Reutter v. State

• Citation: 886 P.2d 1298
• Decision Date: 09 December 1994
• Docket Number: No. A-4889,A-4889
• Parties: David C. REUTTER, Appellant, v. STATE of Alaska, Appellee.
• Court: Court of Appeals of Alaska

Page 1298

886 P.2d 1298

63 USLW 2444

David C. REUTTER, Appellant, v. STATE of Alaska, Appellee.

No. A-4889.

Court of Appeals of Alaska.

Dec. 9, 1994.

William E. Olmstead, Olmstead & Conheady, Juneau, for appellant.

Nancy R. Simel, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

OPINION

BRYNER, Chief Judge.

David C. Reutter was convicted by a jury of one count of sexual abuse of a minor in the first degree, AS 11.41.434(a)(1), and one count of sexual abuse of a minor in the second degree, AS 11.41.436(a)(2). The convictions stemmed from Reutter's sexual abuse of his nine-year-old daughter, A.R. At trial, over Reutter's objection, Superior Court Judge Larry C. Zervos permitted A.R. to testify via one-way closed-circuit television from a room adjacent to the courtroom. Reutter appeals, contending that this arrangement violated his constitutional right to confrontation. We affirm.

FACTS

1. Background Facts

On February 15, 1992, Reutter locked A.R. out of their house in Sitka. The Division of Family and Youth Services (DFYS) became involved and placed A.R. and her mother, Patti Reutter, in a local women's shelter operated by Sitkans Against Family Violence (SAFV). Patti eventually returned home to Reutter. DFYS removed A.R. from the shelter and placed her in a foster home.

While A.R. was staying at the shelter, and afterwards while staying at the foster home, she attended support-group sessions at the SAFV shelter for child victims of domestic violence. During one of the support-group sessions, A.R. told Elizabeth Willis, ¹ the children's program coordinator and A.R.'s "child advocate," about Reutter's sexual abuse. Willis immediately notified DFYS. A.R.'s case was assigned to DFYS social worker Sandra Beare-Spencer, who reported the allegations of sexual abuse to the Sitka police and arranged for A.R. to be physically examined by Sitka family practitioner Dr. Debra Pohlman. Pohlman found that A.R. had a larger than normal vaginal opening and that she had scarring in the area, both signs of sexual abuse. The state then filed a Child In Need of Aid (CINA) petition to determine the most appropriate custodial placement for A.R.

2. The CINA Hearing

A.R. was placed with relatives in Chevak pending the CINA determination. She returned to Sitka in May to testify at the CINA hearing. When A.R. first entered the courtroom to testify, she appeared confident and very happy to see her parents. However, during her testimony, she became anxious and distracted by stares and smiles from her parents and by the whispering and conferring between her parents and their attorneys. Soon, A.R. simply "shut down." The court was forced to recess, and A.R. had to be taken from the courtroom. According to Beare-Spencer, A.R. became "[v]ery, very upset. Her face contorted[,] ... her eyebrows were together and ... her arms were tight in front of her, and she was leaning against a wall and just shaking. She ... was extremely upset." A.R. told Beare-Spencer that "she couldn't talk about what happened, that her mom was going to be hurt, that her dad would hurt her mom."

Later, the court attempted to take A.R.'s testimony by placing her in the district attorney's office with just Willis and her guardian ad litem, Mary Hughes; the assistant attorney general who was handling the CINA proceeding questioned her by telephone from the courtroom. However, the electronic equipment in the district attorney's office malfunctioned, causing A.R. to become even more upset. The hearing was postponed for several days. When it reconvened, A.R. was placed in a grand jury room, again with just Willis and Hughes present in the same room. From there, she was able to answer some questions over the speakerphone, but she still refused to testify regarding the sexual abuse.

3. Pretrial Hearing

On May 8, 1992, the same day the CINA hearing began, Reutter was indicted for sexually abusing A.R. Prior to trial, the state moved, pursuant to AS 12.45.046(a)(2), to have A.R. be allowed to testify via one-way closed-circuit television or through one-way mirrors. Reutter opposed on confrontation clause grounds. Judge Zervos conducted a two-day evidentiary hearing to determine whether A.R. should be permitted to testify without actually confronting Reutter. At the hearing, the state presented testimony from Beare-Spencer, Willis, Jan Rutherdale (the assistant attorney general who had handled the CINA proceeding), and Martha Ann Lyman (the mental health clinician who treated A.R. while she was staying in Chevak). In addition, Judge Zervos considered a psychological evaluation of A.R. that had been written by Dr. Christiane Brems of the Yukon-Kuskokwim Mental Health Center.

