State v. Naucke

senting). Supreme found an the of the United States Court nevertheless Court Here, invalidating may properly a rela- discrimination. decide whether we have eval- tively employees small class of federal suf- controlling statutes and authori- uated disadvantage compared fers when ties.

great taxpayers. mass of I the decision of the Ad- would reverse No “antifederal” 6. intent Hearing Commission and re- ministrative purpose There the under Davis. manifest mand directions to allow the claimed prefer of the statute was to state retirees deductions. taxpayer to all other retirees. Here the against state discriminates one class of fed- retirees, substantially

eral favor of all taxpayers.

other

If there are other differences which support position, the director’s I fail perceive up them. It is to the state to peruse governing point statutes and Missouri, Plaintiff- STATE of any significant distinctions. When the em- Respondent, ployee pay, never sees the the disallowance compensa- of a deduction reduces his net suggest tion. The state does not that there NAUCKE, Robert L. Defendant- discriminatory is a difference a between Appellant. pay discriminatory tax on the and a denial No. 73536. mandatory deduction for a withhold- salary. from Missouri, Supreme Court of So, En taxpayers the record shows that the Banc.

fully discharged by pointing their burden April 1992. principal opinion suggests Davis. Rehearing Denied June they way some at fault in not making showing. some additional I believe they they have done all need to do. why

There is another reason we should unequivocal

reach an decision in this case. Witte, lawyer, litigating

Victor his own

case. The amounts involved are rather typed

small. He testified that he own

briefs and worked on off time. I find

particularly offensive the state’s collection taxpay-

of small amounts from numerous

ers who not be to retain counsel able protest

to launch an effective if indeed the especially

collection is invalid. This is so Hearing

when the Administrative Commis- professes inability

sion even to make points.

decision on their vital We should taxpayers square ruling

give the on the that,

merits, ruling so if the is unfavorable them, they may seek further review. ruling plain duty by do our should

We my

this case on the merits. believe sound, majority feel

solution is but

otherwise, they present should at least explanation of their views so that

reasoned Rosenblum, Marten,

N. Ramona Scott St. Louis, defendant-appellant. for Webster, Gen., Atty. William L. Eliza- Gen., Ziegler, Atty. beth L. Asst. Jefferson City, plaintiff-respondent.

THOMAS, Judge. deposition proceedings from the while the child testifies. sodomy Defendant was convicted of (T.N.) four-year-old daughter his and was Sanchez, State v. years imprisonment. sentenced to fifteen 1988), (Mo. banc this Court held that a appealed Ap- Defendant to the Court pursuant taken District, peals, grounds, Eastern on various violating admitted at trial without including the claim that to con- Confrontation Clauses the United States frontation under the Sixth Amendment of However, pri- and Missouri Constitutions. the United States Constitution and Article admitting deposition, or to such a the state I, 18(a), of the Missouri Constitu- produce, hearing, must at a evidence suffi deposi- tion was violated the use of the cient to that the emotional and establish pursuant tion of the child victim to 491.- § psychological result trauma that would 1986, RSMo from which the defendant in testifying open from in court or 491.685, pursuant was excluded to RSMo personal presence of the defendant in ef appeals 1986. The court of transferred fect makes the child as a unavailable wit case to this Court because of the constitu- preceded Maryland ness at trial. Sanchez judgment tional issue. We affirm the of 3157, 111 Craig, 497 U.S. 110 S.Ct. the trial court. (1990), proce L.Ed.2d held that a testify

dure to allow the child witness to in a child abuse case outside the defendant’s I. physical presence would not violate con provided case-specific frontation there is CONFRONTATION finding1 that the child witness will suffer required serious emotional distress if to A. testify presence in the of the defendant. Sections and 491.685—Is 491.680 Confron- find that child The trial court must by Taking tation Violated Child traumatized, witness will be Videotaped Testimony Victim’s Out generally, presence courtroom but the Presence Defendant? impact of the defendant. The emotional minimis, the child must more than de be 1. i.e., than “mere nervousness or ex more Testimony Supporting testify.” or some reluctance to citement Unavailability at -, Craig, 497 U.S. 110 S.Ct. at 3169. Child Witness Thus, in were on the track San- Section 491.680 authorizes the court to chez, modify holding must now our but we videotaped recording order an in-camera Craig. to conform with If the defendant is testimony alleged of an child victim deposition proceed- excluded from the be (Offenses Against Chapter under presence ings, personal of the defen- Person), (Sexual Chapter 566 Offenses In- psycho- dant must cause the emotional and (Prosti- cluding Sodomy), Chapter logical trauma of the child witness. tution). provides Section order, determining day of the trial but whether to issue an On the first psy- beginning consider “the emotional or the actual of the trial court shall before case, held a chological required present trauma to the child if the trial court testify open brought hearing into to determine whether to allow the personal presence of the defendant.” child victim’s to be taken out added.) (Emphasis presence 491.685 autho- of the defendant and then procedure described rizes the court to exclude the defendant used at trial under the Iowa, Compare Coy cases no 487 U.S. 108 S.Ct. was in all child abuse (1988), holding that con- requirement findings 101 L.Ed.2d 857 for individualized frontation was violated the defendant where particular special protection need courtroom but was screened from was case. procedure the view of the child witness. This prosecu- 491.680 and 491.685. The if §§ forced to do so in the support called as a witness in of its cross-examination, of the defendant. On Schechtman, motion Judith a social worker Ms. Schechtman indicated it her under- to whom T.N. had been referred for evalua- standing that she would not be allowed to counseling by tion and the child abuse team statute, testify, in the words of the that the Hospital. at Cardinal Glennon Children’s traumatized, child witness would be but trial, objected At the defendant to this find- Ms. willing Schechtman would be to ex- ground Schechtman, on the that Ms. press regarding her view the initial trauma worker, qualified give a social was not testifying. Defendant’s counsel then psychological testimony. Defendant con- asked for Ms. opinion, Schechtman’s on appeal tends that the trial court errone- stated, she “I think this child would break ously finding based its on this began down. seeing When her she was presentation because it allowed the sleeping nights, sleep was not able pursuant proce- T.N.’s statements alone, concentrating, was not fact and 491.680, provided dure in violation of forced to face this man with here rights. constitutional in court it would be absolute that these Ms. Schechtman testified she had a Bach- symptoms would reoccur.” She also testi- Degree elor’s in Psychology from North- cross-examination, fied on telling you “I am western University Degree and a Master’s my opinion is going T.N. is to a have hard in Social Washington Work from Universi- testifying time no put matter what and to ty. present Prior to her position, she father, her face-to-face with her it would be worked in special several treatment centers traumatizing.” where some patients of the sexually were at -, Craig, 497 U.S. at S.Ct. abused past children. For the years, four 3169, finding the Court held that she has worked with Masters and Johnson trial court that “the child witness suf will exclusively in the sexually treatment of fer ‘serious emotional distress such that abused children. primary job Her entails communicate,’ the child cannot reasonably interviewing children who have been requirement Maryland [the statute] brought to the clinic complaints or clearly suffices to meet constitutional stan allegations of sexual past abuse. In the is, substance, dards.” This the thrust of year, she has interviewed over 500 such testimony given by Ms. Schechtman as children. She had approximately thirty ability to testify presence T.N.’s to in the 2, sessions with T.N. between November fully adequate of the defendant and is to interview, the date of her first support finding that will meet the re 24,1988, October the date of testimony. her quirements of 491.680 as well as the de § During portion the first period, of that she mands of confrontation. and, met with T.N. once a week toward end, every other week. disagree with We defendant contention Ms. that Schechtman was not Ms. Schechtman testified that T.N. said qualified testify potential as to the effect (T.N.’s father) the defendant told T.N. not testifying of T.N. talk about of the sexual events that job defendant. Ms. Schechtman’s involves occurred, had if anyone T.N. told interviewing communicating with chil might go jail defendant have to and that abused; sexually dren who have been she T.N., the defendant would kill T.N.’s moth- regularly twenty works with such children grandmother. er and T.N.’s Ms. Schecht- and, a week of her T.N., result work man described as T.N. discussed threats, experiences, qualifies expert she as an these as “fearful and terrified. problems eyes communicating with a child quite Her were wide and she was running office, abuse victim. my sitting around in We do not believe trying necessarily requires still and not to answer Ms. the testimo me.” ny psychiatrist, psychologist physi Schechtman testified further on direct ex- of a or thought amination that she it would be cian. Ms. Schechtman’s extremely unlikely competent support that T.N. would be able both and sufficient to sufficient, necessity Maryland statute was findings as to the under

