State v. Conklin

adults, consenting and substantive formed See, difficult task. admittedly a

fairness— Button, 131 Wisc.2d at e.g., Button N.W.2d at 551.8

Accordingly, although provi- hold the we agreement antenuptial be-

sions of parties purporting these to allocate

tween property of on dissolu- marital

distribution invalid, void, or unenforceable

tion was law, matter we remand to

as court for a review the substan-

district time of execu- fairness as of the

tive

tion, further, necessary, if as of of the enforcement.9

time Minnesota, Respondent,

STATE CONKLIN, Appellant.

Russell Duane

No. C5-88-545.

Supreme Court of Minnesota.

Aug. 18, 1989.

Rehearing Denied Oct. analysis, argued orally making parties briefed and 8. When such an we caution 9. The before agreement premarital the trial court that a need propriety post this court the of a trial award of suggested approximate by proper- not ty a division attorney trial issue fees court. This probate division statutes in either petition for raised in neither Lance’s review, further or in the law in order code marital to meet Mary’s response. See nor Minn.R. Indeed, requirement of substantive fairness. Therefore, 3(a). App.P. ordinarily we goals, primary purpose, one of the if not the However, would not address it. the court of antenuptial agreement state-pre- is to alter appeals trial remanded this issue to the court. property rights scribed which otherwise McKee-Johnson, 429 N.W.2d at 695. Inasmuch marriage. parties arise on dissolution If the to the as we likewise remand the case premarital agreement are to a provided limited to state court, upon should ad- remand trial court divisions, they property would be de- attorney employment fee dress the issue prived of their to contract to divide analysis similar to the substantive fairness Lindey, property they their wish. See A. relating disposition property. to the review Parley, Lindey Separation Agreements L.I. Contracts, Antenuptial 90-31

