State v. David K.

• Citation: 238 W.Va. 33,792 S.E.2d 44
• Decision Date: 11 October 2016
• Docket Number: No. 15–0543,15–0543
• Court: Supreme Court of West Virginia
• Parties: State of West Virginia Respondent v. David K., Petitioner

238 W.Va. 33

792 S.E.2d 44

State of West Virginia Respondent

v.David K., Petitioner

No. 15–0543

Supreme Court of Appeals of West Virginia.

Submitted: September 14, 2016

Filed: October 11, 2016

Brett M. Ferro, Esq., Public Defender Corporation for the Second Judicial Circuit, Moundsville, West Virginia, Counsel for the Petitioner.

Patrick Morrisey, Attorney General, David A. Stackpole, Assistant Attorney General, Charleston, West Virginia, Counsel for the Respondent.

Chief Justice Ketchum :

Petitioner David. K. appeals following his conviction on two counts of felony sexual assault and two counts of felony sexual abuse by a custodian. These convictions stem from an incident involving David K.'s teenage stepdaughter, A.R. During the trial, A.R. began testifying in-court but became unresponsive when the State questioned her about David K.'s alleged sexual abuse. Thereafter, the circuit court consulted with counsel for the State and David K., and ordered that A.R. testify by live closed-circuit television. Trial counsel for David K. did not object to A.R. testifying by live closed-circuit television

On appeal, David K. asserts that the circuit court erred by ordering A.R. to testify by live closed-circuit television. After review, we affirm David K.'s convictions.

I. FACTUAL AND PROCEDURAL BACKGROUND

In January 2015, a Wetzel County Grand Jury indicted David K. on three felony counts of sexual assault in the third degree in violation of W.Va. Code § 61–8B–5(a)(2) [2000], and three felony counts of sexual abuse by a custodian in violation of W.Va. Code § 61–8D–5(a) [2010]. These six felony offenses were based on one alleged incident in which David K. had sexual contact with his step-daughter, A.R., who was fourteen-years-old at the time of the alleged incident.

The prosecutor met with A.R. a few days before the trial. The prosecutor stated that during this private meeting A.R. "was able to articulate what happened. It took about an hour to get her there, but she was able to articulate." While it took A.R. an hour to articulate what happened during this private meeting, the prosecutor did not file a motion with the circuit court requesting that A.R. testify by closed-circuit television during the trial.

During the trial, Sergeant Brian Collins, a West Virginia State Policeman, testified that he conducted an interview with David K. in April 2014 in which David K. admitted that he "had sex" with A.R. on one occasion in the living room of his residence. When asked how old A.R. was at the time this incident occurred, David K. stated, "fifteen, I mean fourteen." David K. further stated that he and A.R. were planning on getting married once she turned eighteen. Sergeant Collins prepared a written report of this interview that David K. signed.¹ Sergeant Collins testified that after this interview, he drove David K. back to his residence in a police cruiser. A video recording of this trip in the police cruiser was made and played for the jury. David K. made incriminating statements while in the police cruiser, including the following: (1) "I should be put away for life," (2) "I wish I could go back in time and change what happened," and (3) "there's some pretty sick people out there, and I just realized I'm one of them."²

Another West Virginia State Policeman, Sergeant Charlie Kush, testified that he also conducted an interview with David K. in April 2014, in which David K. admitted that he had sexual intercourse with A.R. Mary Jane R., A.R.'s mother and David K.'s wife, testified that David K. admitted to her that he had sexually abused A.R. on one occasion.

A.R. also testified during the trial. She was fifteen years old at the time of the trial. A.R. answered a few preliminary questions but became unresponsive when the State asked her about the alleged sexual abuse by David K. After A.R. failed to reply to a number of questions, the trial judge asked the parties to approach the bench, whereupon the trial judge stated:

The transcript reveals that the testimony has been essentially nil at this point. The young lady appears to be becoming traumatized—my words—as [sic] this traditional method of testimony.

What I suggest and will implement, subject to counsels' thoughts, is having her taken to magistrate court ... have her testify by audio/video system that the court utilizes in magistrate court for purposes of arraignment, and the circuit court uses for reasons, and have her testify via video link. Any objections by the State?

