Craig v. State

CHARLES E. ORTH, Jr., Judge, Specially Assigned. The two cases covered by this opinion, Sandra Ann Craig v. State of Maryland, No. 110, September Term, 1988, and James T. Gilbert v. State of Maryland, No. 63, September Term, 1990, concern the testimony of the victim in a child abuse case by means of closed circuit television. Craig and Gilbert were each charged with child abuse as defined in Maryland Code (1957, 1987 Repl.Vol.), Article 27, § 35A, and related offenses. At each trial the victim was permitted to testify, over objection, by means of closed circuit television.

Craig and Gilbert each challenge the propriety of that procedure. Inasmuch as the two cases share that common issue, we called for them to be argued on the same day, and we decide them both in this opinion. I Some six years ago, in Acts 1985, ch. 499 (H.B. 1346) and ch. 495 (S.B. 555), the General Assembly of Maryland evinced its deep concern about “the psychological harm to a child victim testifying in a child abuse case____” The chapters enacted identical provisions which were codified in the Courts and Judicial Proceedings Article of the Maryland Code (1973, 1989 Repl.Vol.) as § 9-102. The legislation fashioned a comprehensive scheme which authorized a pro ⁴²² cedure for the receipt of testimony of the victim in a child abuse case by means of closed circuit television.

One of the detailed conditions for the invocation of the procedure called for the trial judge to determine 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. § 9-102(a)(l)(ii). The statute has been the subject of opinions in Wildermuth v. State, 310 Md. 496 , 530 A.2d 275 (1987); Craig v. State, 76 Md.App. 250 , 544 A.2d 784 (1988); Craig v. State, 316 Md. 551 , 560 A.2d 1120 (1989) (Craig I); and Maryland v. Craig, 497 U.S. -, 110 S.Ct. 3157 , 111 L.Ed.2d 666 (1990). Coy v. Iowa, 487 U.S. 1012 , 108 S.Ct. 2798 , 101 L.Ed.2d 857 (1988), although not directly concerned with § 9-102, influenced our holdings in Craig I and played a part in the Supreme Court’s Craig. Our opinion delivered today provides the latest word on the statute.

II The Sandra Ann Craig Case A On 16 October 1986, a Howard County grand jury returned an indictment charging Sandra Ann Craig with child abuse, first and second degree sexual offense, perverted practice, assault, and battery. A jury in the Circuit Court for Howard County convicted her on all counts, and she was sentenced to terms of imprisonment totalling 10 years. The Court of Special Appeals affirmed the judgments on direct appeal. Craig v. State, 76 Md.App. 250 , 544 A.2d 784 .

We reversed the judgment of the Court of Special Appeals on grant of her petition for a writ of certiorari. Craig v. State, 316 Md. 551 , 560 A.2d 1120 (Craig I). The Supreme Court of the United States vacated our judgment on grant of the State’s petition for certiorari, and remanded the case to us for consideration in the light of its opinion. Maryland v. Craig, 110 S.Ct. 3157 .

In compliance with the direction of the Supreme Court, we ordered the case to be re-briefed and re-argued, and it is now again before us. ⁴²³ B Craig owned and operated a kindergarten and prekindergarten center. The center was the site of the offenses of which she was convicted, and the alleged victim was a child six years of age who was entrusted to her care at the center. 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 the victim named in the indictment, seven years old at the time of the trial, but also as to other children who had, according to the State, been abused by Craig.

Despite Craig’s confrontation-based objections, the named victim and three other children testified via one-way closed circuit television. The young witnesses, of course, could not see Craig while so testifying. C In Maryland v. Craig, 110 S.Ct. 3157 , the Supreme Court reviewed our opinion in Craig I. It looked at § 9-102 in the light of federal constitutional dictates: This case requires us to decide whether the Confrontation Clause of the Sixth Amendment categorically prohibits a child witness in a child abuse case from testifying against a defendant at trial, outside the defendant’s physical presence, by one-way closed circuit television. Id. at 3160.

