary step to securing the opportunity of cross-examination; and, so far as it is essential, this is only because cross-examination is essential. The right of confrontation is the right to the opportunity of cross-examination. Confrontation also involves a subordinate and incidental advantage, namely, the observation by the tribunal of the witness' demeanor on the stand, as a minor means of judging the value of his testimony. But this minor advantage is not regarded as essential, i.e., it may be dispensed with when it is not feasible. Cross-examination, however, the essential object of confrontation, remains indispensable." V Wigmore, Evidence § 1365 at 28 (Chadbourn Rev.1974) (emphasis in original).

Additional language in support of inroads made on the Confrontation Clause in the interest of justice is found in the New Jersey case of State v. Sheppard, 197 N.J.Super. 411, 484 A.2d 1330 (1984), where the court states:

"The Confrontation Clause is not implacable in its demands. Nearly every authority agrees that it is subject to exceptions. In reaching the conclusion, as this court has, that the use of video-taped testimony in this...