State v. Conklin

444 N.W.2d 268, 1989 Minn. LEXIS 201, 1989 WL 91830

• Court: Supreme Court of Minnesota
• Decided: August 18, 1989
• Docket: C5-88-545
• Status: Published

Opinions

KEITH, Justice.

This case presents the difficult question of under what circumstances a defendant in a child sexual abuse case can be removed from the room during the testimony of the child abuse victim without violating the defendant’s constitutional right to confront the witnesses who testify against him.

Appellant Russell Duane Conklin was convicted of one count of first degree criminal sexual conduct, Minn.Stat. § 609.342, subd. 1(g) (1988) and one count of second degree criminal sexual conduct § 609.343, subd. 1(a) (1988) and was sentenced to 43 months in the Minnesota Correctional Facility at Stillwater. Hé was acquitted of one other count of criminal sexual conduct in the second degree, Minn.Stat. § 609.343, subd. l(h)(v) (1988) (multiple acts committed over an' extended period of time).

The sexual abuse involving his 4-year-old daughter, L.C., occurred sometime between December 1986 and February 22, 1987 during once a week day long visits made by L.C. and her 7-year-old brother, R.C., to appellant’s apartment. R.C. and L.C. do not live with appellant, but rather have been under the foster care of Diane and Harold Schroedl since shortly after L.C. was born. L.C.’s only contacts with appellant were through the scheduled visitations. The purpose of the visits was to gradually reconcile appellant with his chil- • dren, a process that would have resulted in reuniting the family sometime in mid-1987. The Schroedls had expressed some concern about the plan to reunite appellant with the children, and on earlier occasions had inquired about adopting the children themselves, or having other members of their family adopt L.C. and R.C.

The first suggestions of the existence of sexual abuse occurred on Tuesday, February 24, 1987. L.C. appeared to be sore, or uncomfortable in her vaginal area and had appeared uncomfortable for several weeks. Her foster mother Diane Schroedl asked her if anyone had hurt her there, and L.C. told her that appellant, who she calls Big Russ, had “punched” her there, and had showed her his “peter.” She demonstrated a punching motion with a closed fist, and claimed that it occurred while she was on the toilet at appellant’s apartment.

Diane Schroedl took L.C. and R.C. to the Anoka County Courthouse the next day, Feb. 25, where they spoke with Lonnie Payne, an investigator in the sexual abuse unit of the Sheriffs Department. Payne interviewed L.C., taping the conversation, and later interviewed R.C. Appellant was subsequently arrested. On March 3, 1987, L.C. was interviewed and examined by Dr. Carolyn Levitt, a pediatrician experienced in examining children for sexual abuse. The interview was videotaped, and the tape was later entered into evidence at trial and was shown to the jury.

On August 18, 1987, a hearing was held at which L.C. was found competent to testify. Immediately after the competency hearing, L.C.’s testimony was taken and videotaped for use at trial as permitted by Minn.Stat. 595.02, subd. 4(a) (1988). During her testimony, the court granted the state’s motion to remove appellant from the room. He watched the remainder of L.C.’s testimony via a video monitor in another room.

On September 15, 1987, a Rasmussen hearing was held and the court ruled that hearsay statements made by L.C. to her foster mother, to Lonnie Payne and to Dr. Levitt would be admissible at trial under Minn.Stat. 595.02, subd. 3 (1988). The videotaped interview with Dr. Levitt was ruled admissible under that statute and Minn.R.Evid. 803(4) (statements made to a physician for diagnostic purposes).

At trial, Lonnie Payne, the Sheriff’s Department investigator, testified to statements made by L.C. during her initial interview at the courthouse. L.C. told her of an incident where appellant showed his “peter” to her and R.C. in his apartment, and both children touched it. Payne asked L.C. if she had smelled the penis and L.C. responded that she had. L.C. told Payne she was told not to tell anyone about the incident. Payne also testified that when she interviewed R.C., he denied that any of this had ever happened. Lonnie Payne also asked L.C. “if anyone had ever touched her pee that she didn’t want them to.” L.C. answered that Big Russ had, and that she did not like it. The touching occurred in the bathroom and he used his finger. She said that the touching had hurt her. L.C. also said that appellant had eaten her “pee” with his mouth. She further claimed that he drank her urine which he collected in a glass while she was on the toilet. R.C. was not present during these last incidents.

