State v. Conklin
| Decision Date | 18 August 1989 |
| Docket Number | No. C5-88-545,C5-88-545 |
| Citation | 444 N.W.2d 268 |
| Parties | STATE of Minnesota, Respondent, v. Russell Duane CONKLIN, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. Minn.Stat., § 595.02, subd. 4(c) (1988) does not on its face violate a defendant's constitutional right to confront the witnesses testifying against him.
2. Minn.Stat. § 595.02, subd. 4(c) (1988) is unconstitutional as applied where the trial court fails to make case specific findings that a child witness would be "psychologically traumatized" if required to testify in the presence of the defendant.
3. In ruling on whether hearsay evidence in this case is admissible pursuant to Minn.Stat. § 595.02, subd. 3 (1988), the trial court must analyze all factors relevant to the reliability of that evidence before the evidence is presented to the jury.
C. Paul Jones, State Public Defender, Bradford Colbert, Cathryn Middlebrook, Asst. State Public Defenders, Minneapolis, for appellant.
Tom Foley, Ramsey County Atty., Steven C. DeCoster, Asst. County Atty., St. Paul, for respondent.
Hubert H. Humphrey, III, Atty. Gen., Paul R. Kempainen, Asst. Atty. Gen., St. Paul, for amicus curiae.
Heard, considered and decided by the court en banc.
This case presents the difficult question of under what circumstances a defendant in a child sexual abuse case can be removed from the room during the testimony of the child abuse victim without violating the defendant's constitutional right to confront the witnesses who testify against him.
Appellant Russell Duane Conklin was convicted of one count of first degree criminal sexual conduct, Minn.Stat. § 609.342, subd. 1(g) (1988) and one count of second degree criminal sexual conduct § 609.343, subd. 1(a) (1988) and was sentenced to 43 months in the Minnesota Correctional Facility at Stillwater. He was acquitted of one other count of criminal sexual conduct in the second degree, Minn.Stat. § 609.343, subd. 1(h)(v) (1988) ().
The sexual abuse involving his 4-year-old daughter, L.C., occurred sometime between December 1986 and February 22, 1987 during once a week day long visits made by L.C. and her 7-year-old brother, R.C., to appellant's apartment. R.C. and L.C. do not live with appellant, but rather have been under the foster care of Diane and Harold Schroedl since shortly after L.C. was born. L.C.'s only contacts with appellant were through the scheduled visitations. The purpose of the visits was to gradually reconcile appellant with his children, a process that would have resulted in reuniting the family sometime in mid-1987. The Schroedls had expressed some concern about the plan to reunite appellant with the children, and on earlier occasions had inquired about adopting the children themselves, or having other members of their family adopt L.C. and R.C.
The first suggestions of the existence of sexual abuse occurred on Tuesday, February 24, 1987. L.C. appeared to be sore, or uncomfortable in her vaginal area and had appeared uncomfortable for several weeks. Her foster mother Diane Schroedl asked her if anyone had hurt her there, and L.C. told her that appellant, who she calls Big Russ, had "punched" her there, and had showed her his "peter." She demonstrated a punching motion with a closed fist, and claimed that it occurred while she was on the toilet at appellant's apartment.
Diane Schroedl took L.C. and R.C. to the Anoka County Courthouse the next day, Feb. 25, where they spoke with Lonnie Payne, an investigator in the sexual abuse unit of the Sheriff's Department. Payne interviewed L.C., taping the conversation, and later interviewed R.C. Appellant was subsequently arrested. On March 3, 1987, L.C. was interviewed and examined by Dr. Carolyn Levitt, a pediatrician experienced in examining children for sexual abuse. The interview was videotaped, and the tape was later entered into evidence at trial and was shown to the jury.
On August 18, 1987, a hearing was held at which L.C. was found competent to testify. Immediately after the competency hearing, L.C.'s testimony was taken and videotaped for use at trial as permitted by Minn.Stat. 595.02, subd. 4(a) (1988). During her testimony, the court granted the state's motion to remove appellant from the room. He watched the remainder of L.C.'s testimony via a video monitor in another room.
On September 15, 1987, a Rasmussen hearing was held and the court ruled that hearsay statements made by L.C. to her foster mother, to Lonnie Payne and to Dr. Levitt would be admissible at trial under Minn.Stat. 595.02, subd. 3 (1988). The videotaped interview with Dr. Levitt was ruled admissible under that statute and Minn.R.Evid. 803(4) ().