KEITH, Justice. presents question case difficult under what circumstances a defendant in a child sexual abuse case can be removed room violating child abuse victim without the de- fendant’s constitutional to confront testify against the witnesses him. Appellant Russell Duane Conklin was convicted of one crimi- degree count first conduct, 609.342, nal sexual Minn.Stat. § 1(g) (1988) subd. and one count of second degree criminal sexual conduct 1(a) (1988) and subd. was sentenced to 43 months in the Minnesota Correctional Facil- ity at Hé acquitted Stillwater. of one count of criminal other sexual conduct degree, the second Minn.Stat. § l(h)(v) (1988) (multiple acts commit- time). period ted over an' extended 4-year-old involving sexual abuse daughter, L.C., occurred sometime between February 22, December 1986 and dur- day long once a week visits R.C., brother, 7-year-old L.C. and her appellant’s apartment. R.C. L.C. do appellant, not live with but rather have under foster care been of Diane and shortly Harold Schroedl since after L.C. appel- born. contacts with through the lant were scheduled visita- purpose tions. The the visits was to (cid:127) appellant gradually reconcile with his chil- dren, process resulted in reuniting family sometime in mid-1987. expressed The Schroedls some concern had plan reunite with the children, and on earlier occasions had in- adopting quired about the children them- Jones, Defender, C. Paul State Public selves, having or other of their members Colbert, Middlebrook, Cathryn Bradford family adopt and R.C. L.C. Defenders, Minneapolis, Asst. State Public appellant. suggestions for The first of the existence of Tuesday, sexual abuse occurred Febru- Atty., Foley, Ramsey County Tom Steven sore, ary appeared to be DeCoster, Paul, County St. Atty., C. Asst. vaginal in her and had uncomfortable area respondent. for appeared weeks. uncomfortable several III, Atty. Gen., Humphrey, Hubert H. foster Diane asked Her mother Schroedl Gen., Paul Kempainen, Atty. R. Asst. St. there, if anyone her had hurt her and L.C. Paul, for curiae. amicus Big calls appellant, told who she Russ, there, “punched” and had “peter.” her his She demonstrated showed fist, punching with a motion closed Big had, answered that Russ and that it occurred while she was claimed that apartment. touching not like occurred appellant’s did it. the toilet at finger. the bathroom and he used his She Diane took L.C. and R.C. Schroedl touching had her. L.C. said hurt day, next County Anoka Courthouse the appellant eaten her also said that had 25, they spoke Feb. where with Lonnie “pee” with mouth. She further claimed his Payne, investigator an in sexual abuse that he drank her urine which he collected Department. Payne unit Sheriffs glass in a while she was the toilet. R.C. conversation, L.C., taping interviewed present during not these last incidents. was Appellant later R.C. was interviewed mother, 3, 1987, Schroedl, tes- Diane L.C.’s foster subsequently arrested. On March signs tified that exhibited of discom- L.C. was interviewed and examined Dr. L.C. 1,1987; Carolyn Levitt, pediatrician experienced beginning she February a fort about for examining itchy vaginal in children sexual abuse. sore and in her area. On was tape videotaped, February 24, being and the The interview was L.C. told Schroedl of later into at trial and “punched” by Big was entered there” Russ with “down jury. shown was a closed fist. After her with interview Payne February again Lonnie L.C. August 18, hearing a On was held had things told Schroedl the same she said competent found to testi- at which L.C. was before, day but added the account of competency fy. Immediately after drinking July, appellant her be- urine. hearing, taken and L.C.’s was hearing, fore a scheduled L.C. told Schroedl videotaped permitted for use at trial as story except again, her for “word word” 4(a) (1988). Dur- Minn.Stat. adding eating part appellant new about testimony, granted her the court “poop.” her She demonstrated a closed appellant state’s motion to remove urine, punch, again spoke drinking fisted the room. He the remainder of watched supposed and said that she to tell was in an- L.C.’s via video monitor anyone. room. other Carolyn Levitt, pediatrician, Dr. testi- September On a Rasmussen during L.C., fied her examination of hearing was held and court ruled that she touched on the and asked if L.C. clitoris hearsay made statements L.C. to her anyone had touched her there. L.C. ever mother, foster to Lonnie and to Payne Dr. responded appellant her touched there Levitt would be admissible at trial under finger his and mouth. with Dr. Levitt also Minn.Stat. subd. 3 opening touched anal and L.C. said she videotaped with interview Dr. Levitt was had not been touched Dr. there. Levitt ruled admissible under that statute and opinion, 803(4) (statements testified that her L.C. was Minn.R.Evid. abused; penetrated. vagina her was Her physician diagnostic purposes). for hymen examination indicated trial, Payne, At De- Lonnie the Sheriff’s was “narrowed” and “thinned out.” The investigator, partment testified to state- opening larger than she was used to ments made L.C. her initial inter- seeing in age, children that which could at the her of view courthouse. L.C. told by the have been caused insertion of some- appellant “pe- incident where showed his thing, object finger. such size of apartment, ter” to her and R.C. in his examination, cross On she admitted the Payne children it. both touched asked L.C. symptoms she noted can also L.C. penis if had she smelled the and L.C. girls vaginitis. found in had sponded Payne had. that she L.C. told she anyone videotaped told not to tell the inci- Dr. Levitt’s interview L.C. Payne dent. also testified that played when she was admitted into evidence and for R.C., any interviewed he jury. tape denied that of this On the Dr. asked Levitt happened. Payne being way had ever Lonnie if she remembered touched in a anyone responded asked L.C. “if didn’t ever touched her she like. L.C. that her pee that want vaginal she didn’t them to.” L.C. father had touched in the area finger causing pain. his She also said that him exclude from the room while L.C. clothes, appellant pulled down her and then testified, and the use at trial of out-of-court “pee” glass, drank her from a and had statements L.C. had made to foster her “peter.” his showed her mother, Levitt, Payne Lonnie and Dr. all of which he claims violated to con- previously videotaped trial testimo- against ny played jury. front the witness him. was also for the On the We ordered tape said never accelerated review of case. We re- there, the bathroom when she was and that appellant’s verse conviction remand he never took off his clothes front of a new trial. clothing. She removed did not know question, 1. The statute in Minn.Stat. was, “peter” what a and she had never 4(c) (1988)permits subd. testi- § telling smelled She remembered one. her mony age of a child witness who is under “pee” hurt, foster mother that her taken to be outside the why, could remember and she not did in defendant certain provides: instances. It telling Big remember her that Russ had permit The court shall in telling touched her there. She remembered a criminal or delinquency matter to ob- Big her mother visit to foster about a Russ’ apartment, testimony but could not remember serve and hear the child what it, happened court, she said or what at person. upon about in If the its own apartment. She said that she was not any motion or the motion of deter- party, Big afraid of Russ and denied that he ever mines of the defendant keep quiet anything. told her to about during testimony pursuant taken to this psychologically subdivision would trau- videotaped testimony, point At this as to room, matize witness so render the defendant was removed from the jury testify, and witness unavailable the court this fact was noted to the prosecution during testimony the actual trial. L.C. order that the be taken still could not name male or female sex a manner that: organs anatomically when shown an cor- (1) the see and defendant can hear anyone rect doll. She denied that had person of the child com- punched being her. She remembered sore counsel, with can- municate but the child why. when she urinated but did not know defendant; not see or hear the However, finally Big state she did (2) and child view the' defendant can there,” “punched” Russ her his “down with each other video or television monitor fist, indicating vaginal her area. oc- It separate from rooms. toilet, curred on the her Appellant dur- was removed the room punched once, He only clothes on. her L.C., “sorry.” then said never and watched He took his off, penis. one-way clothes and she saw his never via a closed circuit tele- anyone He never told to not tell monitor on he vision which could see being punched. hear but she could not see or hear L.C. Appellant for a him.1 refused offer Appellant testified and denied all of the telephone connection attorney allegations. Several character witnesses present when testi- room testified his behalf. Appellant argues fied. appeal, ap- statute guilty. turned a verdict of On pellant challenges procedure applied right the trial used its face and as violated his 4(c)(1), 1. We note that the trial court did not follow the nection. Subdivision other al- 4(c) ternative, proper procedures under requires § the defendant al- " appellant. when it excluded The trial court person while lowed observe the witness “in monitor, one-way appel- used a video on which defen- the child witness cannot see or hear the testify, lant could see L.C. but she could not see one-way section not authorize a dant. This does 4(c)(2) appellant. requires or hear Subdivision procedures used in this video connection. used that if a video monitor is the defendant procedures case outlined violated and the witness must be able to view "each statute. two-way contemplates other.” This video con- testifying against important public policy. Id. at 2803. the witnesses confront be- him. Iowa statute unconstitutional placed cause it allowed screen to be clauses the United The confrontation showing any front without of