the trial court’s pres- required taking deposition T.N.’s out of the the Court discussed what with- require- under the standard: spelling ence the defendant out out minimum Craig, ments set forth Finally, must find that court U.S. 110 S.Ct. 3157. child emotional distress suffered presence of the defendant

witness in the minimis, i.e., than is more than de more Finding The Trial Court’s “mere excitement or nervousness or Child Witness Was Unavailable testify.” some reluctance to Wildermuth State], [496], 310 Md. v At the of Ms. Schecht- conclusion . [1987]; also [275], 530 A.2d at 289 see hearing pros man’s 505, 511-512, Mannion, 19 Utah State v. ecution’s motion take (1899). P. 543-544 We need presence of defendant T.N. out of the 491.680, showing of emotion decide the minimum and use it at trial under § special following finding: required al trauma for use court made the however, Mary procedure, because show Let the record THE COURT: statute, requires a determina land just Mo- have heard State’s will tion that the child witness suffer victim, testify [T.N.], tion to allow such that the “serious emotional distress it is by way videotaped communicate,” reasonably child cannot hearing after under Section sustained 102(a)(1)(H), meet clearly suffices to emotion- 491.680that would suffer 9— [T.N.] constitutional standards. psychological al or trauma open personal holding Thus, the salient features presence of defendant. that, de- distress because emotional serious, finds this trau- commu-

The Court further that the child cannot scribed as Moreover, un- ma in make the child clear that this level would effect nicate. is as a more than suffi- available witness. of emotional distress is requirements, cient meet court important It is to note that the trial i.e., pass something less muster. will testifying open in court found that either presence in the of the defen- testifying or below, finding the court In trial cause to suffer emotional dant would T.N. but, “serious,” adjective, did not use impor- is psychological trauma. This importantly, expected that the more found Maryland requires v. Craig tant because if re psychological trauma emotional and trauma psychological that emotional or presence of personal quired testify personal by testifying be caused un make the child the defendant would and not presence of the defendant re This was the available as a witness. Here, open trial courtroom. v. spelled out in State quirement that we alternative, in the either would found that 319, Sanchez, response 752 S.W.2d trauma; of that second half cause such did objection that 491.680 the defendant’s § i.e., personal pres- finding, testifying in the must of trauma specify what evidence defendant, require- meets the ence of the be produced before the Craig. Maryland forth in v. ment set violating the Confronta admitted without States and Mis of the United as to tion Clauses The has been raised whether issue at 322. The lead Constitutions. Id. psychological or souri the level emotional meaning ing case in Missouri on serious trial court is trauma found 354 Easterly, Mary- “unavailability” Sutter v. requirements enough meet the (1945), which respect. Mary- In Mo. 189 S.W.2d Craig land v. is unavailable “whenev says re- that a witness Maryland statute Craig, the land v. is unavail the witness such er emotional distress quired “serious (Emphasis proposition.” a practical able as reasonably communi- child cannot that the added.) Missouri is Unavailability in cate,” finding this was the witness finding limited to situations where holding In court made. courtroom, absent from the such as where same manner in relation to 491.680 and §§ deceased, beyond the witness is or 491.685. range subpoena, of a or cannot be found. We hold that the finding trial court’s It also includes circumstances where T.N. psycholog- would suffer emotional and is, be, present

witness or could in the court trauma, ical would effect make but, reason, legitimate room for some testi her unavailable as a witness if mony unavailable, such as where the personal presence of the de- privilege against witness claims the self- fendant, satisfies the require- threshold incrimination, Sutter, Holt, id.; v. State ment of Craig v. for the use of (Mo. 1980), 592 S.W.2d banc such a deposition. testify by could not reason of loss of mem ory, Orr v. State Farm Mutual Automo B. Co., bile Insurance Deposition” Does The Missouri Proce- (Mo. 1973). finding by banc The the trial dure Under §§ 491.680 491.695 court that the trauma would make the child Provide Protection as a Confrontation unavailable witness when considered Equal that Provided In- light of Missouri’s cases as to the mean Testimony Camera Video Procedure “unavailability” convinces us that Approved Maryland Craig? v. finding the trial court’s fully meets the requirements of Maryland Craig We must now consider whether the allowing to be taken out procedure of differences between the followed of the defendant. in Maryland Craig and those followed under 491.680 and 491.685 caused the § dissenting The opinion by Chief Justice procedure “deposition” Missouri to violate Robertson asserts majority has Craig, confrontation. In the child witness amended adding require- by one-way testified closed circuit tele sense, true, ments. this is but we vision from a room outside the courtroom. point out that it is common for the child, prosecutor and defense coun Sixth requirements Amendment to add to a room, sel withdrew to another where the statute or common law rule that admits child was examined and cross-examined. certain evidence in criminal cases. For ex- judge, jury and defendant remained in ample, in the confrontation/hearsay first courtroom, testimony the and the of the involving cases the use testimony from a child in was shown the courtroom on a preliminary hearing prior reported as testi- closed circuit judge, jury television. The mony, the common law evidence rule mere- and the defendant could see the child wit ly required was that the witness be un- television; questioners ness and the via the Evidentiary available. rules said that the child witness could not see the defen beyond the witness was range the of a dant, anyone nor in else the courtroom. subpoena, good enough; that was the con- procedure The Missouri differs in that frontation rule added requirement the that prior the child witness’ is taken the actually witness be unavailable. Bar- by videotape during to trial and shown the 719, Page, 1318, ber v. 390 U.S. 88 S.Ct. Maryland procedure produces trial. The (1968). words, L.Ed.2d 255 In other it was testimony” what is called “in-camera while enough beyond for the witness to be procedure produces the Missouri what is range the subpoena; of the the witness “deposition.” called a Since labels be must have refused to come to court volun- misleading, need to examine whether tarily. Beginning Page with Barber v. any proce- in there is difference the two continuing through development the dures in that causes Missouri’s substance confrontation/hearsay cases, it has been procedure confrontation the to violate while practice common to use the Confrontation procedure does not. necessary requirements Clause to add to evidentiary present Supreme the state rules. In the Recent United States Court case, application pointed the Sixth Amendment functions in the out that the cases have approximately to came to courtroom at