At trial, Lonnie Payne, the Sheriff's Department investigator, testified to statements made by L.C. during her initial interview at the courthouse. L.C. told her of an incident where appellant showed his "peter" to her and R.C. in his apartment, and both children touched it. Payne asked L.C. if she had smelled the penis and L.C. responded that she had. L.C. told Payne she was told not to tell anyone about the incident. Payne also testified that when she interviewed R.C., he denied that any of this had ever happened. Lonnie Payne also asked L.C. "if anyone had ever touched her pee that she didn't want them to." L.C. answered that Big Russ had, and that she did not like it. The touching occurred in the bathroom and he used his finger. She said that the touching had hurt her. L.C. also said that appellant had eaten her "pee" with his mouth. She further claimed that he drank her urine which he collected in a glass while she was on the toilet. R.C. was not present during these last incidents.
Diane Schroedl, L.C.'s foster mother, testified that L.C. exhibited signs of discomfort beginning about February 1, 1987; she was sore and itchy in her vaginal area. On February 24, L.C. told Schroedl of being "punched" "down there" by Big Russ with a closed fist. After her interview with Lonnie Payne on February 25, L.C. again told Schroedl the same things she had said the day before, but added the account of appellant drinking her urine. In July, before a scheduled hearing, L.C. told Schroedl her story again, "word for word" except adding a new part about appellant eating her "poop." She demonstrated a closed fisted punch, again spoke of drinking urine, and said that she was not supposed to tell anyone.
Dr. Carolyn Levitt, the pediatrician, testified that during her examination of L.C., she touched L.C. on the clitoris and asked if anyone had ever touched her there. L.C. responded that appellant touched her there with his finger and mouth. Dr. Levitt also touched the anal opening and L.C. said she had not been touched there. Dr. Levitt testified that in her opinion, L.C. was abused; her vagina was penetrated. Her examination of the hymen indicated that it was "narrowed" and "thinned out." The opening was larger than she was used to seeing in children that age, which could have been caused by the insertion of something, such as an object the size of a finger. On cross examination, she admitted the symptoms she noted in L.C. can also be found in girls who have had vaginitis.
Dr. Levitt's videotaped interview of L.C. was admitted into evidence and played for the jury. On the tape Dr. Levitt asked L.C. if she remembered being touched in a way she didn't like. L.C. responded that her father had touched in the vaginal area with his finger causing pain. She also said that appellant pulled down her clothes, and then drank her "pee" from a glass, and had showed her his "peter."
L.C.'s previously videotaped trial testimony was also played for the jury. On the tape she said that appellant was never in the bathroom when she was there, and that he never took off his clothes in front of her or removed her clothing. She did not know what a "peter" was, and she had never smelled one. She remembered telling her foster mother that her "pee" hurt, but could not remember why, and she did not remember telling her that Big Russ had touched her there. She remembered telling her foster mother about a visit to Big Russ' apartment, but could not remember what she said about it, or what happened at the apartment. She said that she was not afraid of Big Russ and denied that he ever told her to keep quiet about anything.
At this point in the videotaped testimony, the defendant was removed from the room, and this fact was noted to the jury by the prosecution during the actual trial. L.C. still could not name male or female sex organs when shown an anatomically correct doll. She denied that anyone had punched her. She remembered being sore when she urinated but did not know why. However, she finally did state that Big Russ "punched" her "down there," with his fist, indicating her vaginal area. It occurred on the toilet, and she had her clothes on. He punched her only once, and then said "sorry." He never took his clothes off, and she never saw his penis. He never told her to not tell anyone about being punched.
Appellant testified and denied all of the allegations. Several character witnesses also testified on his behalf. The jury returned a verdict of guilty. On appeal, appellant challenges the trial procedure used to exclude him from the room while L.C. testified, and the use at trial of out-of-court statements L.C. had made to her foster mother, Lonnie Payne and Dr. Levitt, all of which he claims violated his right to confront the witness against him. We ordered accelerated review of this case. We reverse appellant's conviction and remand for a new trial.
1. The statute in question, Minn.Stat. § 595.02, subd. 4(c) (1988) permits the testimony of a child witness who is under age 10 to be taken outside the presence of the defendant in certain instances. It provides:
The court shall permit ...
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