Shipman v. State

1991 OK CR 93, 816 P.2d 571, 62 O.B.A.J. 2542, 1991 Okla. Crim. App. LEXIS 102, 1991 WL 152810
CourtCourt of Criminal Appeals of Oklahoma
DecidedAugust 13, 1991
DocketF-85-321
StatusPublished
Cited by7 cases

This text of 1991 OK CR 93 (Shipman v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shipman v. State, 1991 OK CR 93, 816 P.2d 571, 62 O.B.A.J. 2542, 1991 Okla. Crim. App. LEXIS 102, 1991 WL 152810 (Okla. Ct. App. 1991).

Opinions

OPINION

BRETT, Judge:

Appellant, John Earl Shipman Jr., was tried by a jury for three counts of Lewd Molestation, in violation of 21 O.S.Supp. 1983, § 1123, in the District Court of Muskogee County in Case No. CRF-84-134. [573]*573The jury found appellant guilty of Count I only, and assessed punishment at eight (8) years imprisonment. He was acquitted on the remaining counts. The trial court entered its judgment and sentence in accordance with the jury’s verdict. From this judgment and sentence, appellant has perfected his appeal to this court.

On or about March 25, 1984, appellant moved into the Simpson residence at the request of Mr. Simpson, who was in the hospital recovering from a heart attack. During the time that the appellant was at the Simpson residence, numerous other people were also living there. At trial, several of these people testified that appellant had molested three and one half year old H.H. on various occasions during his stay. The testimony at trial was largely, confusing and contradictory. Several witness’s versions of the events changed from the preliminary hearing to the trial and some witnesses who supposedly had seen the same incident gave considerably different stories of what they had seen. One witness originally claimed that someone other than the appellant had molested H.H. In addition, the child’s mother testified that H.H. had indicated that someone other than the appellant had molested her. Officer Pittman testified that when she was called to investigate, someone other than the appellant was claimed to have molested the child.

Appellant raises for our consideration eight assignments of error. However, insofar as we have found his second assignment of error to be grounds for reversal, we decline to address the remaining allegations.

Pursuant to 22 O.S.Supp.1984, § 753, the deposition of H.H. was video taped. Over defense counsel’s objection, this video taped deposition was admitted at trial and shown to the jury. In his second assignment of error, appellant asserts that the showing of this video taped deposition to the jury violated his federal and state constitutional rights. He specifically contends that this procedure violated his right to be confronted with the witnesses against him as is guaranteed by the Sixth Amendment to the United States Constitution and Article II, § 20 of the Oklahoma Constitution. He argues that Title 22 O.S.Supp.1984, § 753, which authorizes such procedure is unconstitutional.

The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” The Supreme Court has stated that “it is the literal right to ‘confront’ the witnesses at the time of trial that forms the core of the values furthered by the Confrontation Clause.” California v. Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 1934-35, 26 L.Ed.2d 489 (1970). However, the Supreme Court has not held that criminal defendants are guaranteed an absolute right to confront witnesses against them at trial. Under the proper circumstances, the rights conferred by the Confrontation Clause may be outweighed by other important interests. Specifically, the Court has concluded that “a State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court.” Maryland v. Craig, 497 U.S.-, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). See also Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). Both Craig and Coy involved statutorily authorized procedures where criminal defendants were prohibited from directly confronting the witnesses against them in court.

The statutory provision at issue in Coy allowed a screen to be positioned between the witnesses, two thirteen-year-old girls, and the defendant. This screen allowed the defendant to see and hear the witnesses, but prevented the witnesses from seeing the defendant. The Supreme Court’s primary concern with the Iowa statute was that it created a presumption that the child witnesses would be traumatized by testifying in Court. “Since there have been no individualized findings that these particular witnesses needed special protection, the judgment here could not be sustained by any conceivable exception [to the Confrontation Clause].” Coy, 487 U.S. at 1021, 108 S.Ct. at 2803.

[574]*574The Supreme Court addressed this issue again in Craig. The Maryland statute involved in that case provides that testimony of a child victim can be taken outside the courtroom and shown to the jury in court by means of closed circuit television. However, the statute only authorizes this procedure when “[t]he judge determines that testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate.” Md.Cts. & Jud.Proc.Code Ann. § 9-102(a)(l)(ii). The Supreme Court upheld this statutory procedure as valid finding that:

[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.

Craig, 497 U.S. at-, 110 S.Ct. at 3169.

The Oklahoma statute in question, 22 O.S.Supp.1984, § 753, makes it discretionary with the trial judge whether or not to allow video taped testimony of a child during trial. While this statute does not make the presumption, as did the provision held unconstitutional in Coy, that special procedures are always authorized, it does not give guidelines for determining when such procedures are warranted. Thus, the trial judge must take precautions to insure that this statute is applied in a way that preserves the constitutional rights of a defendant. This can be accomplished by following the requirements set forth in Craig and Coy. Therefore, we find 22 O.S.Supp. 1984, § 753 to be constitutional on its face and adopt the procedural requirements set forth in Craig and Coy to ensure that the provisions of section 753 are applied in a consistent constitutional manner.

In Craig, the Supreme Court set forth three requirements that a trial judge must follow in order to make the requisite finding of necessity which precedes the application of special procedures such as those provided for in Section 753. This finding must be made on a case by case basis. First, the Court held that in each case “the trial court must hear evidence and determine whether use of the ... procedure is necessary to protect the welfare of the particular child witness who seeks to testify.” Craig, 497 U.S. at-, 110 S.Ct. at 3169. Second, “[t]he trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant.” Id. Third, “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.

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Shipman v. State
1991 OK CR 93 (Court of Criminal Appeals of Oklahoma, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
1991 OK CR 93, 816 P.2d 571, 62 O.B.A.J. 2542, 1991 Okla. Crim. App. LEXIS 102, 1991 WL 152810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shipman-v-state-oklacrimapp-1991.