Kansas City v. McCoy

• Citation: 80 A.L.R.3d 1203,525 S.W.2d 336
• Decision Date: 14 July 1975
• Docket Number: No. 58650,58650
• Parties: KANSAS CITY, Missouri, Respondent, v. William C. McCOY, Appellant.
• Court: United States State Supreme Court of Missouri

Page 336

525 S.W.2d 336

80 A.L.R.3d 1203

KANSAS CITY, Missouri, Respondent, v. William C. McCOY, Appellant.

No. 58650.

Supreme Court of Missouri, En Banc.

July 14, 1975.

Aaron A. Wilson, City Atty., Louis W. Benecke, City Prosecutor, Walter J. O'Toole, Jr., Asst. City Prosecutor, Kansas City, for respondent.

Robert L. Shirkey, Kansas City, for appellant.

HENLEY, Judge.

This case involves the question of whether, in the trial of an accused for violation of a municipal ordinance, the confrontation clause of the sixth amendment to the federal constitution requires that an expert witness giving testimony against him be physically present in court.

William C. McCoy (defendant) was charged with, tried in the municipal court, and convicted of possession of marijuana in violation of § 18.152 of the revised ordinances of the city of Kansas City, Missouri. He appealed to the circuit court of Jackson county and, upon trial de novo with the same evidence, was again found guilty and sentenced to imprisonment for 30 days at the municipal farm. From that judgment of conviction he appealed to this court claiming that a determination of the issues involves construction of the confrontation clause of the sixth amendment to the constitution of the United States. ¹ We affirm.

Defendant was arrested for two traffic offenses. In the process of 'booking' him on those charges he was searched by a police officer preparatory to incarceration pending arrangements for his release on bail. During this search a plastic bag containing a substance which appeared to be marijuana was found on his person. Chemical analysis of this substance confirmed that it was marijuana and the instant charge was filed.

The evidence of the city that the substance found on defendant's person was in fact marijuana was presented to the municipal court, and later to the circuit court on appeal, by means of closed circuit television ² connecting the courtroom with the police crime laboratory approximately 12 miles from the courthouse.

Dr. Mattias Yoong, the city's witness, was located in an office at the crime laboratory while testifying in response to questions propounded by city's counsel, who was located in the courtroom. Present in the courtroom during this witness's testimony, in addition to the city attorney, were the judge, the defendant, his attorneys, and several spectators, unidentified except that two were reporters for news media. Present in the crime laboratory office while Dr. Yoong was testifying were the Director and assistant Director of the laboratory and two other chemists. The electronic equipment used in this presentation which was visible in the courtroom and in the crime laboratory, consisted of two stationary television cameras, two monitors which appear to be ordinary television sets and microphones for use by the judge and counsel located in the courtroom, and a camera, monitor and microphone located in the laboratory.

During the examination of Dr. Yoong by counsel, each could see and hear the other as well as see and hear and be seen and heard by the trier of fact (the judge) and the defendant, the transmission of the images and the voices being instantaneous. As presented in this court, the picture and voices were clear and distinct.

Dr. Yoong testified on direct examination, over objection of defendant based on the above-stated sixth amendment grounds, that he had made a chemical analysis of the substance taken from defendant's person and determined that it was marijuana. Defendant's counsel had ample opportunity to cross-examine the witness but declined to do so. In addition to his objection to Dr. Yoong's testimony on sixth amendment grounds, defendant also contends that this testimony was not admissible because it was not the best evidence since the witness was not physically present.

Referring to this right of an accused, the Supreme Court of the United States said in Mattox v. United States, 156 U.S. 237, 242, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895):

'The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards even by the death of the witness; and that, if notes of his testimony are permitted to be read, he is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case.

'We are bound to interpret the constitution in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as securing to every individual such as he already possessed as a British subject--such as his ancestors had inherited and defended since the days of Magna Charta. Many of its provisions in the nature of a bill of rights are subject to exceptions, recognized long before the adoption of the constitution, and not interfering at all with its spirit. Such exceptions were obviously intended to be respected. A technical adherence to the letter of a constitutional provision may occasionally be carried farther than is necessary to the just protection of the accused, and further than the safety of the public will warrant.' See also: Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934); Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972).

In Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965) the court, considering a claim of denial of the sixth amendment right of confrontation, struck down a prosecutor's tactic of calling a convicted accomplice of the defendant to the witness stand, securing a refusal to testify, and then using the refusal as a springboard to read the accomplice's alleged confession into the record without affording the defendant an opportunity to cross-examine. But in discussing the right, the court also said: 'Our cases construing the clause hold that a primary interest secured by it is the right of cross-examination; an adequate opportunity for cross-examination may satisfy the clause even in the absence of physical confrontation.' 380 U.S. at 418, 85 S.Ct. at 1076. (emphasis supplied)

The Supreme Judicial Court of Massachusetts in Commonwealth v. Harvard, 356 Mass. 452, 253 N.E.2d 346(7, 8) (1969), a case involving an appeal from a conviction of possession of marijuana, held that the right of confrontation was not denied by the admission in evidence of a certificate of the state's Department of Public Health that its analysis of the contents of a bag showed that it was marijuana. 253 N.E.2d at 351--352.

These cases all involve convictions of felonies under the general law; here, we are concerned with a case involving prosecution and conviction of violating a municipal ordinance, a proceeding said to be 'civil in nature, although somewhat criminal in respect to some of the prescribed procedure.' Delaney v. Police Court of Kansas City, 167 Mo. 667, 67 S.W. 589, 591 (1902); State ex rel. Cole v. Nigro, 471 S.W.2d 933, 936(2) (Mo. banc 1971).

We have the view that to require the physical presence of an expert witness against one accused of violating a municipal police regulation would be to require more than the confrontation clause rights of an accused demand in many instances of prosecutions for felonies. Today we have means of communication not available only a few years ago. We can now by electronic means project the image and voice of man clearly and distinctly at the speed of light and control that means and insure its integrity by closed circuit and monitors. While Dr. Yoong was not physically present in the courtroom, his image and his voice were there; the...