Neither party objected to the trial judge's plan to have A.R. testify via live closed-circuit television. Thereafter, A.R. was taken to the magistrate court and testified via live closed-circuit television that was broadcast in the courtroom in front of the jury. During her live closed-circuit television testimony, A.R. testified that David K. had sexual contact with her. Following her testimony, the State rested. At the conclusion of the State's case, the circuit court dismissed counts five and six of the indictment.³

The defense called the defendant, David K., to testify. He testified that he was never alone with A.R. and denied having sexual contact with her. David K. did not deny that he confessed to sexually abusing A.R. when he was questioned by the police in April 2014. However, he stated that this confession "was false" and explained that he gave this false confession because "I just wanted to go home." Further, David K. was asked if he remembered telling his wife that he sexually abused A.R. and he stated, "I don't know. I really don't know." During cross-examination, David K. did not dispute that he had made incriminating statements while he was in the police cruiser.

The jury convicted David K. of the four remaining counts contained in the indictment. Thereafter, David K. filed a motion for a new trial, alleging that the trial judge's sua sponte decision to allow A.R. to testify via live closed-circuit television was improper under W.Va. Code § 62–6B–1 [2001]et seq. After conducting a hearing, the circuit court denied David K.'s motion for a new trial. It thereafter sentenced David K. to an effective incarceration term of twenty to forty years. David K. appeals the circuit court's order denying his motion for a new trial.

II. STANDARD OF REVIEW

This Court has previously held that:

In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syllabus Point 3, State v. Vance , 207 W.Va. 640, 535 S.E.2d 484 (2000). We have further recognized that "[i]t is well settled that a trial court's rulings on the admissibility of evidence, ‘including those affecting constitutional rights, are reviewed under an abuse of discretion standard.’ " State v. Kaufman , 227 W.Va. 537, 548, 711 S.E.2d 607, 618 (2011) (citing State v. Marple , 197 W.Va. 47, 51, 475 S.E.2d 47, 51 (1996) ).

III. ANALYSIS

The issue in this case is whether the circuit court erred when it ordered the child witness, A.R., to testify via live closed-circuit television. David K. argues that his rights under the Confrontation Clause—set forth in the Sixth Amendment to the United States Constitution and in Section 14 of Article III of the West Virginia Constitution —were violated when the circuit court, sua sponte , ordered A.R. to testify via live closed-circuit television. David K. asserts that the circuit court failed to follow the mandatory procedural safeguards set forth in W.Va. Code § 62–6B–1 et seq . that must be observed before a child witness may testify via live closed-circuit television.

By contrast, the State argues that the procedural safeguards contained in W.Va. Code § 62–6B–1 et seq . were "not triggered as there were no pre-trial motions regarding the use of closed-circuit television for the child victim's testimony. The Trial Court's decision to use closed-circuit testimony did not fall under [W.Va. Code § 62–6B–1 et seq . ]." Rather, the State asserts that the circuit court's decision to permit A.R. to testify via live closed-circuit television was proper under the court's "inherent authority ... to manage issues in the courtroom during trial." Further, the State contends that any error committed by the trial court was not plain error, and did not affect David K.'s substantial rights.

At the outset, we note that neither party cited or discussed Maryland v. Craig , 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), a case in which the United States Supreme Court addressed the Confrontation Clause in the context of whether a child witness in a sexual abuse case may testify via live closed-circuit television. Our analysis of this issue is guided by the Supreme Court's holding in Maryland v. Craig , and by W.Va. Code § 62–6B–1 et seq ., a statute that was enacted after the Supreme Court's ruling in Maryland v. Craig . We begin our analysis with a brief review of the Confrontation Clause.

The Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution guarantee an accused the right to confront and cross-examine witnesses. The Confrontation Clause contained in the Sixth Amendment provides: "In all criminal prosecutions, the accused shall ... be confronted with the witnesses against him[.]" Likewise, the Confrontation Clause contained in the West Virginia Constitution, Section 14 of Article III, provides that in the "[t]rials of crimes, and misdemeanors ... the accused shall be ... confronted with the witness against him[.]"

The United States Supreme Court examined whether a child witness testifying by live closed-circuit television violates the Confrontation Clause in Maryland v. Craig , supra . In Craig , the...