In the course of the hearing, Reutter questioned the qualifications of each of the state's witnesses to testify as experts on the issue of whether A.R. should be allowed to testify without confronting Reutter. Judge Zervos overruled the objections and allowed the witnesses to testify.

Beare-Spencer, the DFYS social worker assigned to A.R.'s case, indicated that she had worked as a social worker for DFYS in Sitka for five years. She had a bachelor's degree in sociology and was only eighteen hours away from receiving a master's degree from Boise State University. She testified that her primary responsibility at DFYS was "protecting children from physical or emotional harm" and that, when making decisions regarding when to intervene, she relied primarily on the on-the-job training and experience that she received, first in Idaho, and then in Sitka.

Beare-Spencer testified that she had spent "[q]uite a bit" of time with A.R. and had talked to her often on the telephone in the previous six months and that she had even spent "four solid days with her" while they traveled to Chevak together. She testified that she knew "a lot of who [A.R.] is," but that there was a part of A.R. that she did not know because A.R. "closes down" when she becomes upset. When asked whether she believed A.R. could testify in the presence of Reutter, she answered: "She can't do it." Beare-Spencer based her answer on her observations of A.R.'s emotional condition during and after the CINA proceeding and on A.R.'s statement to Beare-Spencer regarding her desire to protect her mother by remaining silent. Reutter objected, on hearsay grounds, to Beare-Spencer's testimony concerning A.R.'s statement. Judge Zervos overruled the objection.

The prosecution also asked Beare-Spencer whether, in her opinion, "Reutter's presence would significantly impair the substance of [A.R.'s] testimony if she were forced to testify." Reutter objected, arguing that the witness did not have the psychological expertise to testify regarding "this child's psyche." Judge Zervos overruled the objection, and Beare-Spencer testified that she did not believe that A.R. could testify in an open courtroom.

Next, Elizabeth Willis, A.R.'s child advocate, testified. Willis testified that, prior to becoming a child advocate in Sitka, she completed "early childhood trainings" and had taken many classes and workshops in psychology. In addition, she testified that she operated a day-care business for five years in Anchorage before she moved to Sitka. She testified that she and A.R. developed a trusting relationship soon after A.R. arrived at the SAFV shelter and that they thereafter exchanged letters. Willis had accompanied A.R. at the previous CINA hearing.

Willis was asked whether, in her opinion, A.R. would be able to testify in the presence of her father. Reutter again objected for lack of expert qualification. The court again overruled the objection. Willis stated that she believed that A.R.'s ability to effectively communicate would be affected by Reutter's presence in the courtroom. She based her opinion on A.R.'s statements after the CINA hearing that she was unable to talk because Reutter had been staring and smiling at her and whispering about her. Again, Reutter objected on hearsay grounds, but was overruled.

Jan Rutherdale, the state's CINA counsel, testified next. Rutherdale stated that, for the previous three and one-half years, she had been employed by the attorney general's office in Juneau, exclusively handling child-in-need-of-aid and juvenile-delinquency matters. Prior to becoming an assistant attorney general, she had worked as an assistant public defender in Juneau. In the years of her practice, she testified, she had interviewed roughly twenty children. Over Reutter's objection, the trial court found Rutherdale to have substantial expertise in the behavior of witnesses; the court also indicated that Rutherdale was qualified to testify about A.R.'s conduct at the CINA hearing--"what happened on the days in question."

Rutherdale testified that she first met A.R. the evening before the CINA hearing. On the morning of the CINA hearing, A.R. seemed to be "friendly" and "bouncy," but a little immature. Rutherdale recalled that A.R. did not appear to be too shy to testify, that she was happy to see her parents, and that she was able to answer some preliminary questions. She testified that A.R. soon became distracted by her parents and was unable to continue. The first question that A.R. was unable to answer was "[Do you] remember the night that you were removed from your house?" Again over Reutter's objection, Rutherdale testified that, based on her previous experience with and observations of A.R. in the courtroom and on questions that A.R. asked her about the conduct of her parents during the proceeding, Rutherdale did not think that A.R. would testify in Reutter's presence: "[S]he was just so affected by his presence. I mean, ... it was like her attention to me evaporated and--and all she could think about or ... react to was her father." She testified that A.R. asked her in a whispered voice why her parents...