Craig v. State

ADKINS, Judge. By Chapters 495 and 499, Laws of 1985, the Maryland General Assembly enacted § 9-102 of the Courts and Judicial Proceedings Article. Maryland Code (1984 Repl.Vol., 1988 Cum.Supp.). Designed to facilitate testimony by child witnesses in child abuse (particularly sexual abuse) cases, the statute authorizes a judge to direct that a child’s testimony be received via one-way closed-circuit television. 1 When the procedure is invoked, judge, jury, and defendant remain in the courtroom.

The child witness and counsel resort to another room, where the witness is questioned. A video monitor displays this process to those in the courtroom, but the witness cannot see the defendant. The procedure cannot be used, however, unless the judge first “determines that testimony by the child victim in the courtroom will result in the child suffering serious emotional ⁵⁵⁴ distress such that the child cannot reasonably communicate.” Section 9-102(a)(l)(ii). In Wildermuth v. State, 310 Md. 496 , 530 A.2d 275 (1987), § 9-102 was challenged as being in violation of the rights of confrontation granted by the sixth amendment to the United States Constitution and by Article 21 of the Maryland Declaration of Rights. 2 We upheld the facial constitutionality of the statute.

We reasoned that the constitutional right of confrontation “ordinarily includes ... the right of the accused to be seen by his accuser when the accuser is testifying against the accused.” 310 Md. at 512-513 , 530 A.2d at 286 . Nevertheless, we concluded, that right is not absolute. Under appropriate circumstances, including the existence of a compelling State interest and a particularized determination of the child witnesses’ functional unavailability because of inability to testify due to severe emotional trauma, the statutory procedure passes constitutional muster. Id. at 518-520 , 530 A.2d at 286-287 .

We now face a new attack on § 9-102, once again based on the federal and State confrontation clauses. The primary argument presently before us is that under the Supreme Court’s recent decision in Coy v. Iowa, — U.S.-, 108 S.Ct. 2798 , 101 L.Ed.2d 857 (1988), nothing less than a physical, face-to-face courtroom encounter between witness and accuser can ever satisfy the constitutional rights of confrontation. The Court of Special Appeals rejected this contention. Craig v. State, 76 Md.App. 250, 274-284 , 544 A.2d 784, 796-800 (1988), and so do we.

Nevertheless, we reverse because, as we read Coy , the showing made by the State was insufficient to reach the high threshold required ⁵⁵⁵ by that case before § 9-102 may be invoked. 3 Before explaining our reasoning, we summarize the pertinent facts. I. On 16 October 1986 a Howard County grand jury charged petitioner, Sandra Ann Craig (Craig), with child abuse, first and second degree sexual offense, perverted practice, assault, and battery. The alleged victim in each instance was Brooke Etze. Brooke had attended Craig’s Country PreSchool, a kindergarten and pre-kindergarten center owned and operated by Craig, and site of the alleged offenses.

In March 1987, when the case was about to go to trial, the State sought to invoke § 9-102. The section’s protection was desired not only with respect to Brooke (then seven years old), but also as to a number of other children who had, according to the State, been abused by Craig, and some of whom did eventually testify in the case involving Brooke. The Circuit Court for Howard County heard only expert testimony as to whether § 9-102(a)(1)(ii)'s threshold had been crossed. The judge did not question or interview any of the child witnesses, nor were any of them called to the witness stand in Craig’s presence, in an attempt to produce testimony in that fashion.

Compare Wildermuth, 310 Md. at 524 n. 13, 530 A.2d at 289 n. 13 (child’s taking the witness stand revealed inability to testify). Without the benefit of our WiUermuth or the Supreme Court’s Coy , neither of which had then been decided, the judge ruled: There’s been evidence presented and based upon the evidence presented I find that the testimony of each of these children in a courtroom will [result] in each child suffering serious emotional distress and such that each of these children cannot reasonably communicate and ac ⁵⁵⁶ cordingly I believe there’s a need and it’s appropriate to direct that the testimony of these children be provided by way of closed circuit television consistent with the provisions of Section 9-102____ Despite Craig’s confrontation-based objections, Brooke and three other children testified via one-way closed-circuit television. The young witnesses, of course, could not see Craig while so testifying. 4 She was convicted on all counts and appealed, on numerous grounds, to the Court of Special Appeals. As we have noted, that court affirmed.

We granted a writ of certiorari chiefly in order to reexamine Wildermuth in the light of the Supreme Court’s pronouncements in Coy .

