Hicks-Bey v. United States

649 A.2d 569, 1994 D.C. App. LEXIS 205, 1994 WL 621215

• Court: District of Columbia Court of Appeals
• Decided: November 7, 1994
• Docket: 91-CF-644
• Status: Published

Opinions

Opinion for the court PER CURIAM.

Opinion by Associate Judge SULLIVAN, concurring in part and dissenting in part at page 576.

PER CURIAM.

Appellant, Rural Hicks-Bey, seeks reversal of his conviction for carnal knowledge, D.C.Code § 22-2801, on the ground that the trial judge violated his Sixth Amendment right to face-to-face confrontation with the minor victim by permitting the minor to testify at trial over closed-circuit television. Specifically, appellant contends that, in the absence of enabling legislation authorizing the use of closed-circuit testimony for minor victims, the trial judge lacked the authority to employ that kind of procedure; the witness’s removal from the courtroom to testify over closed-circuit television violated appellant’s Sixth Amendment right of confrontation; and, in any event, the trial judge failed to make a specific finding of “necessity” required to invoke the television procedure. Appellant also urges reversal on the ground that the evidence the government presented at trial was insufficient to support his conviction for carnal knowledge.

We conclude that, even in the absence of local enabling legislation, the trial judge’s ruling met the requirements specified by Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), and Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). Accordingly, we affirm.

I. PROCEEDINGS

A. The Competency Hearing

A grand jury indicted appellant on one count of carnal knowledge, D.C.Code § 22-2801, and one count of taking indecent liberties with a minor child, id. § 22-3501,¹ arising from an assault on his then six-year-old stepdaughter, O.H.B.²

The court held a hearing to determine whether O.H.B. was competent to testify. During the hearing, the child testified that she recalled being home alone with “Edmond”³ on the “night when she was given some beer.” . She testified that “something bad” had happened that night and that appellant “did it” to her. Initially, however, she declined to describe the incident for the court, saying only that she was scared to testify and scared of appellant. At that time, the prosecutor requested that the remainder of the child’s testimony be taken out of appellant’s physical presence. Despite defense counsel’s strenuous objection that the procedure violated his client’s confrontation right, the trial judge granted the prosecutor’s request.⁴ To support his ruling, the trial judge made the following specific factual findings about the child’s behavior at the hearing:

1. She was quite disturbed;

2. She was terrified to testify;

3. At one point, she was so frightened that she attempted to hide under the witness stand; and

4. Her fear was due to appellant’s presence in the courtroom.

When the competency hearing resumed, appellant was placed in a witness room separated from the courtroom by a one-way mirror from which he viewed and heard the proceedings. The child then resumed the witness stand. She testified that on the night when appellant had given her beer, which she had drunk, she and appellant had been in her mother’s room, on the bed. No one else had been in the room. Appellant had disrobed O.H.B. and had removed his own clothing in her presence. She then testified that “[appellant had] put his privates in [her] privacy.” On the basis of this testimony, the trial judge found her competent to testify.⁵

B. Before Trial

Before trial, the prosecutor requested that O.H.B.’s trial testimony be taken out of appellant’s physical presence. Specifically, the prosecutor proposed that O.H.B. be placed in the jury room and her live testimony shown over closed-circuit television to appellant, his counsel, and the jury. Appellant’s counsel objected, stating that it was “an abridgement of [his] client’s right of confrontation if the [c]ourt allows anything other than having the complaining witness present in this courtroom and present before [his] client.”

The trial judge recognized that the prosecutor’s request raised a novel issue in this jurisdiction. After hearing arguments from both the government and defense counsel, the trial judge agreed with the government that Maryland v. Craig, supra, controlled, and thus the judge undertook an inquiry to determine whether the closed-circuit television procedure was necessary on the facts of this case. In concluding that such a procedure was necessary to protect O.H.B.’s welfare, the trial judge made the following findings:

1. [T]he child witness would be traumatized by the presence of the Defendant and the emotional distress suffered by the child in the presence of the Defendant is more than de minimis;

2. [A]t the time of the initial hearing in the presence of the Defendant, the witness was withdrawn and hesitant and slow in answering. She hid her face with her hands over the microphone in this instance and she actually sank down in the witness chair and disappeared under the bench in front of the witness chair;

3. [W]hen the Defendant was removed and placed behind the one or two-way glass panel ... in the second phase of the competency hearing, the witness did testify and she testified she was afraid of Edmond ... the Defendant.

