Miller v. State

• Decision Date: 29 December 1987
• Docket Number: No. 63S01-8712-CR-1180,63S01-8712-CR-1180
• Citation: 517 N.E.2d 64
• Parties: Annabel MILLER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 64

517 N.E.2d 64

56 USLW 2422

Annabel MILLER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 63S01-8712-CR-1180.

Supreme Court of Indiana.

Dec. 29, 1987.

Susan K. Carpenter, Public Defender, Margaret S. Hills, Deputy Public Defender, Indianapolis, for appellant.

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

SHEPARD, Chief Justice.

Today we must decide whether the constitutional right of confrontation prohibits the admission of the videotaped statement of a child molesting victim when the child does not testify at trial and the defendant is not afforded the opportunity to cross-examine.

Appellant Annabel Miller, her husband, her son, and her son-in-law were accused of systematically molesting several of the family grandchildren over a period of four years. The initial charges against Miller consisted of four counts of child molesting, three counts of incest, two counts of confinement, and two counts of battery. The charges involved the abuse only of grandchild A.M., who was approximately five years old when the incidents began.

The mother of the other victims discovered the molestations and contacted police. The investigating officer, Indiana State Police Detective Charles Perkins, interviewed A.M. approximately ten times between the start of the investigation and the videotaping of her statement. Some of those interviews were tape recorded and transcribed. They show that the detective used strongly leading questions and that A.M.'s initial descriptions of the attacks were somewhat inconsistent with her videotaped statement. The transcriptions also revealed that police induced A.M. to talk by promises that she would be helping her molested cousin and eventually might visit her.

On November 9, 1984, the State filed a motion seeking to admit A.M.'s videotaped statement into evidence at trial, although such a statement had not yet been taken. Pursuant to Ind.Code Sec. 35-37-4-6 (Burns 1987 Supp.), ¹ which provides for the admission of the videotaped statements of sex abuse victims under the age of ten, the trial court scheduled a hearing for December 5. On November 26, Detective Perkins and social worker Lisa Berry interviewed the child on videotape. Although Detective Perkins led the questioning, Berry interjected queries when A.M. appeared hesitant or did not offer the answer which the detective obviously was seeking. A.M.'s statement provided a vivid account of numerous molestations and batteries by Miller. Neither the defendant nor his counsel were notified of the videotaping or given the opportunity to attend.

Miller was allowed to view the videotape before the December 5 hearing, which was a multi-faceted proceeding to determine the competency of A.M., her availability as a witness, and the admissibility as a witness, and the admissibility of the videotaped statement. Although A.M. was within the courthouse, she appeared in court only briefly and for the sole purpose of answering the judge's questions concerning her competency. The court did not allow Miller to cross-examine A.M.

At the conclusion of the hearing, the court ruled that A.M. was competent but unavailable to testify at trial because a psychiatrist certified that her participation would be traumatic. Ind.Code Sec. 35-37-4-6(c)(2)(B)(i). The court also ruled that the videotape was admissible under Ind.Code Sec. 35-37-4-6. Shortly before trial, Miller waived trial by jury, and the State dismissed the three charges of incest. Despite the defendant's Sixth Amendment confrontation objection, the videotaped statement was admitted at trial. Detective Perkins and the social worker testified about the various oral statements which A.M. had made in their presence, including the one on videotape. A.M. did not testify at trial.

At the conclusion of the State's case, the defense moved for judgment on the evidence, which the court granted as to one count of child molesting. The court ultimately convicted Miller of two counts of the lesser included offense of attempted child molesting and two counts of confinement. It acquitted her on one count of child molesting and two counts of battery. The court sentenced her to concurrent terms of ten years in prison on each count, with four years suspended on each of the attempted child molesting convictions and five years suspended on each conviction of confinement.

Miller argued on appeal that the admission of the videotaped statement violated the confrontation clauses of both the federal and state constitutions because A.M. was never subject to cross-examination. The Court of Appeals held that admission of the videotape was proper because the State had complied with the explicit requirements of the videotape statute, which had been found constitutional in Altmeyer v. State (1986), Ind.App., 496 N.E.2d 1328, trans. denied, and Hopper v. State (1986), Ind.App., 489 N.E.2d 1209, cert. denied --- U.S. ----, 107 S.Ct. 592, 93 L.Ed.2d 593. Miller v. State (1986), Ind.App., 498 N.E.2d 1008. Miller's petition for transfer to this Court asserts that the Court of Appeals failed to consider whether the application of the statute in this case was constitutional.

