Strickland v. State, 2 Div. 575

• Decision Date: 11 October 1988
• Docket Number: 2 Div. 575
• Citation: 550 So.2d 1042
• Parties: Larry STRICKLAND v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1042

550 So.2d 1042

57 USLW 2303

Larry STRICKLAND v. STATE.

2 Div. 575.

Court of Criminal Appeals of Alabama.

Oct. 11, 1988.

Rehearing Denied Nov. 10, 1988.

William S. Poole, Jr., Demopolis, for appellant.

Don Siegelman, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Appellant, Larry Strickland, was indicted on March 26, 1986, by the Marengo County Grand Jury for the offense of sexual abuse in the first degree, in violation of § 13A-6-66(a)(3), Code of Alabama 1975. The indictment charged Strickland with subjecting the victim to sexual contact, while he was over 16 years of age and she was less than 12 years of age. After trial, a jury found him guilty as charged in the indictment, and he was sentenced on October 15, 1986, to six years' imprisonment. He appeals, raising eight issues.

Appellant, a 29-year-old male, lived next door to the 3-year-old female victim. The victim testified that, while she was in appellant's home, looking at his goldfish, he pulled her pants down and "licked" her "on her bottom" and touched her on her bottom with his hands. Appellant testified that the victim and her younger sister came into his house to see his goldfish; that he picked up the victim and placed her on his hip so that she could better see the goldfish; that, in picking her up, he placed his right arm "up under her behind"; that, while holding her up in this position, she slipped, causing him to put his hand under her bottom to catch her; and that he then put her down and she left the house. He denied pulling down the child's pants, licking intimate parts of her body, or intentionally putting his hands on her intimate parts. He denied ever touching the child intentionally for the purpose of sexual gratification, and claimed that the only time he may have touched her on her bottom was when he was holding her and she slipped. The child testified that appellant picked her up so she could see the goldfish and that he touched her bottom when he was picking her up and putting her down. A medical examination of the child revealed no evidence of trauma and an intact hymen.

Several hours after the incident, appellant was arrested and transported to the Marengo County jail. He was advised of his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), when first placed in the police car and, en route to the jail, was informed of the charges against him. He was advised that he had been accused of "fondling" and licking the intimate parts of the alleged victim. On the way to the jail, he denied the accusations, even though he was not subjected to questioning. After arriving at the jail, he continued to deny the accusations until he "broke down" and began to cry. He then told the officers that he would tell them about it. After, he was again read his Miranda rights, he signed a document waiving those rights, acknowledging that he understood them and agreeing to give a statement. The statement was recorded on tape and later transcribed. Both the tape and the written transcription were introduced in evidence at the trial, and the jury listened to the tape recording. In his statement, he admitted fondling the child, i.e., putting his hands in her panties, but denied licking her private parts.

I.

Appellant's first four issues raised on appeal concern the admissibility of the videotaped deposition of the child victim. He contends that the statute authorizing videotaped depositions of children under 16 years of age in sexual abuse cases, § 15-25-2, Code of Alabama 1975, is unconstitutional in that it violates the due process and confrontation clauses of Ala. Const. art. I, § 6, and the Sixth and Fourteenth Amendments of the United States Constitution. In the alternative, he contends that, if the statute is constitutional on its face, it was applied in his case in an unconstitutional manner and, thus, deprived him of his rights under the due process and confrontation clauses of the United States and Alabama constitutions. He contends that reversible error occurred when the state failed to follow the procedure prescribed in the statute for the taking of the deposition. He further contends that, prior to the taking of the videotaped deposition, the trial court failed to conduct a hearing to ascertain the competency of the child to testify and the necessity for asking leading questions.

