State v. Cooper

• Citation: 291 S.C. 351,353 S.E.2d 451
• Decision Date: 09 December 1986
• Docket Number: No. 22678,22678
• Parties: The STATE, Respondent, v. Gary COOPER, Appellant. . Heard
• Court: United States State Supreme Court of South Carolina

Page 451

353 S.E.2d 451

291 S.C. 351

The STATE, Respondent, v. Gary COOPER, Appellant.

No. 22678.

Supreme Court of South Carolina.

Heard Dec. 9, 1986.

Decided Feb. 16, 1987.

Asst. Appellate Defender Stephen P. Williams of S.C. Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and Amie L. Clifford, Columbia, and Sol. James O. Dunn, Conway, for respondent.

CHANDLER, Judge:

Appellant Gary Franklin Cooper (Cooper) was convicted of criminal sexual conduct in the first degree with a minor and sentenced to 30 years imprisonment. The Circuit Court, pursuant to S.C.Code Ann. § 16-3-1530(G) (1985), permitted the testimony of the three-year-old victim to be videotaped outside the presence of Cooper and the jury.

We affirm.

FACTS

The State made a pre-trial motion to allow the testimony of the victim to be videotaped. The motion was made pursuant to § 16-3-1530(G), part of the so-called "Victim's and Witness's Bill of Rights," Act No. 418, 1984 S.C. Acts 1842:

VICTIMS AND WITNESSES WHO ARE VERY YOUNG, ELDERLY, WHO ARE HANDICAPPED OR WHO HAVE SPECIAL NEEDS, HAVE A RIGHT TO SPECIAL RECOGNITION AND ATTENTION BY ALL CRIMINAL JUSTICE, MEDICAL, AND SOCIAL SERVICE AGENCIES

The court shall treat "special" witnesses sensitively, using closed or taped sessions when appropriate. The solicitor or defense shall notify the court when a victim or witness deserves special consideration.

Before ruling on the motion, the trial judge talked with the victim and her mother in chambers. The mother stated the child was afraid of Cooper and a videotaped session would protect her from further emotional trauma. The child also expressed her fear of Cooper to the judge.

Present at the taping session were the trial judge, court reporter, solicitor, defense Upon recommendation of the solicitor, the court ruled the videotape would be played as the State's first evidence at trial. Cooper objected to its admission on the ground the procedure violated his right to confront the witnesses against him. The objection was overruled, and the videotape was played before the jury.

                counsel, victim and her mother.   The video camera and its operator were placed behind a one-way mirror.   Cooper, from a nearby room, was able to view the proceedings live over a closed-circuit television monitor.   He was afforded constant contact with defense counsel through a set of headphones.   He was provided a second attorney who remained in the room with him
                

ISSUE

In a criminal trial, does videotaping a witness's testimony outside the presence of the defendant violate the right of confrontation?

VIDEOTAPED TESTIMONY

Cooper contends the procedure employed in videotaping the victim's testimony outside his presence violated his right of confrontation because he was denied eye-to-eye contact with the witness. We disagree.

The Sixth Amendment of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ..." Similarly, S.C. Const. art. I, § 14, guarantees the criminal defendant this right. In addition, S.C.Code Ann. § 17-23-60 (1985) provides:

Every person shall, at his trial, be allowed to be heard by counsel, may defend himself and shall have a right to produce witnesses and proofs in his favor and to meet the witnesses produced against him face to face. [Emphasis supplied].

The Confrontation Clause "(1) insures that the witness will give his statements under oath--thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the 'greatest legal engine ever invented for the discovery of truth'; (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness making his statement, thus aiding the jury in assessing his credibility." Lee v. Illinois, 476 U.S. ----, ----, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514, 526 (1986), quoting California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489, 497 (1970).

"The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers." Davis v. Alaska, 415 U.S. 308, 315-316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353 (1974) [emphasis omitted], quoting 5 J. Wigmore, Evidence § 1395, at 123 (3rd ed. 1970). See also Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).

A secondary advantage to be obtained from the personal appearance is that "the judge and the jury are enabled to obtain the elusive and incommunicable evidence of a witness' deportment while testifying, and a certain subjective moral effect is produced upon the witness ... This secondary advantage, however, does not arise from the confrontation of the opponent and the witness; it is not the consequence of those two being brought face to face. It is the witness' presence before the tribunal that secures this secondary advantage--which might equally be obtained whether the opponent was or was not allowed to cross-examine. In other words, this secondary advantage is a result accidentally associated with the process of confrontation, whose original and fundamental object is the opponent's cross-examination." [emphasis in original]. 5 J. Wigmore, Evidence 1395, at 153-54 (Chadbourn revision 1974).

