Wildermuth v. State, s. 2

Decision Date10 September 1987
Docket NumberNos. 2,s. 2
Citation310 Md. 496,530 A.2d 275
Parties, 56 USLW 2167 Richard Bryan WILDERMUTH v. STATE of Maryland. James Sylvester McKOY v. STATE of Maryland. Sept. Term 1987 and 7 Sept. Term 1987.
CourtMaryland Court of Appeals

William M. Ferris (Lynn T. Krause, on the brief), Baltimore for appellant William Wildermuth; and Nancy L. Cook, Assigned Public Defender, Washington, D.C., for appellant Makoy.

Ronald M. Levitan, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief) Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, COUCH *, McAULIFFE and ADKINS, JJ.

ADKINS, Judge.

In separate jury trials in the Circuit Court for Anne Arundel County, appellants Richard Bryan Wildermuth and James Sylvester McKoy were each convicted of and sentenced for, among other things, child abuse. In each case the alleged child victim was permitted to testify from outside the courtroom via closed-circuit television, pursuant to Annotated Code, Courts and Judicial Proceedings Article, § 9-102 (1984 Repl.Vol., 1986 Supp.). Each appellant now launches a multifaceted attack on his convictions. 1 The central thrust in each case is the contention that § 9-102 is unconstitutional because it violates the confrontation clause of the sixth amendment to the United States Constitution (applicable to the states through the fourteenth amendment) as well as art. 21 of the Maryland Declaration of Rights. We reject those contentions. We also reject appellants' other constitutional assaults on § 9-102, and affirm McKoy's convictions. We reverse Wildermuth's convictions and remand his case for a new trial, however, because we agree that in his case the threshold showing essential to the invocation of § 9-102 has not been made.

I. Section 9-102

and the Right to Confrontation

Section 9-102 was enacted by Chapters 495 and 499, Acts of 1985. 2 It provides:

(a)(1) In a case of abuse of a child as defined in § 5-901 of the Family Law Article or Article 27, § 35A of the Code, a court may order that the testimony of a child victim be taken outside the courtroom and shown in the courtroom by means of closed circuit television if:

(i) The testimony is taken during the proceeding; and

(ii) The judge determines that testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate.

(2) Only the prosecuting attorney, the attorney for the defendant, and the judge may question the child.

(3) The operators of the closed circuit television shall make every effort to be unobtrusive.

(b)(1) Only the following persons may be in the room with the child when the child testifies by closed circuit television:

(i) The prosecuting attorney;

(ii) The attorney for the defendant;

(iii) The operators of the closed circuit television equipment; and

(iv) Unless the defendant objects, any person whose presence, in the opinion of the court, contributes to the well-being of the child, including a person who has dealt with the child in a therapeutic setting concerning the abuse.

(2) During the child's testimony by closed circuit television, the judge and the defendant shall be in the courtroom.

(3) The judge and the defendant shall be allowed to communicate with the persons in the room where the child is testifying by any appropriate electronic method.

(c) The provisions of this section do not apply if the defendant is an attorney pro se.

(d) This section may not be interpreted to preclude, for purposes of identification of a defendant, the presence of both the victim and the defendant in the courtroom at the same time.

In Wildermuth's case the statute was invoked after Judge Bruce Williams heard testimony from two expert witnesses. On the basis of that testimony (which we shall later review in detail), he found that Wildermuth's nine-year-old daughter, the alleged victim, "would be under serious emotional distress were she required to testify in open court in front of the jury and her father and assorted other court personnel and would not be reasonably able to communicate." Thus, having made the preliminary finding required by § 9-102(a)(1)(ii), he directed that the alleged victim's testimony "be taken through closed circuit T.V."

Somewhat different circumstances preceded the use of § 9-102 in McKoy's case. His nine-year-old daughter, the alleged victim, was called to testify in open court. She was sworn and responded to a number of questions designed to determine her competence as a witness. During the course of the questioning, she became upset and seemed unable to answer further, although she indicated she "could answer [the questions] if we went into another room, with the camera...." During a lengthy discussion of the constitutionality of § 9-102, Judge Robert Heller noted that the child "was having difficulty in being able to reasonably communicate" but raised some question as to what was meant by the phrase "serious emotional distress." The State was prepared to present expert testimony on the § 9-102(a)(1)(ii) threshold issue, but that became unnecessary when McKoy's trial counsel said he was not opposing the use of closed circuit television on the ground that the prerequisite conditions had not been established. Judge Heller thereafter directed that the alleged victim's testimony be taken pursuant to § 9-102.