II

In Coy , two 13-year-old girls were allegedly sexually assaulted. At trial, over Coy’s objections, they were allowed to testify protected by a large screen placed between them and the accused. Because of certain lighting arrangements, Coy could “dimly perceive the witnesses, but the witnesses [were unable] to see him ... at all.” — U.S. at -, 108 S.Ct. at 2799 , 101 L.Ed.2d at 863 . This was done pursuant to a statute subsequently codified at Iowa Code § 910A.14 (1987): “The court may require a party be confined ... behind a screen or mirror that permits the party to see and hear the child during the child’s testimony, but does not allow the child to see or hear the party.” The Iowa statute did not contain any requirement that the trial court make a particularized finding of the child’s inability to testify in the presence of the accused, and the Iowa trial judge made no such finding.

In due course, Coy was convicted. The Supreme Court of Iowa affirmed, holding that since Coy’s ability to cross-examine the witnesses was not impaired by the screen, there was no violation of the ⁵⁵⁷ right to confrontation. State v. Coy, 397 N.W.2d 730 (Iowa 1986). Six justices of the Supreme Court of the United States sharply disagreed with that view.

Writing for the Court, Justice Scalia declared that the sixth amendment right of confrontation ordinarily demands a “face-to-face encounter” between accused and accuser. Coy, — U.S. at-, 108 S.Ct. at 2802 , 101 L.Ed.2d at 866 . The Supreme Court majority found this result was required by basic fairness and to assure “ ‘the integrity of the fact-finding process. ...’ ” Id. at —, 108 S.Ct. at 2802 , 101 L.Ed.2d at 866 . (quoting Kentucky v. Stincer, 482 U.S. 730, 736 , 107 S.Ct. 2658, 2662 , 96 L.Ed.2d 631, 641 (1987).

As Justice Scalia explained: The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses, since that is the very phenomenon it relies upon to establish the potential “trauma” that allegedly justified the extraordinary procedure in the present case. That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs. Id. at —, 108 S.Ct. at 2802 , 101 L.Ed.2d at 866 .

The same six justices 5 also agreed that if there are any exceptions to the right of confrontation, as above defined, something more than “a legislatively imposed presumption of trauma” is required to trigger them. Id. at-, 108 S.Ct. at 2803 , 101 L.Ed.2d at 867 . “Since there have been no individualized findings that these particular witnesses needed special protection, the judgment here could not be sustained by any conceivable exception.” Id. The question of “whether any exceptions exist” was left for “another day.” Id. ⁵⁵⁸ The question reserved by the Supreme Court is before us now. It is a question that was not squarely presented in Wildermuth , for in that case, the parties agreed that there could be exceptions to face-to-face confrontation. 310 Md. at 514 , 530 A.2d at 284 .

The issue there was what circumstances would justify use of the exception embodied in § 9-102. Craig grounds her argument on Justice Scalia’s view of the truth-ascertaining effect of physical confrontation in the courtroom—his conviction that while “face-to-face presence may ... upset the truthful rape victim or abused child; ... it may [by the same token] confound and undo the false accuser or reveal the child coached by a malevolent adult” and his insistence that “[i]t is a truism that constitutional protections have costs.” Id. at-, 108 S.Ct. at 2802 , 101 L.Ed.2d at 866 . Writing on behalf of the majority, Justice Scalia acknowledged that the Supreme Court had previously “indicated that rights conferred by the Confrontation Clause are not absolute, and may give way to other important interests,” id., but he went on to assert: The rights referred to in those cases ... were not the right narrowly and explicitly set forth in the Confrontation Clause, but rather rights that are, or were asserted to be, reasonably implicit—namely, the right to cross-examine, see Chambers v. Mississippi, 410 U.S. 284, 295 , 93 S.Ct. 1038, 1045-1046 , 35 L.Ed.2d 297 , [309] (1973); the right to exclude out-of-court statements, see Ohio v. Roberts, 448 U.S. [56,] 63-65, 100 S.Ct. 2531, 2537-2538 , 65 L.Ed.2d 597 [, 605-607 (1980) ]; and the asserted right to face-to-face confrontation at some point in the proceedings other than the trial itself, Kentucky v. Stincer, 482 U.S. [730], 107 S.Ct. 2658 , 96 L.Ed.2d 631 (1987). To hold that our determination of what implications are reasonable must take into account other important interests is not the same as holding that we can identify exceptions, in light of other important interests, to the irreducible literal meaning of the clause: “a right to meet face to face all those who appear and give evidence at trial.” California v. Green, 399 U.S. [149,] 175, 90 S.Ct. [1930,] ⁵⁵⁹ 1943-1944 [, 26 L.Ed.2d 489, 506-507 (1970) ] (Harlan, J., concurring) (emphasis added).

