State v. MurphyState v. Murphy
On the day of the alleged crime, defendant‘s wife had performed her usual Saturday babysitting services for the four-year old victim, and the parents picked up the child from defendant‘s home. The child complained to her mother after her evening bath that her “tee-tee” hurt because “Mr. Ralph” had stuck his finger in it. The mother noticed redness in the vaginal area and reported the incident to the police. The child repeated the details in a taped statement to the police, but a medical examination failed to reveal any tears or abrasions in the vaginal area.
Defendant was tried on charges of indecent behavior with a juvenile. The trial court, on the prosecutor‘s motion, instituted a special procedure pursuant to
Prior to the child‘s testimony defense counsel objected to the procedure on the basis that the screen denied defendant his right to confront his accuser in front of the jurors who were to observe her demeanor and conduct. Counsel further objected to the denial of defendant‘s right to a public trial. However, there were no specific objections to the use of the screen, to the seating arrangements, or to the instructions
On the basis of the child‘s testimony in court, as well as the child‘s statements to her mother and the police, the jury found defendant guilty as charged.3
On motion for new trial defendant complained that he had a hearing impediment and that the screen prevented him from reading the child‘s lips and following her testimony. He also complained that he could not speak to his attorney or even tap him on the shoulder out of fear of violating the judge‘s instructions not to alert the child to defendant‘s presence. Counsel argued the judge failed to takе steps to ensure that consultation between defendant and his attorney was adequate to provide for effective cross-examination.
The trial court denied the motion, noting that defendant and counsel had adequate opportunity to consult with each other and that he had urged them to do so, albeit with discretion. Furthermore, defendant conceded he had not complained at trial to the judge or to his attorney of any problem caused by an undisclosed hearing impairment.
The court of appeal affirmed the conviction. 515 So.2d 558. Because defendant had focused his attack in the court of appeаl on the impairment of his right to effective cross-examination, the intermediate court held that defendant‘s general objection to the use of the procedure as a denial of his constitutional right of confrontation, without stating the specific way the procedure adversely аffected his right of cross-examination, failed to preserve his right to urge the issue on appeal.4 We granted certiorari to review this decision. 530 So.2d 553.
The trial and appellate judgments in this case were rendered prior to the decision in Coy v. Iowa, 487 U.S. ___, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). The Coy decision requires reversal of defendant‘s conviction.
The Coy case involved a conviction for sexually assaulting two thirteen-year old girls. The trial court permitted the use of a large screen between the defendant and the witness during the girls’ testimony. Lighting adjustments enabled the defendant to see the witnesses dimly, but the witnesses could not see the defendant at all.
The Court held that the Confrontation Clause guarantees the accused a face-to-face meeting with witnesses appearing before the trier of fact. Although most previous cases under the Confrontation Clause involved either the restriction of the scope of cross-examination or the admissibility of out-of-court statements, the Court emphasized that both the right to cross-examination and the right to face-to-face confrontation are designed to ensure the integrity of the fact-finding process. The Court noted that use of the phrase “be confronted with the witnesses against him” would have been an exceedingly strange way for the framers of the Constitution to exрress a guarantee of nothing more than cross-examination.
The majority left for another day the question of any exceptions to the right to face-to-face confrontation. Although the state contended that the Iowa statute created a legislatively imposed presumption of
Two concurring justices, while agreeing thаt there had been no showing of necessity for special protection in the case under consideration, expressed the view that the defendant‘s rights under the Confrontation Clause are not absolute and may give way in an appropriate case to other competing interests so as to permit the use of certain procedural devices in order to shield a child witness from the trauma of courtroom testimony. The concurring justices pointed to statutes in several states which provide for case-specific findings of necessity of protection of child witnesses.
Because
The remaining issue is whether the violation of the defendant‘s right to face-to-face confrontation constituted harmless error in this case.8 The evidence, other than the child‘s testimony in court, consisted of her hearsay statements to her mother and to the police, as well as the mother‘s testimony that the vaginal area “looked red” (a condition apparently not observed during the child‘s bath) and the child‘s stepfather‘s testimony (denied by defendant) that the child was sitting on defendant‘s lap alone in the room when the stepfather arrived аt defendant‘s home on the evening in question. There were no vaginal tears or abrasions or other physical evidence indicating
It is therefore necessary to reverse defendant‘s conviction. However, because the overall evidence, including the victim‘s testimony, was sufficient to support the conviction, the state is entitled to retry defendant. Lockhart v. Nelson, ___ U.S. ___, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).
For these reasons, the provision of
CALOGERO, J., concurs and joins in the concurring reasons assigned by DENNIS, J.
MARCUS, J., concurs and assigns reasons.
DENNIS, J., concurs with reasons.
COLE, J., dissents, harmless error.
DENNIS, Justice, concurring.
I agree with the majority opinion except for its interpretation or application of the harmless error test. By concluding that, “the remaining evidence in this case falls short of establishing that the confrontation error was harmless beyond a reasonable doubt,” the court seems to have applied the “overwhelming evidence” test that was specifically rejected as being improper by the United States Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The proper test requires the reviewing court to ask whether there is a reasonable possibility that the constitutional error complained of might have contributed to the conviction. The court must also find that the constitutional error was harmless beyond a reasonable doubt. Id.; State v. Gibson, 391 So.2d 421 (La.1980).
MARCUS, Justice, concurring.
I agree with the opinion that the majority view in Coy requires the language of
Notes
“A. On its own motion or on the motion of the attorney for any party, a cоurt may order when justice so requires that the testimony of a child under fourteen years of age who may have been physically or sexually abused be taken in a room other than the courtroom and be simultaneously televised by closed circuit television to the court and jury. The only persons who may be present in the room with the child are the person or persons operating the audio-video equipment, the presiding judge, the attorneys for the state and defendant, the defendant, and any person, other than a relative of the child, whose presence is determined by the court to be neсessary to the welfare and well-being of the child during his testimony. Only the attorneys, or the presiding judge as authorized by law, may question the child.
“B. The persons operating the equipment shall be confined to an adjacent room or behind a screen or mirror that permits them to see and hear the child during his testimony but does not permit the child to see or hear them. The court shall ensure that the child cannot see or hear the defendant unless such viewing or hearing is requested for purposes of identification. The court shall also ensure that the defendant is afforded the ability to consult with his attorney during the testimony of the child.” (emphasis added)
The Iowa statute provided in part:
“The court may require a party be confined to an adjacent room or behind a screen or mirror that permits the party to see and hear the child during the child‘s testimony, but does not allow the child to see or hear the party. However, if a party is so confined, the court shall take measures to insure that the party and counsel can confеr during the testimony and shall inform the child that the party can see and hear the child during testimony.”