We grant transfer to consider Miller's right of confrontation under the Indiana Constitution. Our analysis has five parts. First, we review the history of the confrontation right. Second, we determine what article 1, section 13 of the Indiana Constitution requires in regards to confrontation. Third, we examine the legislative history of Ind.Code Sec. 35-37-4-6 to see if the legislature intended to provide for confrontation. Fourth, we review the facial validity of Indiana Code Sec. 35-37-4-6. Fifth and finally, we judge the constitutionality of the statute as applied in this case.

I. The Origins of the Confrontation Right

The confrontation right in seventeenth century English common law is said to have evolved from public backlash to the abuses which occurred during Sir Walter Raleigh's trial for treason in 1603. F. Heller, The Sixth Amendment 104 (1959). Raleigh's conviction rested in great part on a written confession given outside his presence by his alleged co-conspirator, who was not present at trial. The knight of muddied cape fame, who was not permitted counsel, implored the court for confrontation:

"The proof of the Common Law is by witness and jury; let Cobham [his alleged co-conspirator] be here, let him speak it. Call my accuser before my face, and I have done."

To which Judge Warburton responded:

"I marvel, Sir Walter, that you being of such experience and wit should stand on this point; for so many horse-stealers may escape, if they may not be condemned without witnesses."

K. Graham, The Right of Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One, 8 Crim.L.Bull. 99, 100 (1972).

The common law right of confrontation was planted firmly in the American colonies. Confrontation clauses were included in most of the first state constitutions adopted at the start of the Revolutionary War; those constitutions served as models for the United States Constitution and the Bill of Rights. R. Clinton, The Right to Present A Defense: An Emergent Constitutional Guarantee in Criminal Trials, 9 Ind.L.Rev. 711, 728 (1976). As with the common law confrontation right, the general purpose of these clauses was to prevent the trial of criminal cases upon affidavits. See Kay v. United States, 255 F.2d 476 (4th Cir.1958), cert. denied, 358 U.S. 825, 79 S.Ct. 42, 3 L.Ed.2d 65.

The right of confrontation became part of the United States Constitution through the Sixth Amendment: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...."

The historical record of the congressional debates on the Bill of Rights is meager. R. Clinton, supra, at 732-733. Even less is known of the individual states' deliberations on the amendments during ratification. Id. at 738. Courts and scholars have generally concluded that the essential purpose of the federal confrontation right is to secure to the defendant the opportunity of cross-examination. Pointer v. Texas 380 U.S. 400, 404, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923, 926 (1965); F. Heller, supra p. 5, at 105; 5 J. Wigmore,Evidence, Sec. 1395, at 150 (Chadbourn rev. 1974).

The Supreme Court has described the nature of confrontation at trial as:

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. Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39 L.Ed. 409, 411 (1895).

More recently, Justice Blackmun reminded us that: "These means of testing accuracy are so important that the absence of proper confrontation at trial 'calls into question the ultimate "integrity of the factfinding process." ' " Ohio v. Roberts, 448 U.S. 56, 64, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597, 606 (1980) (citations omitted).

While Wigmore calls the witness' presence before the tribunal "a result accidentally associated with the process of confrontation," 5 J. Wigmore, Sec. 1395, at 154, courts have tended to regard the jury's opportunity to view the demeanor of the witness as a critical component of the confrontation right. Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255, 260 (1968); Sumpter v. State (1974), 261 Ind. 471, 481, 306 N.E.2d 95, 102, cert. denied, 425 U.S. 952, 96 S.Ct. 1727, 48 L.Ed.2d 196. The Sixth Amendment right of confrontation is made obligatory on the states by the Fourteenth Amendment. Pointer, 380 U.S. at 407, 85 S.Ct. at 1069, 13 L.Ed.2d at 928.

The right of confrontation is not...