State v. CooperState v. Cooper
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- Before:
- Chandler
Aрpellant Gary Franklin Cooper (Cooper) was convicted of criminal sexual conduct in the first degree with a minor and sentenced to 30 years imprisonment. The Circuit Court, pursuant to
We affirm.
FACTS
The State made a pre-trial motion to allow the testimony of the victim to be videotaped. The motion was made pur
VICTIMS AND WITNESSES WHO ARE VERY YOUNG, ELDERLY, WHO ARE HANDICAPPED OR WHO HAVE SPECIAL NEEDS, HAVE A RIGHT TO SPECIAL RECOGNITION AND ATTENTION BY ALL CRIMINAL JUSTICE, MEDICAL, AND SOCIAL SERVICE AGENCIES
The court shall treat “special” witnesses sensitively, using closed or taped sessions when appropriate. The solicitor or defense shall notify the court when a victim or witness deserves speсial consideration.
Before ruling on the motion, the trial judge talked with the victim and her mother in chambers. The mother stated the child was afraid of Cooper and a videotaped session would protect her from further emotional trauma. The child also expressed her fear of Cooper to the judge.
Present at the taping session were the trial judge, court reporter, solicitor, defense counsel, victim and her mother. The video camera and its operator were placed behind a one-way mirror. Cooper, from a nearby room, was able to view the proceedings live over a closed-circuit television monitor. He was afforded constant contact with defense counsel through a set of headphones. He was provided a second attorney who remained in the room with him.
Upon recommendation of the solicitor, the court ruled the videotape would be played as the State’s first evidence at trial. Cooper objected to its admission on the ground the procedure violated his right to confront the witnesses against him. The objection was overruled, and the videotape was played before the jury.
ISSUE
In a criminal trial, does videotaping a witness’s testimony outside the presence of the defendant violate the right of confrontation?
VIDEOTAPED TESTIMONY
Cooper contends the procedure employed in videotaping the victim’s tеstimony oútside his presence violated his right
The Sixth Amendment of the United States Constitution provides that “[i]n all criminal prosecutions, thе accused shall enjoy the right... to be confronted with the witnesses against him ...” Similarly,
Every person shall, at his trial, be allowed to be heard by counsel, may defend himself and shall have a right to produсe witnesses and proofs in his favor and to meet the witnesses produced against him face to face. [Emphasis supplied].
The Confrontation Clause “(1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth’; (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness making his stаtement, thus aiding the jury in assessing his credibility.” Lee v. Illinois, 476 U. S. _, _, 106 S. Ct. 2056, 2062, 90 L. Ed. (2d) 514, 526 (1986), quoting California v. Green, 399 U. S. 149, 158, 90 S. Ct. 1930, 1935, 26 L. Ed. (2d) 489, 497 (1970).
“The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for thе idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.” Davis v. Alaska, 415 U. S. 308, 315-316, 94 S. Ct. 1105, 1110, 39 L. Ed. (2d) 347, 353 (1974) [emрhasis omitted], quoting 5 J. Wig-more, Evidence § 1395, at 123 (3rd ed. 1970). See also Douglas v. Alabama, 380 U. S. 415, 85 S. Ct. 1074, 13 L. Ed. (2d) 934 (1965).
A secondary advantage to be obtained from the personal appearance is that “the
judge
and the
jury
are enabled to obtain the elusive and incommunicable evidence of a
wit
The United States Supreme Court hаs held that the Sixth Amendment, while reflecting a preference for a face-to-face confrontation at trial, is not absolute in this requirement. Several exceptions have been recognized. For example, the Confrоntation Clause does not preclude the use of hearsay evidence in criminal trials where the evidence bears significant “indicia of reliability.” Lee v. Illinois, supra. See also United States v. Inadi, 475 U. S. _, 106 S. Ct. 1121, 89 L. Ed. (2d) 390 (1986); Ohio v. Roberts, 448 U. S. 56, 100 S. Ct. 2531, 65 L. Ed. (2d) 597 (1980); Mattox v. United States, 156 U. S. 237, 15 S. Ct. 337, 39 L. Ed. 409 (1895).
Similarly, this Court has held the United States and South Carolina Constitutions guarantee the right of a сriminal defendant to confront the witnesses against him through cross-examination. State v. Smith, 230 S. C. 164, 94 S. E. (2d) 886 (1956); State v. Davis, 267 S. C. 283, 227 S. E. (2d) 662 (1976). This right is not absolute, however, and several exceptions have been recognized. See State v. Bethea, 241 S. C. 16, 126 S. E. (2d) 846 (1962) [admission of dying declaration]; State v. Steadman, 216 S. C. 579, 59 S. E. (2d) 168 (1950) [testimony from prior trial admissible if witness unavailable]; State v. Pearson, 223 S. C. 377, 76 S. E. (2d) 151 (1953) [report of magistrate admissible to show prior conviction]; State v. Thompson, 279 S. C. 405, 308 S. E. (2d) 364 (1983) [admission of interlocking confession of nontestifying codefendant.]
