Commonwealth v. Bergstrom

• Decision Date: 13 June 1988
• Citation: 524 N.E.2d 366,402 Mass. 534
• Parties: COMMONWEALTH vs. ROBERT A. BERGSTROM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

402 Mass. 534

524 N.E.2d 366

COMMONWEALTH vs. ROBERT A. BERGSTROM.

Supreme Judicial Court of Massachusetts, Franklin.

December 8, 1987.

June 13, 1988.

Present: HENNESSEY, C.J., WILKINS, LIACOS, NOLAN, & LYNCH, JJ.

J. Richard Ratcliffe (Mitchell Garabedian with him) for the defendant.

Charles K. Stephenson, Assistant District Attorney (Judy G. Zeprun, Assistant Attorney General, with him) for the Commonwealth.

James M. Shannon, Attorney General, & Judy G. Zeprun, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief.

LIACOS, J.

This case presents a constitutional issue of first impression: whether, during the course of a criminal trial, child witnesses may, through electronic means, testify outside the physical presence of the defendant and of the jury consonant with the confrontation guarantees of the Sixth Amendment to the United States Constitution and of art. 12 of the Massachusetts Declaration of Rights. We resolve this issue solely under art. 12.

The facts which give rise to this case are these. The defendant was indicted for rape and for indecent assault and battery on each of his minor daughters. Prior to trial, the Commonwealth moved, pursuant to G.L.c. 278, § 16D (1986 ed.), to take the children's testimony by use of simultaneous closed circuit television transmission. After an evidentiary hearing, the judge allowed the motion. The defendant was convicted on all counts, although execution of his sentences has been stayed pending appeal.

General Laws c. 278, § 16D, quoted in the margin,¹ was first enacted in 1985. St. 1985, c. 682. The statute provides that the judge, after hearing, may order "the use of a suitable alternative procedure" for presenting at trial the testimony of a child witness under fifteen years of age, who is alleged to be a victim of, or witness to, various criminal sexual acts. The statute permits testimony by recording on film or videotape, by simultaneous visual and aural transmission through any capable device (including closed circuit television), or in a courtroom setting such that the child witness is unable to see or hear the defendant. If, after a pretrial hearing, the judge finds by "a preponderance of the evidence at the time of the order that the child witness is likely to suffer psychological or emotional trauma as a result of testifying in open court, as a result of testifying in the presence of the defendant," or as a result of doing both, the judge shall enter specific findings allowing use of the statutory alternatives. G.L.c. 278, § 16D (b) (1). The testimony must be taken in the presence of the judge, the prosecutor, the defense counsel, and "such other persons as the court may allow." Id. at § 16D (b) (3). The defendant has a right to be present, absent a showing that the witness is likely to suffer trauma as a result of his presence. If the defendant's presence is barred, he must be able to see and hear the witness and to have constant private communication with his attorney. Id. at § 16D (b) (3)-(5).

At the evidentiary hearing on its motion, the Commonwealth proffered the testimony of the social worker who acted as therapist to the children, and that of a psychologist, regarding the capacity of the children to testify in court. Based on this testimony, the judge ruled that the Commonwealth proved, by a preponderance of the evidence, that the children would "suffer psychological trauma" if required to testify "in front of their father in a face-to-face confrontation and in front of a jury in a formal court setting" (emphasis in original).² The testimony of the psychologist, Dr. Anne McComb, was that each child would be "less likely to suffer trauma" testifying away from the defendant, the jury, and the over-all courtroom setting, and that formal courtroom testimony could intensify feelings of self-hate and possibly result in efforts by one child to hurt herself. The testimony of the social worker, Abigail Weinberg, was that both children feared losing their father and felt guilt that he might go to jail because of their disclosures, that both would therefore "fall apart emotionally on the stand,"³ and that testifying before the jury would cause them the trauma of reliving their victimization.⁴

The judge, while allowing the Commonwealth's motion, indicated clearly her reservation about the statute's constitutionality under the State Constitution.⁵ At trial, both child witnesses gave their testimony in a room separate from the courtroom where the jury and the defendant were located. Present in the room with each child witness were the judge, the prosecutor, defense counsel, the girls' grandmother (unbeknownst to the jury), and a video technician. Neither child was in the room during the testimony of the other. The defendant observed the testimony on a television monitor in the courtroom; two-way communication with his counsel was possible.⁶ The jury and the court reporter observed the proceedings on a second television monitor in the courtroom.