of the confrontation clause out-of-court the historically began began with hearsay taking deposi- statements 11:30 T.N.’s A.M. regarding tion, criminal concerns the 2:40 approximately which concluded at prose presented thereafter, cases evidence the Immediately with the P.M. trial be- depositions cution mere or affidavits. gan jury, with the voir dire — Illinois, -, See U.S. White opening the introduction of statements and 736, 116 (1992), L.Ed.2d 848 and Unit S.Ct. later, days evidence. Three October Inadi, ed 475 U.S. 106 S.Ct. States testimony T.N.’s shown to the was (1986). proposi L.Ed.2d 390 This affording jury videotape, jury on the actually majority rejected was it opportunity the same that would have in Justice Thomas White v. Illinois where appearance to and demean- had observe Scalia; dissented, joined by Justice Justice as had testimony or of the witness if the suggested should Thomas that Court presented one-way via been rule would returning consider to a that courtroom, as television from outside the apply principals refuse to Craig. done in was deposi any hearsay other statements than ignore If one in will the label tions, prior testimony. affidavits and testimony a “deposi- that this identifies proce- It is unfortunate that Missouri tion,” difficult, impossible, it if not testimony that is labeled produces dure any significant difference in the point technically “deposition.” probably While it requirements be- context of confrontation deposition, it is constitutes a clear that testimony procedure tween very type deposition requiring special differ Craig. procedures used Both equiva- specific approach features that given in the testimony from traditional testimony. lent of in-eourt As of the defen- courtroom requires other statute deposition, the However, pro- dant. this difference both subject to testimony be under oath and live, compared to in-court testi- cedures as importantly, More cross-examination. mony justified by was the determination “deposition” use of taking and Craig legitimate the state’s interest had present testimony case resulted in psychological well-being of physical and following of in- common characteristics outweighs the defen- child abuse victims (1) testimony. was pure face-to-face confronta- dant’s videotape and shown to the recorded on gnat straining at a tion. It jurors every opportunity had so Craig somehow find that the this Court to demeanor, appearance consider all to meet confron- procedure is sufficient evaluating go and all the factors that into procedure requirements tation while (2) judge live trial. for under 491.680 somehow provided present was taken when require- those confrontation fails meet ruled on the admission evidence ments. generally con- as same manner at trial very in the proceedings the much ducted noting in footnote 2 of It is worth (3) Although not same manner as at trial. opinion Craig, majority Justice the case, statute, in the by the mandated states that refers various O’Connor was in the same setting deposition for the protect child wit- enacted statutes to have try the jury courtroom where the giving trauma of testimo- nesses from the testimony only three case and view this In footnote ny in child abuse cases. case, (4) present the days in the later. Also states, thirty-seven lists O’Connor Justice deposition, as a taking of the timing of the Missouri, the use of including permit matter, essentially part of made it practical i.e., testimony, depositions of videotaped the trial. In sexually children. footnote abused provide for twenty-four lists states she begin on Mon- was scheduled The trial (including date, one-way circuit television 24, 1988, and, closed on that day, October and, she lists Maryland), counsel, footnote prosecu- and his the the defendant two-way closed eight that authorize tor, mother states and her the child victim have been questions of his counsel would circuit television. She does not articulate deposition pro- jury the the would have al- distinction between too late because (as Missouri) in-camera ready cedure and the the evidence. received (as Mary- testimony procedure video provides that the child Section 491.680 land). words, In other Justice O’Connor at the not excused as a witness shall be procedure as appears to treat Missouri taking deposition until the defendant of the equivalent Maryland procedure opportunity to review has had a reasonable indeed, and, entirely we this is cor- believe counsel, videotape private with his rect. counsel, his and cross-examine consult with Meachum, Spigarolo In 934 F.2d following such and consul- the child review (2nd Cir.1991), the States Court of United luxury of more tation. The deliberate rejected the contention Appeals defendant’s viewing possible and consultation is under rights constitutional were violated that “his procedure giving the Missouri because videotape was made before because receipt byit testimony of the and the as jury was sworn and was not ‘live’ was to us jury are not simultaneous. It seems procedure in one-way closed circuit procedure that this affords the defendant argued at 24. The defendant Craig.” Id. evaluate, sug- opportunity to make better gauge that his counsel unable his gestions provide information to during reaction of the cross-examina- on cross-examination than counsel for use not cross-examina- tion and could tailor his If procedure Craig. used upon tion the course of events that based improves actually correct that this method transpired during the trial. Bra- See also opportunity for effective cross-exami- State, (Ind.1991), N.E.2d dy v. nation, then can it be said that this how holding procedure provid- that the Indiana procedures the two difference between videotaped, pre- alternative protecting a child causes our method of testimony pro- similar to the Missouri while the witness to violate confrontation cedure did not violate defendant’s Sixth method used in satisfies confron- rights under the Amendment confrontation only possible distinction that tation? The United States Constitution.2 Maryland proce- could be said to favor argues in Defendant this Court for argument dure direct would be “deposition” first time that the Missouri “set” examination would somehow become procedure under 491.680 and re- defendant and his counsel could before violates confrontation when the defendant However, it spond by cross-examination. taking who is excluded from the of the opportunity for cross-exam- is clear that an contemporaneous does have ination, delayed, meets confronta- even viewing being while it is requirements. tion California taken means such as an and does have 149, 159, Green, 399 U.S. 90 S.Ct. telephone intercom or to communicate with (1970), said, 1935,26 L.Ed.2d 489 the Court during taking depo- attorney his inability to cross-examine wit- “[T]he necessarily sition. These features were prior state- at the time he made ness present viewed Craig because cru- easily shown to be of ment cannot being given. If the as it was long defendant is significance cial as the opportunity an defendant had not had and effective cross-examina- assured of full given and to view the as was trial.” at the time of testimony attorney talk with his while by delay occasioned believe the short We fore- progress, in he would have been was his counsel an allowing defendant and cross-exam- participating closed from view, and discuss opportunity to evaluate deposi- opportunity An to view the ination. private confer- suggestions ask the direct examination and make to or tion later fact, However, State, the trier of see the defendant and Brady supra, the Indiana ness can v. 2. provision can see and the trier of fact court held that the face-to-face and the defendant two-way requires a closed Indiana Constitution the witness. arrangement so that the wit- circuit television proceeding cused from the witness stand. Defense ence before with cross-examina- attempt possibly jeopardize cannot the effec- made no to cross examine. counsel rejected argument such that defendant’s that Ar- tiveness cross-examination We I, 18(a), Most it violates confrontation. law- of the Missouri Consti- ticle Section tution, experienced panic have yers specifies who that “the accused being go forward with cross- to to meet the wit- shall have ... they praying face,” for a examination when were against nesses him face to is more thought preparation for recess before restrictive than Confrontation Clause readily cross-examination will understand of the Sixth Amendment of United that the defendant’s contention this re- States Constitution. fact, is, in spect backwards. We do not Schaal, (Mo. State v. In 806 S.W.2d 659 for a of confronta- find basis violation 1991), Judge writing banc Robertson procedure forth in 491.680 tion in the set § majority, for held that Court his that allows defendant and counsel videotaped interview a child abuse victim opportunity prepare to confer and an by psychologist admitted under 492.304 § during a recess cross-examination between did where the not violate confrontation direct and cross-examination. testify, child to al- victim was available “deposition” hold the Missouri We though the state nor the defendant neither 491.685, procedure § called as a witness. In the context of her case, in this not violate confron- used does Schaal, again the facts in this Court held under the Amendment of the tation Sixth protected rights confrontation “[t]he United States Constitution. We believe by the are the same Missouri Constitution rights the defendant’s confrontation Amendment protected as those the Sixth protected “deposi- Missouri under the Id. at United States Constitution.” procedure for the same reasons and

tion” least to the same extent as was afforded case, v. early State very In Maryland Craig v. the defendant to McO’Blenis, (1857), this Court Mo. 402 testimony proce- in-camera face-to-face lan- considered whether dure. guage the Missouri ex- Constitution dying and a cludes the use of a C. in a crim- against the defendant declaration Are the Provisions Confrontation not, holding inal In that it does case. Violated? Missouri Constitution exceptions pointed out that these to Court his claims that his Defendant bases hearsay rule were established at well upon rights violated confrontation were adopted and the time the Constitution was rights under both the his intended such was never Amendment to the United States Sixth language. by the face-to-face excluded rights under the con Constitution consistently re- years, Over the we have provisions of the Missouri Con frontation language of apply fused the face-to-face stitution. 18(a) literally evidence to exclude hearsay Hester, (Mo. exceptions, which v. admitted under State In 801 S.W.2d 695 face.” See State v. 1991), not “face considering truly confron- were whether banc Simpson, (Mo.App.1981) S.W.2d 957 violated, was we held tation under the busi- detective, (hospital records admitted pursuant 491.- police Logan, State exception); ness 075, concerning made a child records statements (1939) (prior 351, 126 S.W.2d 256 days two af- 344 Mo. to the detective abuse victim Colvin, State occurred, reported testimony); alleged abuse had did ter the (1910) Hester, (dying declara- child Mo. 126 S.W. confrontation. violate tion). apply the “face rigidly If we were present at trial and answered two or exception hearsay thereafter, no but, requirement, to face” questions failed to three against any admissible by pros- evidence would be respond questions to additional where any criminal case child ex- defendant At that point, ecutor. declarant does not state; (2) at trial ness because be within the that the wit- the declarant in such a circumstance is not ness be other than the defendant and his or “face to face” with the defendant. Such (3) spouse; her that the circuit court find interpretation I, an 18(a), of Article Section necessary deposition that it is to take the would indeed result in major difference in (4) preserve testimony; order to protection by confrontation afforded deposition conditions under which the the Missouri Constitution as opposed to fully protect rights taken personal of by that afforded the Sixth Amendment of confrontation and cross-examination of the United States Constitution. by witness defendant. though Even this Court has held twice in requirements The first clearly two the last fifteen months that the “face to require- met this case. As to the third language face” in the Missouri Constitution ment, deposition that the “be in order to creates the rights same confrontation as preserve testimony,” phrase this means the Sixth Amendment of the United States deposition that the must be taken for the Constitution, consider, we need not purpose of use where the witness is un- present case, whether the “face to face” opposed being available taken for I, language 18(a), of Article Section bars discovery impeachment. State v. Kel- deposition the use of a taken under 491.- §§ ley, (Mo.App.1985). 693 S.W.2d 114 680 and express language 491.685. The of finding of trial court that T.N. would I, 18(b), Article specifically provides Section trauma, suffer psychological emotional and for the deposition testimony use of against which would make her unavailable as a a defendant in a criminal case under cir- witness, specifically precisely meets cumstances such as required by those requirement. this third I, 491.680 and 491.685. Article Section §§ requirement 18(b) The fourth of Section 18(b),of the Missouri provides Constitution prongs. has two Under one of those as follows: prongs it deposition that the Upon hearing and finding by the circuit procedure fully protect rights of cross- court in any case wherein the accused is examination by of the witness defendant. charged felony, with a that it is neces- requirement by This provisions is met sary to deposition take the wit- 491.685, require that the wit- § state, ness within the other than defen- ness shall not be excused until the defen- spouse, dant and preserve order to opportunity dant has had a reasonable testimony, and on condition that videotape private review the with his court make such fully pro- orders as will counsel and to consult with his counsel and rights tect personal confrontation until his counsel has been afforded and cross-examination of the witness opportunity to cross-examine the witness defendant, may the state deposi- take the following consultation, such review and all tion of such party witness and either opinion. as discussed in this may trial, use the same at the as in civil

