State v. R.C.

• Decision Date: 24 September 1986
• Docket Number: No. 18208-KWJ,18208-KWJ
• Citation: 494 So.2d 1350
• Parties: STATE of Louisiana, Appellant, v. in the Interest of R.C., Jr., Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 1350

494 So.2d 1350

STATE of Louisiana, Appellant, v. in the Interest of R.C., Jr., Appellee.

No. 18208-KWJ.

Court of Appeal of Louisiana Second Circuit.

Sept. 24, 1986.

Herman L. Lawson, Mansfield, for appellee.

William J. Guste, Jr., Atty. Gen., Don Burkett, Dist. Atty., Robert E. Burgess, Asst. Dist. Atty., for appellant.

Before HALL, JASPER E. JONES and NORRIS, JJ.

NORRIS, Judge.

This is a petition to adjudicate a juvenile delinquent for the attempted aggravated rape of a five-year old child, LSA-R.S. 14:27, 42. The defendant, R.C. Jr., is a 16-year old minor. The state prepared and tendered for admission a videotaped interview of the victim by a DHHR Child Protection Investigator, pursuant to LSA-R.S. 15:440.5. At the adjudication hearing, the victim took the stand and testified that what she said on the tape was correct. She refused, however, to repeat the details of her taped testimony or to answer any specific questions about the offense. At that point the trial court ruled that the witness was unavailable to testify and the tape inadmissible as a denial of confrontation and cross-examination. LSA-Const. Art. I, § 16; LSA-R.S. 15:440.5A(8). The state applied for a writ which we granted and placed on the regular docket. For the reasons expressed, we now recall the writ and remand the case.

FACTS

On July 23, 1985, the victim's parents reported to the sheriff's department in Mansfield that their five-year old daughter had told them of some type of sexual encounter with R.C. Jr., their next-door neighbor. The child was taken to Dr. Dillard for an examination and then interviewed by Marsha Golden of the DHHR Child Protection Agency. Based on the information from the child's mother and from Ms. Golden, the officer got an arrest warrant for R.C. Jr. In November the trial court conducted a preliminary examination and determined that the victim was competent to testify. In December, R.C. Jr. pled nolo contendere to the petition. ¹ On February 7, 1986, when the probation officer recommended a disposition, R.C. Jr. withdrew his nolo answer.

On March 6, the trial court held a hearing on the defendant's motion to determine the admissibility of the videotaped interview of the victim by Ms. Golden. Ms. Golden testified that she conducted the interview on July 23, 1985 with the girl, and had also interviewed the girl's baby brother on July 26. The judge found that Ms. Golden's questioning of the child was proper under the applicable regulations, LSA-R.S. 15:440.4. ² The defendant objected to admitting the tape, arguing that although the child was present and had testified at a prior hearing, she now refused to answer some of the questions on cross-examination. Thus, he argued, the victim was "unavailable" for cross-examination. The judge overruled the objection but added that if the child refused to answer questions at trial or at a later hearing, he would reverse his ruling.

The adjudication hearing began on April 11. The victim was called by the state as a witness. On direct examination, she referred to the defendant as "Junior," his nickname, and identified him. She testified that she had related the incident to her mother and to Ms. Golden and that if she were asked the same questions as Ms. Golden had asked her before, she would give the same answers. R.p. 66. She said, however, that she did not want to tell about the incident all over again and that she did not want to tell about it in the courtroom. She remebered making the videotape and said that the things she told about on the tape had happened at her home. She told her mother about the incident first. The defense again objected to admitting the tape, but the court deferred ruling until it had viewed the tape and the victim had been given the opportunity to respond to cross-examination.

After the tape was played, the victim answered more questions on direct examination. The defense then began its cross-examination. The child victim said she would not talk about the incident. ³ She nevertheless did eventually answer a few questions. She said she had known the defendant since her family had moved next door to his house. She tried to explain where her mother and father were when the incident took place. She said the defendant pulled her pants down. When asked what happened next, she said that she forgot and did not want to talk about it. R.p.p. 80, 81. The defense ceased questioning. The court then ruled the tape inadmissible and granted leave to apply for writs.

DISCUSSION

The issue is whether the victim's refusal to submit to effective cross-examination made her unavailable to testify under the statute and thereby rendered the prior videotaped interview inadmissible. We have examined the purpose and background of the statute, in light of its constitutional connotations, to determine what "availability" means and whether the trial court correctly applied it to the instant case.