In each case the alleged victim was taken to the judge's chambers. The subsequent procedure was described by Judge Heller when he explained it to the jury in McKoy's case:

... [T]his closed circuit television arrangement is an arrangement which is allowed under the Maryland law. However[,] I instruct you that you are not to give the testimony of this witness any greater or lesser weight than you would ... if she were testifying before you here in the courtroom.

Her testimony is not recorded. It is live testimony and will actually be taking place in the room which is adjacent to this room. Now under the arrangement that is permitted under the Maryland law, Mr. Caroom representing the State, and Mr. Ronay representing Mr. McKoy, will be present with the witness in this closed chamber or in this other room ... and Mr. Caroom, who has called her or will call her as a witness, will, of course, examine her and then she will be subject to cross-examination by Mr. Ronay on behalf of the Defendant. And the process will be the same as if the witness were in the courtroom. If there are any objections, the objections will be noted. The only difference will be that if there are objections, the Counsel--the two attorneys will come from the room behind us here, behind me, and will come out through this door and approach me here at the bench so that I can make a decision and a ruling on any objections that are made....

Furthermore, because the Defense attorney will be in the room next door and not seated with his client, and because there may be occasions that his client might want to say something to him--or vice versa, there will be telephone communications directly between Mr. Ronay and Mr. McKoy. You see a telephone that's--sitting on top of the counsel table and you will see that Mr. McKoy will have that available to him and will probably have [it] at his ear just to listen to his attorney in the event there is any reason to discuss anything between the two of them, just so they have the same accessibility to each other as they would if they were sitting here at the counsel table together.

A. Scope of the Right to Confrontation

Appellants assert that this procedure, clearly sanctioned by § 9-102, falls afoul of the sixth amendment to the United States Constitution and of art. 21 of the Maryland Declaration of Rights. The latter in pertinent part declares:

That in all criminal prosecutions, every man hath a right ... to be confronted with the witnesses against him....

The federal provision echoes that of Maryland:

In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.... 3

Both Wildermuth and McKoy would persuade us that their rights of confrontation were denied because the § 9-102 procedure denied them physical confrontation with the victims-witnesses; while each of them could see the testifying witness on the television monitor, neither witness could see the accused or, for that matter, the judge and jury. Analysis of these arguments requires us to consider the scope of the right of confrontation conferred by the above provisions. We consider the sixth amendment and art. 21 together, since both secure the same right. Tichnell v. State, 290 Md. 43, 55, 427 A.2d 991, 997 (1981); Crawford v. State, 282 Md. 210, 211, 383 A.2d 1097, 1098 (1978).

"[T]he Confrontation Clause comes to us on faded parchment." California v. Green, 399 U.S. 149, 173-174, 90 S.Ct. 1930, 1943, 26 L.Ed.2d 489, 506 (1970) (Harlan, J., concurring). This is because "a satisfactory history of the right of confrontation has yet to be written." Graham, The Right to Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One, 8 Crim.L.Bull. 99, 104 (1972) [footnote omitted]. In Gregory v. State, 40 Md.App. 297, 306-324, 391 A.2d 437, 443-454 (1978), Judge Wilner has traced much of the background. There is a helpful account in Stores v. State, 625 P.2d 820, 823 n. 4 (Alaska 1980). And see 1 J. Stephen, History of the Criminal Law of England, 326-358 (1883), and 9 W. Holdsworth, A History of English Law, 214-219 (3d ed. 1944).

The sources tell us that in the late sixteenth and early seventeenth centuries in England, proof in criminal cases was often by way of reading depositions, confessions of accomplices and so on, despite demands by the accused that the witnesses against him be required to confront him face to face. 4

By the end of the seventeenth century, however, this practice of prosecution by written deposition, the same sources explain, had been...

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