cases, provided there has been substan- prong require- other of the fourth compliance tial with such orders.... I, 18(b), ment of Article Section that the 18(b) taking conditions of the Section use of essentially exception an deposition fully protect rights requirement per- the “face to face” of Section 18(a) that, sonal confrontation of the witness de- so taken under fendant, expressly requires type 491.680 and 491.6853 does violate §§ 18(b), analysis engaged through- Section then it does not violate the Court is i.e., requirements opinion, confrontation of the Missouri out Part of this the determi- 18(b) Constitution. rights contains four nation of whether defendant’s requirements. (1) They are: that the wit- confrontation have violated. We hold been I, 18(b), Although provides rights personal 3. Article for the cross-ex- taking and use of the "on condition amination of the witness defendant also orders," 492.303, appears provided that the court make statute. See RSMo [certain] fully protect that the conditions that will testifying, of rights of from the emotional trauma personal the confrontation I, required legis- Article expressly guess Section likewise not second our we will 18(b), the of the Missouri Constitution are regarding of importance protect- lature the guaran- as rights same of confrontation Accordingly, we child victims. abuse teed defendant under the Sixth Amend- to requirements hold that under the set forth ment Constitution. of United States 491.685, and Missouri’s inter- 491.680 §§ protecting est in child from seri- witnesses We same under must consider the issue testify distress if ous emotional Supreme 491.685 as States United § of defendant is suffi- Maryland Craig, Court considered in v. ciently justify the use of the important i.e., of whether exclusion the defendant procedure provided by special those sec- deposition proceeding from at which Maryland tions. Under the rationale of v. is to confrontation. child violates embrace, pro- (Mo. Craig, which we the Missouri Jackson, In State v. 495 S.W.2d 80 and does App.1973), appeals held that a cedure under 491.680 491.685 court of §§ I, taken defendant’s counsel not under Article violate confrontation present 18(b) did when the defendant was of the Missouri Constitution Section requirements meet the confrontation nor under the United Constitution. States However, I, 18(b). Article de Section and, an adult al fendant Jackson was D.

though the time defendant was deceased at trial, apparent for there was no reason Competency Child Witness at the time absence defendant under § 491-060 was taken. major Defendant’s other confrontation above, As v. Maryland discussed T.N., argument years was is that who five procedures Craig, under the we find to be trial, compe- was not a old at time 491.685, required by similar to those and, therefore, was tent witness defendant Supreme United Court held confron- States to a fair trial. This conten- denied agree tation not violated. We with was for first time in this tion was raised Maryland v. 497 U.S. Craig, rationale of Court; not raised in the trial was 3157, that, although the Con- 110 S.Ct. and, therefore, preserved not properly is preference reflects a for frontation Clause Nevertheless, will appellate review. we trial, at this is “face-to-face” confrontation prior precedent on this issue. refer our give preference occasionally that must 491.060, RSMo, provides that public and way policy considerations of years age who a victim child under ten agree the necessities the case. We shall considered a com- of sexual abuse be the conclusion the Court that the state’s testi- and shall allowed to petent witness be psychological physical in the and interest judicial pro- qualification in a fy without well-being of child victims abuse ceeding involving alleged such offense. sufficiently important outweigh a defen- Williams, (Mo. 729 S.W.2d 197 v. State right to his or her accusers dant’s face constitutionality 1987), upheld the banc we opinion in this court. We held earlier attack of this statute under the defendant’s procedure in “deposition” the Missouri confronta- process due based both 491.685, in this as used §§ at trial and the child testified tion where case, the defendant confrontation affords Since subject to cross-examination. equal rights least 491.- hold T.N.’s under in Ma- procedure available to the defendant in- essentially equivalent Craig under the in-camera video ryland in Maryland camera video used testimony procedure used therein. Just holding appli- Craig, Williams Mary- Supreme Court in the United States if defen- present case. Even cable guess the Craig refused to second land v. objection timely proper legis- dant made a judgment of the considered as a competency of T.N. concerning in- importance of its regarding lature preserved thereby properly protecting child abuse victims witness terest argument, reject this constitutional de- late confrontation unless there is an ade- quate showing particularized guarantees argument fendant’s confrontation directed at 491.060. of trustworthiness. Statements of a child §

victim, 491.075, only under admissible § deeply-rooted are not under a admissible E. rule; exception hearsay such state- Testimony Relating hearsay Dr. Monteleone’s ments would be blatant the ab- allowing to Child sence of their admis- Victim’s the statute Out-of-Court Thus, Statements sion. the admission of such state- reliability” ments will violate the “indiciaof Defendant raises another confrontation adequate showing rule unless there is an problem respect with to the particularized guarantee of trustworthi- concerning Dr. Monteleone certain state- ness.4 by brought ments T.N. at time she Monteleone, pediatrician Dr. a Hospital to Cardinal Glennon for evaluation child sexual abuse team at St. Louis Uni- by and treatment the child sexual abuse versity Hospi- Cardinal Glennon 491.075, RSMo, Children’s provides team. Section tal, reported- testified to certain statements finds, that if the hearing trial court in a ly made T.N. at the time of her evalua- conducted jury, outside the time, and treatment. Six other witnesses5 that the content and circumstances of also testified to made statements T.N. provide statements made the child suffi- following alleged sexual cient abuse. The reliability”, “indicia of if and the child reliability” trial court held an “indicia of either proceedings testifies at the or is hearing witness, on the 491.075 statements of unavailable as a such statements § and, effect, each of these six witnesses in each admissible. 491.075 cre- § instance, ates a found the statements had “indicia statutory hearsay new exception for reliability” required by as the out-of-court statements of a child vic- reliability” requirement the “indicia of tim in a sexual abuse case. Roberts.6 Roberts, 56, Ohio v. 448 U.S. 100 S.Ct. (1980), 65 L.Ed.2d 597 sets forth a The trial court did not an “indi- hold reliability”