The United States Supreme Court has held that the Sixth Amendment, while reflecting a preference for a face-to-face confrontation at trial, is not absolute in this requirement. Several exceptions have been recognized. For example, the Confrontation Clause does not preclude the use of hearsay evidence in criminal trials where the evidence bears significant "indicia of reliability." Lee v. Illinois, supra. See also United States v. Inadi, 475 U.S. ----, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986); Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895).

Similarly, this Court has held the United States and South Carolina Constitutions guarantee the right of a criminal defendant to confront the witnesses against him through cross-examination. State v. Smith, 230 S.C. 164, 94 S.E.2d 886 (1956); State v. Davis, 267 S.C. 283, 227 S.E.2d 662 (1976). This right is not absolute, however, and several exceptions have been recognized. See State v. Bethea, 241 S.C. 16, 126 S.E.2d 846 (1962) [admission of dying declaration]; State v. Steadman, 216 S.C. 579, 59 S.E.2d 168 (1950) [testimony from prior trial admissible if witness unavailable]; State v. Pearson, 223 S.C. 377, 76 S.E.2d 151 (1953) [report of magistrate admissible to show prior conviction]; State v. Thompson, 279 S.C. 405, 308 S.E.2d 364 (1983) [admission of interlocking confession of nontestifying codefendant.]

We do not interpret the "face to face" language of § 17-23-60, quoted above, to prohibit the procedure employed in this case. Section 11 of the Kentucky Constitution also provides that an accused has a right to meet witnesses "face to face." In Commw. v. Willis, 716 S.W.2d 224 (Ky.1986), the defendant contended this provision should be construed more stringently than the United States Constitution so as to prevent testimony of a child victim from being videotaped outside the defendant's presence pursuant to Ky.Rev.Stat. § 421.350(4) (1986). The Supreme Court of Kentucky disagreed, reasoning that despite the language difference between the Kentucky and United States Constitutions, construction of the Sixth Amendment by federal courts has consistently incorporated a "face to face" preference. See Snyder v. Massachusetts, 291 U.S. 97, 102, 54 S.Ct. 330, 331, 78 L.Ed. 674 (1933); Ohio v. Roberts, supra. The Court held the statutory procedure "does not infringe on the right of confrontation, and a proper balancing of the competing interests of society in general and the accused require that the statute be upheld." 716 S.W.2d at 229. See also People v. Johnson, 146 Ill.App.3d 640, 100 Ill.Dec. 330, 497 N.E.2d 308 (1986) ["face to face" language in Confrontation Clause of Ill. Const. 1970, art. I, § 8, protects same interests as federal constitution; videotaping of victim's testimony outside defendant's presence upheld].

This Court commented in State v. Smith, supra, that § 17-23-60 is a restatement of an accused's constitutional rights. Here, we hold it does not enlarge them. The "face to face" provision does not require, in all cases, a direct physical confrontation between defendant and witness. When a balancing of competing interests demands it, the "face to face" requirement may be served by the appearance of the witness before counsel for cross-examination outside the defendant's presence.

Our society now recognizes that crimes against children, such as sexual abuse, occur with alarming frequency. The need to protect young victims of such crimes from the trauma of in-court testimony is reflected in the General Assembly's enactment of § 16-3-1530(G). Indeed, this is a nationwide concern. A majority of states have adopted statutes giving young crime victims special consideration. Several states permit the testimony of young victims to be videotaped outside the defendant's presence in lieu of in- court testimony. See, e.g., Alaska Stat. § 12.45.047 (1982); Ark.Stat.Ann. § 43-2036 (1985); Ariz.Rev.Stat.Ann. § 13-4253(B) (1986); Cal.Penal Code § 1346 (West 1986); Colo.Rev.Stat. *455s 18-3-413 (1986); Fla.Stat. § 90.90 (1984); Ky.Rev.Stat. § 421.350(4) (1986); La.Rev.Stat.Ann. tit. 15, § 440.2 et seq. (West 1986); Me.Rev.Stat.Ann. tit. 15 § 1205 (1986); Mass.Gen.Laws...