Joseph Altiro Turner v. Commonwealth of Virginia
758 S.E.2d 81
Va. Ct. App.2014Background
- Turner was convicted in Norfolk Circuit Court on three counts of aggravated sexual battery under Code § 18.2-67.3(A)(1) after a bench trial and sentenced to 30 years with 17 suspended.
- CM, the child victim, testified and, due to trauma, portions of her testimony were written rather than spoken at trial.
- The Commonwealth sought to admit written portions of CM’s testimony and presented Portnoy, a clinical social worker, as an expert on child trauma.
- The trial court allowed writing portions with conditioning steps to observe CM's oral responses first and then read the written portions to the jury.
- CM testified about three separate incidents involving Turner, each involving the same general pattern, and the court allowed the written responses to be entered and read.
- Appellant timely appealed challenging the constitutionality of the writing portions under the Confrontation Clause and contending Code § 18.2-67.9 required a different procedure; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Confrontation Clause: does writing portions of testimony violate Sixth Amendment right to observe demeanor? | Turner argues CM’s writing prevented observing demeanor. | Turner contends writing limits cross-examination and demeanor assessment. | No violation; demeanor observation preserved; cross-examination adequate. |
| Applicability of Code § 18.2-67.9 to allow writing testimony | Statute requires closed-circuit procedure when applicable. | Statute inapplicable because CM testified openly and discretion lies with court. | Statute inapplicable; court did not err in allowing writing portions. |
Key Cases Cited
- Coy v. Iowa, 487 U.S. 1012 (1988) (face-to-face confrontation not required in every setting; demeanor viewed via trial safeguards)
- Mattox v. United States, 156 U.S. 237 (1895) (demeanor evidence weight, not admissibility; cross-examination fosters reliability)
- Delaware v. Fensterer, 474 U.S. 15 (1985) (Confrontation requires opportunity to cross-examine, not perfect view of demeanor)
- Craig v. United States, 497 U.S. 836 (1990) (Confrontation safeguards for child witnesses; demeanor viewed when possible)
- Williams v. Commonwealth, 49 Va. App. 439 (2007) (principles for evaluating evidence in Virginia appeals; standard is favorable to Commonwealth)
- Crawford v. Commonwealth, 281 Va. 84 (2011) (Confrontation Clause analysis in Virginia context)
- Small v. Fannie Mae, 286 Va. 119 (2013) (discretionary authority where statute uses 'may')