State v. Sanchez, 69741
| Decision Date | 14 June 1988 |
| Docket Number | No. 69741,69741 |
| Citation | 752 S.W.2d 319 |
| Parties | STATE of Missouri, Respondent, v. Lawrence SANCHEZ, Appellant. |
| Court | Missouri Supreme Court |
James F. Speck, Kansas City, for appellant.
William L. Webster, Atty. Gen., Elizabeth Levin Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.
Convicted by a jury of two counts of rape and two counts of sodomy involving his daughters, six and four years of age at the time of the offenses, defendant was sentenced to serve consecutive terms of imprisonment totalling 35 years. In this appeal, he asserts among other things that the admission of videotaped depositions of the alleged victims pursuant to § 491.680, RSMo 1986, denied him his right to confront the witnesses against him guaranteed by the United States and Missouri Constitutions. Finding that issue dispositive, we reverse and remand for a new trial.
The pertinent facts developed by the state's evidence, including the challenged videotapes, may be briefly summarized. During the period January 1 to July 8, 1985, defendant on several occasions sexually abused his two daughters while their mother was away from the home. Though the girls were assaulted individually, each witnessed acts performed on the other. Alerted that the children were possibly in danger, on July 7 their mother took them to a shelter for battered women explaining that they would "take a vacation" from defendant. Upon hearing this, the four-year-old expressed relief stating that she hated defendant because he hurt her "pee-pee"; but, while at the shelter her sister became frightened and told her not to say anything. On July 8 both girls, after some initial reluctance, related events to a social worker constituting the basis for the offenses charged. They were then examined by a physician and made statements to a police detective which were reduced to writing and signed by the mother.
Subsequent to defendant's indictment, the state moved to obtain in-camera videotaped testimony of the victims as provided in § 491.680 1 and to exclude the defendant from the proceedings pursuant to § 491.685. 2 The motion contained an assertion that a psychologist who had been treating the victims "states that [they] are very traumatized due to the acts committed upon them and would be unable to testify in an open court in the personal presence of the defendant about these acts." Defendant, in response to the state's motion, asserted that his exclusion from the videotape proceeding would violate his right to confront the witnesses against him secured by the Constitution of the United States and the Missouri Constitution and that "no such testimony should be taken until the defendant is afforded an opportunity to take the deposition" of the psychologist referred to in the state's motion. Notwithstanding this contention, the court sustained the state's motion and prohibited defendant from attending the deposition.
The videotaped depositions were conducted in a courtroom on April 18, 1986, with the trial judge, prosecuting attorney, and defense counsel present, and the defendant was placed in a room nearby from which he was able to hear and view the proceedings through a television monitor. The six-year-old was deposed first. Defense counsel renewed his objection based on the Confrontation Clause, conducted cross-examination, took a previously agreed upon recess to consult with the defendant, then concluded his questioning of the victim. An identical process was followed during the four-year-old's testimony. At the conclusion of the proceedings, the judge noted for the record that he had made the required findings and had "[taken] into account those facts mentioned in the statute."
Although the victims did not testify at trial, the videotaped depositions were introduced in evidence over defendant's objection. Defense counsel specifically noted § 491.680 requires that the court consider the emotional or psychological trauma to the child if the child were forced to testify in open court or be brought into the personal presence of the defendant and stated: The following exchange then ensued:
But was there an affidavit filed?
The record supports defense counsel's description and summary of events.
On appeal, defendant asserts that §§ 491.680 and 491.685 "as applied violated [his] right of confrontation under the sixth amendment to the United States Constitution and article 1, section 18(a) of the Missouri Constitution, in that they denied him the right of face-to-face confrontation with his accusers." We agree that the admission of the videotaped depositions in this case did not conform to the standards established by cases interpreting the Confrontation Clause.
In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Supreme Court noted that "the Confrontation Clause reflects a preference for face-to-face confrontation at trial, and that 'a primary interest secured by [the provision] is the right of cross-examination.' " Id. 100 S.Ct. at 2537 (quoting Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965)). The Court in that case employed a two-prong analysis for out-of-court statements sought to be admitted in criminal trials, concluding first that "in the usual case (including those where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant." Id. 100 S.Ct. at 2538. If a witness is shown to be unavailable, his prior statement is admissible only if it bears "sufficient indicia of reliability[,]" which Id. at 2539.
We have no trouble concluding that depositions admitted pursuant to § 491.680, including the ones at issue here, are endowed with particularized guarantees of trustworthiness; such statements are made under oath, subject to cross-examination, and presented to the jury in a manner which allows it to consider, in judging the witness's credibility, the visual and audial context of the statement as well as the words spoken.
This, of course, does not end our inquiry. As previously noted, Roberts established a "rule of necessity" which requires the state either produce the declarant at trial or demonstrate such declarant's unavailability. In United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986), the Court emphasized the importance of the unavailability requirement in cases involving prior testimony:
Unlike some other exceptions to the hearsay rules, or the exemption from the hearsay definition involved in this case [co-conspirator statements], former testimony often is only a weaker substitute for live testimony. It seldom has independent evidentiary significance of its own, but is intended to replace live testimony. If the declarant is available and the same information can be presented to the trier of fact in the form of live testimony, with full cross-examination and the opportunity to view the demeanor of the declarant, there is little justification for relying on the weaker version. When two versions of the same evidence are available, longstanding principles of the law of hearsay, applicable as well to Confrontation Clause analysis, favor the better evidence.
While § 491.680 does not mention unavailability, the state argues that when the trial court determines that the child will suffer emotional or psychological trauma if forced to testify in open court in the presence of defendant it has, in effect, concluded that the child is unavailable as a witness at trial. There is some merit to that proposition. If a child witness is rendered incapable of testifying in court because of the emotional or psychological trauma that would ensue, then the witness might be considered "unavailable" for purposes of confrontation analysis. That contention is consistent with the recognition that Confrontation Clause analysis involves balancing and accommodating both the rights secured to the defendant by the constitution with the state's "strong interest in effective law enforcement, and in the development and precise formulation of the rules of evidence applicable in criminal proceedings" according to the general approach established on a case by case basis. Roberts, 100 S.Ct. at 2538. It is noteworthy that the federal rules of evidence define witness unavailability to include situations in which the declarant is unable to testify because of then existing physical or mental illness or infirmity, Fed.R.Evid. 804(a), and if a witness is truly unavailable to testify at trial under that rule the "necessity" prong of the Roberts test is satisfied. See Burns v. Clusen, 798 F.2d 931 (7th Cir.1986). 3
However, applying this analysis to the case before us, we conclude that the state failed to introduce evidence of trauma sufficient to demonstrate...
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...517 N.E.2d 1070, 1073-74 (1987) (child witnesses who were very frightened were not unavailable to testify at trial); State v. Sanchez, 752 S.W.2d 319, 322-23 (Mo.1988); State v. Gollon, 115 Wis.2d 592, 600-01, 340 N.W.2d 912, 916 (Ct.App.1983) (mother's testimony that child victim was too a......
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