State v. Hill

• Citation: 247 S.W.3d 34
• Decision Date: 04 March 2008
• Docket Number: No. ED 89196.,ED 89196.
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Henry HILL, Defendant/Appellant.
• Court: Court of Appeal of Missouri (US)

247 S.W.3d 34

STATE of Missouri, Plaintiff/Respondent, v. Henry HILL, Defendant/Appellant.

No. ED 89196.

Missouri Court of Appeals, Eastern District, Division Five.

March 4, 2008.

Shaun J. Mackelprang, Assistant Attorney General, Joshua N. Corman, Jefferson City, MO, for respondent.

Nancy A. McKerrow, Columbia, MO, for appellant.

KATHIANNE KNAUP CRANE, Judge.

Defendant appeals from a judgment entered on a jury verdict finding him guilty of two counts of first-degree child molestation, in violation of Section 566.067 RSMo (2000). The trial court sentenced defendant to ten years imprisonment on each count, to be served concurrently. On appeal, defendant claims that his constitutional right to face-to-face confrontation was violated at trial when the trial court allowed the state to move a podium in the courtroom so that the two victims could not see defendant while they testified, and his constitutional right not to incriminate himself was violated when the trial court admitted his audiotaped and videotaped confession. We hold that defendant's right to face-to-face confrontation was violated, but that the error was harmless beyond a reasonable doubt. We further hold that defendant was not "in custody" when he made his confession and Miranda warnings were not required. In addition defendant did not preserve for review his claim that his statements were induced by promises of leniency. We affirm.

The sufficiency of the evidence is not in dispute. Between September 21, 2004 and October 1, 2004, defendant touched the genitals of his four-year-old granddaughter, B.H., and between January 27, 2003 and January 27, 2004, defendant touched the genitals of his other four year-old granddaughter, A.C., for the purpose of arousing his own sexual desire.

I. Denial of Right of Confrontation

For his first point, defendant contends that the trial court erred in allowing the prosecutor to move a podium so that the two victims could not see defendant, and defendant could not see them, while they were testifying. He maintains that this action, absent a case-specific finding that the victims would be traumatized by being forced to testify in defendant's presence, violated his right to face-to-face confrontation with his accusers.

A. Factual Background

Before the prosecutor called B.H. to testify, she moved the podium so that B.H. would not be able to see defendant. Defendant objected on the ground that he was unable to see the witness stand. The prosecutor argued that B.H. had not seen defendant in two years and would be traumatized if she had to confront him in a room full of strangers. Defense counsel responded that it was not "appropriate to blockade a witness from . . . a defendant, unless the Court finds that there's some type of psychological trauma, and I think that would require some type of separate hearing." The court overruled the objections, and allowed "the podium to be placed in such a position that the defendant [could not], in fact, directly see the witness." When A.C. took the witness stand, defendant renewed his objection to the placement of the podium to block A.C.'s view of defendant, which the trial court again denied. The state did not introduce any evidence to support its claim that the victims would be traumatized and the court did not make any findings on trauma.

B. Standard of Review

The question of whether a defendant's rights under the Confrontation Clause were violated by a ruling of the trial court is a question of law that we review de novo. State v. March, 216 S.W.3d 663, 664-65 (Mo. banc 2007).

C. Analysis

1. Confrontation Clause Violation

Article 1, Section 18(a) of the Missouri Constitution provides that "the accused shall have the right . . . to meet the witnesses against him face to face." The Confrontation Clause of the Sixth Amendment of the United States Constitution, which the Fourteenth Amendment makes binding on the states, provides in part: "In all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him." This clause guarantees a defendant in federal and state courts "a face-to-face meeting with witnesses appearing before the trier of fact." Coy v. Iowa, 487 U.S. 1012, 1016, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988); Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

In Coy, a large screen was placed between the defendant and the witness stand while the child victims of sexual assault testified. An Iowa statute allowed this procedure. The screen permitted the defendant to see the witnesses "dimly," but the witnesses could not see the defendant. The Court found the Confrontation Clause was violated because there were no individualized findings that the particular child witnesses needed this special protection. Coy, 487 U.S. at 1021, 108 S.Ct. 2798.