series of “indicia of appli- reliability” hearing respect rules cia of cable to out-of-court testimony concerning statements admitted Dr. Monteleone’s when the witness is If beginning unavailable. statements of T.N. At the examination, statement deeply- admissible under a Dr. Monteleone’s direct a (traditional) exception rooted hearsay requested by to the bench conference was de rule, adequate issue; it will be deemed to have fense counsel to raise this the court reliability” “indicia of explained apparent require and will not violate refusal to hand, confrontation. On other hearing by stating such a “medical histo- deeply- ry_ taking statement that does not fit within a He is down a medical histo- admitted, hearsay exception rooted ry. exception general then This is an admission such statement will vio- rule. take Sometimes a medical doctor will Gueller, visit.); Wright, secretary/recep- 4. See the recent case of Idaho v. their Barbara (1990), office; U.S. S.Ct. 111 L.Ed.2d 638 tionist from Dr. Lowther's Judith type which discusses in detail the of in-cham- Schechtman, a clinical social worker at the Mas- hearing finding by bers the trial court that program sexually ters clinical for and Johnson necessary requirements meet children; Ramsey, pedia- and Dorcas abused for the out-of-court statements of a child sexual nurse-practitioner tric from Dr. Lowther’s of- abuse victim admitted under an Idaho statute fice. 491.075, similar to RSMo. case, present objection no 6.In the there was Naucke, mother; Cindy T.N.’s Patricia Scher- 5. sufficiency appeal trial and no issue on as to the Clinic; zinger, Mary a nurse at the SAM Ann hearings reliability" Moran, Lowther, of the “indicia of nor to employee pedia- an of Dr. statements as admission of T.N.’s out-of-court trician who examined T.N. on October (Ms. job putting pa- testified to the six witnesses listed in footnote Moran described her determining tients in a room and the nature of history qualify Spe- ion videotaped the records.” De- as the interview at the (SAM) stated, Management “Okay. fense cial Assessment Clinic. counsel then state testify unequivo- Dr. my objection Giving Monteleone could record.” both cally only he received the informa- whether defense counsel and the trial court the ben- he Scherzinger tion Ms. or from whether efit of the as doubt to these somewhat videotape. also reviewed the Ms. Scher- incomplete regarding objec- statements zinger prior one of the six witnesses was ruling, tion and the treat defen- will already to statements who had testified objection objection as an dant’s that an objection de- by by T.N. made without reliability” hearing “indicia of was had as to the trial court fendant and which provided by in 491.075 as “indicia § hearing. Ex- reliability” held “indicia of an reliability” requirement of Roberts for a begin- cept for the bench conference at hearsay exception. tri- non-traditional ning testimony Dr. Monteleone’s where apparently any al ruled that state- an objected to the absence of defendant ments that made to Dr. Monteleone T.N. Dr. reliability” hearing as to “indicia of Dr. connection with Monteleone’s evalua- Monteleone, objection made no defendant tion and treatment of T.N. would be admis- testimony of Dr. any any time to exception under Missouri’s to the sible concerning the Monteleone statements hearsay made a rule for statements by made T.N. treating physician. Breeding v. Dodson (Mo. 281 Repair, Trailer banc if testi Even Dr. Monteleone had Restated, 1984); 803(4) Mo.Evidence presence § in his fied to statements made correct; (1984). ruling This was T.N. T.N., hearing reliability” an “indicia of had made statements in Dr. Monteleone’s required under 491.- would not have been § presence at the time he evaluated and principles under the of confronta nor her, ad- treated these statements would be have such because statements exception exception missible under this hear- Missouri’s been admissible under rule, say deeply-rooted, hearsay which is a tradition- for statements made rule hearsay that, exception treating physician. under the first To the extent that al reliability” Roberts, Ms. pro- “indicia of rule in Dr. testified what Monteleone him, con adequate probably reliability” vides “indicia of so Schechtman told which hearsay, his form of double that there is no violation of confrontation. stituted some — first, error; Illinois, -, testimony prejudicial was not U.S. White v. See made; objection and sec no was involving L.Ed.2d because S.Ct. ond, cumula such was ruling. because type evidence and same given by testimony previously tive conference, Following bench Dr. made Ms. as to statements Schechtman examination, Monteleone testified direct which, and, trial court T.N. to her as to gave positive history [T.N.] “[s]he hearing. reliability” had an “indicia of held sex, history she oral fon- described Dr. Mon- contention that defendant’s dling pain, ripping hymenal which T.N.’s state teleone’s about drawing consistent a tear. She drew him his constitutional ments to violated pro- sex Dr. Monteleone then abuse.” His rights rejected. merit and is is without findings physical from ceeded to describe 491.- require not testimony did use physical of T.N. and behav- his examination require reliabili an “indicia of did he observed T.N. ioral indicators hearing and the extent there ty” that, “I of his conclusion the basis were in his potential error involved other suspect thought reason to sexual we had statements, it was testimony about T.N.’s it was de- On cross-examination abuse.” prejudicial. nor preserved neither these did not make state- veloped that T.N. Monteleone; of Dr. ments II. upon relied history but he did take THE EVIDENCE OF SUFFICIENCY therapist Patty to him given information evi videotape contends that Scherzinger, of that Defendant made a who to make a submissi- interview, opin- to in this insufficient is referred dence was ble sodomy. case on the crime of A He would do that stuff all to [sic] provides: 566.060.3 person “A commits home. sodomy crime of if he has deviate sexual gave Dr. physical Monteleone T.N. a ex- person intercourse with another to whom physical injuries amination. He found he is not married who is less than fourteen vagina and about T.N.’s consist- were years old.” “Deviate sexual intercourse” Ramsey, ent with sexual abuse. Dorcas defined, purposes Chapter nurse-practitioner office, in Dr. Lowther’s 566.010(2) “any involving sexual act physical injury also found consistent with genitals person mouth, of one and the sexual abuse. tongue, hand person.” or anus of another passing sufficiency In on the Early deposition, in her T.N. identified evidence, the accept we must as true all portions nose, anatomy, of her such as her evidence sup and inferences that tend to mouth, eyes, and, importantly stomach port disregard the verdict and all evidence case, (her her “peedy” in this her contrary. inferences to the We must vagina) (the term for her and her “butt” light take the evidence in the most favor area). “peedy” buttocks She used the term Brown, to able the state. State undeviating with consistency. Early in her (Mo. 1983). S.W.2d 694 banc The small testimony, she was you asked: “Do know portion amply of the evidence recited above what is to be touched in place?” a bad demonstrates that there was sufficient evi- And yes. she nodded her head She was dence support finding guilt to of the asked, “What is a bad touch?” and she sodomy. offense of answered, “Peedy and butt.” She testified to the critical facts of sodomy as follows:

Q you judge Can tell the and for the III. A At his house. MyA Q A Q A Q [T.], Q jury pened? touched touched it. any Did Do Well, Yes, Where did he touch ^[*] of those whether or not you your butt and can he did. he your peedy? ^[*] got remember where Daddy you places. ^[*] my peedy. tell us how finger Bob your ^[*] [defendant], you, ready, dad touched [T.]? ^[*] your then he hap- ^[*] dad did Scherzinger, who conducted the interview. had been tion and the SAM Clinic view of T.N. erations, allowed to review T.N.’s T.N.’s review the SAM Clinic trial court erred interview at Cardinal Glennon SHOWING VIDEOTAPED INTERVIEW AND DEPOSITION DURING JURY videotaped deposition. During Defendant also described DELIBERATIONS jury requested The SAM Clinic by allowing in the evidence videotape complains videotaped deposi- videotaped Hospital videotape of T.N.’s that the they jury inter- delib- Ms.

he you anywhere? ever kiss videotape of the interview was admit- A Un-huh. objection7 ted into evidence without but was not jury prior shown to the to the Honor, Your [DEFENSE COUNSEL]: beginning of their deliberations. going object I’m question. to that It’s been asked and answered once and begun, Sometime after deliberations had prosecuting attorney now is lead- judge requesting sent a note to the ing the witness. exhibits, including certain T.N.’s video- THE COURT: The witness didn’t answer taped deposition videotaped inter- and the may proceed. that. You at the record con- view SAM Clinic. The my peedy. A He kissed me on butt and copy jury, tains a of the note with from Q “Sent,” [T.], you stating, do judge remember where he a notation acknowledge do that? parties and his initials. Both offer, affirmatively, objection.” 7. At the time of the defense counsel stated “No possible time. videotaped raised at the earliest Chris videotaped Hosp., interview were shown tiansen v. Fulton State However, jury during there (Mo.1976). deliberations. nothing posi- record to reflect first issue arose when such parties respect

tion of the with to the jurors openly during one cried and, response particular- the note court’s videotaped showing ly acquiescence in any objection to or send- the end the state’s case. At the T.N. at tapes jury by party. either deposition, defense conclusion coun Because the record does indi sel first moved for mistrial then respect cate to the what occurred use alternatively disqualify juror moved videotaped interview and video juror. replace and to her with an alternate deliberations, taped deposition during the The trial court denied both motions. De unable to determine whether request dire of fense counsel did voir objection party was made either particular juror. nor of this parties may agreed whether the have Stith, (Mo.App. 660 S.W.2d 419 State use of the evidence. Defendant cites in 1983), defendant moved to voir dire the support Legal p. this 24 point of File and jury published information in a because Supplemental Legal p. Legal p. File File newspaper during article trial have jury 24 note re is the down the sent jury opinion the form an based caused to questing Supplemental items. Le various newspaper on article. The trial court gal 2 is p. File a handwritten order entered appeals The court of overruled motion. 7, 1990, judge September the trial dated held that such a motion addressed to the acknowledges in which the trial court judge sound discretion of the trial and the played at the time T.N.’s was of discretion will be disturbed exercise case-in-chief, jury during the state’s only appeal the record shows a on when objected on defendant constitutional appeals abuse discretion. The manifest grounds. portion This record has court said the trial court must make a showing of nothing to do publicity determination as to whether deposition, videotaped or the interview dur dangerous, prejudice substantial creates a deliberations, objection, jury or what trial to the accused. The court’s denial any, party made when that occurred. either manifest the motion did not constitute seeking trial court Parties to reverse the and, therefore, of discretion was abuse appeal obligation have to make record appeal. set aside on demonstrating error. v. Kaelin Nuelle, (Mo.App.1976). 537 226 S.W.2d Stith, appeals cited In State Thus, showing any in the record absence (Mo.1973), 81 also a Schlagel, what occurred at the trial level related publicity this newspaper case wherein error, appeal this claimed the Court on held the trial court did Court obligated Id. to affirm the trial court. We question declining abuse its discretion this affirm on issue. concerning newspa- during trial per that each case article. The Court said