The Supreme Court summarized our holdings: The Maryland Court of Appeals held, as we do today, that although face-to-face confrontation is not an absolute constitutional requirement, it may be abridged only where there is a “ ‘case-specific finding of necessity.’ ” 316 Md., at 564 , 560 A.2d, at 1126 (quoting Coy, supra, 487 U.S., at 1025 , 108 S.Ct., at 2805 (concurring opinion)). Given this latter requirement, the Court of Appeals reasoned that “[t]he question of whether a child is unavailable to testify ... should not be asked in terms of inability to testify in the ordinary courtroom setting, but in the much narrower terms of the witness’s inability to testify in the presence of the accused.” 316 Md., at 564 , 560 A.2d, at ⁴²⁴ 1126 (footnote omitted). “[T]he determinative inquiry-required to preclude face-to-face confrontation is the effect of the presence of the defendant on the witness or the witness’s testimony.” Id., at 565 , 560 A.2d, at 1127 . The Court of Appeals accordingly concluded that, as a prerequisite to use of the § 9-102 procedure, the Confrontation Clause requires the trial court to make a specific finding that testimony by the child in the courtroom in the presence of the defendant would result in the child suffering serious emotional distress such that the child could not reasonably communicate. Id., at 566, 560 A.2d, at 1127 .

This conclusion, of course, is consistent with our holding today. Maryland v. Craig, 110 S.Ct. at 3170 (emphasis in original). The Supreme Court went on to say: In addition, however, the Court of Appeals interpreted our decision in Coy to impose two subsidiary requirements. First, the [C]ourt [of Appeals] held that “§ 9-102 ordinarily cannot be invoked unless the child witness initially is questioned (either in or outside the courtroom) in the defendant’s presence.” [316 Md.] at 566, 560 A.2d, at 1127 ; see also Wildermuth, 310 Md., at 523-524 , 530 A.2d, at 289 (personal observation by the judge should be the rule rather than the exception).

Second, the court asserted that, before using the one-way television procedure, a trial judge must determine whether a child would suffer “severe emotional distress” if he or she were to testify by two-way closed circuit television. 316 Md., at 567 , 560 A.2d, at 1128 . 110 S.Ct. at 3170 (emphasis in original). The Supreme Court observed: Reviewing the evidence presented to the trial court in support of the finding required under § 9-102(a)(l)(ii), the Court of Appeals determined that “the finding of necessity required to limit the defendant’s right of confrontation through invocation of § 9-102 ... was not made here.” [316 Md.] at 570-571, 560 A.2d, at 1129 . The Court of Appeals noted that the trial judge “had the benefit only ⁴²⁵ of expert testimony on the ability of the children to communicate; he did not question any of the children himself, nor did he observe any child’s behavior on the witness stand before making his ruling. He did not explore any alternatives to the use of one-way closed circuit television.” Id., at 568 , 560 A.2d, at 1128 (footnote omitted).

The Court of Appeals also observed that “the testimony in this case was not sharply focused on the effect of the defendant’s presence on the child witnesses.” Id., at 569 , 560 A.2d, at 1129 . Thus, the Court of Appeals concluded: “Unable to supplement the expert testimony by responses to questions put by him, or by his own observations of the children’s behavior in Craig’s presence, the judge made his § 9-102 finding in terms of what the experts had said. He ruled that ‘the testimony of each of these children in a courtroom will [result] in each child suffering serious emotional distress ... such that each of these children cannot reasonably communicate.’ He failed to find — indeed, on the evidence before him, could not have found — that this result would be the product of testimony in a courtroom in the defendant’s presence or outside the courtroom but in the defendant’s televised presence. That, however, is the finding of necessity required to limit the defendant’s right of confrontation through invocation of § 9-102.

Since that finding was not made here, and since the procedures we deem requisite to the valid use of § 9-102 were not followed, the judgment of the Court of Special Appeals must be reversed and the case remanded for a new trial.” Id., at 570-571, 560 A.2d, at 1129 (emphasis added). Maryland v. Craig, 110 S.Ct. at 3070-3071 . The Supreme Court stated: The Court of Appeals appears to have rested its conclusion at least in part on the trial court’s failure to observe the children’s behavior in the defendant’s presence and its failure to explore less restrictive alternatives to the use of the one-way closed circuit television procedure. See ⁴²⁶ [316 Md.] at 568-571, 560 A.2d, at 1128-1129 .

Although we think such evidentiary requirements could strengthen the grounds for use of protective measures, we decline to establish, as a matter of federal constitutional law, any such categorical evidentiary prerequisites for the use of the one-way television procedure. 110 S.Ct. at 3171 . The Court commented: The trial court in this case, for example, could well have found, on the basis of the expert testimony before it, that testimony by the child witnesses in the courtroom in the defendant’s presence “will result in [each] child suffering serious emotional distress such that the child cannot reasonably communicate,” § 9-102(a)(l)(ii). See [316 Md.] at 568-569, 560 A.2d, at 1128-1129 ; see also App. 22-25, 39, 41, 43, 44-45, 54-57. So long as a trial court makes such a case-specific finding of necessity, the Confrontation Clause does not prohibit a State from using a one-way closed circuit television procedure for the receipt of testimony by a child witness in a child abuse case. 110 S.Ct. at 3171 .