witnesses pro- and Minnesota Constitutions States require The statute necessity. any did not prosecutions “In all criminal the ac- vide: * * * finding by the court that the individualized right enjoy the to be cused shall would be traumatized if forced to witnesses against the witnesses confronted with Const, presumed face the but rather VI; amend. Minn. him.” U.S. — Const, that all child witnesses would trauma- Iowa, art. 6. tized. Id. at -, L.Ed.2d 857 case, (1988), trial in decided after the require- to the Exceptions confrontation Supreme Court overturned the convic- respect ment have been found to exist with a sex offender because he tion of “implicit” rights to other in the confronta- right his sixth amendment to con- denied clause, tion such to cross ex- giving testimony against front witnesses Roberts, amine witnesses. See Ohio v. permitted statute him at trial. The Iowa 65 L.Ed.2d 597 placed the screen to be between (1980). witnesses, primary two 13-year-old and the the Iowa at issue in Unlike statute girls sexually by were the assaulted 4(c) 595.02, Coy, Minn.Stat. subd. estab § defendant.2 The screen allowed the defen- the permissible exception lishes a to con dimly perceive witnesses, dant to the but requires spe a frontation clause because it prevented seeing the from the witnesses finding right cific that the denial of the to The stated defendant. Court that the con- necessary confrontation to effectuate an types provides pro- two frontation clause of important policy. Protecting public child defendant; tections to the “the criminal age 10 witnesses of trau under physically testify to face those who important certainly public policy. ma is him, against right to and the conduct cross- (O’Connor, Coy, J., See 108 S.Ct. at 2805 examination.” 108 at Face- Id. S.Ct. 2801. White, J., concurring) (“The protection of “the to-face confrontation is core of the is, in my child and in witnesses view the by the values furthered Confrontation majority of view of a substantial (citation omitted). Analyzing Clause.” Id. States, poli just [important public] such an placement of the screen between the cy.”) requires statute The witnesses, defendant and the Court said court make a determination that to “the imagine is difficult more obvious “[i]t during testimony of a defendant damaging violation of defendant’s * * * psychologically traumatize right to a would face-to-face encounter.” Id. at render However, left witness so as to the witness unavail open 2802. the Court question exceptions testify.” require able to of whether existed to satisfies requirement. excep- ment in that there Any Coy the confrontation be an individualized tions, however, exist, they necessity. Thus, finding should would be of the statute on permitted only when to further its face is constitutional. Similar conclu- 910A.14(1) (1987) provides: may require 2. Code party § Iowa court be confined may, adjacent upon to an room upon A court or behind a screen or its own motion or any party, permits party motion of order that the mirror that to see hear child, 702.5, of a defined in be during section testimony, the child the child's taken in room other than the courtroom does not allow the hear child to see or equipment and be closed circuit televised However, confined, party. party if a is so in the to be viewed courtroom the court. court shall take measures to insure that the counsel, judge, Only persons parties, nec- party during and counsel can confer the testi- essary operate equipment, any per- mony shall inform the child that presence, opinion son whose in the of the party during see and can hear the child testi- court, would contribute to the welfare and mony. well-being present of the child during room with the child the child’s testi- mony. have been reached other courts The sions Protection the Child Victim a of of analyzing similar statutes.3 Sexual in the Criminal Justice Offense System, Wayne (1969); L.Rev. excep- clear that v. Iowa makes Parker, The Rights Child Witnesses: Is requirement to the of face-to-face con- tions Perpetrator? the Court a Protector or are after the frontation allowed Eng.L.Rev. 643, 646, New 652-53 finding” makes “individualized equipment The use of video-camera and the special protection. particular witness needs necessity speaking microphone into a Although S.Ct. at 2803. Court did may also increase the stress on the child. express showing type what of neces- required, sity generalized it said that a provides statute that determination necessity legislative as found in must be made that “the * * * the Iowa statute during testimony was insufficient estab- defendant necessity. Supreme Thus the psychologically lish Id. traumatize the witness so given guidance has little what as to render the witness unavailable to findings” testify.” “individualized traumatization 4(c). Minn.Stat. subd. be made defendant can The trial must before a court found be unavailable removed a witness. because lacked recollection unwilling testify. and was See Minn.R. 4(c) Minn.Stat. is intend- 804(a)(2) Evid. findings are protect ed child witnesses sexual ambiguous on whether this was caused cases from psychological abuse trauma psychological traumatization of testify- However, testifying in court. not all presence in the of the defendant. The experience when testify- children trauma court said: “I don’t if know she is trauma- ing. Developments See Minnesota —De- tized, such, psychologically. I’m not an Rights Compe- in Witness Child fendants’ expert. I any testimony.” haven’t heard tency Hearings: Establishing Constitu- the hearing, At issue of psychologi- the tional Procedures Sexual Abuse traumatization, cal Diane Schroedl was the Cases, 1377, 69 1385 n. Minn.L.Rev. 16 only witness. She testified that L.C. was (1985). many There are obstacles at trial causing problems nervous and that encountered child which im- witnesses remembering with the events about which pede testimony their often cause trau- questioned. opined she that the She setting, The unfamiliar ma. courtroom the might camera the video be source of L.C.-’s necessity strangers speaking about nervousness. The court noted trial embarrassing events, presence the of a appeared during more nervous the vi- problems language the jury, and mu- deotaping testimony of her than trial comprehension op- tual all contribute during competency hearing had been the pressive environment in which child sexual day videotaped, earlier that which was may victims in problems testify- abuse face present. and at which was not ing. Anxiety may be increased Regarding L.C.’s the trial nervousness intimidating procedures trial such as cross- judge said: “I don’t know the reason for examinations, by sequestration, It that. could be the video camera. Who long delays last peated post- minute knows.” ponements. presence The of the accused during testimony may Using requirement the heighten child’s of an trauma, finding” statutory outcome of “individualized or the stress and the acquittal requirement, findings trial —either abuser or in the trial court’s The family some cases the conviction a close this case are insufficient. court made Libai, finding may result in trauma. no that it was to exclude See member— 51, 275, Bonello, 277, (1987); Tafoya, State v. State v. 210 Conn. 554 A.2d A.2d 286-87 108 — 2103, denied, U.S.-, 1, (Ct.App.1988), cert. 109 S.Ct. 104 cert. de N.M. 765 P.2d 1183 State, (1989); Glendening —nied, U.S.-, 1572, 664 L.Ed.2d 536 S.Ct. 103 L.Ed.2d 109 — 212, denied, (Fla.1988), 218 So.2d cert. Vincent, 938 See also State v. 159 Ariz. -, 3219, (1989); L.Ed.2d 106 569 418, 150, 768 P.2d 161 496, 518-20, State, Wildermuth v. 310 Md. 530 psychologi- during the testimo- child witness would be witness’ defendant cally traumatized so as be unavailable to causing psy- ny presence was because his if required testify presence child wit- chological traumatization inquiry defendant. be made especially since ness. This is troublesome by the trial court on this issue will neces- testified that she was the witness herself However, sarily vary with each case. appellant. Like the defendant not afraid of every by specif- case it must be established Iowa, appellant has denied Coy v. been particular ic evidence that the witnesses is against his to confront witness psychologically or would traumatized impermissible presumption him based on substantially traumatization presence would traumatize the presence caused of the defendant child witness.4 rather other reasons. The evi- than have reached re Other courts this same psychological dence of traumatization Vincent, 418, Ariz. sult. “must than mere show more nervousness (1989),the trial had also 768 P.2d 150 or excitement or some reluctance to testi- particularized showing failed to make State, fy.” 316 Md. Craig v. that exclusion of (1989) (citation omitted). A.2d testimony of two child witnesses would be be based the trial necessary. merely The trial court stated personal witness, court’s of the observation that the child witnesses “could be trauma but there must sufficient in the tized.” Id. 159 Ariz. at P.2d at record to support finding. the court’s specific no 160. There was evidence con judge permitted, encouraged, if not likely impact of cerning the the courtroom question child witness in if camera testimony on witnesses. The court necessary. Additional should be permitting held that statute having taken personal from witnesses videotaped child witness to be out knowledge of the child. Their of the Ariz.Stat. consequences having must be applied. 13-4253 was unconstitutional as child testify 429, Id. at P.2d at 160-61. See 768 specific, and must be must be Thomas, People 1324, 770 P.2d 1328 v. experience particu- based on their with that (1989); (Colo.Ct.App.1988) granted cert. pertains expert lar child. testimony This to Eastham, 307, 39 Ohio 530 State v. St.3d testimony expert as well. While is not 409, 412 N.E.2d case, required every in be decision nor the Neither statute in cases the cause of child’s where provide any guidance on what constitutes testimonial difficulties trauma is not finding an individualized or determination clear.5 finding psychological finding psychological