Diane Schroedl, L.C.’s foster mother, testified that L.C. exhibited signs of discomfort beginning about February 1,1987; she was sore and itchy in her vaginal area. On February 24, L.C. told Schroedl of being “punched” “down there” by Big Russ with a closed fist. After her interview with Lonnie Payne on February 25, L.C. again told Schroedl the same things she had said the day before, but added the account of appellant drinking her urine. In July, before a scheduled hearing, L.C. told Schroedl her story again, “word for word” except adding a new part about appellant eating her “poop.” She demonstrated a closed fisted punch, again spoke of drinking urine, and said that she was not supposed to tell anyone.

Dr. Carolyn Levitt, the pediatrician, testified that during her examination of L.C., she touched L.C. on the clitoris and asked if anyone had ever touched her there. L.C. responded that appellant touched her there with his finger and mouth. Dr. Levitt also touched the anal opening and L.C. said she had not been touched there. Dr. Levitt testified that in her opinion, L.C. was abused; her vagina was penetrated. Her examination of the hymen indicated that it was “narrowed” and “thinned out.” The opening was larger than she was used to seeing in children that age, which could have been caused by the insertion of something, such as an object the size of a finger. On cross examination, she admitted the symptoms she noted in L.C. can also be found in girls who have had vaginitis.

Dr. Levitt’s videotaped interview of L.C. was admitted into evidence and played for the jury. On the tape Dr. Levitt asked L.C. if she remembered being touched in a way she didn’t like. L.C. responded that her father had touched in the vaginal area with his finger causing pain. She also said that appellant pulled down her clothes, and then drank her “pee” from a glass, and had showed her his “peter.”

L.C.’s previously videotaped trial testimony was also played for the jury. On the tape she said that appellant was never in the bathroom when she was there, and that he never took off his clothes in front of her or removed her clothing. She did not know what a “peter” was, and she had never smelled one. She remembered telling her foster mother that her “pee” hurt, but could not remember why, and she did not remember telling her that Big Russ had touched her there. She remembered telling her foster mother about a visit to Big Russ’ apartment, but could not remember what she said about it, or what happened at the apartment. She said that she was not afraid of Big Russ and denied that he ever told her to keep quiet about anything.

At this point in the videotaped testimony, the defendant was removed from the room, and this fact was noted to the jury by the prosecution during the actual trial. L.C. still could not name male or female sex organs when shown an anatomically correct doll. She denied that anyone had punched her. She remembered being sore when she urinated but did not know why. However, she finally did state that Big Russ “punched” her “down there,” with his fist, indicating her vaginal area. It occurred on the toilet, and she had her clothes on. He punched her only once, and then said “sorry.” He never took his clothes off, and she never saw his penis. He never told her to not tell anyone about being punched.

Appellant testified and denied all of the allegations. Several character witnesses also testified on his behalf. The jury returned a verdict of guilty. On appeal, appellant challenges the trial procedure used to exclude him from the room while L.C. testified, and the use at trial of out-of-court statements L.C. had made to her foster mother, Lonnie Payne and Dr. Levitt, all of which he claims violated his right to confront the witness against him. We ordered accelerated review of this case. We reverse appellant’s conviction and remand for a new trial.

1. The statute in question, Minn.Stat. § 595.02, subd. 4(c) (1988) permits the testimony of a child witness who is under age 10 to be taken outside the presence of the defendant in certain instances. It provides:

The court shall permit the defendant in a criminal or delinquency matter to observe and hear the testimony of the child in person. If the court, upon its own motion or the motion of any party, determines that the presence of the defendant during testimony taken pursuant to this subdivision would psychologically traumatize the witness so as to render the witness unavailable to testify, the court may order that the testimony be taken in a manner that:

(1) the defendant can see and hear the testimony of the child in person and communicate with counsel, but the child cannot see or hear the defendant; or

(2) the' defendant and child can view each other by video or television monitor from separate rooms.

Appellant was removed from the room during the testimony of L.C., and watched her testimony via a one-way closed circuit television monitor on which he could see and hear L.C. but she could not see or hear him.¹ Appellant refused an offer for a telephone connection with his attorney who was present in the room when L.C. testified. Appellant argues that the statute on its face and as applied violated his right to confront the witnesses testifying against him.

