119 N.C. App. 654
N.C. Ct. App.
1995

Lead Opinion

JOHNSON, Judge.

On 17 Sеptember 1993, two juvenile petitions were filed pursuant to North Carolina General Statutes § 7A-517(12) (Cum. Supp. 1994) alleging that defendant Johnny Stradford committed one count of *655first degree rape and one count of first degree sex offense against A., a six-year-old minor child, and one count of first degree rape аnd one count of first degree sex offense against B., a seven-year-old minor child.

The evidence at the adjudicatory hearing showed the following: A. testified that defendant, who was her babysitter, took her into a bathroom, made her lie down on the floor, and put “his thing that he pees with” in her. B. testified that defendant tоok her to a bathroom, pulled down her skirt, and put his “private” in hers. B. also observed defendant doing something to A. under the bed covers.

On approximately 3 August 1993, the girls told their stepmother, Sonya Stansbury, what defendant had done to them. B. was hesitant to talk about what had happened, and cried and became withdrаwn as she told her stepmother about the incident. The day after the girls told their stepmother about the abuse, Ms. Stansbury contacted Dr. Lucy Downey, a pediatrician at Haywood Pediatrics.

After being qualified as an expert witness, Dr. Downey testified that she performed vaginal and rectal examinations on bоth girls. Dr. Downey found B.’s vaginal examination to be abnormal. B.’s anal opening was also irregular. Based on her examination, Dr. Downey was of the opinion that B.’s vagina and anus had been penetrated. Although sexual abuse was not confirmed, the findings were consistent with sexual contact, including penetration. The findings were also consistent with the history received from Ms. Stansbury. A.’s vaginal exam was also abnormal and indicated the possibility of sexual contact. Dr. Downey was unable to perform a thorough rectal examination of A. Dr. Downey was unable to form an opinion whether penetration of A.’s vagina and anus had occurred.

A Mecklenburg County Child Protective Services worker, Joy Burris, testified that on 9 June 1993, she responded to a call to investigate unsupervised children at the Cricket Inn on Nations Ford Road. Upon arriving at the Cricket Inn, Ms. Burris discovered five children, including A. and B., in a room attended by fifteen year old Itreon Stradford. That аfternoon, Ms. Burris spoke to A. and B. who told her that their babysitters were Itreon and defendant, who had been caring for them for a couple of days. The girls also told Ms. Burris that Itreon and defendant were living in the hotel room.

Officer Donna Browning, a member of the Youth Bureau Investigations unit of the Charlotte Police Deрartment, testified that *656she became involved in the case when the Department of Social Services made a referral. Officer Browning assisted Ms. Burris in a criminal investigation of the child neglect of A., B., and another child. As part of the investigation' Officer Browning interviewed defendant; Officer Browning testified that she asked defendant if he was playing around with A. and B., “and he replied the boys were playing with [A. and B.] by pulling down their panties before.” He also indicated that he had babysat the children for “about a month.” Defendant denied touching either girl’s private parts, and denied putting his penis into either girl’s private parts. Defendant alsо denied that anyone else had touched the girls.

Defendant was adjudicated delinquent on two counts of first degree rape. Two counts ‍‌‌‌‌‌​​‌‌​‌‌​‌‌​​‌‌‌‌‌‌‌​‌‌‌‌‌‌​‌​​​‌‌‌‌‌‌​‌​‌‌​‍of first degree sexual assault were dismissed. Defendant has appealed to our Court.

