State v. Siard, 62717
| Decision Date | 08 December 1989 |
| Docket Number | No. 62717,62717 |
| Citation | 783 P.2d 895,245 Kan. 716 |
| Parties | STATE of Kansas, Appellee, v. James L. SIARD, Jr., Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In an appeal by a defendant from convictions of four counts of criminal sexual acts, the record is examined and it is held: (1) the use of a sight barrier, to prevent the child victims from being able to see the defendant while testifying, constituted a violation of the defendant's Sixth Amendment right of confrontation, and (2) under the facts and pleadings of this case, the charges of indecent liberties with a child were not multiplicitous with the charges of aggravated incest.
Gerald R. Kuckelman of Larry R. Mears, Chartered, Atchison, argued the cause and was on the brief for appellant.
Alan M. Boeh, Sp. Prosecutor, Troy, argued the cause and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.
James L. Siard, Jr., appeals his convictions by a jury of two counts of indecent liberties with a child (K.S.A. 21-3503) and two counts of aggravated incest (K.S.A. 21-3603). The issues raised on appeal involve an alleged denial of the defendant's Sixth Amendment right of confrontation and that the charges of indecent liberties with a child were multiplicitous with those of aggravated incest. The Court of Appeals affirmed the convictions in an unpublished opinion. (State v. Siard, 773 P.2d 693 (1989.)) We reverse the convictions.
Defendant's convictions were based upon acts of alleged sexual intercourse between him and his two daughters, S.S. (born December 26, 1971) and D.S. (born November 26, 1972). The acts took place at defendant's home in Doniphan, Kansas. The complaint alleged the incidents with S.S. occurred between January 1986 and April 30, 1987, and those with D.S. occurred between January 1987 and March 1987.
S.S. and D.S. and their two sisters, J.S. (age 11) and K.S. (age 9), live with their mother and stepfather. Pursuant to the divorce decree between defendant and the children's mother, the defendant had the girls every other weekend during the school year and for several weeks during the summer. The acts with which the defendant was charged took place during weekend visitations while the defendant's wife, Becky, was at work. S.S. testified that her father began having sexual intercourse with her about January 1986 and that it continued until May 1987. She estimated they had intercourse approximately 20 times during that period.
D.S. testified that the defendant had intercourse with her about ten times from January through March 1987. K.S., defendant's nine-year-old daughter, testified that on one occasion she walked into the bedroom and saw "Dad on top of [S.S.]."
The defendant denied committing any of the alleged acts. His testimony was corroborated to some extent by his wife, mother, and sister-in-law. The jury convicted the defendant of one act of indecent liberties with a child and one count of incest involving S.S., and with one count each of the same two crimes involving D.S. Additional facts will be stated as they relate to the issues on appeal.
The first two issues assert error based upon the trial court's decision to arrange the counsel tables during trial to effectively create a sight barrier between the defendant and his daughters when they were on the witness stand. Based primarily on the recent decisions in Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988); State v. Chisholm, 245 Kan. 145, 777 P.2d 753 (1989); and State v. Eaton, 244 Kan. 370, 769 P.2d 1157 (1989), defendant asserts that his Sixth Amendment right to confrontation of the witnesses against him was violated.
On December 9, 1987, the trial court held a pretrial conference to consider pretrial motions and other procedural matters relative to the anticipated trial. During the discussions, the trial court asked: "Is there a problem or is anybody going to request some sort of barrier between the children when they testify and the defendant?" The judge then explained that he had in mind some sort of a sight barrier. The prosecutor responded that, if the court would grant a request for a barrier, he would ask for it. Defense counsel objected, raising the issue of the defendant's right to confront the witnesses. Apparently the children had testified at the preliminary hearing without any problems other than the prosecutor's observation that it was "an uncomfortable thing." The judge responded that he might order a sight barrier, sua sponte, and voiced his opinion that it would not be a violation of the defendant's constitutional rights. Nothing further on the use of a barrier was said at that time.
