Lead Opinion
Joyce Cope was convicted of raping her two daughters. One was 6 and the other was 12 years old. Mrs. Cope was sentenced to 40 years imprisonment on each count, to be served consecutively. On appeal she claims she did not voluntarily confess, the court erred in permitting a videotape of her daughters’ testimony to be used and there was insufficient evidence of the two raрes. We find no error and affirm the judgment.
First, we consider the questions raised regarding her confession. Her main argument is that she did not knowingly and intelligently waive her rights. The rights form which Cope signed is identical to that in Fleming v. Statе,
Do you understand that you may waive the right to advice of counsel and your right to remain silent, and you may answer questions or mаke a statement without consulting a lawyer if you so desire?
Fleming criticized the use of such a form and we stated:
We strongly feel that a form used to support the state’s contention that an accused knew and waived his rights should contain express language to that effect.
Regardless of our statement in Fleming, the law is clear that the failure to obtain an explicit waiver of rights does not necessarily preclude a voluntary confession.
In North Carolina v. Butler,
Ten of thе eleven United States Courts of Appeals and the courts of at least 17 States have held that an explicit statement of waiver is not invariably necessary to support a finding that the defendant wаived the right to remain silent or the right to counsel guaranteed by the Miranda case. By creating an inflexible rule that no implicit waiver can ever suffice, the North Carolina Supreme Court has gone bеyond the requirements of federal organic law. It follows that its judgment cannot stand, since a state court can neither add to nor subtract from the mandates of the United States Constitution.
Our recent decision in Duncan v. State,
The appellant makes two other arguments about her confession. First, she says the judge did not properly consider her vulnerability in determining her confession was admissible. See State v. Graham,
Second, it is argued her confession was coerced because she did not “knowingly, voluntarily, and intelligently” confess. During the Denno hearing, Cope stated, after the polygraph test, she did not know what it meant to waive her rights. She said Officer Beall told her that Ray (her husband) “wasn’t going to take all the blame for what had been going on.” See Cope v. State,
The trial judge was undоubtedly influenced in his decision by the demeanor of the witnesses. It was his responsibility to determine which witness was credible. Duncan v. State, supra. We cannot say the trial judge was clearly wrong in finding that appеllant understood her rights and knowingly and intelligently waived them in making her voluntary statement. Considering the totality of the circumstances, we find the confession voluntary. Duncan v. State, supra.
Appellant argues it was error for the trial judge to allow the state to use videotapes of the two daughters’ testimony rather than requiring them to be present at trial. If “good cause” is shown, such a procedure is permissible. Ark. Stat. Ann. § 43-2036 (Supp. 1985).
A social worker, who had worked with the children, testified that it would be in the best interest of the children, who had been subjected to considerable abuse, to allow them to testify before a small grоup rather than at trial. She testified that if the girls thought there were several people present who knew what had happened to them, it would “embarrass them and upset them.” Significantly, she testified that whеn the girls talked about being abused, their therapy suffered, their attitude and behavior regressed, and their sexual acting out increased. The girls were placed in separate foster homes to prevent them from acting out sexually with each other. The social worker thought it would be less harmful for the girls to testify before as few people as possible.
In McGuire v. State,
Many factors can and should be considered in determining what is good cause. The circumstances surrounding the offense, the child’s age, and the potential harm to the child would be a few of these factors.
The trial judge made a finding of good cause, and, in view of the girls’ ages, the sexual abuse they had endured, and the social worker’s testimony, we cannot say he abused his discretion.
Finally, the appellant argues that the evidence was not sufficient to support the convictions for the two rapes. Both daughters explained in detail how their mother penetrated their sexual organs with her fingers and foreign objects. While there were inconsistencies in their testimony, these were for the jury to resolve. Ellis v. State,
The aрpellant also contends that the evidence was insufficient to support the conviction of the rape of her younger daughter, because the daughter’s testimony was not corroboratеd. Corroboration is not required. Cope v. State, supra.
Affirmed.
Dissenting Opinion
dissenting. I do not believe the appellant’s confession was voluntarily given because the record discloses that she did not knowingly and intelligently wаive her Fifth Amendment right to remain silent. She was tricked into making the inculpatory statement by an expert. I do not rely entirely on the lack of an express waiver in the rights form as the basis for this dissent. The majority cоrrectly holds that it is not an absolute requirement that a waiver be written or expressed. Without a doubt a proper written waiver would be most helpful. I can think of no valid reason why the state police should not use a proper form in such matters. Several years after the statement in Fleming v. State,
The appellant was thirty-seven years of age and had not completed high school, although she had twiсe tried to obtain a GED. This was her first encounter ever with the law. She had been held in jail overnight before being hooked up to a polygraph machine for testing. The results of the test, even if incriminating, would not have been admissible. After completing the test and finding it to be inconclusive, the officer did not reveal the results to her, but rather told her that her husband had been man enough to give a written statement and сome clean about the matter and she ought to do likewise. The officer admitted it was routine to act disappointed if the tests were inconclusive. This gives him a psychological advantage, especially over uneducated and inexperienced persons. He stated his purpose well when he said, “I felt it was my job to get that statement from her that day.” When it is considered that her husband hаd confessed and in doing so had exonerated her, and she had previously maintained her innocence, it becomes clear that the police had overreached their authority in ordеr to obtain the written confession. A confession was the state’s only hope at this point of the case.
The court allowed videotaped depositions upon the word of a social worker that she felt it would always be easier for children to testify by videotape; No doubt it would. The same statement would apply to about ninety-nine percent of all witnesses. There was no reasоn given other than it was in the best interests of the children. “Many factors can and should be considered in determining what is good cause” to take video depositions. McGuire v. State,
I would remand for a new trial.