State v. Naucke

• Decision Date: 21 April 1992
• Docket Number: No. 73536,73536
• Citation: 829 S.W.2d 445
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Robert L. NAUCKE, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 445

829 S.W.2d 445

STATE of Missouri, Plaintiff-Respondent, v. Robert L. NAUCKE, Defendant-Appellant.

No. 73536.

Supreme Court of Missouri,

En Banc.

April 21, 1992.

Rehearing Denied June 2, 1992.

N. Scott Rosenblum, Ramona Marten, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

THOMAS, Judge.

Defendant was convicted of sodomy of his four-year-old daughter (T.N.) and was sentenced to fifteen years imprisonment. Defendant appealed to the Court of Appeals, Eastern District, on various grounds, including the claim that his right to confrontation under the Sixth Amendment of the United States Constitution and Article I, Section 18(a), of the Missouri Constitution was violated by the use of the deposition of the child victim pursuant to § 491.680, RSMo 1986, from which the defendant was excluded pursuant to § 491.685, RSMo 1986. The court of appeals transferred the case to this Court because of the constitutional issue. We affirm the judgment of the trial court.

I.

CONFRONTATION

A.

Sections 491.680

and 491.685

--Is Confrontation Violated by Taking of

Child Victim's Videotaped

Testimony Out of the

Presence

of the Defendant?

1. The Testimony Supporting the Unavailability of the Child Witness

Section 491.680 authorizes the court to order an in-camera videotaped recording of the testimony of an alleged child victim under Chapter 565 (Offenses Against The Person), Chapter 566 (Sexual Offenses Including Sodomy), and Chapter 567 (Prostitution). Section 491.680 provides that in determining whether to issue an order, the court shall consider "the emotional or psychological trauma to the child if required to testify in open court or to be brought into the personal presence of the defendant." (Emphasis added.) Section 491.685 authorizes the court to exclude the defendant from the deposition proceedings while the child testifies.

In State v. Sanchez, 752 S.W.2d 319 (Mo. banc 1988), this Court held that a deposition taken pursuant to § 491.680 may be admitted at trial without violating the Confrontation Clauses of the United States and Missouri Constitutions. However, prior to admitting such a deposition, the state must produce, at a hearing, evidence sufficient to establish that the emotional and psychological trauma that would result from testifying in open court or in the personal presence of the defendant in effect makes the child unavailable as a witness at trial. Sanchez preceded Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), which held that a procedure to allow the child witness to testify in a child abuse case outside the defendant's physical presence would not violate confrontation provided there is a case-specific finding ¹ that the child witness will suffer serious emotional distress if required to testify in the presence of the defendant. The trial court must find that the child witness will be traumatized, not by the courtroom generally, but by the presence of the defendant. The emotional impact on the child must be more than de minimis, i.e., more than "mere nervousness or excitement or some reluctance to testify." Craig, 497 U.S. at ----, 110 S.Ct. at 3169. Thus, we were on the right track in Sanchez, but we must now modify our holding to conform with Craig. If the defendant is to be excluded from the deposition proceedings, the personal presence of the defendant must cause the emotional and psychological trauma of the child witness.

On the first day of the trial but before the actual beginning of the trial in the present case, the trial court held a hearing to determine whether to allow the child victim's deposition to be taken out of the presence of the defendant and then used at trial under the procedure described Ms. Schechtman testified she had a Bachelor's Degree in Psychology from Northwestern University and a Master's Degree in Social Work from Washington University. Prior to her present position, she worked in several special treatment centers where some of the patients were sexually abused children. For the past four years, she has worked with Masters and Johnson exclusively in the treatment of sexually abused children. Her primary job entails interviewing children who have been brought to the clinic with complaints or allegations of sexual abuse. In the past year, she has interviewed over 500 such children. She had approximately thirty sessions with T.N. between November 2, 1987, the date of her first interview, and October 24, 1988, the date of her testimony. During the first portion of that period, she met with T.N. once a week and, toward the end, every other week.

in §§ 491.680 and 491.685. The prosecution called as a witness in support of its motion Judith Schechtman, a social worker to whom T.N. had been referred for evaluation and counseling by the child abuse team at Cardinal Glennon Children's Hospital. At trial, the defendant objected to this finding on the ground that Ms. Schechtman, as a social worker, was not qualified to give psychological testimony. Defendant contends on appeal that the trial court erroneously based its finding on this testimony because it allowed the presentation of T.N.'s statements pursuant to the procedure provided in § 491.680, in violation of his constitutional rights.