4. So, therefore, to protect the child witness from the trauma of testifying in the physical presence of the Defendant, which trauma I fear would interfere with the witness’ ability to communicate, I think that the use of the t.v. procedure is warranted in this ease.

The judge gave appellant three options to choose from regarding the manner in which the television procedure would be conducted.⁶ Although preserving his objection to any of these procedures on Sixth Amendment grounds, appellant chose the option which allowed him to be present in the courtroom with the judge and jury, while the child, the prosecutor, and defense counsel were in the adjacent jury room. Defense counsel had unrestricted access both to the judge, in order to obtain rulings on any objections counsel might have, and to appellant, in order to consult. Appellant also had unrestricted access to his attorney.

C. The Government’s Evidence at Trial

Pediatrician Karen J. Narkewiez was the first government witness. She testified concerning her examination of O.H.B. at Children’s Hospital. In her opinion, the child had been the victim of recent sexual abuse. Dr. Narkewiez diagnosed O.H.B. as suffering, on the night of the assault, from severe genital trauma secondary to sexual abuse and from ethanol intoxication. Her opinion was predicated upon the following medical findings: O.H.B. had arrived at the hospital very disheveled and dirty and smelled of alcohol. Vomitus had been caked on her mouth, and her pants had remained down. Although O.H.B.’s eyes had been open, she had been unresponsive and had had difficulty walking. A blood test had revealed a blood-alcohol level of .219. The legal level of intoxication in the District of Columbia is .10. The Poison Control Center advised that, to have had that blood alcohol level, O.H.B. would have had to drink two 12-ounce cans of beer within the previous six hours. The child had told a doctor that appellant had given her one and a half beers to drink.

Dr. Narkewiez also testified that further physical examination revealed that the child’s panties had been stained with “sanguinous fluid,” a clear fluid, probably her own vaginal mucosa or, possibly, semen, tinged with blood. There had been a bloody discharge on her perineum, plus one hair.⁷ The child’s vulva had been very red and irritated, but not torn. Her hymenal opening had measured five by five millimeters, as compared with a normal hymenal opening for a six-year-old of five by one to two millimeters, and there had been no visible hymenal ring left. In Dr. Narkewicz’s opinion, the child’s condition had been consistent with a man recently having placed his penis into her vagina.

Next, O.H.B.’s sister, T.H.B., testified that on the night of the assault on her sister, she and appellant’s wife (T.H.B.’s mother), along with appellant’s girlfriend, had left the apartment to visit a friend. When they had returned several hours later, T.H.B. had found her sister lying face-down on her own bed and nude, except for her underpants, which had been pulled down to her knees. T.H.B. had alerted her mother to O.H.B.’s condition, and their mother had begun to argue with appellant, who was present in the apartment. T.H.B. and her mother then had gone outside to summon assistance, as they had no telephone. They had flagged down Metropolitan Police Officer Pedro A. Garcia.

Officer Garcia testified that T.H.B. and her mother had been hysterical and that the mother had said her husband had just sexually abused her daughter. According to Officer Garcia, the mother had insisted that he accompany them to her apartment, where the officer had seen appellant, completely nude, walking from the bathroom to the bedroom. Officer Garcia had gone into O.H.B.’s bedroom and had found her lying face-down on the bed, nude from the waist down, and unconscious. There had been a wet spot on the bed where the child had been lying, and the room was littered with beer cans. Garcia had asked appellant if he had been in the apartment the whole time, and appellant had replied in the affirmative.

Metropolitan Police Officer Milagros Morales testified that she had attempted to interview O.H.B. on three occasions. On the first occasion, the child had been unconscious at the hospital. On the second occasion, at her home two weeks later, O.H.B. had been withdrawn and not very talkative. The third meeting took place approximately several months later at the prosecutor’s office. On that occasion, the child had told Officer Morales that she remembered the night when she had been at home with appellant. She said that appellant had given her some beer that night. Then, he had “laid her down on the bed, got on top of her and placed his privacy in her privacy.” In response to Morales’ further questioning, O.H.B. had pointed to her vaginal area to show where her “privacy” was located, and, using an anatomically correct male doll, had pointed to the doll’s penis to show where a man’s privacy was located. Then using the dolls, O.H.B. had demonstrated what appellant had done to her. Officer Morales further testified:

[T]he first thing that she did was she pulled down the pants of the male doll. She then laid the female doll down and pulled down her panties. At that time she took the male doll and placed the male doll on top of the female doll making sure that the genital area had contact.