The constitutional background is apparent. The U.S. Constitution provides that "In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *." U.S.C.A.-Const. amend. 6. Our state Constitution similarly provides, "An accused is entitled to confront and cross-examine the witnesses against him * * *." LSA-Const. Art. I § 16. Our state's specific inclusion of cross-examination as a guarantee obviates the need to assert its validity through judicial analysis. See e.g., Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

In child abuse cases, the right of confrontation creates complex problems. Usually there is only one witness with personal knowledge of the facts to prove the state's case, and this witness is the child victim. Harsh confrontation or cross-examination seems inappropriate for a very young child who has already suffered, as alleged by the state, great trauma by the incident of abuse. The victim is further traumatized by the prospect of testifying in a courtroom setting and in front of her abuser. The in-court experience may cause lasting emotional harm. See Libai, "The Protection of the Child Victim of a Sexual Offense in the Criminal Justice System," 15 Wayne L.Rev. 977 (1969); Ordway, "Proving Parent-Child Incest," 15 U. of Mich.J. of L. Reform 131 (Fall 1981); State v. Sheppard, 197 N.J.Super. 411, 484 A.2d 1330 (1984). Furthermore, a young child who is otherwise competent to testify may have difficulty expressing in clear terms the unfamiliar and unpleasant events that have occurred. State v. Sheppard, supra.

Courts have therefore had to grapple with the need to allow the child to testify in a supportive, nontraumatic environment while still allowing the defendant his guarantee of confrontation. The best solution, from the standpoint of child protection, is to permit the child to testify in a small, private place, surrounded only by cooperative people like social workers or physicians, and not faced by the accused. This would theoretically produce the most relaxed atmosphere for testifying. To admit this alone, however, would plainly deprive the defendant of confrontational rights. Courts have therefore attempted various methods of adducing a child's testimony in a relaxed surrounding without relaxing the constitutional mandates. The California case of Hebert v. Superior Court, 117 Cal.App.3d 661, 172 Cal.Rptr. 850 (Cal.App.3d Dist.1981) shows the paramount status of confrontation. The defendant, charged with oral copulation with a minor, was seated in the courtroom in such a way that he could hear, but not see, the witness. The court found that this procedure did not satisfy the confrontation requirement, reasoning that the child's reluctance to face the defendant may be more a sign of fabrication than of fear or embarrassment. We agree that the concern for fabrication is great when the case can be made on the victim's testimony alone. Other techniques have been more successful. In Parisi v. Superior Court, 144 Cal.App.3d 211, 192 Cal.Rptr. 486 (Cal.App.2d Dist.1983), the child victim of alleged lewd acts and rape by force or fear was seated where the defendant could face her. She was allowed to whisper her testimony to the magistrate who announced it to the court. This method was approved. Two very recent cases have approved the use of live testimony by closed-circuit T.V. where full cross-examination is allowed. State v. Warford, 223 Neb. 368, 389 N.W.2d 575 (1986); Comm. v. Willis, 716 S.W.2d 224 (1986). In both of these cases, the only abridgment of a sixth amendment right was the lack of face-to-face confrontation.

Another method that has generated considerable judicial experience is videotaping the victim's testimony. This method is helped by the convenience and familiarity of videotape equipment. The lead case on videotaping was not a trial for child abuse. In United States v. Benfield, 593 F.2d 815 (8th Cir.1979), the witness in a trial for misprision of a felony testified by means of a pre-trial videotaped deposition at which the defendant could be present "but not within the vision of" the witness. The defendant was excluded from the room where the deposition took place, but he could view and hear the proceedings on a monitor. He could halt the questioning by sounding a buzzer, at which time the deposition would be interrupted and his attorney would leave the room to confer with him. The attorney was permitted to cross-examine the witness, but the witness was apparently kept unaware that the defendant was present in the building. The court of appeals discussed the rights explicit and inherent in the sixth amendment. It found that in some undefined but real way, recollection, veracity and communication are influenced by face-to-face challenge. This feature is part of the sixth amendment's right, additional to the right of cold, logical cross-examination by one's counsel. The court concluded,

While a deposition necessarily eliminates a face-to-face meeting...