4. of trau- The insufficient of traumatization needed trial,” prior requirements not "cured to meet matization was of statute or the asserts, by findings judge dissent of another constitution. videotaped who reviewed L.C.’s trial 807(a)(i) 5. See Rules of also Uniform Evidence hearing of the after the record four weeks 1986) (adopted special providing proce- Nov. testimony was L.C.’s trial taken. The second upon protect finding dures to child witnesses a judge presence appellant a ruled that had by the a court that "there is substantial likeli- "chilling not, upon testimony. did effect" He hood suffer severe however, that the minor will emotion- finding any make would that L.C. psychological required testify al or harm if in psychologically required be traumatized if open provide court.” Comments to the rule in presence appellant. Nor part: judge finding. could the make such He relied solely judge require on the same evidence that the is intended to first standard more ruling, making showing part used in than a of mere distress on that evidence simply support psy- prospect with the insufficient child who is faced standard, chological testifying. since traumatization it did not show It is a strict which is nervous, anything just imposed recognition that more of the fact L.C. was than that live Moreover, testify. pre- excited or reluctant and cross-examination is the judge opportunity proof. contemplated ferred not second had no to observe L.C. mode of It is personally, nothing necessarily expert and there is in the record to that the court will receive testimony concerning indicate that he ever met her. This is not the the minor’s emotional