Defendant first argues on appeal that the trial court had no authority to аuthorize a procedure where the complainant testified out of .the presence of defendant. Prior to the hearing, the State had moved that the trial court permit A. and B. to testify via a closed circuit television due to the girls’ probable inability to communicate if forced to testify in defendant’s presence. Following an evidentiary hearing on the motion, the trial court granted the State’s motion. Defendant argues that there is no express or implied authority for the trial court to employ the procedure used in the instant case, namely, remote testimony. Citing North Carolina General Statutes § 7A-629 (1989) (juvеnile adjudications to be conducted in open court) and North Carolina General Statues § 15-166 (1983) (defendant may not be excluded from closed courtroom), defendant argues that “[t]he proper place for a debate on the advantages, disadvantages, and [guidelines] for remote testimony is in thе legislative chamber. As a matter of state constitutional law, and public policy, the trial court exceeded its authority in making the determination here that such a procedure be followed in this case.” Defendant also makes an argument that the remote testimony procedure denied defendant his state and federal rights to confront the witness against him.

The State argues that pursuant to North Carolina General Statutes § 8C-1, Rule 611(a) (1992), the court is authorized to “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to . . . make the interrogation and presentation effective for the ascertainment of the truth. ...” Noting that our courts have systematically recognized that special *657exceptions to general courtroom procedures are often required to more effectively question child witnesses in sexual abuse сases, e.g., State v. Stanley, 310 N.C. 353, 312 S.E.2d 482 (1984) and State v. Brice, 320 N.C. 119, 357 S.E.2d 353 (1987), the State argues that the trial court had absolute authority to authorize the remote testimony of the child witnesses. The State notes that other states have statutory law allowing this procedure. The State also argues that examination of the child witnesses out of defendant’s physical presеnce did not abridge defendant’s federal or state constitutional right to confront the witnesses against him. The State submits that Maryland v. Craig, 497 U.S. 836, 111 L.Ed.2d 666 (1990) addressed this precise issue.

In Maryland v. Craig, the Supreme Court addressed the constitutionality of a Maryland statute which allowed a child victim in a sexual abuse case to testify outside of the defendant’s presence by a one-wаy closed circuit television. The Court reasoned that this was proper:

[W]here necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child’s ability to communicate, the Confrontatiоn Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation. Becаuse there is no dispute that the child witnesses in this case testified under oath, were subject to full cross-examination, and were able to be observed by the judge, jury, and defendant as they testified, we conclude that, to the extent that a proper finding of necessity has been made, the admission of such testimony wоuld be consonant with the Confrontation Clause.

Craig, 497 U.S. at 857, 111 L.Ed.2d at 686. The Craig Court went on to state that before this type of testimony will be allowed, the following must be met:

The trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfаre of the particular child witness who seeks to testify. The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. . . . Finally, the trial court must find that *658the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, ‍‌‌‌‌‌​​‌‌​‌‌​‌‌​​‌‌‌‌‌‌‌​‌‌‌‌‌‌​‌​​​‌‌‌‌‌‌​‌​‌‌​‍i.e., more than “mere nervousness or excitement or some reluctance to testify[.]” (Citations omitted.)

Id. at 855-56, 111 L.Ed.2d at 685. Defendant, while recognizing Craig v. Maryland, asserts that “[o]ur state constitutional right to confront one’s accusers is broader than the corresponding right under the Sixth Amendment to the U.S. Constitution.” Defendant cites State v. Moss, 332 N.C. 65, 73-74, 418 S.E.2d 213, 218 (1992) (quoting State v. Blackwelder, 61 N.C. 38, 40 (1866) (our confrontation right is a right which “ought to be kept fоrever sacred and inviolate”) and State v. Moore, 275 N.C. 198, 208, 166 S.E.2d 652, 659 (1969) (our confrontation clause requires “that the witness must be present before the triers of fact and the accused so that they are ‘put face to face’ ”) in making this argument.

