Com. v. Willis
| Citation | 716 S.W.2d 224 |
| Decision Date | 03 July 1986 |
| Docket Number | No. 85-SC-218-TG,85-SC-218-TG |
| Parties | COMMONWEALTH of Kentucky, Appellant, v. Leslie WILLIS, Appellee. |
| Court | United States State Supreme Court (Kentucky) |
David L. Armstrong, Atty. Gen., Penny R. Warren, Asst. Atty. Gen., Frankfort, Raymond M. Larson, Patrick M. Malone, Sp. Asst. Atty. Gens., Lexington, for appellant.
John P. Schrader, Geralds, Moloney & Jones, Lexington, for appellee.
This appeal is from an order denying a request to take the testimony of a 5-year-old sexual abuse victim pursuant to KRS 421.350(3), (4), (5), and holding those sections unconstitutional because they deny the defendant the right to confrontation and violate the separation of powers doctrine.
Willis was indicted on two counts of first-degree sexual abuse. Before trial, he moved to exclude the testimony of the child victim, claiming that she was incompetent to testify. A competency hearing was held in the chambers of the trial court with the trial judge, the court reporter, defense counsel, the defendant, the prosecutor, the mother of the victim and the victim present.
When the child was asked why she would not respond to certain questions, she stated:
A. I don't want him--hurt me.
* * *
* * *
Q. Somebody here you don't want to see?
A. (Witness nods affirmatively.)
Q. Who's that?
A. Uncle Leslie. (TH 9.)
* * *
* * *
Q. Are you going to talk for us?
A. I don't want him here. (TH 10.)
* * *
* * *
A. Yes. I don't want Uncle Leslie, Mommy. (TH 19.)
The trial judge was unable to rule on whether she was competent or incompetent because her answers were unresponsive.
The prosecution then pursued a motion to proceed under KRS 421.350(3) or (4), which permits the use of television cameras to present the testimony in a sex abuse case of a victim under the age of twelve so that the child need not be aware of the defendant's presence. After submission of written arguments, the trial judge sustained the defense motion to exclude the testimony of the child witness because he was of the opinion that Sections 3, 4 and 5 of KRS 421.350 were unconstitutional, as a violation of the defendant's right to confrontation and a violation of the separation of powers doctrine in Section 28 and 109 of the Kentucky Constitution.
The Commonwealth was unable to prosecute the case because the child witness was the only eye witness to the crimes charged and appealed pursuant to KRS 22A.020 which authorizes interlocutory appeals.
This Court reverses the decision of the circuit court and remands this case for completion of the competency hearing and any trial resulting therefrom. Sections 3 and 4 of the statute are constitutional, and there is no violation of the separation of powers doctrine.
The issue is whether the statute in question offends either Section Eleven of the Kentucky Constitution or the Sixth Amendment to the United States Constitution, both of which deal with the right of a criminal defendant to be confronted with the witnesses against him.
The specific language of the Kentucky Constitution, Sec. 11, is as follows:
In all criminal prosecutions, the accused has the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.
The Sixth Amendment to the United States Constitution provides as follows:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel for his defense.
The requirement in the Kentucky Constitution to "meet witnesses face-to-face" is basically the same as the Sixth Amendment to the federal constitution which provides a right of confrontation. The federal courts have indicated that the Confrontation Clause reflects a preference for face to face confrontation at trial. Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597 (1980).
Our legislature, after extensive public hearings on the matter of child sex abuse and responding to a plea for witness protection, has accepted the philosophy that testifying in a formal court room atmosphere at a criminal trial before the defendant, judge and jury can be one of the most intimidating and stressful aspects of the legal process for children. Exercising the legitimate right of legislative policy making, the statute in question was enacted.
The testimony of a child witness can be presented by video tape taken before trial by closed circuit television used during trial or by in-court screening of the defendant from the sight and hearing of the witness provided that consideration is given to the rights of the defendant as afforded by the Sixth Amendment of the Federal Constitution and Section Eleven of the Kentucky Constitution provided the technology is available and used so that any possible infringement of the rights of the defendant is insubstantial. The Commonwealth should be required to persuade the trial judge that such is reasonably necessary and provide the technical details whereby the testimony will be taken with the child screened from the sight and hearing of the defendant while at the same time the defendant can view and hear the child and maintain continuous audio contact with defense counsel.
KRS 421.350(3) and (4) does not unduly inhibit the right of cross-examination. The accused still has the right to hear and observe the witness testify and the jury has the opportunity to view the video and evaluate the demeanor and credibility of the witness.
The sections of the statute apply only to a narrow class of witnesses, children twelve years old or younger who are victims of sex offenses. They impose no restrictions on cross-examination; allow the finder of fact to observe the demeanor of the witness and require that defendant be present to see and hear the testimony. The law is available at the discretion of the trial judge in the interest of the truth determining process. The appropriate balancing of the competing interests of the right of confrontation and the right of a witness to be free of intimidation favors the constitutionality of the statute. See Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895).
The discretion provided to the trial judge pursuant to KRS 421.350 allows the utilization of modern technology so as to enhance the truth determining qualities of a trial. Live testimony is always preferred, but other techniques can be used when needed as permitted by the trial judge.
The statute requires that the defendant be present in person so that he may see and hear the witness but he shall not be seen by the child. The same basic procedure permits the testimony to be taken prior to trial and preserved by video tape. Sec. 4. The availability of procedures permits the defendant to fully participate in cross-examination and to adequately see and hear the witness. The reproduced testimony must be of adequate quality for the jurors to assess the demeanor of the witness and to evaluate credibility. The trial judge paraphrased the issue as to whether the privilege of viewing a witness through a one-way mirror or a video monitor is a constitutionally acceptable substitute for face-to-face confrontation. We believe that it is. See Wigmore on Evidence Sec. 1397 (Chadbourne Revision, 1979).
The legislative authorization of video tape or closed circuit trial testimony by certain child victims pursuant to KRS 421.350 does not violate a defendant's right to confrontation as protected by the constitution.
Mattox v. United States, supra, does not support the argument that confrontation requires visual contact between the defendant and the witness. Mattox authorizes admission of dying declarations and the court observed that the general prohibition against hearsay evidence must occasionally give way to considerations of public policy and the necessities of the case.
Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973), states that the right to confront and cross-examine is not absolute and may in appropriate cases be compromised to accommodate other legitimate interests in the criminal trial process.
Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), states in part that the confrontation clause reflects a preference for face-to-face confrontation but that a primary interest secured by the right is the right of cross-examination. The U.S. Supreme Court recognizes that competing interests may warrant dispensing with confrontation at trial.
Generally the preference for face-to-face confrontation establishes a rule of necessity where the prosecution must demonstrate unavailability prior to introduction of a hearsay statement. Its underlying purpose is to augment accuracy in the truth finding process by insuring the defendant an effective means to test adverse evidence.
Roberts, supra, found no violation of the right to confrontation by introduction of written testimony from a preliminary hearing. Kentucky permits hearsay testimony to be introduced under similar circumstances. Maynard v. Commonwealth, Ky.App., 558 S.W.2d 628 (1977).
The videotaped or televised testimony under Secs. 3 or 4 of the statute is not hearsay. It is the functional equivalent of testimony in court. The testimony is taken with the court, counsel and the defendant present in person. Full cross-examination is authorized. The defendant and the jury can see and hear the witness and assess credibility by observation of the demeanor of the witness.
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