275 question appel- next is whether the nied could or not remember whether engaged was violation of to confrontation lant had in the conduct which Iowa, charged. In Coy appellant harmless error. the Court he was after Only stated that the harmless error rule should did say “punched” excluded L.C. that he applied rights vaginal when a be defendant’s under her in area. The only other guilt confrontation clause have been violat was L.C.’s out of court mother, ed. 108 S.Ct. at 2803. The harmless error statements to her foster Lonnie analysis applied Payne has been Although other cases and Dr. Levitt. those involving hearsay violations of confrontation statements are deemed to “sub- Arsdall, clause. Delaware 475 See v. Van stantive evidence” Minn.Stat. § 682, 1431, 1436, admissible, U.S. 106 89 properly impossi- S.Ct. subd. 3 if it is say L.Ed.2d 674 jury When constitutional ble to would have convict- involved, errors appellant are the state has the ed anyway appellant bur that den to show the errors are harmless mained the room L.C.’s testimo- beyond by showing ny, a reasonable deny doubt that and she had continued to lack the error did not previous contribute the verdict recollection of her statements. Chapman weight obtained. California, give prior 386 The would to her 23-24, unsworn, 827-828, simply S.Ct. out of court statements is (1967), Crisler, known, L.Ed.2d 705 285 not say and thus we cannot (Minn.1979). Thus, N.W.2d in removing consti the error harm- presumed preju tutional errors are beyond less state reasonable doubt. The dicial. has met its burden to show that the beyond error was harmless a reasonable In. Coy the stated the harm- doubt. analysis less error in confrontation clause attempt cases should not to evaluate what 3. The confrontation clauses of effect the defendant’s or absence United and Minnesota States Constitutions particular implicated would on a witness because are also the use at trial speculation. prior involve mere out-of-court statements L.C. case, however, mother, Payne 5.Ct. at made to foster Lonnie clearly record effect appel- reflects the and Dr. Levitt. Minn.Stat. § (1988) permits lant’s and then absence had the admission of such Before the defen- statements at evi- as “substantive removed, nothing dant in child L.C. said dence” sexual abuse cases.6 The implicate appellant. underlying purpose to de- the re- She of confrontation making provide The state in this determination. whom the statement is made suffi- adequate position the reliability; court is in an surrounding to assess cient indicia of and circumstances and to form (b) person mentally impaired the child or concerning likely judgment live the effect of 609.341, 6, as defined in section subdivision open the court on minor without either: expert assistance. (i) proceedings; testifies at the or (ii) is 595.02, unavailable as witness and there is provides: 6. Section subd. 3 act; of the corroborative evidence and by An out-of-court statement a child (c) proponent the the of statement notifies age person of ten or a is under the party proponent’s the adverse mentally impaired 341, of the intention as defined in section 609.- 6, deny- alleging, explaining, particulars subdivision to the statement and the of offer ing, describing any of sufficiently act sexual contact or the statement in advance of the performed penetration with or on the child or proponent proceeding at which the intends to physical any act of of the child or the abuse provide the offer statement into evidence to another, impaired person mentally by who is party opportunity the adverse a fair to by of not otherwise admissible evidence, statute or rule prepare to meet the statement. is evi- admissible substantive subdivision, purposes out-of- For of this dence if: video, audio, court statement includes or oth- (a)the person court or authorized to er recorded statements. An wit- unavailable finds, hearing ceive evidence in a conducted incompetent ness includes an witness. jury, outside of the of the that (1988). See Minn.Stat. 260.156 § time, content, and circumstances of the state- reliability person ment and the of the “augment accuracy in the ual Abuse Prosecutions: State quirement is to 523, Relationship, 72 Minn.L.Rev. ensuring factfinding process by the defen Dana, 246, (1988). v. N.W.2d to test adverse State an effective means dant matter of Roberts, stated that “the heart of the we 448 U.S. evidence.” Ohio hearsay is determining to admit 2531, 2538, whether 65 L.Ed.2d 597 kept evidence should be unreliable hearsay de The use of statements legal jury; from the this is a determination right con of the prives the defendant . makes on the basis of that the trial court witness, and cross examine the front and at 249 experience legal education.” Id. requirement violates (citation omitted). ruling A on the reliabili- sworn, protect of which are intended all ty hearsay statements is for the court factfinding process integrity of the importance make and is of cases vital ensuring only reliable evidence will be such as this. hearsay Thus against a defendant. used against criminal defendant at used can be case, disposition Because of our of this necessary, only if only if its use is is not that we rule on whether demonstrably hearsay reli evidence the admission of those statements violated 65-66, v. Roberts 448 U.S. at able. Ohio appellant’s to confrontation. We 2538-2539; Hansen, 100 S.Ct. at note, however, that evidence adduced (Minn. 1981). 312 N.W.2d may bearing some at trial have statements, reliability spe- of those some The trial court this case conduct cifically, the fact that the victim and some pretrial hearing to determine whether ed a unhappy or con- witnesses were prior so as L.C.’s statements were reliable county’s plan to cerned about the reunite the confrontation to be admissible under appellant with his children. This is another clauses, and Minn.Stat. subd. 3 § considered the trial court in factor Dana, 422 N.W.2d See State ruling the out-of-court state- on whether (Minn.1988). Testimony was tak ments were reliable. Levitt, Schroedl, Payne and Dr. en from Finally, passing note in that we are we ruled that the statements prosecution’s troubled conduct at L.C. made these three were reliable. stopping videotaped testimony trial of set out in the statute for deter factors point of L.C. at the where mining reliability hearsay noting excluded from the room and “time, include the content and circumstanc jury. fact to the would have had reliability es of the statement and the way knowing that the defen- no other person the statement whom removed testi- dant been made.” Minn.Stat. subd. 3. As mony. practice unnecessarily part analysis, of this the court must consid prejudicial to the er, among things, spontaneity of other of the trial under- affected the fairness statements, consistency mining presumption of innocence fa- statements, knowledge of the declar- vor of the accused. See Estelle v. ant, the motives of the declarant and wit Williams, 501, 503-04, 425 U.S. 96 S.Ct. speak truthfully proximi nesses to and the 1691, 1692-93, (1976) (re- 48 L.Ed.2d 126 ty in time and the between statement quirement that defendant in stand Allen, events 157 described. See State v. prison unnecessarily impairs clothes 165, 174, (1988). Ariz. P.2d 1162 innocence). However, presumption of possible The court should consider appeal, issue not raised on and our by leading ques suggestiveness created disposition require of this case does not us tions, particularly by parent or close au to rule on it. thority figure; should corrob and evaluate Reversed and remanded for a new trial. factors, orating such as whether the declar- ant has recanted or reaffirmed state YETKA, (dissenting). Justice any corroborating physical ment and also Graham, respectfully agree evidence. I dissent. I Confrontation Clause, Rule, Hearsay majority that Minn.Stat. subd. Child Sex- § 4(c) constitutional, facially right I depends is but would to confrontation par- on the applied also find that it is constitutional as ticular case may be affected com- Furthermore, appel- if in this case. even peting policy considerations. right sixth amendment was violated lant’s Legislature The Minnesota has decided by allowing testify in the victim right that a defendant’s to confront wit- absence, beyond such error was harmless proceeding nesses be denied in a reasonable doubt. where the witness is a child less than 10 correctly majority concludes that years old who must talk physical 4(c) facially is Minn.Stat. § abuse or sexual contact. Minn.Stat. — light Iowa, constitutional in v. 595.02, subd. 4. Our statute embodies U.S.-, 2798, 101 108 S.Ct. L.Ed.2d 857 legitimate state protecting interest of requires The statute which face- victims of child abuse from the further to-face confrontation unless the court “de- trauma of testifying in front of their abus- termines that the of the defen- er. The statute also aids in the search for * * * psychologically dant trauma- by making truth an otherwise unavailable tize the witness so as to render un- [her] child witness enough testify comfortable testify,” clearly available to meets the Coy in court and describe the she or abuse he criteria that an individualized has suffered. necessity made. Child abuse cases are more common to- type We are not concerned here with the day than ever before. The United States generalized legislative finding at issue in Supreme Court has said that abuse “[c]hild Coy, nor does this case involve similar is one of problems the most difficult In Coy, facts. the victims were 13 prosecute, detect large part in because Here, old and unrelated to the defendant. except there often are no witnesses old, only years child is and the defen- Ritchie, victim.” Pennsylvania father, dant authority figure is in 39, 60, 989, 1003, 107 S.Ct. 94 L.Ed.2d her life. special justi- These circumstances abuse, In cases of sexual fy taking the child’s in the ab- especially poignant. Young dilemma is sence of the defendant. While the Iowa children identify are asked to and describe unconstitutional, statute in Coy was found beyond adult acts which are their knowl- possibility open was left for future edge experience. easily It is under- exceptions to the confrontation clause why may necessary standable to re- “when important to further an proceeding move the defendant from public policy.” Coy, 108 S.Ct. at 2803. get order to speak the child to at all. presents exception. This case such an When, here, 4-year- the witness is a important It to remember that allegedly sexually old child provide confrontation clause does not de- father, highly probable abused it is fendants with an absolute to confront that his in the courtroom would testify against witnesses who them. See Especially if traumatize her. the child has J., Coy, (O’Connor, 108 S.Ct. at 2803 con- secret, keep told to been the abuse a curring). Rather, general require- it is a unlikely to talk about it front of the cases, may, appropriate ment that “bow Often, parent. accused a certain look from legitimate interests accommodate other parent is all that is needed to silence a process.” the criminal trial Chambers Indeed, 4-years-olds usually child. will 284, 295, Mississippi, 410 U.S. or, competent (1973). Indeed, even be deemed 1045, 35 L.Ed.2d 297 stand, once the will “freeze” or be led the to confront witnesses is denied easily making in- by defense counsel into variety a circum- unremarkable trial consistent statements. If a child of such example, hearsay stances. For whenever a exception applies tender as L.C. is able to tell her or a witness is unavail- story, unwilling the incompetent, able or determined the defen- but to do so because present, dant cannot confront that The defendant is it is in the best inter- witness. child, society Myers, the to remove the N.W.2d ests of child and State (Minn.1984), removing appel- and before defendant. lant, questioned judge the trial L.C.’s fos- majority the court The that trial believes appeared said ter mother. She that L.C. findings as whether L.C. was trauma- than more nervous when she had testified by presence the of her father tized were competency hearing. judge at the The ambiguous Accordingly, and insufficient. observed that L.C. was more nervous dur- says majority, the Minn.Stat. § taping the of her than trial 4(c) applied was unconstitutional as subd. when appellant had been was in this case. present. had also previously She been will- by finding The initial the trial ing to talk about the the incident outside judge prior appellant’s removal admit- appellant. presence of tedly vague. was He found L.C. unavail- persuasively, by Most L.C. told had been able, unavailability did that but not link her not to tell anyone father what had presence as the statute the happened. There is also Any ambiguity or requires. defect that record L.C.’s foster from mother that L.C. was, however, finding prior cured to trial. Big had been afraid to visit Russ over majority ignores finding opinion Moreover, preceding months. was judge hearing. trial at Rasmussen first time in 5 months that had seen judge expressly there concluded that clearly support her father. These facts all least, was, unavailability partially at finding a that L.C. was traumatized presence. her due to father’s He stated: presence just her father and not court This finds that was intimidat- [L.C.] setting. The propriety courtroom of the setting. ed the courtroom That she espe- judge’s determination became very was embarrased nature of cially apparent once her was re- father interrogated about, the act she moved and L.C. that he admitted Russ, presence Big even “punched” her “down there.” though confrontation, not a ap- chilling upon her trial court’s decision to remove testimony and effect based, pellant majority alleg- ability testify. is not as the es, impermissible presumption (Emphasis added.) L.C., presence would traumatize finding adequate This to fulfill the on the finding individualized based requirements of Minn.Stat. accused, relationship child’s age, with the 4(c). require The statute does not testimony, observed behavior presence appellant’s be the reason past fear present of the accused Indeed, it child is traumatized. would be mother. testimony child’s foster impossible practically judges, experts that, examining It is to note important or even the child witnesses themselves to the trial supports record whether single isolate cause of the trauma child’s traumatized finding court’s that L.C. was unavailability. requires All the statute father, majority by the of her presence appellant’s presence is a trau- review for opinion ignores the standard of point making matized L.C. to the This such a factual determination. judge unavailable. The trial de- made that specific finding of the dis- cannot termination, reverse clearly supported by and it is clearly it is erroneous. trict court unless Burns, the evidence. See State Linder, 734, 735 (trial 268 N.W.2d (Minn.1986) N.W.2d record (Minn.1978). given Deference must be inadequacy pretrial hearing). can cure fact-finder, do so. majority and the fails to judge It is true that the trial did not hear imagine It is expert difficult what additional testimony on whether L.C. was trau- father, majority require evidence the would to find matized of her how- ever, required. trauma- such is not defendant’s previously court has that a tize a parent Asking noted child witness. the trauma- expert” respect the “ultimate to a tized herself if child she is afraid

