Shipman v. StateShipman v. State
- Reporters:
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- Before:
- Brett
Lead Opinion
OPINION
BRETT, Judge:Appellant, John Earl Shipman Jr., was tried by a jury for three counts of Lewd Molestation, in violation of
On or about March 25, 1984, appellant moved into the Simpson residence at the request of Mr. Simpson, who was in the hospital recovering from a heart attаck. During the time that the appellant was at the Simpson residence, numerous other people were also living there. At trial, several of these people testified that appellаnt had molested three and one half year old H.H. on various occasions during his stay. The testimony at trial was largely, confusing and contradictory. Several witness’s versions of the events changed from the рreliminary hearing to the trial and some witnesses who supposedly had seen the same incident gave considerably different stories of what they had seen. One witness originally claimed that someone other than the appellant had molested H.H. In addition, the child’s mother testified that H.H. had indicated that someone other than the appellant had molested her. Officer Pittman testified that when she was сalled to investigate, someone other than the appellant was claimed to have molested the child.
Appellant raises for our consideration eight assignments of error. However, insоfar as we have found his second assignment of error to be grounds for reversal, we decline to address the remaining allegations.
Pursuant to
The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confrontеd with the witnesses against him.” The Supreme Court has stated that “it is the literal right to ‘confront’ the witnesses at the time of trial that forms the core of the values furthered by the Confrontation Clause.” California v. Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 1934-35, 26 L.Ed.2d 489 (1970). However, the Supreme Court has not held that criminal defendants are guaranteed an absolute right to confront witnesses against them at trial. Under the proper circumstances, the rights conferred by the Confrontation Clаuse may be outweighed by other important interests. Specifically, the Court has concluded that “a State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court.” Maryland v. Craig, 497 U.S.-, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). See also Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). Both Craig and Coy involved statutorily authorized procedures where criminal defendants were prohibited frоm directly confronting the witnesses against them in court.
The statutory provision at issue in Coy allowed a screen to be positioned between the witnesses, two thirteen-year-old girls, and the defendant. This screen allowed the defendant to see and hear the witnesses, but prevented the witnesses from seeing the defendant. The Supreme Court’s primary concern with the Iowa statute was that it created a presumption that the child witnesses would be traumatized by testifying in Court. “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 [to the Confrontation Clause].” Coy, 487 U.S. at 1021, 108 S.Ct. at 2803.
*574The Supreme Court addressed this issue again in Craig. The Maryland statute involved in that case provides that testimony of a child victim can be taken outside the courtroom and shown to the jury in cоurt by means of closed circuit television. However, the statute only authorizes this procedure when “[t]he judge determines that testimony by the child victim in the courtroom will result in the child suffering serious emotional distrеss such that the child cannot reasonably communicate.” Md.Cts. & Jud.Proc.Code Ann. § 9-102(a)(l)(ii). The Supreme Court upheld this statutory procedure as valid finding that:
[I]f the State makes an adequate showing of necessity, thе state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases tо testify at trial against a defendant in the absence of face-to-face confrontation with the defendant.
Craig, 497 U.S. at-, 110 S.Ct. at 3169.
The Oklahoma statute in question,
In Craig, the Supreme Court set forth three requirements that a trial judge must follow in order to make the requisite finding of necessity which precedes the application of special procedures such as those provided for in
The Court also indicated that althоugh the special procedure is used, other measures should be taken to ensure “the reliability of the evidence by subjecting it to rigorous adversarial testing ... thereby preserv[ing] the essence of effective confrontation.” Craig, 497 U.S. at-, 110 S.Ct. at 3170. The Court found it significant in Craig that “Maryland’s procedure preserves all of the other elements of the confrontation right: the child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view ... the demeanor of the witness as he or she testifies.” Id. 497 U.S. at-, 110 S.Ct. at 3166, 3170. Although
In the present case, the trial court, contrary tо the requirements set forth in Craig and Coy, held no hearing to determine whether the video taped testimony was necessary to protect the child from being traumatized. Further, the video taped testimony was allowеd into evidence despite the fact that the child had been found incompetent to testify and was not able to give an oath. Accordingly, we find that
Insofar as we have found that the appellant was denied his rights under the Confrontation Clause, we must next determine whethеr this violation constituted harmless error. An assessment of harmless error must be made by looking at all of the testimony, save that of the child, that was heard at trial. See Coy, 487 U.S. at 1021, 108 S.Ct. at 2803. The Supreme Court held in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), that where there is constitutional error, if the рrosecution can prove beyond a reasonable doubt that the error did not contribute to the verdict, the conviction may stand.
The State has not argued that any constitutional error in this case would be harmless, nor could we find it to be so even if they had. As our recitation of the facts indicates, a large part of the testimony at trial was confused and contradictory. Witnesses gave varying accounts of what had happened. The child’s mother even testified that the child had not been consistent in her description of events that transpired. Because it is not clear that the jurors would have found the appellant guilty even in the absence of the video taped testimony, we cannot find that this error was harmless.
In light of the foregoing, we cannot find that
Concurrence Opinion
Specially Concurring.
I concur in the Court’s decision in this сase and agree that