Ms. Schechtman testified that T.N. said the defendant (T.N.'s father) told T.N. not to talk about any of the sexual events that had occurred, that if T.N. told anyone the defendant might have to go to jail and that the defendant would kill T.N., T.N.'s mother and T.N.'s grandmother. Ms. Schechtman described T.N., as T.N. discussed these threats, as "fearful and terrified. Her eyes were quite wide and she was running around in my office, not sitting still and trying not to answer me." Ms. Schechtman testified further on direct examination that she thought it would be extremely unlikely that T.N. would be able to testify if forced to do so in the presence of the defendant. On cross-examination, Ms. Schechtman indicated it was her understanding that she would not be allowed to testify, in the words of the statute, that the child witness would be traumatized, but Ms. Schechtman would be willing to express her view regarding the initial trauma of testifying. Defendant's counsel then asked for Ms. Schechtman's opinion, and she stated, "I think this child would break down. When I began seeing her she was not sleeping nights, was not able to sleep alone, was not concentrating, in fact and if forced to face this man with testimony here in court it would be absolute that these symptoms would reoccur." She also testified on cross-examination, "I am telling you my opinion is T.N. is going to have a hard time testifying no matter what and to put her face-to-face with her father, it would be traumatizing."

In Craig, 497 U.S. at ----, 110 S.Ct. at 3169, the Court held that a finding by the trial court that "the child witness will suffer 'serious emotional distress such that the child cannot reasonably communicate,' [the requirement of the Maryland statute] clearly suffices to meet constitutional standards." This is, in substance, the thrust of the testimony given by Ms. Schechtman as to T.N.'s ability to testify in the presence of the defendant and is fully adequate to support a finding that will meet the requirements of § 491.680 as well as the demands of confrontation.

We disagree with defendant in his contention that Ms. Schechtman was not qualified to testify as to the potential effect of T.N. testifying in the presence of the defendant. Ms. Schechtman's job involves interviewing and communicating with children who have been sexually abused; she regularly works with twenty such children a week and, as a result of her work and experiences, she qualifies as an expert in the problems of communicating with a child abuse victim. We do not believe that § 491.680 necessarily requires the testimony of a psychiatrist, psychologist or physician. Ms. Schechtman's testimony was both competent and sufficient to support

the trial court's findings as to the necessity for taking T.N.'s deposition out of the presence of the defendant under the requirements set forth in Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157.

2. The Trial Court's Finding that the Child Witness Was Unavailable

At the conclusion of Ms. Schechtman's testimony in the hearing on the prosecution's motion to take the deposition of T.N. out of the presence of the defendant and use it at trial under § 491.680, the court made the following finding:

THE COURT: Let the record show that we have just heard the State's Motion to allow the victim, [T.N.], to testify by way of videotaped deposition and it is sustained after hearing under Section 491.680 that [T.N.] would suffer emotional or psychological trauma if required to testify in open court or in the personal presence of defendant.

The Court further finds that this trauma would in effect make the child unavailable as a witness.

It is important to note that the trial court found that either testifying in open court or testifying in the presence of the defendant would cause T.N. to suffer emotional and psychological trauma. This is important because Maryland v. Craig requires that the emotional or psychological trauma be caused by testifying in the personal presence of the defendant and not by the open courtroom. Here, the trial court found that in the alternative, either would cause such trauma; the second half of that finding, i.e., testifying in the personal presence of the defendant, meets the requirement set forth in Maryland v. Craig.

The issue has been raised as to whether the level of emotional or psychological trauma found by this trial court is serious enough to meet the requirements of Maryland v. Craig in that respect. In Maryland v. Craig, the Maryland statute required "serious emotional distress such that the child cannot reasonably...