We do not interpret the “face to face” language of § 17-23-60, quoted above, to prohibit the procedure emрloyed
This Court commented in State v. Smith, supra, that § 17-23-60 is a restatement of an accused’s constitutional rights. Here, we hold it does not enlarge them. The “face to face” provision does not require, in all cases, a direct physical confrontation between defendant and witness. When a balancing of competing interests demands it, the “face to face” requirement may be served by the appearance of the witness before counsel for cross-examination outside the defendant’s presence.
Our society now recognizes that crimes against children, such as sexual аbuse, occur with alarming frequency. The need to protect young victims of such crimes from the trauma of in-court testimony is reflected in the General Assembly’s enactment of § 16-3-1530(G). Indeed, this is a nationwide concern. A majority of states havе adopted statutes giving young crime victims special consideration. Several states permit the testimony of young victims to be videotaped outside the defendant’s presence in lieu of in-
Other statutes, solely or as an alternative, permit the taking of testimony over closed-circuit television for “live,” simultaneous presentation to the jury.
See, e.g.,
Appellate courts of other states generally have upheld these procedures.
See, e.g., State v. Vigil,
103 N. M. 583, 711 P. (2d) 28 (1985);
People v. Johnson, supra; State v. Sheppard,
197 N. J. Super. 411, 484 A. (2d) 1330 (1984);
State v. Melendez,
135 Ariz. 390, 661 P. (2d) 654 (1982);
Commw. v. Willis, supra; State v. Warford,
223 Neb. 368, 389 N. W. (2d) 575 (1986);
McGuire v. State,
288 Ark. 388, 706 S. W. (2d) 360 (1986);
Jolly v. Texas,
681 S. W. (2d) 689 (Tex. Ct. App. 1984),
writ dismissed. See also State v. Hewett,
86 Wash. (2d) 487, 545 P. (2d) 1201 (1976).
Cf. Commw. v. Ludwig,
No. 02883 (Pa. Super. Ct. Oct. 30, 1986) [holding that face-to-face confronta
Especially appropriate and applicable to the facts and circumstances of this case is Sheppard, supra. Therein, the Court rejected the contention that the Confrontation Clause requires in every case eye-to-eye contaсt between the defendant and a witness concluding:
The Confrontation Clause is not implacable in its demands. Nearly every authority‘agrees that it is subject to exceptions. In reaching the conclusion, as this court has, that the use of videotaped testimony in this case of child abuse is permissible, it is accepted as a fact that only a modest erosion of the clause, if any, will take place. The child, through the use of video, will not be obliged to see the defendant or to be exposed to the usual courtroom atmosphere. Nevertheless, the defendant as well as the judge, the jury, arid the spectators, will see and hear her clearly. Adequate opportunity for cross-exаmination will be provided. This is enough to satisfy the demands of the confrontation clause. If it is not, it represents a deserved exception. It is more than Wigmore would require. Everything but “eyeball-to-eyeball” confrontation will be provided. Nо case has held eye contact to be a requirement. It is not demanded when a witness “confronts” a defendant in the courtroom. No court rule requires eye contact and courtroom distances sometimes make such сontact impossible. [Emphasis applied].
484 A. (2d) at 1342-43.
The discretion afforded the trial judge pursuant to § 16-3-1530(G) allows the utilization of modern technology so as to enhance the truth-determining quality which marks a fair trial. While live testimony is always preferred [See Ohio v. Roberts, supra], other techniques may be used when, in the exercise of a sound discretion, the trial judge deems them appropriate and adequate.
Cоoper’s remaining exception is without merit, and we affirm pursuant to Supreme Court Rule 23.
Affirmed.
Ness, C. J., and Gregory and Finney, JJ., concur. Harwell, J., not participating.
Notes
Yet another recognized means of protecting young witnesses is the exclusion of spectators from the courtroom during the child’s in-court testimоny.
See, e.g.,
Reviewing’ a closely related issue, the Court m Stincer v. Commw., 712 S.W. (2d) 939 (Ky. 1986) held that a criminal defendant has an absolute right to be present at a hearing to determine the competency of child witnesses. The Commonwealth of Kentucky sought a writ of certiorari and a stay from the United States Supreme Court. Justice Scalia, sitting as Circuit Justice, denied the application for a stay. Kentucky v. Stincer, 479 U. S. -, 107 S. Ct. 7, 93 L. Ed. (2d) 235 (1986). However, the in-chambers opinion reasons there is a “fair prospect” a majority of the United States Supremе Court would find erroneous the conclusion of the Kentucky Supreme Court that the Sixth Amendment gives’ an accused child-molester the right to be present at such a hearing. The Court ultimately granted certiorari, - U. S. -, 107 S. Ct. 642, 93 L. Ed. (2d) 699, and the issue remains unresolved at this time.