State v. Lewis

• Decision Date: 10 September 1996
• Docket Number: No. 2590,2590
• Citation: 478 S.E.2d 861,324 S.C. 539
• Parties: The STATE, Respondent, v. George LEWIS, Appellant. . Heard
• Court: South Carolina Court of Appeals

Page 861

478 S.E.2d 861

324 S.C. 539

The STATE, Respondent, v. George LEWIS, Appellant.

No. 2590.

Court of Appeals of South Carolina.

Heard Sept. 10, 1996.

Decided Oct. 29, 1996.

Rehearing Denied Dec. 23, 1996.

Certiorari Denied June 5, 1997.

Jack B. Swerling, Columbia, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General G. Robert DeLoach, III, Columbia; and Solicitor Walter M. Bailey, Jr., Summerville, for respondent.

PER CURIAM:

Appellant George Lewis was indicted on sixteen molestation charges involving six children for events arising out of his involvement with the Briar Patch daycare center which he and his wife owned and operated. He was ultimately found guilty on two of the charges as to only one child, Cory Schmidt. The court imposed consecutive sentences on the convictions: ten years for lewd act upon a minor and thirty years for assault with intent to commit first degree criminal sexual conduct with a minor. We reverse and remand for a new trial.

I.

During pre-trial motions the lower court qualified a social worker, Coles Badger, as an expert in the field of assessing and treating child sexual abuse. The State also moved under S.C.Code Ann. § 16-3-1530(G) (1985) to have the child witnesses testify via videotape, or alternatively, in court outside of Lewis's presence. The trial court ruled that the six alleged victim-witnesses would give their testimony via closed circuit television (CCTV) outside court and outside of Lewis's presence.

At the close of the State's case, Lewis was granted directed verdicts on six indictments involving two children (one child did not testify and another child's testimony was incompetent). The jury later found Lewis not guilty on eight indictments involving three children, but found him guilty on the remaining two charges concerning Cory Schmidt.

II.

Lewis raises six issues on appeal. We need to address only one issue however, because we agree that his Sixth Amendment Confrontation Clause rights "to be confronted with the witnesses against him" were violated by the trial court's decision to apply S.C.Code Ann. § 16-3-1530(G) (1985) in permitting Cory Schmidt to testify via CCTV outside his presence.

A.

In support of its motion to have the children testify outside of court, the solicitor stated that "the court must find on each individual child that a situation exists to require" special treatment. Similarly, Lewis's trial counsel stated that he would not agree to testimony outside open court and outside of Lewis's presence, "without the court making specific findings of fact as to each child."

The State's expert testified that Lewis's presence would further aggravate the trauma that the children could suffer by testifying in open court. She also stated that she had seen or examined five of the six victims, and after testifying about each particular child, she believed that all five would be traumatized by testifying in the courtroom in front of Lewis. The court then took the testimony of the six alleged victims and one fact witness outside of Lewis's presence. The court stated that its "preliminary impressions" were that three children might need to be videotaped, but the other four (three alleged victims and one fact witness) were "competent to testify" and could "clearly come to court and articulate whatever they've got to say." The court included Cory Schmidt in this second group. The State asked whether Lewis would be allowed to remain present during the testimony of these latter four children. The court responded that if he was "going to eliminate the defendant from being here for any of the testimony" he would "eliminate him for all of it.... I think for consistency and for the jury's sake, ... whatever the ruling is, it probably needs to be consistent as to all the children in all circumstances." Lewis's counsel objected, arguing that consistency was an improper basis for the court's ruling, and case-by-case determinations were still required. Lewis's trial counsel further contended that the State failed to meet its burden as movant. The court then recalled Badger to the witness stand, and she stated she was "still of the opinion that none of the children will be able to testify in front of the defendant."

Following Badger's testimony, the court found that all of the children were competent to testify. The court ruled that the one child fact witness should testify in open court, while the six alleged victims would give their testimony on CCTV outside of Lewis's presence. The court explained its ruling, stating in pertinent part:

I think this serves both the needs of the defendant to confront the witnesses against him, but you also have to balance in that formula the well being of the children and their mental status, particularly the testimony from Ms. Badger in regard to the trauma that they would all potentially experience from testifying in open court. Clearly, that harm is substantial. The potential harm is substantial. And they need to be protected in regard to that, but also the defendant's right to confront the accusers needs to be protected also.... [t]he children will not risk the further exposure to any further trauma of being brought into the courtroom with the defendant here; so that's the ruling of the court.

The closed circuit television procedure was set up with each child witness, the judge, the court reporter, two solicitors, Lewis's attorney, the investigating officer, the victim's advocate, and a SLED agent/camera operator, seated in the grand jury room. The jury viewed the live testimony by a monitor. Lewis also viewed the testimony by monitor and was in constant audible contact with his attorney during the testimony.

B.

S.C.Code Ann. § 16-3-1530(G) (1985) provides in pertinent part that, a court "shall treat 'special' witnesses sensitively, using closed or taped sessions when appropriate." The following procedure should be followed in applying the statute:

[f]irst, the trial judge must make a case-specific determination of the need for videotaped testimony. In making this determination, the trial court should consider the testimony of an expert witness, parents or other relatives, other concerned and relevant parties, and the child. Second the court should place the child in as close to a courtroom setting as possible. Third, the defendant should be able to see and hear the child, should have counsel present both in the courtroom and with him, and communication should be available between counsel and appellant.

State v. Murrell, 302 S.C. 77, 80-81, 393 S.E.2d 919, 921 (1990).

The United States Supreme Court faced a nearly identical situation as the one at issue in this case. In Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the Court ruled that the Confrontation Clause of the Sixth Amendment does not categorically prohibit a child witness in a child abuse case from testifying against a defendant at trial, outside the defendant's physical presence, by one-way closed circuit television. While the face-to-face requirement is not absolute, it can be dispensed with only if "necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." Id. at 850, 110 S.Ct. at 3166. Moreover, 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. at 3167. If 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 the child witness to testify at trial in the absence of a face to face confrontation with the defendant. Id. at 855, 110 S.Ct. at 3168-69. Furthermore,

[t]he requisite finding of necessity must of course be a case-specific one: The trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify.... The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant.... Denial of face-to-face confrontation is not needed to further the state interest in protecting the child witness from trauma unless it is the presence of the defendant that causes the trauma. In other words, if the state interest were merely the interest in protecting child witnesses from courtroom trauma generally, denial of face-to-face confrontation would be unnecessary because the child could be permitted to testify in less intimidating surroundings, albeit with the defendant present. Finally, the trial court must find 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. Id. at 856-57, 110 S.Ct. at 3169-70 (citations omitted).

Craig did not alter the Murrell analysis but instead further amplified its first prong: a trial court's decision must be based on the case-specific finding that the use of an alternative procedure is necessary to prevent a particular child from the trauma of testifying in the defendant's presence. Only then can a state's compelling interest outweigh a defendant's Constitutional guarantee of the right to confront the witnesses against him.

C.

Lewis challenges only the trial court's application of Murrell 's first prong. The issue therefore, is whether the trial court made the required case-specific finding of necessity, and if so, whether the decision was an abuse of discretion. See State v. Murrell, 302 S.C. 77, 393 S.E.2d 919 (1990) (trial...