Although this particular issue of remote testimony has not been previously addressed in our statе, we find State v. Jones, 89 N.C. App. 584, 367 S.E.2d 139 (1988) instructive. In Jones, an expert witness testified that the child victim in a sexual abuse case exhibited an intense fear of the defendant and could suffer emotional harm if forced to testify in his presence. The trial judge ordered the defendant excluded from the courtroom during the questioning of the child. The defendant was ablе to view the child and hear her responses by one-way closed circuit television, and the defense attorney, who was in the courtroom with the child, was allowed to cross-examine the child and confer with the defendant, who was in the judge’s chambers. Our Court held on appeal that the defendant’s exclusiоn from the courtroom did not violate his constitutional right to confront the witnesses against him. The Court reasoned that “the trial court’s use of a closed circuit television and its act of providing defendant and his attorney adequate opportunity to communicate during the victim’s testimony, were sufficient to pеrmit defendant to hear the evidence and refute it.” Id. at 588, 367 S.E.2d at 142.

We believe, on the facts of the instant case, the trial court properly authorized the remote testimony of the child witnesses. We believe that “despite the absence of face-to-face confrontation . . . [the remote testimony рreserved] the essence of effective communication.” We note, in the instant case, that the child witnesses testified under oath, were subject to full cross-examination, and were able to be observed by the judge and defend*659ant as they testified. As such, and on these facts, we believe the trial court properly exercised its discretion in authorizing this method of testifying, and did not deny defendant his state and federal rights to confront the witnesses against him.

Alternatively, defendant argues that the trial court’s findings were insufficient under both the federal and state constitutions in that the court’s finding that the children would be traumatized by defendant was without proper evidentiary support. Wе have reviewed the testimony presented at the adjudicatory hearing from Rita Newkirk, the girls’ clinical therapist. Based on Ms. Newkirk’s training and experience, and her therapy sessions with A. and B, Ms. Newkirk testified that it would be “further traumatizing” if A. and B. were subject to face-to-face confrontations with defendant. We find, after reviewing Ms. Newkirk’s entire testimony, that her testimony provided adequate support for the trial court’s decision to authorize the use of remote testimony. .

Finally, defendant argues that the trial court erred in not disclosing to defendant material collected ‍‌‌‌‌‌​​‌‌​‌‌​‌‌​​‌‌‌‌‌‌‌​‌‌‌‌‌‌​‌​​​‌‌‌‌‌‌​‌​‌‌​‍on the child witnesses by the Department of Social Services. The trial court conducted an in camera review of these records and found that there was nothing therein which defendant was entitled to use to defend himself. Defendant requests that our Court review these sealed documents. See State v. Phillips, 328 N.C. 1, 399 S.E.2d 293, cert. denied, 501 U.S. 1208, 115 L.Ed.2d 977 (1991). We have reviewed those sealed documents and have found no documents of material benefit to defendant. This argument is overruled.

No error.

Judge MARTIN, JOHN C. concurs. Judge GREENE concurs with separate opinion.



Concurrence Opinion

Judge GREENE

concurring

Although I join the majority opinion, I write separately because I believe there are two issues that deserve some elaboration. Those issues are: (I) whether, in the absence of a statute, a trial court has the authority to permit a child witness tо testify via closed circuit television; and if so, (II) whether the use of such procedure violates the defendant’s state constitutional right to confront his accusers.

*660I

In North Carolina, contrary to the situation that existed in Maryland at the time of Maryland v. Craig, 497 U.S. 836, 111 L. Ed. 2d 666 (1990), there does not exist a specific statute that authorizes the triаl judge to permit the use of closed circuit television to present the testimony of a child witness. North Carolina is in the minority in this respect as at least thirty-four states have, like Maryland, adopted statutes permitting the use of closed circuit television in this instance. National Center for Prosecution of Child Abuse, Lеgislation Regarding the Use of Closed Circuit Television Testimony in Criminal Child Abuse Proceedings (1994). The defendant therefore argues that the trial court exceeded its authority in permitting the state to present the testimony of the child witness via closed circuit television. I disagree.

