State v. Chisholm

• Decision Date: 17 January 1992
• Docket Number: No. 66123,66123
• Citation: 825 P.2d 147,250 Kan. 153
• Parties: STATE of Kansas, Appellee, v. Scott CHISHOLM, Appellant.
• Court: Kansas Supreme Court

Page 147

825 P.2d 147

250 Kan. 153

STATE of Kansas, Appellee, v. Scott CHISHOLM, Appellant.

No. 66123.

Supreme Court of Kansas.

Jan. 17, 1992.

Syllabus by the Court

1. The right to confrontation under the Kansas and United States Constitutions includes the right of the accused to face-to-face confrontation while a victim accuser is testifying against the accused.

2. The fundamental right of the accused to confront a child-victim accuser in a criminal trial is not absolute and has exceptions where necessary to further an important public policy.

3. The State's interest in protecting children who are victims of sex crimes and in obtaining reliable testimony from a child-victim witness in a sexual abuse trial constitutes an important public policy sufficient to justify an exception to a defendant's right to confrontation.

4. The standard set out in State v. Eaton, 244 Kan. 370, 769 P.2d 1157 (1989), for use of child-victim witness testimony by way of closed-circuit television under K.S.A. 22-3434 is abandoned and replaced by the standard set forth in this opinion.

5. A defendant in a child sexual abuse trial is not denied the constitutional right to confrontation where the child-victim witness testifies via closed-circuit television, pursuant to K.S.A. 22-3434, provided the trial court (1) hears evidence and determines use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify; (2) finds that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; and (3) finds that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than mere nervousness or excitement or some reluctance to testify.

Steven R. Zinn, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.

Gabrielle M. Thompson, Asst. County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with her on the brief, for appellee.

LOCKETT, Justice:

This appeal has been before the court on two prior occasions. Scott Chisholm appeals from his conviction of two counts of aggravated incest, K.S.A. 21-3603. The first appeal, State v. Chisholm, 243 Kan. 270, 755 P.2d 547 (1988) (Chisholm I ), challenged the State's use of closed-circuit television for testimony of the child-victim witness pursuant to K.S.A. 22-3434. Chisholm claimed the statutory procedure violated his Sixth Amendment right to confront the witnesses against him. This court affirmed the trial court, finding the procedure constitutional. The United States Supreme Court granted Chisholm's petition for writ of certiorari and subsequently vacated our judgment and remanded to this court for further consideration in light of Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), a case decided after Chisholm I. Chisholm v. Kansas, 488 U.S. 962, 109 S.Ct. 486, 102 L.Ed.2d 523 (1988). Upon reconsideration, this court remanded the matter to the trial court for an examination of the record in light of the Supreme Court's decision in Coy v. Iowa and our decision in State v. Eaton, 244 Kan. 370, 769 P.2d 1157 (1989). State v. Chisholm, 245 Kan. 145, 777 P.2d 753 (1989) (Chisholm II ). On remand, the trial judge held a non-evidentiary hearing, reviewed the record, and concluded he was satisfied the child witness was traumatized by the presence of the defendant. The trial court found there was clear and convincing evidence that to have required the child to testify in open court in the presence of the defendant would have prevented the child from reasonably communicating to the jury and effectively rendered the child unavailable to testify. The trial judge based his ruling on Coy and Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), a case decided after this court's decision in Chisholm II. Chisholm appeals, claiming the trial court erred in finding: (1) that there was clear and convincing evidence that the child victim would have been unable to effectively communicate if required to confront the defendant in open court; and (2) that it was therefore necessary to present her testimony on closed-circuit television, thereby denying his right of confrontation provided by the Sixth Amendment to the United States Constitution.

In Chisholm I, Chisholm was accused of molesting his eight-year-old stepdaughter. A videotape of the stepdaughter's statement to police and SRS workers was shown at the preliminary hearing. The stepdaughter also testified at the preliminary hearing and was subjected to cross-examination in the presence of Chisholm.