Id. at-, 108 S.Ct. at 2802-2803 , 101 L.Ed.2d at 866-867 . This language forcefully suggests that there is no exception to the right of a criminal defendant to confront, face-to-face, a witness who testifies against him. Yet the Supreme Court majority did not so hold. As we have noted, the Court struck down the Iowa statute because “it could not be sustained by any conceivable exception.” Id. at ——, 108 S.Ct. at 2803 , 101 L.Ed.2d at 867 .

Expressly declining to decide “whether any exceptions exist,” Justice Scalia did observe that “[wjhatever they may be, they would surely be allowed only when necessary to further an important public policy.” Id. Two members of the majority for which Justice Scalia wrote concurred in order to explain their understanding of the majority opinion. Justice O’Connor, joined by Justice White, agreed with the Court “that the Confrontation Clause was violated in this case.” —- U.S. at ——, 108 S.Ct. at 2803 , 101 L.Ed.2d at 868 (O’Connor, J., concurring). She found “nothing novel about the proposition that the Clause embodies a general requirement that a witness face the defendant.” Id. at -—, 108 S.Ct. at 2804 , 101 L.Ed.2d at 868-869 .

But she wrote separately “to note my view that those rights are not absolute but rather may give way in an appropriate case to other competing interests so as to permit the use of certain procedural devices designed to shield a child witness from the trauma of courtroom testimony.” Id. at--, 108 S.Ct. at 2803 , 101 L.Ed.2d at 868 . She wished to make clear “that nothing in today’s decision necessarily dooms ... efforts by state legislatures to protect child witnesses,” and among the “efforts” to which she referred were statutes of a number of states authorizing, under certain circumstances, the use of one-way closed-circuit television. Id. at-, 108 S.Ct. at 2804 , 101 L.Ed.2d at 868 . Indeed, Justice O’Connor “rejectjedj any suggestion ... in the Court’s opinion” that the right to confrontation was ⁵⁶⁰ absolute.

Id. at-, 108 S.Ct. at 2804 , 101 L.Ed.2d at 869 . She observed that the Court has time and again stated that the [Confrontation] Clause ‘reflects a preference for face-to-face confrontation at trial,’ and expressly recognized that this preference may be overcome in a particular case if close examination of ‘competing interests’ so warrants. Ohio v. Roberts, 448 U.S. 56, 63-64 , 100 S.Ct. 2531, 2537-2538 , 65 L.Ed.2d 597 [, 605-607] (1980) (emphasis added). See also Chambers v. Mississippi, 410 U.S. 284, 295 , 93 S.Ct. 1038, 1046 , 35 L.Ed.2d 297 [, 309] (1973)....

That a particular procedure impacts the ‘irreducible literal meaning of the clause,’ [— U.S. at-, 108 S.Ct. at 2803 , 101 L.Ed.2d at 867 ] does not alter this conclusion. Justice O’Connor went on to note that our precedents recognize a right to face-to-face confrontation at trial, but have never viewed that right as absolute. I see no reason to do so now and would recognize exceptions here as we have elsewhere. Id.

For this reason, she would permit use of a particular trial procedure that called for something other than face-to-face confrontation if that procedure was necessary to further an important public policy. See ante, [— U.S. at -, 108 S.Ct. at 2802-2803 , 101 L.Ed.2d at 867 ] (citing Ohio v. Roberts, supra; Chambers v. Mississippi, supra). The protection of child witnesses is, in my view and in the view of a substantial majority of the States, just such a policy. The primary focus therefore likely will be on the necessity prong.

I agree with the Court that more than the type of generalized legislative finding of necessity present here is required. But if a court makes a case-specific finding of necessity, as is required by a number of state statutes, see, e.g., Cal. Penal Code Ann. § 1347(d)(1) (West Supp. 1988); Fla.Stat. § 92.54(4) (1987); Mass.Gen.Laws § 278:16D(b)(1) (1986); N.J.Stat.Ann. § 2A:84A-32.4(b) (Supp.1988), our cases suggest that the strictures of the ⁵⁶¹ Confrontation Clause may give way to the compelling state interest of protecting child witnesses. Because nothing in the Court’s opinion conflicts with this approach, I join it.[ 6 ] — U.S. at —, 108 S.Ct. at 2805 , 101 L.Ed.2d at 869-870 .