Finally, despite the closed-circuit television procedure, O.H.B. was unable to testify about what happened to her on the night she had been left at home alone with appellant. She could only testify that she had been at home with appellant in her mother’s bedroom watching television on the night of the assault.

D. The Defense Evidence at Trial

Appellant’s sole witness was O.H.B.’s mother. She confirmed most of the evidence offered by the government witnesses regarding the events leading up to and following the crime. However, she testified that when she, T.H.B., and appellant’s girlfriend had returned to the apartment after visiting the friend, appellant was not at home. She testified that she blamed the assault on her child on her husband because he would not help her find the person who abused the child.

II. Testimony By Child Abuse Victims Over Closed-Circuit Television in the Absence of Enabling Legislation

Appellant challenges the trial court’s authority to permit a child abuse victim to testify at trial over closed-circuit television, out of the presence of the defendant and the judge. He contends that, in the absence of a District of Columbia statute authorizing such testimony, the Sixth Amendment takes precedence, meaning that he was entitled to direct confrontation in court by the complaining child victim in this ease.

It is true that many jurisdictions in the United States have statutes authorizing the use of closed-circuit television for adducing the testimony of victims of child abuse.⁸ In Craig, the Supreme Court held that Maryland’s statutory procedure allowing the use of one-way closed-circuit television for this purpose⁹ — when coupled with other safeguards — did not violate the Sixth Amendment’s Confrontation Clause. See Craig, 497 U.S. at 860, 110 S.Ct. at 3171.¹⁰ Specifically, Craig approved the use of closed-circuit television for testimony by child abuse victims if the state demonstrates its “necessity”:

[I]f the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant.

Id. at 855, 110 S.Ct. at 3169 (emphasis added). The demonstration of “necessity” requires three trial court findings specific to the case:

[1] [T]he trial court must hear evidence and determine whether use of the one-way closed-circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify. [2] The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant.... [3] Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than “mere nervousness or excitement or some reluctance to testify.”

Id. at 855-56, 110 S.Ct. at 3168-69 (citations omitted).

In the District of Columbia, unlike in Maryland, there is no statute authorizing the trial court to permit a victim of child abuse to testify over closed-circuit television. Thus, in this jurisdiction, unlike in Craig, the legislature has not articulated a public policy and procedures to govern the testimony of child abuse victims at criminal trials.

Faced with the government’s request that O.H.B.’s testimony be taken over closed-circuit television, and aware of the absence of a relevant local statute, the trial judge examined Craig and concluded that such a statute was not a prerequisite to constitutionality of the proposed procedure. More specifically, the trial judge concluded that, if he made the required finding of necessity applying Craig’s criteria to the particular facts of this case, the child-victim could testify at the trial over closed-circuit television, without face-to-face confrontation of appellant.

Appellant contends that the trial judge had no authority to employ the procedure approved in Craig because of the lack of enabling legislation in the District of Columbia. We cannot agree. Craig’s approval of closed-circuit television procedures based upon “an adequate showing of necessity,” id. at 855, 110 S.Ct. at 3169, is not premised on the existence of a state enabling statute. See Gonzales v. State, 818 S.W.2d 756, 766 (Tex.Crim.App.1991) (en banc), cert. denied, — U.S. -, 113 S.Ct. 1334, 122 L.Ed.2d 718 (1993) (“we do not read Coy¹¹ or Craig as mandating some sort of enabling statute for the trial court’s actions”). Rather, the Supreme Court in Craig cited the Maryland statute only for the purpose of demonstrating that compliance with the statute, on the facts of that case, evidenced satisfaction of the third type of finding required for a showing of “necessity.” The Court was clear; it

need not decide the minimum showing of emotional trauma required for use of the special procedure ... because the Maryland statute, which requires a determination that the child witness will suffer “serious emotional stress such that the child cannot reasonably communicate,” § 9-102(a)(l)(ii), clearly suffices to meet constitutional standards.