IV. on its facts and must be decided of the trial court’s discretion. It exercise OTHER TRIAL CLAIMED that, newspa- important to unlike the note COURT ERRORS exposed per was cases where al Defendant raises several other part of the properly information not legations and concludes each of trial error record, juror’s re- present case stating thereby byOn he was Point Relied admitted evidence sponse properly was However, a fair trial. denied his and considered intended to viewed claims of non-constitu these issues involve jury. error, pre none of which were tional trial Woodrome, 758 S.W.2d In level as constitutional State served at trial court held that whether (Mo.App.1988),the issues must be issues. Constitutional panel occurred, the entire is tainted a statement October 1989. If the incident panel indicated, questioning of a member is in the trial court’s before the marriage deciding discretion. dissolution of the of defendant there was no abuse Naucke, Cindy at least discretion, it occurred two pointed the court out years Cindy prior to the time Naucke “[ojrdering a mistrial is drastic and should claimed T.N. defendant abused only be done in circumstances no where other action prejudice would remove the rejected type The same of evidence was claimed.” Id. at 137. Lewis, in the direct examination of Brad defendant, friend of the called as a witness

Likewise; the substitution of an alternate by defendant. Mr. Lewis had attended Bob juror regular juror during for a trial is a wedding Cindy’s on June matter entrusted to the discretion of the had visited their home thereafter. He Vestal, trial court. Milam v. 671 S.W.2d asked, you Cindy was “Did ever hear citing (Mo.App.1984), Wright 9 C. Naucke make threats to Bob Naucke?” Miller, (1971) A. p. (replace prosecution’s objection was sustained jurors discretionary). ment of The trial proof and no offer of made. Absent court did not abuse its discretion in re proof, an offer of it is not clear what Mr. fusing refusing to declare a mistrial nor been, Lewis’ answer would have but as- replace crying juror, who was re suming “Yes,” it would have been it is still sponding to the properly evidence admitted impossible to tell when such a threat was in this case. Defendant’s claim of error in Assuming during made. it was the mar- respect is without merit. riage Cindy Naucke and the defendant Defendant next contends that they separated, and before it would have in sustaining prosecu court erred been from 372 to 47 n years prior any objection tion’s to evidence of conduct and allegations by Cindy of child abuse Naucke. by mother, Cindy statements T.N.’s Evidence of occurrences or statements of Naucke, feelings show her of bias and type Cindy this at or near the time Naucke prejudice against the defendant. On direct brought charges against the child abuse Ginther, examination of Barbara a friend impeach- defendant would be admissible began who dating sepa defendant after he ment evidence to show the bias of the Cindy Naucke, rated from defense counsel Furthermore, witness. such evidence is asked whether Ms. Ginther had contact not limited to cross-examination but be Cindy Naucke since 1985. Ms. Gin- extrinsic evidence. State v. by shown ther started to relate an incident that had Johnson, (Mo. 1985). 700 S.W.2d 815 banc occurred at defendant’s house before his However, in Johnson we also stated: “Not- marriage Cindy Naucke was dissolved. withstanding evidentiary these established Ms. up Ginther testified she drove to the principles, authority party, and in of a house, the defendant came out to tell her defendant, particular a criminal to show there, Cindy Cindy was came out and bias, the existence and extent of a witness’ interrupt threw a brick. The answer was prejudice hostility subject or to the sound objection, ed an which the trial court Id. discretion of the trial court.” at 817. explained sustained. Defense counsel importantly, More the actions or state- the bench that this was offered to show evidencing the must ments bias be shown Cindy defendant, Naucke’s ill will toward proof proper offer of to have been defendant claimed motivated her to enough close in time to the matters at issue charge against make the child abuse defen instance, to be relevant. In this the ab- However, dant. no offer defendant made proof, coupled sence of such an offer of answer, proof. Although partial gleaned from with what information can be which went into the record ahead of the concerning timing of these the record objection, occurrences, they to some extent discloses na to demonstrate that fails evidence, very ture of the it is not disclosed and admissible. At the were relevant least, incident occurred in relation to admission of this evidence was when this brought discretionary with the trial court under charges that were this case Saturday. beginning rule stated in The trial did were at 1:20P.M. Johnson. court read began excluding Closing arguments immediately not abuse its discretion completed so that the evidence. thereafter and were jury case to the at 2:55 P.M. was submitted that Finally, defendant contends its verdict at Saturday. returned openly exhibiting the trial court erred day. 5:55 P.M. same against by injecting into bias him and itself undoubtedly judge It is true the trial Supplemental the case. cites Defendant pushing during counsel the last both p. Legal support File for the claim in day complete and a half to the trial accord- during his brief that a break defendant’s promised jury. to the schedule conference, direct for a bench We do evidence toward not find of bias judge yelled at the defendant in these efforts trial court defendant of the drinking for the court timely in a fashion. complete the trial reporter’s water. In the handwritten order 30, 1990, judge August the trial dated Davis, State File, Legal page Supplemental (Mo. 1983), we stated that the trial banc acknowledged during court defen position absolute “must maintain examination, dant’s direct the court admon impartiality, avoid conduct which be ished defendant that he should not might indicating construed as a belief drinking De reporter’s the court water. part judge guilt as to the re fendant advised the court he had and the court should not demon- defendant permission ceived to drink the water. This hostility strate toward the We defendant.” unfortunate misunder occurrence was an principle, we do important reaffirm this but standing, but the sort it did not constitute evidence not find in the record this case thing appeal court on could which a by the trial of such court. abuse would be to reverse expected an other We the defendant in his brief note that valid wise conviction. (the record) that the written word concedes complains also that the Defendant “completely express fails to against trial court bias the defen exhibited judge’s bias hostile demeanor and obvious by cutting refusing dant off defendant and Nevertheless, state.” de- favor of the explain him his We to allow to answers. finding us to act on faith in fendant asks do have studied the entire record and we and dem- that the trial court exhibited bias find of either or not evidence bias for in hostility toward the defendant onstrated point against the defendant. We out that said, “The jury. front of the Davis we give stand to his the defendant took the determining court if the trial standard for Friday on after own after lunch is the trial improperly has whether acted noon, giv judge The trial had October 28. such as prejudice court’s conduct is to coming jury option of either en jury against there- minds defendant complete the trial or Saturday back on impar- fair and by depriving defendant going Monday. The decided over until do not find bias demon- tial trial.” Id. We return on As of the lunch Saturday. judge record the trial strated in the Friday, refuse, hour on the defendant still had defendant, against the and we give his cross-examination direct and must, defendant’s invitation expert his witness. Further also call finding main record. outside the make such a more, hold the instruc the court needed to ex- judge trial Defendant’s claim conference, instructions to the read the hostility defen- toward the hibited bias closing arguments be jury, complete rejected. presence in dant on fore the case submitted Satur could be complet testimony was

day. Defendant’s V. Friday called Defendant ed afternoon. CONCLUSION morning. expert expert Saturday conviction the defendant’s cross-examination We affirm completed his direct depo- sodomy. hold that use We redirect. Instructions and two rounds of personal Supreme sition of T.N. taken tation Clause. The States out United presence provided question of the defendant as in Court has not answered this di- can, however, extrapolate rectly. 491.680 and 491.685 did not violate con- We from §§ Maryland frontation. We further hold that an “indi- Supreme Court’s decision reliability” hearing required Craig, cia of was not 497 U.S. S.Ct. (1990).1 the case of Dr. Monteleone. We hold L.Ed.2d 666