As we interpret the concurrence, Justice O’Connor and Justice White joined the majority on the understanding that nothing in Justice Scalia’s opinion negated the existence of exceptions to the absolute right of confrontation. That view of the majority opinion seems to have been shared by Justice Scalia as well. Although he took pains to attack the dissent, 7 see, e.g., — U.S. at-n. 2, 108 S.Ct. at 2801 n. 2, 101 L.Ed.2d at 865 n. 2, he did not take issue with any part of Justice O’Connor’s concurrence. See Craig, 76 Md.App. at 279-280 , 544 A.2d at 798 .

Reading the majority opinion in light of the gloss placed upon it by the concurrence, the Supreme Court of Wisconsin concluded that Coy does not preclude, under appropriate circumstances, the use of trial procedures that supplant physical confrontation at trial. State v. Thomas, —- Wis. 2d —, —, 442 N.W.2d 10, 20 (Wis.1989). So did the Court of Special Appeals. Craig, 76 Md.App. at 280 , 544 A.2d at 798-799 .

Most courts that have considered the matter agree. See, e.g., State v. Vincent, 159 Ariz. 418 , 768 P.2d 150 (1989) (relying in part on Wildermuth); State v. ⁵⁶² Thomas, 770 P.2d 1324 (Colo.Ct.App.1988), cert. granted (1989); State v. Bonello, 210 Conn. 51 , 554 A.2d 277 , cert. denied, — U.S. -, 109 S.Ct. 2103 , 104 L.Ed.2d 664 (1989); Glendening v. State, 536 So.2d 212 (Fla.1988); Brady v. State, 540 N.E.2d 59 (Ind.Ct.App.1989); In the Interest of J.D.S., 436 N.W.2d 342 (Iowa 1989); State v. Eaton, 244 Kan. 370 , 769 P.2d 1157 (1989); State v. Crandall, 231 N.J.Super. 124 , 555 A.2d 35 (1989); State in Interest of B.F., 230 N.J.Super. 153 , 553 A.2d 40 (1989); State v. Davis, 229 N.J.Super. 66 , 550 A.2d 1241 (1988); People v. Rivera, 141 Misc.2d 1031 , 535 N.Y.S.2d 909 (N.Y.Sup.Ct.1988); Ohio v. Eastham, 39 Ohio St.3d 307 , 530 N.E.2d 409 (1988). But see State v. Murray, 875 S.E.2d 405 (W.Va.1988). 8 In view of our reading of Coy, and in light of the virtual unanimity of other courts in sustaining the constitutionality of a variety of protective devices not dissimilar to that provided by § 9-102, we conclude that there are, indeed, valid exceptions to face-to-face confrontation. This said, however, we believe Coy requires us to limit the use of the exception embodied in § 9-102 to circumstances even narrower than those we delineated in Wildermuth .

III

Both the right to confrontation and the protection of the child witness relate to the truth-seeking function of a trial. For reasons discussed in both Coy, — U.S. at-, 108 S.Ct. at 2802 , 101 L.Ed.2d at 866 , and Wildermuth, 310 Md. at 509-513 , 530 A.2d at 281-283 , confrontation may induce truthful testimony. And yet a child-witness who is too ⁵⁶³ terrified of the defendant to testify at all will produce no testimony; thus some truth may be concealed. In Wildermuth , we concluded that the balance could be struck in favor of the child witness when the Roberts, supra, standard of witness unavailability and evidence reliability is met. 810 Md. at 514-516, 530 A.2d at 284-285 .

From Roberts , we learned “that if there is sufficient necessity for not permitting the accused to confront his accuser directly (unavailability), and if the situation is such that there is some reasonable substitute for the truth-seeking confrontation requirement of physical presence (reliability), then the right of confrontation may still be satisfied.” Wildermuth, 310 Md. at 515 , 530 A.2d at 284 [footnote omitted]. The “reliability” prong of the Roberts test, we concluded, is satisfied in large measure by § 9-102 because it “provides for most of the aspects of confrontation that enhance the reliability of testimony: cross-examination, testimony under oath, ability of judge, jury, and accused to view the witness during the testimony.” Id. at 515, 530 A.2d at 285 . Our focus in Wildermuth , as it is in this case, was on “[t]he only reliability function not substantially provided by one-way closed-circuit television”—the truth-enhancing trial procedure of face-to-face confrontation. Id. at 516 , 530 A.2d at 285 .

Reasoning that a properly-supported finding under § 9—102(a)(1)(ii) “is tantamount to a finding of unavailability in the Roberts sense and meets the necessity-prong of the Roberts test,” id., 310 Md. at 519 , 530 A.2d at 286 , we held that “[t]he degree of confrontation allowed by § 9-102 ... satisfies the constitutional requirements if there is compliance with subsection (a)(1)(h) as a condition precedent to application of the statute.” Id. at 520, 530 A.2d at 287 . We now reexamine that