The statute which authorizes the use of videotaped depositions in cases of sexual offenses against children is § 15-25-2, which states the following:

"(a) In any criminal prosecution referred to in section 15-25-1, ¹ the court may, upon motion of the district attorney, for good cause shown and after notice to the defendant, order the taking of a videotaped deposition of an alleged victim of or witness to said crime who is under the age of 16 at the time of such order. On any motion for a videotaped deposition of the victim or a witness, the court shall consider the age and maturity of the child, the nature of the offense, the nature of the testimony that may be expected, and the possible effect that such testimony in person at trial may have on the victim or witness, along with any other relevant matters that may be required by supreme court rule. During the taping of videotaped depositions, the attorney of the parents of the child would be allowed to be present at the tapings. If the court orders that a deposition of the victim or witness shall be had as provided herein, the district attorney shall make all necessary arrangements to have the same videotaped.

"Such deposition shall be taken before the judge in his chambers or in such other suitable location as the court may direct and shall be conducted in the presence of the district attorney, the defendant and his attorney, and such other persons as the court in its discretion may permit, taking into consideration the welfare and well-being of the alleged child victim or witness. Examination and cross-examination of the alleged victim or witness shall proceed at the taking of the videotaped deposition as though the alleged victim or witness were testifying personally in the trial of the case. The state shall provide the attorney for the defendant with reasonable access and means to view and hear the videotaped deposition at a suitable and reasonable time prior to the trial of the case. Objections to the introduction into the record of such deposition shall be heard by the judge in whose presence the deposition was taken and unless the court determines that its introduction in lieu of the victim's or witness's actual appearance as a witness at the trial will unfairly prejudice the defendant, such videotaped deposition shall be entered into the record by the state in lieu of the direct testimony of the alleged victim or witness and shall be viewed and heard at the trial of the case.

"(b) For the purposes of this section, 'videotaped deposition' means the visual recording on a magnetic tape, together with the associated sound of a witness testifying under oath to be entered in the record in a judicial proceeding.

"(c) The supreme court may adopt rules of procedure regarding the taking and use of videotaped depositions in criminal proceedings and juvenile cases, as well as for the transcribing of such in the event the case is thereafter appealed.

"(d) All costs associated with the videotaping of a deposition ordered pursuant to this chapter shall be paid by the state. The district attorney shall submit all such cost bills to the state comptroller for approval and payment from the fund entitled 'court costs not otherwise provided for.'

"(e) All videotapes ordered pursuant to this chapter shall be subject to any protective order of the court for the purpose of protecting the privacy of the victim of the offense. (Acts 1985, No. 85-743, p. 1143, § 2.)"

On September 2, 1986, the district attorney moved the trial court to issue an order to take a videotaped deposition of the child victim's testimony to be used in lieu of her live testimony before the jury. As grounds for the motion, the district attorney alleged that the child is four years of age; that the nature of the testimony to be expected is sexual in nature, lurid and sordid; that it would be extremely embarrassing to the child and could cause her emotional and psychological damage if she testified in open court; and that she is shy and requires special handling during questioning. On the following day, September 3, the trial court without a hearing, without notice to appellant, and without making any findings of necessity or good cause, ordered the deposition to be taken on September 4. On September 3, appellant, having learned of the motion, filed written objections and, after the deposition and on September 5, he filed a motion to exclude the deposition. The objections and motion to exclude raised the issues now raised on appeal. On September 8, immediately before the commencement of the trial, a hearing was held on the objections and the motion to exclude, and they were overruled. At the conclusion of the hearing, the trial court stated its reasons for ordering the taking of the deposition. The court stated the following:

"The fact that this is a three year old child, I think it would be traumatic to the child to testify in a courtroom in front of a jury and a large number of witnesses. That's the purpose, and I allowed the video deposition to be taken.... I find there is probable cause present to take the deposition of the minor child and that because of her tender years it would be appropriate to do so."

All issues raised on appeal pertaining to the deposition are properly before us for review.

A.

Appellant contends that the use of the victim's videotaped deposition denied him the constitutional right of confrontation. The Sixth Amendment to the Constitution of the United States provides, in part, that "[i]n all criminal prosecutions, the...