On December 14, 1987, immediately before the start of trial, another pretrial conference was held in which voir dire and other procedural matters were discussed. At that meeting, the court announced that defendant was to sit at the north end of the counsel table and the table would be so located in the courtroom that the judge's bench would effectively screen the witnesses from any view of the defendant while they were on the witness stand. Defense counsel was instructed that during the testimony of defendant's daughters, he was to keep the defendant in a position at the counsel table where the defendant could not see the witnesses and they could not see him. The court then gave further instructions to counsel in order to shield the girls from their father during recesses, entering and leaving the courtroom, etc. The courtroom was arranged as the judge ordered, and the case proceeded to trial later that day.
During trial, the defendant occupied his designated seat at the counsel table and was effectively blocked from seeing his daughters as they testified. Likewise, the witnesses could not see the defendant. However, after cross-examination and rebuttal questioning of S.S. and D.S., the prosecutor asked each witness to step down from the witness chair and point out the defendant as being the person who molested them. That was the only face-to-face confrontation between the defendant and his daughters during their testimony.
The Court of Appeals, based upon Coy, found that defendant's Sixth Amendment right to confrontation had been violated but found the violation to be harmless error. It should be pointed out that the motives of the trial judge, in ordering the sight barrier and in seeking to protect the children during their testimony, are not questioned. In fact, defense counsel stated that he understood why the court was following such a procedure. It must also be emphasized that at the time of this trial, the United States Supreme Court had not issued its opinion in Coy, and the trial court did not have the benefit of that decision.
In Coy, the defendant was charged with sexually assaulting two 13-year-old girls. At his jury trial, the court granted the State's motion, pursuant to a 1985 Iowa statute enacted to protect child victims of sexual abuse, to place a screen between defendant and the girls during their testimony. The screen blocked him from their sight but allowed him to see them dimly and to hear them. The court rejected defendant's argument that this procedure violated the confrontation clause of the Sixth Amendment, which gives a defendant the right "to be confronted with the witnesses against him." Defendant was convicted of two counts of lascivious acts with a child, and the Iowa Supreme Court affirmed. The United States Supreme Court granted certiorari and, in a plurality opinion, held Coy's Sixth Amendment right to confront the witnesses against him had been violated.
Since the decision in Coy, this court has had occasion in Chisholm and Eaton to consider the lessons of Coy in cases where the child-victim witness was shielded from in-court testimony by the use of closed-circuit television, pursuant to K.S.A. 22-3434. Eaton discussed Coy at length, and Chisholm also devoted considerable attention to Coy. We see nothing to be gained by further reviewing the decision in Coy. Suffice it to say, in Coy the Supreme Court found that the confrontation clause of the Sixth Amendment guarantees the defendant the right to a face-to-face confrontation with the witnesses against him during trial. The Coy court did recognize that there may be occasions when an important public policy requires exceptions to the general rule. The court also recognized that, before any such exception could be valid, it must be supported by specific, individualized findings that the particular witness needed special protection.
Eaton and Chisholm involved the shielding of a child victim in a sexual abuse trial. In both cases the child victim was allowed to testify by closed-circuit television pursuant to K.S.A. 22-3434. In Eaton, 244 Kan. 370, 769 P.2d 1157, we held:
"The right to confrontation of a witness under the Kansas and United States Constitutions includes the right of the accused to face-to-face confrontation while a victim/accuser is testifying against the accused." Syl. p 1.
"The fundamental right of a defendant to confront a witness in a criminal trial is not absolute and has exceptions where necessary to further an important public policy." Syl. p 2.
"A defendant in a sexual abuse trial is not denied his constitutional right to confrontation where the child-victim witness testifies via closed-circuit television, pursuant to K.S.A. 22-3434, provided the trial court finds that in-court, face-to-face testimony by the child-victim witness would so traumatize the child as to prevent the child from reasonably communicating or would render the child unavailable to testify, as more specifically stated in the opinion." Syl. p 4.
"The State has the burden of proving by clear and convincing evidence that the child-victim witness would be so traumatized and thus unavailable to testify." Syl. p 5.
In Chisholm, we reaffirmed that before a defendant may be deprived of a face-to-face confrontation of the...
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