State v. Warford
| Decision Date | 03 July 1986 |
| Docket Number | No. 85-580,85-580 |
| Citation | 223 Neb. 368,389 N.W.2d 575 |
| Parties | , 61 A.L.R.4th 1141, 55 USLW 2069 STATE of Nebraska, Appellee, v. Floyd WARFORD, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Constitutional Law: Criminal Law: Witnesses. Both the federal and the state Constitutions guarantee a defendant the right to confront or meet the witnesses against him face to face.
2. Constitutional Law: Criminal Law: Witnesses. Implicit in confrontation is the right to cross-examine all witnesses.
3. Constitutional Law: Criminal Law: Witnesses. The fundamental right to confront and cross-examine witnesses is primarily a functional right which promotes reliability in criminal trials.
4. Constitutional Law: Criminal Law: Witnesses: Public Policy. The right of confrontation must occasionally give way to considerations of public policy and the necessities of the case.
5. Constitutional Law: Criminal Law: Witnesses: Waiver. A defendant may waive his right of confrontation by disruptive conduct, by threatening or intimidating the witness, or by stipulating to the admission of certain evidence.
6. Constitutional Law: Criminal Law: Witnesses. A limitation of the right of confrontation can only be necessitated by a showing of a compelling interest and any infringement must be as minimally obtrusive as possible.
7. Constitutional Law: Criminal Law: Telecommunications: Witnesses: Minors: Sexual Assault. Before closed-circuit television may be used to present the examination of a child victim in a sexual assault case, a showing must be made of a compelling need to protect the child from further injury or that the child is intimidated by the presence of the defendant during the examination.
8. Constitutional Law: Criminal Law: Telecommunications: Witnesses: Minors: Sexual Assault. Where closed-circuit television is used to present the examination of a child victim in a sexual assault case, the camera must be situated so as to permit a view of all persons (other than the cameraman) in the room where the examination is conducted; the defendant must be able to communicate with his counsel at all times; and the court must be able to interrupt the questioning whenever necessary to permit counsel to make evidentiary objections and obtain rulings as the examination proceeds.
9. Constitutional Law: Criminal Law: Telecommunications: Witnesses: Attorneys at Law. If necessary, a support person, such as a parent or therapist, may be permitted to be present in the room with the witness while a closed-circuit television examination is being conducted, but the questioning of the witness must be done by persons who are authorized to participate in the proceeding as members of the bar.
10. Constitutional Law: Criminal Law: Pretrial Procedure: Notice: Witnesses: Minors: Sexual Assault: Records. A defendant must be given notice and an opportunity to attend and participate by counsel in a proceeding to determine the competency of a child victim to testify in a sexual assault case. A record of such a proceeding must be made and preserved.
Gary L. Hogg, Buffalo County Public Defender, for appellant.
Robert M. Spire, Atty. Gen., and Jill Gradwohl, Lincoln, for appellee.
Richard E. Shugrue, Omaha, for amicus curiae Nebraska Criminal Defense Attys. Ass'n.
The defendant, Floyd Warford, was convicted of first degree sexual assault on a child, a felony under Neb.Rev.Stat. § 28-319 (Reissue 1985), and sentenced to the Nebraska Penal and Correctional Complex for a term of not less than 2 nor more than 5 years. The acts complained of were alleged to have occurred on or about July 5, 1983, when the victim was 4 1/2 years old and the defendant was 43.
The case began with an anonymous telephone call on August 9, 1984, to a Child Protective Services worker for the state Department of Social Services. The worker, Jill Stump, testified that the caller expressed concern over the behavior of the victim. The caller informed Stump that the child was demonstrating sexual play with dolls, was kissing boys, and was asking them to have sexual intercourse with her. On August 31, 1984, Stump received a second call from a different person again expressing concern over similar incidents of inappropriate behavior exhibited by the child.