that the evidence established a submissible Craig holds that Maryland procedure sodomy case of and that the trial court did allowing testify in a a child victim to respects not err in the other claimed case the defen child sexual abuse outside defendant and discussed herein. presence physical dant’s does not violate provided there is the Confrontation Clause COVINGTON, HOLSTEIN and case-specific finding by the trial court JJ., BENTON, concur. the child witness will suffer serious ROBERTSON, C.J., separate dissents testify in required emotional distress if opinion filed. presence of the defendant. As Section BLACKMAR, Judge, not, Senior dissents statute ex does separate opinion filed. pressly required that the emotional trauma facing & the child be “serious.” Md.Cts. RENDLEN, Judge, Senior concurs (1989). 9-102(a)(l)(ii) Jud.Proc.Code Ann § Blackmar, opinion Judge. Senior Craig Maryland Supreme relies on the ROBERTSON, Justice, dissenting. Chief “serious,” uphold Court’s definition of respectfully dissent. ing Maryland emotional statute. “Serious” de impact than on the child must be “more 491.680, 1986, permits RSMo minimis, i.e., more than ‘mere nervousness prerecorded testimony State to use of an or excitement or some reluctance to testi alleged child victim of “in sexual abuse lieu ” at -, fy.’ Craig, 497 U.S. 110 S.Ct. at personal appearance of the child’s ... at State, quoting Wildermuth v. per- trial.” Section 491.680.2. The statute (1987). 496, 524, Md. 530 A.2d prerecorded mits the use Craig requires trial court Further that the though of the child even the child is avail- find that the child witness will be trauma- testify. only able to imposed condition tized, generally, courtroom but videotape on the use of the at trial instead specifically by of the defen- live, in-person testimony that the Craig proposi- dant. thus stands for the judge consider whether child witness tion that the Confrontation Clause emotionally psychologically will trau- witness, a child whom the offended when open matized “if trial court finds will suffer serious emotion- brought personal presence or to be into the confronting al from a defendant distress Id. of the defendant.” face-to-face, live, circuit testifies via closed This case raises two foundational consti- television, at trial. questions tutional which must be answered. Craig videotaped The first is whether the use of a Once determines that live testimo- alleged ny statement of an child victim of televised closed circuit television is sex- person- constitutionally acceptable, there remains ual molestation lieu of the child’s previously appearance al at trial violates the Confron- little basis to conclude my says Marbury Supreme Court it is. See v. 1. I confess that most of discomfort in this States Madison, (1 Cranch) Maryland Craig, U.S. 2 L.Ed. 60 U.S. case lies with (“It duty view, (1803) province emphatically balancing is the my 110 S.Ct. 3157. In the test department say judicial the law the what adopted by majority of is"). in that case severs the bare any the Confrontation Clause from textual grounding essentially Craig and turns the to confrontation is standardless —it Because weathervane, revealing justi- support perfectly into little more than a textual has no —we Constitution, Craig extrapolating procedure from the not the but the direction fied in Nevertheless, any popular policy approves, constitutional con- prevailing wind. and not from the United straint. the Confrontation Clause is what facts, facing testimony jury by priate the emotional trauma a videotaped the shown might so as to purposes the child be serious render a television is different for of Indeed, testify as a witness. if one child unavailable to Confrontation Clause. provides standard for deter- of Sanchez no speaks in terms the manner a is jury, mining is whether witness unavailable. testimony presented there live, no difference between a essential remaining— fill still Third: To the void testimony a child’s closed circuit telecast of determining lack of standard of child’s televised broadcast facing the child wit- whether trauma videotaped testimony prior at a time. taken meaning of ness serious within cases, testimony In both views The court Court reasons: trial Craig—the method, by the a television screen. same child unavailable could not have found this Meachum, (219 Spigarolo 934 F.2d Cir. facing if her were the emotional trauma 1991), case, agrees. In United court found serious. trial Appeals rejected of defen- States Court Therefore, a witness. child unavailable as rights “his dant’s claim that constitutional facing in this case was the child trauma videotape were violated because the was serious. made sworn and was before the requires exactly now Voila! The statute one-way not ‘live’ as was the closed circuit requires, despite Craig the absence what procedure Craig.” Id. at sup- language within the statute to any Having Craig permits determined that requirements. 491.- port Craig testimony at if videotaped the use trial Court, 680.2, by the now reads: as amended finds the trial court the emotional or allow determining whether not to facing trauma the child from face-to-face motion, the court shall consider such serious, with the defendant charged and offense elements majority is left the task of show- with psychologi- or emotional [shall find] Craig meets ing how Naucke’s conviction if cal to the child trauma salvages majority this con- standards. The brought open-court or to be the Sixth Amendment attack viction from defen- personal presence into the glosses and only by judicial collection of so that it renders dant serious [is assumptions, by the record supported re- Such witness child unavailable]. in this case. prosecut- cording shall be retained dispute seriously First: can No one attorney admissible and shall be teachings Section 491.680 violates personal appearance lieu of the child’s permits use of Craig; hearings statute video- preliminary at testimony taped testimony in live trial, lieu of conflicting provisions of sec- the child. The open 544.270, RSMo, will traumatize A notwithstanding. videotaped testi- permits statute also use of be transcript of shall such testimony if there is mony in of live lieu after the com- possible as soon as made any psychological or showing of emotional pletion such and shall Indeed, together trauma. the standardless under provided to the defendant statute, judge language materials. all discoverable other trauma; he need not find emotional no by the Court as written statute whether such only “consider” she must Craig. set the standards out doubt meets present. Craig counte- may be trauma by However, adopted it is not the statute permits non- policy. Craig nances neither Governor, by the approved legislature, only pres- if the confrontation face-to-face case. by judge this the trial or relied cause the child of defendant will ence a supply thing a court It one for trauma. witness serious all, After statutory term. definition for Supreme defi- Court’s infir- heal constitutional Second: To Wildermuth, Md. 310 nition of “serious” mity, majority turns to State v. San- Craig permitted 1988). A.2d (Mo. 530 chez, banc S.W.2d 319 another for quite as it did. It is appro- to rule speculates that under dicta Sanchez’ (1988), supply missing applies Court to word to save a because the child witness conviction. Availability available to at trial. part the witness is of the factual fabric

Having imaginatively parried the Con- Schaal; depends on the child’s Schaal attack, frontation Clause the Court faces a availability upholding the constitutionali- question: presentation second Whether the I, against ty of Section 492.304 an article of section 491.680 violates the 18(a) section attack. Missouri Constitution. The Sixth Amendment’s Confrontation beyond dispute It serious guarantees right Clause the accused the texts of the Confrontation Clause and arti- “to be with the witnesses I, confronted 18(a), cle section are different. The ma- against [Emphasis him.” Article added.] directly. jority does not face this distinction I, 18(a) section of the Missouri Constitution I, majority Instead the claims that article every person assures a crime accused of 18(b), Constitution, section of the Missouri against “to meet the witnesses permits deposi- very type the use of the [Emphasis Ap- him added.] face face.” contemplated Ar- Section 491.680. claims, course, pellant that the textual I, 18(b), provides: ticle section differences between the Missouri Constitu- hearing Upon finding by the circuit tion’s and the re- Confrontation Clause any court in case wherein the accused is quires analysis a different and a different charged felony, with a that it is neces- result. sary to take the wit- agreed Until this case I would have state, ness within other than defen- majority’s repeated, question-beg- but the. spouse, preserve dant and in order to ging assertion that the contours of the testimony, and on condition that Sixth Amendment Confrontation Clause fully pro- court make such orders as will are identical to those of Missouri’s face-to- rights personal tect the confronta- guarantee, face only but because I had not tion and cross-examination of the wit- imagined, faced, and this Court had not defendant, may ness the state take statutory procedure clearly that so abro- witness, of such and either gates guarantee. a constitutional In State trial, party use the same at the as in Hester, (Mo. 801 S.W.2d banc cases, provided civil there has been sub- 1991), wrote, this Court time our “[e]ach compliance stantial with such orders. compared courts have the state and federal 18(b), provisions, [Emphasis ma- they

constitutional have con- Section added.] I, 18(a) reasons, jority exception cluded that article is an to the “face section 18(a). protects requirement Missouri And Constitution the same to face” section rights as the Sixth Amendment of the Unit- so it is. Schaal, ed States Constitution.” State v. majority apparently reasons that But the (Mo. 1991), banc considers of the word “confrontation”

the constitutionality of Section 492.304. both the Confrontation Clause and section permits That statute the use of visual 18(b) Craig both rele- makes the decision recordings aural as evidence at trial where controlling purposes of section vant and specified conditions are met. One of those 18(b). disagree. conditions is “the child is available to view, my this Court’s deference to 492.304.1(8). testify.” Schaal unfortunate and incorrect Craig is both quotes proposition for the Hester light textual differences between rights protected confrontation “[t]he people of Missouri in- constitutions. The Missouri Constitution are the same as 18(b) depositions under section tended protected those the Sixth Amendment of Schaal, require the same face-to-face the United States Constitution.” required at There is no as trial. 806 at 662. But concludes Schaal Iowa, for the of the explanation 487 other Craig, Coy that neither nor v. 18(b). 1012, 2798, my “personal” in section U.S. 108 S.Ct. 101 L.Ed.2d 857 word 466