Although there is no specific statute on рoint, the legislature has provided that the trial court is to “exercise reasonable control over the mode ... of interrogating witnesses and presenting evidence so as to . . . protect witnesses from harassment or undue embarrassment.” N.C.G.S. § 8C-1, Rule 611(a) (1992). This statutory language is sufficiently broad to vest the trial court with thе discretion to permit a party to utilize closed circuit television for the presentation of the testimony of a child witness. In any event, it would appear that the use of this procedure is within the inherent power of the trial court and indeed, courts in other states have so held. See In re Mental Health Center, 42 N.C. App. 292, 296, 256 S.E. 2d 818, 821 (court has inherent pоwer to take action necessary to “fulfill their ‍‌‌‌‌‌​​‌‌​‌‌​‌‌​​‌‌‌‌‌‌‌​‌‌‌‌‌‌​‌​​​‌‌‌‌‌‌​‌​‌‌​‍assigned mission of administering justice efficiently and promptly”), disc. rev. denied, 298 N.C. 297, 259 S.E.2d 298 (1979); see also In Re Will of Hester, 320 N.C. 738, 741, 360 S.E.2d 801, 804 (defining inherent power to include “board discretionary power sufficient to meet the circumstances of each case”), reh’g denied, 321 N.C. 300, 362 S.E.2d 780 (1987); HicksBey v. United States, 649 A.2d 569, 574-75 (D.C. App. 1994) (trial court had inherent authority to permit a child sex abuse victim to testify via closed circuit television).

II

The North Carolina Constitution provides that a person charged in a criminal prosecution has the right “to confront the accusers and witnesses with other testimony.” N.C. Const, art. I, § 23. The defendant argues that this language grants him greater rights than the Court *661in Maryland v. Craig granted under the Confrontation Clаuse of the Sixth Amendment to the U.S. Constitution. I disagree.

The Sixth Amendment provides that the accused in a criminal prosecution has the “right to be confronted with the witnesses against him.” The language in both instruments is similar. Nonetheless, “we have the authority to construe our own constitution differently from the construction by the United States Supreme Court of the Federal Constitution, as long as our citizens are thereby accorded no lesser rights than they are guaranteed by the parallel federal provision.” State v. Carter, 322 N.C. 709, 713, 370 S.E.2d 553, 555 (1988). Therefore, it does not necessarily follow that Article I, § 23 must be construed to mean that “a defendant’s right to confront acсusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial.” Craig, 497 U.S. at 850, 111 L. Ed. 2d at 682. That construction, however, is proper and indeed consistent with previous opinions from this Court and our Supreme Court permitting the use of hearsay testimony in criminal trials where the defendant was denied thе right to a face-to-face confrontation with the person making the out-of-court statement. E.g., State v. Deanes, 323 N.C. 508, 525, 374 S.E.2d 249, 260 (1988), cert. denied, 490 U.S. 1101, 104 L. Ed. 2d 1009 (1989); State v. Rogers, 109 N.C. App. 491, 499, 428 S.E.2d 220, 225, disc. rev. denied, 334 N.C. 625, 435 S.E.2d 348 (1993), cert. denied, — U.S. -, 128 L. Ed. 2d 54, reh’g denied, - U.S. -, 128 L. Ed. 2d 495 (1994). To construe Article I, § 23 otherwise would “prohibit the admission of any accusatory hearsay statement made by an absent declarant — a declarant who is undoubtedly as much a ‘witness against’ a defendant as one who actually testifies at trial.” Craig, 497 U.S. at 849, 111 L. Ed. 2d at 680-81. Accordingly, the construction placed on the ‍‌‌‌‌‌​​‌‌​‌‌​‌‌​​‌‌‌‌‌‌‌​‌‌‌‌‌‌​‌​​​‌‌‌‌‌‌​‌​‌‌​‍Sixth Amendment Confrontation Clause in the Craig decision is equally applicable to the Confrontation Clause of Article I, § 23 of the North Carolina Constitution. See State v. Moore, 275 N.C. 198, 208, 166 S.E.2d 652, 659 (1969) (provisions are similar and grant “accused [the] same protection”).