The child's mother was contacted and the child was brought in for an interview. At the interview the child was given four anatomically correct dolls, which the child named with the names of her mother, the defendant, her brother, and herself. The child then began playing with the dolls in a sexual manner, with the doll identified as the defendant sexually abusing the doll identified as the child, while the child's mother was at bingo. The child's mother stated that from October 1980 to July 22, 1983, she and her children were living with the defendant in a white house. She further stated that during 1983 she went out to play bingo every Wednesday and Friday night while the defendant stayed with the children.
Prior to the trial, the defendant filed a motion objecting to the competency of the victim to testify because of her age and moving that the victim not be allowed to testify. The trial court then conducted an examination of the child to determine whether she was competent to testify. The only persons present were the judge, the child, a social worker, and the court reporter. The record does not show whether counsel for the defendant or the prosecuting attorney was notified of the interview. The trial court determined that the victim was competent to testify as a witness, that she understood the nature of the proceedings, that she would be truthful in her statements and answers, and therefore was competent to testify.
At trial the child was called to the stand and began answering questions asked by the prosecuting attorney. The child responded to some preliminary questions, and when asked whether anybody touched her in a bad way while she was living in the white house, she replied, "Yes," naming the defendant as the perpetrator. The child was then given four anatomically correct dolls to allow her to demonstrate what had occurred. The prosecuting attorney asked the child to describe what had happened, but it is clear from the record that the child became uncooperative and refused to answer any further questions. The prosecuting attorney then asked if she could show him what happened if all the people were not there, to which the child replied, "Yes." Thereupon, outside the presence of the jury, the prosecuting attorney moved to examine and cross-examine the witness in a separate room, to record the examination on videotape, and to allow the defendant and the jury to watch the examination in the courtroom on a closed-circuit television monitor. The prosecuting attorney stated that the motion was made because of the inability of the victim to testify before the jury. The State also requested that the child's therapist, Joanna Hochfelder, be allowed in the examining room for support.
Defense counsel objected on the grounds that the procedure would violate the defendant's constitutional rights by denying him the right to hear, see, and otherwise confront the witness. Defense counsel further objected because the filming would be set up and operated by the State, thereby allowing the State to bear on what was reflected. The court overruled all objections, stating that "under the circumstances, the case and the age of the victim, that it probably is appropriate under the circumstances." The court also stated that it would "accommodate the needs of the defendant as far as questioning by permitting during a recess after the direct, attorney for the defendant to confer with his client prior to cross-examination."
After the jury returned, the court and counsel for the parties joined the child and her therapist in chambers to resume direct examination of the child. The jury and the defendant viewed the proceedings on video equipment set up in the courtroom. The defendant did not have any means of communication with his attorney during this part of the proceedings, nor could the judge monitor what was happening in the courtroom.
The prosecuting attorney attempted to have the child demonstrate with the use of the dolls what had happened between her and the defendant. The child was again uncooperative. The State then asked permission for the therapist to question the child. Defense counsel objected to the examination being conducted by someone who was not an attorney and who was an officer of the State, but the trial court allowed the therapist to conduct the examination of the victim.
After an extensive series of leading questions by the therapist with little result, the trial court ordered a recess. Following the recess, the State moved to allow the child to be interviewed in chambers by her therapist, with all other parties situated in the courtroom and watching the examination on television monitors. Defense counsel again objected to the procedure on constitutional grounds and entered a continuing objection to all leading questions. The trial court noted the continuing objection but granted the State's motion, so that the child continued her testimony in chambers with only the therapist present. All other persons involved in the trial were in the courtroom and watched the interview on television monitors. When the therapist concluded her direct examination, defense counsel was allowed in chambers to cross-examine the witness. The prosecuting attorney conducted the redirect examination. At no time did the judge have any means by which he could exercise control over the examination of the witness or interrupt the questioning to rule on objections made by the defendant.
On appeal the defendant contends that his constitutional rights under the due process clause and the confrontation clause were violated by the manner in which...
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