view, 18(b) perverted children from permits protect section the use of a wishes to adults, changed. deposition against a criminal defen- can be The Constitu- trial it however, only changed, if deposition dant was taken un- behind that cannot be branch, judicial der the same assurances that the no constitutional the closed doors of mark trial. the face-to-face confrontation at matter well-intentioned or wise how changes suggest might Changing be. 18(b), rely majority the To section people’s the Constitution remains the busi- ignore “personal” must the word article ness. I, 18(b), section as it modifies “confronta- By ignoring “personal,” majori- tion.” the understanding and Possessing both an 18(b) into ty transforms section a rule of agreement policy an with the the Court discovery of a constitutional assur- instead I re- adopt, wishes to must nevertheless guarantee the ance that of face-to-face con- The will spectfully dissent. Constitution frontation will continue to be honored when permit majority’s result. the deposition pre- by is taken the State to BLACKMAR, testimony. dissenting. serve Judge, Senior I, 18(b), by Article as opinion logical section amended principal represents The Court, the now reads: scholarly approach very and difficult the problem securing young from finding evidence Upon hearing by the circuit alleged any children who are victims court in case wherein accused is of recent charged felony, that it sexual adults. Volumes with a is neces- abuse modifica sary take demonstrate some authority wit- state, procedural requirements ness within other than defen- tion of traditional spouse, preserve in order to as to the appropriate. dant Courts differ testimony, condition permissible and on extent Su deviation. fully pro- make as such orders will has dis preme of the United States Court rights personal tect the the Sixth problems cussed in the context of Maryland Craig, v. 497 accused’s protection Amendment’s [as defined 836, U.S. 110 3157 L.Ed.2d S.Ct. right confronted the witnesses [111 “to be with (1990) cross-examination of the Iowa, against 487 U.S. Coy ] him.” 666] Cf. defendant, witness the state take 857 S.Ct. 101 L.Ed.2d witness, of such and either (1988); U.S. Craig, trial, party may at the as in use the same (1990). We S.Ct. L.Ed.2d cases, provided has civil there been sub- I, 18(a), of the must also with art. deal compliance such orders. stantial Constitution, the ac grants Missouri cused “to meet the witnesses respect, ma- majority’s With need to against face to face.” I believe him nipulate se- trial court’s conclusions our constitution chose the framers of conclusions, lectively assuming legal pro- emphasize in order they words did viding language, ignoring missing rep right. opinion importance of the This proves Constitution words Missouri should my how we resents views majority much. assumes that the too consti interpret provisions of our own finding seventy-word court’s is found- to concur regret that am unable tution. I reasoning it ed on same fully. 6,000 nearly explain. majority words despite unequivo- so the trial court’s This is four features of There are its conclusions are “un- cal statement that (1) see the wit- can open court: 491.680,” me, Craig. To der Section witness; ness; (2) the defendant can see stand; cannot is obvious this conviction defendant; and (3) see can witness an statute. No it relies on unconstitutional (4) This see the defendant. can post justification saves the amount of hoc Juries, surely is not essential. last feature infirmity. from its constitutional conviction doubt, while the defendant no observe testifying, the format longer witness is no meets the If the Constitution it, sup- they are that, permit but quite properly, courtroom will society of a needs posed accept suggestion I to watch and listen to the witness. cannot defendant, moreover, principal opinion delay that the “short opt The could to be ... the cross-examina- part proceeding Al- before with absent from all or of the trial. possibly jeopardize the effec- tion cannot though historically might thought be im- cross-examination_” My tiveness of portant that the look the defendant witness contrary. I would like to reaction is to eye testifying, Craig while eliminat- my have client’s reaction as witness requirement upon ed the a third substantial The defendant should be able to testifies. showing necessity. suggests But Craig says some- nudge counsel when the witness procedure that a a that allows witness thing during the direct examination that facing without the defendant must probing. calls for later reproduce nearly courtroom conditions as California Green, 399 U.S. 90 S.Ct. possible. as (1970), princi- L.Ed.2d 489 relied on in the go I not so would far as Chief Justice pal opinion, prior dealt statements willing I am Bobertson does. to follow the testifying a witness who was available and Craig allowing deposition pro- lead of a applicable and is not to the con- therefore provi- cedure under our own constitutional cerns raised here. require safeguards ap- sion but would pro- The fact that counsel this case proved Craig. procedure provided That re- ceeded with cross-examination without the defendant with the means for continu- questing a for with the break consultation attorney consultation with her while defendant indicate that at least some technology the child testified. The for this attorneys in the would view break expedient readily I available. proceedings “luxury.” procedure as a Denying mandate it. the accused the abili- approved principal opinion forces ty to communicate with counsel wit- counsel to choose between an immediate effectively ness testifies removes the sec- cross-examination and one informed open ond feature of suggestions. comments accused’s because the of a on review vid- procedure justifiable is not when it Such eotape provide does not the defendant an contemporaneous easy provide would be adequate opportunity to observe the wit- I access to counsel. believe we should testifying prepare ness while and to mandate such access. expressing cross-examination. In this view I “straining do not believe that I am at a principal opinion significant finds gnat.” timing that “the [three days videotape was shown to the before recognized right We have jury] essentially part made it ... counsel freely connotes “the com- recognizes implicitly trial.” This statement during municate and to sit with ... counsel that, purposes, admitting for confrontation [attorney trial or at least be so located that pretrial deposition is somewhat less satis- able communicate without client] factory testimony before the court than interruption.” Hatfield, State during facing the defendant. trial without (Mo.1971)(quotation omit- departing very cautious about would be ted). aspects statutory While mode and would insist from the traditional scheme embodied in §§ 491-680 safeguards. ample protections, offer the defendant broad accept mention of the Mis- phrase “contemporaneous cross I cannot examina- Craig as an indication opportunity tion” denotes an to cross exam- souri statute procedure by Supreme immediately approval the direct of our ine after statute States. Our Cross-examination is often best Court of the United is elicited. imposition of the preclude contra- does not when the iron is hot and a witness’s and, therefore, does not safeguards Craig dictions can addressed at the moment. right to the defendant’s procedure as on its face violate Craig So I would insist on I, 18(a) Craig opinion does our confrontation. The requirement of art. vary from the one procedures that endorse Constitution. procedure, impose Craig before The defen- for failure to the Court that case. continuing and remand for new trial. Craig dant in was allowed com- would reverse Indeed, munication with counsel. significant holding

Court found its subject

the child witnesses “were to full

cross-examination, and were able be ob- judge, jury,

served and defendant as

they Craig, testified.” 110 S.Ct. at 3170. furthermore, regard I Craig,

Without impose procedure require- as a law, BURNS, implementation ment of state Appellant, Judith Ann our own constitutional mandate. Cross-Respondent, (Ind. State, Brady 575 N.E.2d 1991), sibling Supreme our Court dealt with BURNS, Respondent, James Thomas which, ours, provision a constitutional like Cross-Appellant. phrase It held uses the “face-to-face.” provision that the state is stricter than the Nos. 59940. model, by federal of 3 to 2. The vote Appeals, Missouri Court emphasized the Indiana dissenters District, Eastern procedure. Craig statute Three. Division that court Thus none of the members of ap procedure would endorse the here March proved. disagree holding

I do not with the provide the needed

the social worker could testifying as trauma of findings come

but am concerned lest such very easily. judges

too Trial should be departures from the

reluctant sanction explore

traditional mode and should

possibility presenting the victim’s testi-

mony the usual manner. express

I one further concern. There is problem if the is allowed to severe deposition tape play it

take the with and to during This is tape its deliberations.

contrary practice deposi- to the usual with

tions, though they may have been even statutory deposi-

marked as exhibits. The procedure is a substitute given preferred status

and should not be allowing jury special to it. If access deposition again to hear the wants court, just might ask

it should ask the reading portion of the

for the of some judge could

testimony heard court. I requests.

use discretion as to such But

agree point is lost to the defen- preserve it.

dant for failure to agree substantially everything but, principal opinion

else that is said in the

Case Details

Case Name: State v. Naucke

Court Name: Supreme Court of Missouri

Date Published: Apr 21, 1992

Citation: 829 S.W.2d 445

Docket Number: 73536

Court Abbreviation: Mo.