Craig, 497 U.S. at 856, 110 S.Ct. at 3169. The Court did not say, or imply in any way, that, in evidencing satisfaction of the third required finding, the statute was necessary to that finding. Presumably, even in the absence of a statute, evidence can suffice to show that third finding (“the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis,” id. at 856, 110 S.Ct. at 3169), just as other evidence can satisfy the first two required findings. The fact that Craig included two constitutional criteria, requiring specific trial court findings that the Maryland statute did not expressly address, helps make clear that Craig’s constitutional criteria do not depend on the existence of a state statute.

In sum, there is no hint in Craig that, to satisfy the Confrontation Clause, a court cannot permit a closed circuit television procedure for a child witness in the absence of an authorizing statute. All that is required is trial court findings reflecting compliance with the three “necessity” criteria specified in Craig (quoted above). See State v. Ford, 626 So.2d 1338, 1340, 1345-47 (Fla.1993) (approving closed circuit television testimony of child witness in murder case without Crafy-type statute; “absent appropriate authority[,] a trial court in a criminal case may employ a procedure if necessary to further an important public policy interest”); Gonzales, 818 S.W.2d at 763-66 (same). But see Hochheiser v. Superior Court, 161 Cal.App.3d 777, 208 Cal.Rptr. 273, 276 (1984) (pre-Craig decision holding that closed-circuit television of child witness’s testimony represented “far-reaching innovation in a criminal trial more appropriately left to the Legislature for initial consideration”). In the present ease, the trial court made comprehensive findings, quoted above, which clearly satisfy all the Craig criteria.

Courtroom procedures for the most part are dictated by statute and court rules, as well as by constitutional requirements; but, in addition, the trial court has inherent authority, unless otherwise specifically precluded, to control the conduct of the proceedings before it, in order to ensure that the proper decorum and appropriate atmosphere are established, that all parties are treated fairly, and that justice is done. See Guaranty Dev. Co. v. Liberstein, 83 A.2d 669, 671 (D.C.1951) (“[i]t is a well settled rule that the mode of conducting trials ... [is a] matter[ ] belonging very largely to the practice of the court”); 75 Am.Jur.2d Trial § 180 (1991). Indeed, innovative trial procedures are acceptable as long as they “are administered carefully and meet the requirements of due process.” United States v. Lewis, 230 U.S.App.D.C. 212, 219, 716 F.2d 16, 23, cert. denied, 464 U.S. 996, 104 S.Ct. 492, 78 L.Ed.2d 686 (1983) (sustaining trial of several criminal cases simultaneously before two juries absent evidence indicating dual jury caused specific prejudice to a defendant).

In the present case, as indicated, the trial court, in affording the protections required by Coy, supra note 10, and by Craig, satisfied appellant’s rights under the Confrontation Clause. Appellant, moreover, does not claim a violation of due process.

III. Sufficiency of the Evidence:

Finally, we hold that the evidence, viewed as it must be in the light most favorable to the government, Nelson v. United States, 601 A.2d 582, 593 (D.C.1991), was sufficient to sustain appellant’s conviction. Although O.H.B. herself was unable to testify about what happened to her on the night she was left at home with appellant, the lack of testimony from the victim was not fatal to the government’s case. See, e.g., Riley v. United States, 291 A.2d 190, 193 (D.C.1972) (circumstantial evidence sufficient to support conviction of assault and larceny even though victim did not testify at trial). The combined testimony of O.H.B.’s mother and sister, Officer Garcia, Officer Morales, and Dr. Narke-wicz, together with the records of O.H.B.’s medical examination and the laboratory tests, was plainly sufficient to establish that appellant had committed the crime of which he was convicted. See In re W.E.P., 318 A.2d 286, 288-89 (D.C.1974); see also Ballard v. United States, 430 A.2d 483, 487 (D.C.1981) (carnal knowledge instruction was properly given because evidence was sufficient to support it). There is no denying that Officer Morales’ testimony was hearsay. But it elicited no objection from defense counsel, and thus it could be “properly considered by the trier of fact and given its full probative value.” Eldridge v. United States, 492 A.2d 879, 883 (D.C.1985) (citing cases).