279 unlikely types is to the truth. If that other to lead of violations accused Con- frontation are subject to announce her Clause wait for the child that we must analysis, harmless e.g., error see expert or an declare that its Dela- trauma Arsdall, U.S., ware v. 475 [673], Van at presence beyond is the defendant’s cause 679, 684,106 S.Ct., [1431], 1436,1437[, at doubt, the statute will become reasonable 674], 89 L.Ed.2d see why no reason meaningless. judge’s finding The trial denial of face-to-face confrontation statutory here was accordance with should not be treated same. An as- requirement supported ample evi- sessment of harmlessness cannot include dence. consideration of whether the witness’s keep must also in mind that We have been unchanged, would primary responsibility has “the under jury’s unaltered, assessment had separation powers doctrine for the confrontation; there been such an in- * * regulation evidentiary matters quiry obviously pure spec- would involve 495, Burns, (Minn. 394 498 State v. N.W.2d ulation, and harmlessness must therefore Dana, 1986); 422 see also N.W.2d be determined on the basis of the remain- 246, (Minn.1988); Mitjans, 249 v. 408 State Supreme evidence. The Iowa Court (Minn.1987). N.W.2d The mere had no occasion to address the harmless- statutory procedures or fact that standards issue, ness since it found no constitution- may precisely not have been followed here al violation. In the circumstances of this especially is not conclusive. This true case, rather than decide whether the er- regard one-way with the use of the video beyond ror was harmless reasonable used appellant connection once was re doubt, we issue for leave the the court Maj.Op. from the moved courtroom. See at below. 1. Additionally, objec 271 n. there was no —Iowa, U.S.-, Coy v. 108 S.Ct. used; procedure tion to when was specu- 101 L.Ed.2d Less therefore, any allegation of error was lation is involved here than in because See, Martin, e.g., waived. State L.C. testified first (1972) (defen Minn. 199 N.W.2d 419 presence. room and then outside While jury dant not allowed to raise a instruction presence, not in the she defendant’s testi- appeal). for first time at error telling fied that she remembered her foster deciding After the confrontation her, things defendant mother some did to by removing appellant clause violated things could not what those remember testimony, majority pro- L.C.’s removed, After defendant was were. ceeds examine whether error was “punched” stated beyond harmless a reasonable doubt. there,” area, groin pointing “down to her conclude, if we were to on the basis Even they together. when were in the bathroom record, entire absence of the Nevertheless, majority opinion appellant during part of the second weight give states: “The violated his of confronta- prior unsworn, out court statements Coy, necessarily tion under it does not fol- known, simply not and thus we cannot that his conviction should be reversed. low say removing appellant that the error in Supreme Coy, acknowl- beyond was harmless reasonable doubt.” possibility denying error in edged Maj.Op. proper at 275. If this were the confrontation the defendant face-to-face analysis, could never harmless error necessarily prejudicial. not be because, standard, found under a re- Court said: viewing need to know the court would suggests briefly Instead, State also thoughts. for there jury’s to be error, error was any Confrontation Clause be determined that harmless it must beyond overwhelming un- harmless a reasonable doubt record contains and, thus, guilt standard evidence admitted as Chapman der the Califor- 18, 24, 824, 828, nia, result of violation was 386 U.S. the constitutional could not recognized merely cumulative and have We L.Ed.2d any reason to suggest that significant role in the conviction. played a [L.C.] up a tale. Third- make or fabricate such Forcier, 886— 420 N.W.2d See State unlikely extremely it is that ly, testimony ap that (Minn.1987). [L.C.] up story, made that could have such prejudicial giv punched her pellant was she has had not fact the acts stated therefore, guilt; other en the evidence appear It occurred. would be—would beyond a reason any error harmless was imagination beyond that would doubt. able Fourthly, there experiences in life. and appel- that Except for L.C.’s statement is testimony to effect that is no [L.C.] her, punched the other evidence at lant to fabricat- person who accustomed primarily consisted of the out-of-court trial fantasizing making up ing or stories or that to her foster L.C. made statements testimony of is to Mrs. Schrodel [sic] mother, Dr. Levitt. Payne, Lonnie and The Fifth, contrary. the statement recognizes majority that Minn.Stat. surrounding and the circumstances made 595.02, permits subd. 3 the use these § being does the time of there made [sic] hearsay evidence statements as substantive that result of they not indicate are the cases, suggests in child sexual abuse coaching they or solicitation. Nor were by admitting the trial court erred leading unfairly the result of framed or statements. questions. tes- suggestive or There is no requires Minn.Stat. subd. 3 suggest timony to [L.C.] that, hearsay prior admitting to state- to any reason want to hurt the defendant ease, must ments in this the court conduct to any or reason that she would have time, content, hearing and find “the story. make up or such a fabricate and circumstances of the statement and Lastly, opportu- had the reliability person the state- to whom which nity to commit the offenses with provide is made sufficient indicia of ment charged. finds he is The Court further * * reliability Minn.Stat. § that Diane Schrodel is a reliable [sic] 3(a) (1988). hear- At the Rasmussen person. The Court that her testi- finds ing, judge the trial made the mony was candid and believable. reliability and admit- preliminary sug- any does not Court find evidence thorough out ted the statements. He set gest any that she had reason or motive findings cleárly and detailed which meet any testify falsely kind to or to be statutory requirement as com- as well to this defen- motivated cause harm analysis port with the recommended dant. majority: further that there is Court finds The Court finds that the out-of-court suggest nothing testimony statement made to Diane Schro- [L.C.] leading unfairly Mrs. asked Schrodel [sic] February 24th and 25th of del [sic] questions attempted or that to coach July the state- 1987 and 12th testimony influence the or the state- Investigator ments [L.C.] ments made [L.C.] February Payne made shall that Investi- The Court likewise finds pursuant received in gator Payne is a reliable witness. Minnesota Statute 509.02 Sub. 3. The testimony credi- finds that her and circum- Court finds the content surrounding her The circumstances ble. provides suffi- stances of the statement interview with child was fair [sic] reliability cient indicia of a for the follow- interrogation reasonable ing reasons. fairly has in mind conducted. The Court February position That statement on that the state- the defendant’s [L.C.]’s gave 24th to Mrs. Schroedel which ments should not be admitted because [sic] matter inquiry rise to further inconsistencies [L.C.]’s the effect that her here out-of-court bottom [sic] spontaneous state- It has clearly a nonsolicited statement. been indicated [L.C.]’s to the Secondly is no evidence for trial available ment. there been, It having Court. hadn’t it support appellant’s been beyond conviction a taken before Judge August Shumaker on reasonable doubt. The confrontation clause was not violat- 1987. It is true that aggre- the most ed this case. There an adequate gious acts that stated [sic] [L.C.] finding that appellant’s presence given out-of-court statement were not traumatized L.C. so as to make her unavail- tape testimony. video of trial able as a witness. if judge Even the did carefully has Court ap- viewed [L.C.]’s say “magic not words” the majority pearance and demeanor on the video of hear, wants to is finding clearly made her trial It testimony. apparent is to this supported by preponderance a that in type neutral of questions of majority’s evidence. The harmless-error [L.C.], responsive. was relaxed and [she] analysis by discounting fails the out-of- many questions Big zeroed in on Schroedl, court of statements Diane Lonnie or aspects Russ the sexual conduct Payne and Dr. Levitt as unreliable without the matter obviously that she became considering impact. their Because the trial embarrassed. The Court noticed she court did not abuse its by finding discretion down, would look away, would look reliable, those they statements prop- were