Prior to the first child's testimony, the judge explained to the jury that they would observe such testimony on the courtroom monitor. She further explained that the defendant would remain in the courtroom, but that no adverse inferences were to be drawn from this procedure. The judge did not explain the process to either child, nor did she inform the children that the defendant would be watching and listening to their testimony. Indeed, the record is barren of any indication that either child knew that she was giving testimony against the defendant in a court of law.⁷

The defendant objects to the use of the closed circuit television procedure on the ground, inter alia, that art. 12 guarantees a "face to face" encounter in which the accused shall "meet" the witnesses against him.⁸ The Commonwealth argues that these words have "no essential meaning," and that allowing the defendant to see and hear a witness, while able to communicate with his attorney, satisfies completely Federal and State constitutional requisites.

1. Confrontation rights under art. 12. a. Nature of the right. We begin with the relevant language of art. 12: "Every subject shall have a right to produce all proofs, that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his counsel, at his election" (emphasis added).

The familiar rule of constitutional construction guides our interpretation: "If possible, the provision must be construed so as to accomplish a reasonable result and to achieve its dominating purpose. Its words should be interpreted in the sense most obvious to the common intelligence...." Opinion of the Justices, 365 Mass. 655, 657 (1974), quoting Lincoln v. Secretary of the Commonwealth, 326 Mass. 313, 317 (1950), and cases cited. Furthermore, "words of the Constitution cannot be ignored as meaningless." Opinion of the Justices, 332 Mass. 769, 777 (1955). "All the words of the Constitution must be presumed to have been chosen advisedly." Mount Washington v. Cook, 288 Mass. 67, 70 (1934).⁹

Underlying the confrontation guarantee is the concept that a witness is more likely to testify truthfully if required to do so under oath, in a court of law, and in the presence of the accused and the trier of fact. Constitutional language more definitively guaranteeing the right to a direct confrontation between witness and accused is difficult to imagine. The plain meaning of assuring a defendant the right "to meet the witnesses against him face to face" is that the accused shall not be tried without the presence, in a court of law, of both himself and the witnesses testifying against him. To interpret the words of this mandate as requiring only that the defendant be able to see and hear the witness renders superfluous the words "to meet" and "face to face."¹⁰ Speaking of this concept under the Sixth Amendment, the United States Court of Appeals for the Eighth Circuit stated in United States v. Benfield, 593 F.2d 815, 821 (8th Cir.1979): "Normally the right of confrontation includes a face-to-face meeting at trial at which time cross-examination takes place.... While some recent cases use other language, none denies that confrontation required a face-to-face meeting in 1791 and none lessens the force of the sixth amendment. Of course, confrontation requires cross-examination in addition to a face-to-face meeting. Davis v. Alaska, 415 U.S. 308, 315 (1974). The right of cross-examination re-inforces the importance of physical confrontation. Most believe that in some undefined but real way recollection, veracity, and communication are influenced by face-to-face challenge. This feature is a part of the sixth amendment right additional to the right of cold, logical cross-examination by one's counsel. While a deposition necessarily eliminates a face-to-face meeting between witness and jury, we find no justification for further abridgment of the defendant's rights. A videotaped deposition supplies an environment substantially comparable to a trial, but where the defendant was not permitted to be an active participant in the video deposition, this procedural substitute is constitutionally infirm." (Footnotes omitted.) See State v. Twist, 528 A.2d 1250, 1256 (Me. 1987) (Sixth Amendment confrontation right includes not only right to cross-examination but also right "to see and be seen by the witnesses").

In State v. Jarzbek, 204 Conn. 683, 692-693 (1987), the court stated, as to the Sixth Amendment confrontation right: "The clause finds its modern justification in the perceived role that physical confrontation plays in the truth-seeking process. Confrontation is intended to enhance that process in a number of ways: by affording the accused an opportunity for face-to-face contact with adverse witnesses at trial; by ensuring that a witness will give his statements under oath, which impresses upon him the seriousness of the proceedings...