Before Chisholm's trial, the State, noting that the stepdaughter was less than 13 years old and had expressed fear of Chisholm, moved that the stepdaughter's testimony be taken by closed-circuit television pursuant to K.S.A. 22-3434. The statute states in part:

"Videotape of testimony of child victim admissible in certain cases; limitations; objections, restrictions. (a) On motion of the attorney for any party to a criminal proceeding in which a child less than 13 years of age is alleged to be a victim of the crime, the court may order that the testimony of the child be taken:

"(1) In a room other than the courtroom and be televised by closed-circuit equipment in the courtroom to be viewed by the court and the finder of fact in the proceeding; ...

....

"(b) At the taking of testimony under this section:

"(1) Only the attorneys for the defendant, the state and the child, any person whose presence would contribute to the welfare and well being of the child and persons necessary to operate the recording or closed-circuit equipment may be present in the room with the child during the child's testimony;

"(2) only the attorneys may question the child;

"(3) the persons operating the recording or closed-circuit equipment shall be confined to an adjacent room or behind a screen or mirror that permits them to see and hear the child during the child's testimony but does not permit the child to see or hear them; and

"(4) the court shall permit the defendant to observe and hear the testimony of the child in person, but shall ensure that the child cannot hear or see the defendant.

"(c) If the testimony of a child is taken as provided by this section, the child shall not be compelled to testify in court during the proceeding."

At the hearing on the State's motion, the district court noted the statute makes the decision discretionary with the court and held that, although the statute did not set out the criteria to be applied in the exercise of discretion, the statute's non-mandatory language required the State to show why its request should be granted.

The State contended one of the purposes of K.S.A. 22-3434 is to save a child victim from multiple confrontations with an alleged abuser. The State compared the coherent, detailed testimony of the stepdaughter on the videotape when she was interviewed by a social worker to her frightened and uncommunicative testimony when she was examined in the courtroom in Chisholm's presence during the preliminary examination. The State argued the chances of her giving coherent testimony at trial if face-to-face with Chisholm were "dim." The trial court had previously viewed the stepdaughter's demeanor on the videotape and her demeanor when confronted with Chisholm during the preliminary examination and determined that because the contrast in her ability to testify was so great it was appropriate for her to testify on closed-circuit television to avoid confronting Chisholm again.

At trial, the stepdaughter testified in a special room in which she could not see Chisholm or the cameraman in a booth. Her direct testimony was subject to contemporaneous objection by defense counsel, who was in the room with her. The judge could communicate with the attorneys by means of a connected cable. The judge and jury watched the testimony on television screens. Chisholm privately conferred with his attorney in a separate room before the attorney began his cross-examination of the stepdaughter. The jury found Chisholm guilty of two counts of aggravated incest, and Chisholm was given a suspended sentence and placed on four years' probation under intensive supervision.

Chisholm appealed his conviction, arguing K.S.A. 22-3434 violated the Sixth Amendment of the United States Constitution by not requiring the trial court to make a specific finding that the use of a closed-circuit television was necessary for the child witness to testify. He argued the State's contention that his stepdaughter was so frightened of him as to be "almost unable to give any testimony" was insufficient to meet its burden of showing the necessity of testimony by way of closed-circuit television. We held Chisholm's argument, that K.S.A. 22-3434 required that the witness be unavailable, was contrary to our previous decision in State v. Johnson, 240 Kan. 326, 729 P.2d 1169 (1986), cert. denied 481 U.S. 1071, 107 S.Ct. 2466, 95 L.Ed.2d 874 (1987). We noted the statute preserved the defendant's and the jury's freedom to fully observe the witness' testimony and demeanor; therefore, cross-examination was fully available. We found the only indicia of reliability missing was that the complaining witness was not forced to look at the defendant and the court as she gave her testimony. We noted while face-to-face confrontation may encourage truthfulness in an adult, the legislature had found that, in certain instances, the truth would be more likely obtained from a child under the age of 13 if the child were spared the trauma of facing an overpowering and angry adult. We unanimously affirmed Chisholm's convictions of two counts of aggravated incest in violation of K.S.A. 21-3603. We determined that Chisholm's Sixth Amendment right to confront his accuser was not...