But, the Court opined: Because the Court of Appeals held that the trial court had not made the requisite finding of necessity under its interpretation of “the high threshold required by [Coy ] before § 9-102 may be invoked,” 316 Md., at 554-555 , 560 A.2d, at 1121 (footnote omitted), we cannot be certain whether the Court of Appeals would reach the same conclusion in light of the legal standard we establish today. 110 S.Ct. at 3171 . This led to the vacating of our judgment and the remand. As ordered by the Supreme Court, we have now assessed our opinion in Craig I in light of its Maryland v. Craig. D (1) The key to the Craig case is Wildermuth v. State, 310 Md. 496 , 530 A.2d 275 .

It was in Wildermuth that we first determined that face-to-face confrontation is not an abso ⁴²⁷ lute constitutional requirement. Id. at 518 , 530 A.2d 275 . We pointed out in that case that the type of confrontation permitted by § 9-102 can be constitutionally justified only upon a showing of witness unavailability- — -“that is, a degree of necessity that supports use of a procedure ... that would otherwise not satisfy the confrontation requirements.” 310 Md. at 520 , 530 A.2d 275 . We were content that if testimony in open court will result in the child witness’s suffering serious emotional distress, there is sufficient unavailability to satisfy the constitutional confrontation requirement.

Id. at 519 , 530 A.2d 275 . We turned to the statute, and particularly § 9-102(a)(l)(ii), to determine the legislative intent. We were , satisfied that the standard set by that subsection was that “ordinarily the judge should observe and question the child.” 310 Md. at 524 , 530 A.2d 275 . We opined: While personal observation by the judge may not be a sine qua non under § 9-102, it should be the rule rather than the exception.

Id. at 523-524, 530 A.2d 275 . We added that the statute calls for testimony about the likely impact on the particular child which shows “much more than mere nervousness or excitement or some reluctance to testify.” Id. at 524 , 530 A.2d 275 . We were of the view that there must be a case-specific finding upon a particularized examination of all the circumstances concerning the impact of public testimony in the presence of the defendant upon the emotional health of the child. Id. at 525 , 530 A.2d 275 .

We said: While the testimony need not be given in the precise words of the statute it must be clear that the statutory requirements are met in substance. Id. at 524 , 530 A.2d 275 . We warned: Testimony about the likely impact on the child testifying must be definite, related to the statutory standard and specific to the potential child witness him or herself. Id.

We concluded in Wildermuth that the statutory requirements were not met in substance. The trial judge “never ⁴²⁸ questioned or even observed the child witness before he made his ruling.” Id. at 523 , 530 A.2d 275 . He heard only-testimony from experts, and their testimony did not sufficiently relate to the requirement of § 9-102(a)(l)(ii) that testimony in the courtroom “will result in the child suffering serious emotional distress such that the child cannot reasonably communicate.” The testimony of one expert, we discovered, “related chiefly to young children in general, and at the most suggested that the child (or any child) would find it ‘hard to respond at all in the courtroom.’ ” Id. “But ‘hard to respond,’ ” we noted, “does not come close to ‘serious emotional distress such that the child cannot reasonably communicate.’ ” -Id. The testimony of the other expert was more specific, “[b]ut she, too, spoke to some extent in terms of all children as a group.” Id.

We warned: [A] judge’s subjective and self-justifying recollections of a child’s demeanor, absent support in the record, will not be enough to justify a finding that limits the right of confrontations. Id. at 524, 530 A.2d 275 . We held that the evidence in Wildermuth’s case was not enough. We reversed and remanded for further proceedings.

Id. at 525 , 530 A.2d 275 . (2) Craig’s trial followed a scenario like that of Wildermuth. The Circuit Court for Howard County heard only expert testimony as to whether § 9-102(a)(l)(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.

See Craig I [316 Md.] at 555, 560 A.2d 1120 . 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 ⁴²⁹ 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____ See id. at 555-556 , 560 A.2d 1120 . Our focus in Craig I , as it was in Wildermuth , 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.” 316 Md. at 563 , 560 A.2d 1120 . We pointed out that we held in Wildermuth that “ ‘[t]he degree of confrontation allowed by § 9-102 ... satisfies the constitutional requirements if there is compliance with subsection (a)(l)(ii) as a condition precedent to application of the statute.’ ” Craig I at 563 , 560 A.2d 1120 , quoting Wildermuth [310 Md.] at 520, 530 A.2d 275 .