Affirmed.

1 . . The trial judge dismissed the indecent liberties count at the close of the government's case.

2 . In an effort to protect the identity of the minor, we shall refer to her by her initials.

3 . Edmond is appellant’s middle name, the name by which the child knew him.

4 . The trial judge ruled that a competency hearing does not rise to the level of a trial proceeding and that the right of confrontation is not as strict as it would be in a trial situation. See Kentucky v. Stincer, 482 U.S. 730, 739-44, 107 S.Ct. 2658, 2664-67, 96 L.Ed.2d 631 (1987) (confrontation right not violated by exclusion of defendant from competency hearing of child witnesses, where defendant had opportunity for full and effective cross-examination at trial). That ruling is not challenged on appeal.

5 .The trial judge found that O.H.B. had the capacity to distinguish truth from falsehood and to appreciate the importance of telling the truth. Moreover, the judge found that O.H.B. demonstrated an ability to recollect.

6 . The options were: (1) the child could be present in the courtroom with the judge, jury, prosecutor, and defense counsel, while appellant observed and heard the proceedings from a witness room located behind the courtroom, which is separated by a one-way mirror; (2) appellant could be present in the courtroom with the judge, jury, and defense counsel, while the child and the prosecutor were in the adjacent jury room, visible and audible on simulcast, closed-circuit television through monitors located in the courtroom; or (3) appellant could be present in the courtroom with the judge and jury, while the child, the prosecutor, and defense counsel were in the adjacent jury room. Under each option, defense counsel would enjoy unrestricted access both to the judge, in order to obtain rulings on any objection he.might have, and to appellant, in order to consult. Appellant also would enjoy unrestricted access to defense counsel. Further, if defense counsel had elected option two, the available technology would have permitted him to cross-examine the child from the courtroom.

7 . Robert Fram, an FBI hair and fiber expert, testified for the government that the hair was too fine for meaningful comparison but was dark brown African-American fringe head hair.

8 . According to the Supreme Court, as of four years ago, ‘‘[t]hirty-seven States ... permit[ted] the use of videotaped testimony of sexually abused children; 24 States have authorized the use of one-way closed-circuit television testimony in child abuse cases; and 8 States [have] authorize[d] the use of a two-way system in which the child-witness is permitted to see the courtroom and the defendant on a video monitor and in which the jury and judge are permitted to view the child during the testimony." Craig, 497 U.S. at 853-54, 110 S.Ct. at 3167-68 (footnotes omitted).

9 . See Md.Code Ann., Cts. & Jud.Proc. § 9-102 (1989).

10 . In Coy v. Iowa, supra, a screen had prevented two child witnesses from seeing the defendant as they testified against him at trial. The Supreme Court held that this procedure violated the defendant's rights under the Confrontation Clause. The Court “le[ft] for another day ... the question whether any exceptions exist” to the "irreducible literal meaning of the Clause: 'a right to meet face to face aE those who appear and give evidence at trial.'” Id., 487 U.S. at 1021, 108 S.Ct. at 2803 (citations omitted). The Court added that any exception “would surely be allowed only when necessary to further an important public policy,” id., and that "[s]ince there ha[d] been no individualized findings that these particular witnesses needed special protection, the judgment [in Coy ] could not be sustained by any conceivable exception.” Id.

Two years later in Craig, the Court said: “Because the trial court in this case made individualized findings that each of the chUd witnesses needed special protection, this case requires us to decide the question reserved in Coy." Craig, 497 U.S. at 845, 110 S.Ct. at 3163. Craig then noted that “[t]he central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Id. The Court stressed that the Confrontation Clause guarantees the defendant the right not only to the physical presence of the adverse witness in court but also to three other indicia of reliability: the witness’s statements under oath, the witness’s testimony subject to cross-examination, and the witness’s demeanor observable by the jury. See id. at 845-46, 110 S.Ct. at 3163-64.

In arguing against the closed-circuit television procedure used at trial, appellant does not contend that the “reliability” criteria are not met; his only focus is on the second — and most significant — question in Craig: whether there has been "an adequate showing of necessity,” id. at 855, 110 S.Ct. at 3169, for that procedure. Thus, we focus exclusively on the "necessity” issue.

11 . See supra note 10.