would not answer or would evasive in be erly any admitted and make constitutional respect questions. to the does not beyond violation harmless a reasonable persuade this Court that her out-of-court doubt. statement were therefore untrue or [sic] conclusion, I quarrel In do not fabricated. every is proposition that entitled protec- a fair to trial and constitutional will ensure that defendants tions The Court in conclusion finds that the witnesses; however, right be- to confront out-of-court statement does have suffi- a to confront witnesses is cause reliability cient indicia of and will be re- rule proposition only, the must general ceived and it jury will be for the to in light of the interpreted and modified determine their believability, if and there case, particular case. facts of each are such inconsistencies that shall cause age. While witness was reject a to her out-of-court state- testimony, the to admit her court decided ments not believe them. permitting her to conditions The admissibility prelimi- of evidence is a a different than those for surely must nary question to be determined Here, adult. it fully competent mature and court. Additionally, Minn.R.Evid. 104. fa- clear from the record trial court’s threshold reliability her, influence over had an enormous ther only can be set aside if this court finds that presence caused her be nervous and his it was an abuse of discretion. State v. prose- it silent. is true While Gustafson, 379 N.W.2d judge have been more could cutor story inconsistencies in L.C.’s at different exact, true that one it is also procedurally times are neither troublesome reason nor trial, perfect fair trial. entitled to a not exclude out-of-court statements. It po- is in I do not believe the defendant easily why understandable a child who is that he fair sition claim was denied a abuse, victim sexual and reluctant to trial. all, discuss incident speak at more rights it that constitutional While is true freely or less in different settings to differ- expediency due to the be eroded cannot people. ent The fact that L.C. is inconsist- times, society must also true that it is ent about the Thus, details of the abuse does not child abuse. attempt to eliminate mean did not occur. interpreted Those incon- care- must be rules of evidence preclude sistencies should rights protect admis- fully to sion of To prevail. there was abuse. I the truth also to allow agree prosecutors with the judge that the out-of- would result do otherwise prosecute statements child abuse being were reliable and alone reluctant WAHL, (dissenting). Justice I this case meets the