The evidence at Craig’s trial was no more sufficient to show compliance with subsection (a)(l)(ii) than it was in Wildermuth’s trial. As was the case in Wildermuth , at Craig’s trial “[w]hen the trial judge made his § 9-102 determination, the finding that authorized the use of closed circuit television, he had the benefit only of expert testimony on the ability of the children to communicate; he did not question any of the children himself, nor did he observe any child’s behavior on the witness stand before making his ruling.” Craig I, 316 Md. at 568 , 560 A.2d 1120 . We pointed out that in Wildermuth we said that “testimony about the likely impact on the particular child must be specific and must show more than mere nervousness or excitement or some reluctance to testify.” 316 Md. at 569 , 560 A.2d 1120 , quoting Wildermuth, 310 Md. at 524 , 560 A.2d 1120 . We posited that it was even more critical that the particularized examination of all the circumstances must focus on the impact of public testimony in the presence of the defendant upon the emotional health of the child. 316 Md. at 569 , 560 A.2d 1120 .

Thus, the testimony at Craig’s trial, like the testimony at Wildermuth’s trial, did not, in substance, meet the standards of § 9-102(a)(l)(ii). It is for that reason that we again reverse the judgment of the ⁴³⁰ Court of Special Appeals and remand the case for a new trial. Ill Craig implores us not to be bound by the Supreme Court’s interpretation of the Confrontation Clause of the Sixth Amendment to the federal constitution in our interpretation of that clause in Article 21 of Maryland’s Declaration of Rights. 1 She urges that, as to Article 21, we follow Justice Scalia’s interpretation of the clause in his dissent in Maryland v. Craig. Justice Scalia posited: [T]hat the defendant should be confronted by the witnesses who appear at trial is not a preference “reflected” by the Confrontation Clause; it is a constitutional right unqualifiedly guaranteed. 110 S.Ct. at 3173 (Scalia, J., dissenting).

The two Confrontation Clauses are in pari materia. Moon v. State, 300 Md. 354, 359 , 478 A.2d 695 (1984), cert. denied, 469 U.S. 1207 , 105 S.Ct. 1170 , 84 L.Ed.2d 321 (1985). See Crawford v. State, 282 Md. 210, 211 , 383 A.2d 1097 (1978); State v. Collins, 265 Md. 70, 75 , 288 A.2d 163 (1972). With regard to the issue before us, we decline to construe the Confrontation Clause of Article 21 differently from the Supreme Court’s construction of the Confrontation Clause of the Sixth Amendment.

IV We have seen that in Wildermuth and Craig I we held that to invoke § 9-102 there must be a case-specific ⁴³¹ finding that testimony by the child in the courtroom in the presence of the defendant would result in the child suffering serious emotional distress such that the child could not reasonably communicate. 316 Md. at 564-565 , 560 A.2d 1120 . We thought that this was required by the statute and the Confrontation Clauses. The Supreme Court agreed that it was constitutionally required. Maryland v. Craig, 110 S.Ct. at 3170 .

But then, in Craig I , we added two subsidiary requirements: (1) § 9-102 ordinarily cannot be invoked unless the child witness initially is questioned (either inside or outside the courtroom) in the defendant’s presence, 316 Md. at 566 , 560 A.2d 1120 ; and (2) before using a one-way closed circuit television procedure, the judge must determine whether a child would suffer “severe emotional distress,” if the child were to testify by a two-way closed circuit television procedure, id. at 567 , 560 A.2d 1120 . The first subsidiary requirement had two parts: (a) the initial questioning of the child by the judge; and (b) the presence of the defendant at the questioning. We found in Wildermuth that (a) was required by § 9-102, but we did not focus on (b). In Craig I we focused on (b) as being constitutionally required under Coy .

The Supreme Court did not indicate that the child need never be preliminarily observed and questioned by the judge, but it “decline[d] to establish as a matter of federal constitutional law, any such categorical evidentiary prerequisites for the use of the one-way television procedure.” 110 S.Ct. at 3171 . The Supreme Court recognized, however, that “such evidentiary requirements could strengthen the grounds for use of protective measures____” Id. We do not think that the two subsidiary requirements should be jettisoned. We think that they should be preserved, not