In Maryland v. Craig, 497 U.S. 836, 850, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the Court reexamined Coy in the context of a Maryland statute that allowed a judge to receive, by one-way closed circuit television, the testimony of a child victim of abuse upon a finding by the judge that the child would suffer serious emotional distress such that the child could not reasonably communicate if the child were to be compelled to testify in the courtroom. Md.Code Ann., Cts. & Jud. Proc. section 9-102(a)(1)(ii)(1989). The Court began its analysis with the premise that the right of face-to-face confrontation was not absolute, but was not easily dispensed with. Craig, 497 U.S. at 850, 110 S.Ct. 3157. It found significant that the Maryland statutory procedure preserved all other elements of the right to confrontation: "The child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies." Id. at 851, 110 S.Ct. 3157. The Court held:

Although we are mindful of the many subtle effects face-to-face confrontation may have on an adversary criminal proceeding, the presence of these other elements of confrontation—oath, cross-examination, and observation of the witness' demeanor—adequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony. These safeguards of reliability and adversaries render the use of such a procedure a far cry from the undisputed prohibition of the Confrontation Clause: trial by ex parte affidavit or inquisition. . . .

Id. The Court concluded that "a State's interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court." Id. at 853, 110 S.Ct. 3157. It added:

[I]f the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant.

Id. at 855, 110 S.Ct. 3157. The Court required that the finding of necessity be case-specific: that is, a trial court must hear evidence and determine if use of the procedure is necessary to protect the welfare of the particular child witness who is called to testify and whether the child witness would be traumatized "not by the courtroom generally, but by the presence of the defendant." Id. at 855-56, 110 S.Ct. 3157.

The Missouri legislature subsequently enacted section 491.680 RSMo (2000). This statute provides that in prosecutions under chapters 565, 567 and 568, a victim under the age of fourteen can testify by means of an in-camera videotaped deposition, and the defendant can be excluded if "the court finds, at a hearing, that significant emotional or psychological trauma to the child which would result from testifying in the personal presence of the defendant exists, which makes the child unavailable as a witness at the time of the preliminary hearing or trial." Section 491.680.1-2. A court cannot make this finding unless it conducts a case-specific inquiry into whether the child would suffer emotional trauma if forced to testify in the defendant's presence. Craig, 497 U.S. at 857-58, 110 S.Ct. 3157; Coy, 487 U.S. at 1021, 108 S.Ct. 2798. "[A]lthough face-to-face confrontation is not an absolute constitutional requirement, it may be abridged only where there is a `case-specific finding of necessity.'" Craig, 497 U.S. at 857-58, 110 S.Ct. 3157 (citations omitted).

Missouri courts have generally required that the emotional or psychological trauma be established by expert testimony. State v. Sanders, 126 S.W.3d 5, 15 (Mo.App.2003) (citing Kierst v. D.D.H., 965 S.W.2d 932, 941-42 (Mo.App.1998)). The expert testimony does not have to come from a psychiatrist, psychologist, or physician, but may come from an experienced social worker or other person who has sufficient knowledge about such issues to provide an opinion. State v. Naucke, 829 S.W.2d 445, 449-50 (Mo. banc 1992); Sanders, 126 S.W.3d at 15 (citing Kierst, 965 S.W.2d at 941). "There must be some expert testimony that serious emotional or psychological trauma would result if the victim were required to testify in the presence of the defendant unless the distress of the child victim is so evident that the trial court would be competent to determine the issue itself." Sanders, 126 S.W.3d at 15 (citing Kierst, 965 S.W.2d at 941-42). The state must produce at a hearing sufficient evidence to establish the emotional and psychological trauma the child would suffer if forced to testify in the defendant's presence. State v. Sanchez, 752 S.W.2d 319, 322-23 (Mo. banc 1988). Trauma may not be...