cases. believe being fair the defen- quired balance Yetka join I both the dissents of Justice I protecting the child victim. dant while Coyne. empha- and Justice I write affirm. the narrowness of the Minnesota Stat- size defendant’s consti- ute’s interference with tutionally protected right to confrontation. COYNE, (dissenting). Justice removed, Although the defendant was Yetka, join I in the dissent of Justice but preserves rights his to cross-exami- statute my agreement emphasize write to jury and to have the evaluate the nation majority opinion of Justice Keith person. The statute witness’s demeanor hearing the motion to remove defendant unique addresses the difficulties inherent hearing not the sort of from the room was regarding eliciting testimony sexual However, contemplated by the statute. children, young which the U.S. abuse clear, reviewing makes as a the dissent Supreme appropriate Court has indicated is narrowly restricted to the court we are not holding and consistent with its v. hearing on the motion record made at the — Iowa, -,U.S. Burns, v. 394 N.W.2d to remove. State L.Ed.2d 857 (Minn.1986). en- A review of the special tire trial record establishes that cir- justifying defendant’s removal

cumstances present. appeal The record on shows

were old;

that the victim was four father, in a as her

position authority over her and had tell

warned the victim that she should not abuse;

anyone that in the latter about

days of the abuse victim become defendant;

frightened visiting had not seen defendant in five victim Plaintiff, Minnesota, STATE months; that, opinion of her mother, the

foster victim was nervous interfering her nervousness was with her HERSHBERGER, Eli A. et ability to remember or recount the abuse. al., Defendants. This record bears out the child’s functional No. C9-88-2623. unavailability pres- defendant’s justifies despite ence and removal Supreme of Minnesota. specifically trial court’s failure to find that four-year-old “psychological- child was Aug. 18, 1989. ly agree traumatized.” I also with the cases, dissent that the record and our in- Dana,

cluding N.W.2d (Minn.1988), Burns,

248-51 State (Minn.1986),sup-

394 N.W.2d 497-98

port the trial court’s admission of the ex-

trajudicial statements of the victim. I

agree majority opinion with the that it was

unnecessary prosecutor stop for the tape

video and inform the that defen-

dant had been removed from the room at point, I am satisfied that defen- trial,

dant received a fair guilt strong,

of his and that his convic-

tion therefore should be affirmed.

Case Details

Case Name: State v. Conklin

Court Name: Supreme Court of Minnesota

Date Published: Aug 18, 1989

Citation: 444 N.W.2d 268

Docket Number: C5-88-545

Court Abbreviation: Minn.