The confrontation clauses of the United States and Minnesota Constitutions provide: “In all criminal prosecutions the accused shall enjoy the right * * * to be confronted with the witnesses against him.” U.S. Const, amend. VI; Minn. Const, art. 1, § 6. In Coy v. Iowa, — U.S. -, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), decided after the trial in this case, the Supreme Court overturned the conviction of a sex offender because he was denied his sixth amendment right to confront witnesses giving testimony against him at trial. The Iowa statute permitted a screen to be placed between the defendant and the primary witnesses, two 13-year-old girls who were sexually assaulted by the defendant.² The screen allowed the defendant to dimly perceive the witnesses, but prevented the witnesses from seeing the defendant. The Court stated that the confrontation clause provides two types of protections to the criminal defendant; “the right physically to face those who testify against him, and the right to conduct cross-examination.” Id. 108 S.Ct. at 2801. Face-to-face confrontation is “the core of the values furthered by the Confrontation Clause.” Id. (citation omitted). Analyzing the placement of the screen between the defendant and witnesses, the Court said “[i]t is difficult to imagine a more obvious or damaging violation of the defendant’s right to a face-to-face encounter.” Id. at 2802. However, the Court left open the question of whether exceptions existed to the confrontation requirement. Any exceptions, however, should they exist, would be permitted only when necessary to further an important public policy. Id. at 2803. The Iowa statute was unconstitutional because it allowed a screen to be placed in front of witnesses without any showing of necessity. The statute did not require any individualized finding by the court that the witnesses would be traumatized if forced to face the defendant, but rather presumed that all child witnesses would be traumatized. Id. at 2803.

Exceptions to the confrontation requirement have been found to exist with respect to other rights “implicit” in the confrontation clause, such as the right to cross examine witnesses. See Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

Unlike the Iowa statute at issue in Coy, Minn.Stat. § 595.02, subd. 4(c) establishes a permissible exception to the confrontation clause because it requires a specific finding that the denial of the right to confrontation is necessary to effectuate an important public policy. Protecting child witnesses under 10 years of age from trauma is certainly an important public policy. See Coy, 108 S.Ct. at 2805 (O’Connor, J., White, J., concurring) (“The protection of child witnesses is, in my view and in the view of a substantial majority of the States, just such an [important public] policy.”) The statute also requires the trial court to make a determination that “the presence of a defendant during testimony * * * would psychologically traumatize the witness so as to render the witness unavailable to testify.” This satisfies the requirement in Coy that there be an individualized finding of necessity. Thus, the statute on its face is constitutional. Similar conclusions have been reached by other courts analyzing similar statutes.³

2. Coy v. Iowa makes clear that exceptions to the requirement of face-to-face confrontation are allowed only after the court makes an “individualized finding” that the particular witness needs special protection. 108 S.Ct. at 2803. Although the Court did not express what type of showing of necessity is required, it said that a generalized legislative finding of necessity as found in the Iowa statute was insufficient to establish necessity. Id. Thus the Supreme Court has given little guidance on what “individualized findings” of traumatization must be made before a defendant can be removed during the testimony of a witness.

Minn.Stat. § 595.02, subd. 4(c) is intended to protect child witnesses in sexual abuse cases from the psychological trauma of testifying in court. However, not all children experience trauma when testifying. See Minnesota Developments — Defendants’ Rights in Child Witness Competency Hearings: Establishing Constitutional Procedures for Sexual Abuse Cases, 69 Minn.L.Rev. 1377, 1385 n. 16 (1985). There are many obstacles at trial encountered by child witnesses which impede their testimony and often cause trauma. The unfamiliar courtroom setting, the necessity of speaking to strangers about embarrassing events, the presence of a jury, the problems with language and mutual comprehension all contribute to an oppressive environment in which child sexual abuse victims may face problems in testifying. Anxiety may also be increased by intimidating trial procedures such as cross-examinations, and by sequestration, repeated long delays and last minute postponements. The presence of the accused during the child’s testimony may heighten stress or trauma, and the outcome of the trial — either acquittal of the abuser or in some cases the conviction of a close family member — may result in trauma. See Libai, The Protection of the Child Victim of a Sexual Offense in the Criminal Justice System, 15 Wayne L.Rev. 977, 984 (1969); Parker, The Rights of Child Witnesses: Is the Court a Protector or Perpetrator? 17 New Eng.L.Rev. 643, 646, 652-53 (1982). The use of video-camera equipment and the necessity of speaking into a microphone may also increase the stress on the child.

The statute provides that a determination must be made that “the presence of the defendant during testimony * * * would psychologically traumatize the witness so as to render the witness unavailable to testify.” Minn.Stat. 595.02, subd. 4(c). The trial court found L.C. to be unavailable to testify because she lacked recollection and was unwilling to testify. See Minn.R. Evid. 804(a)(2) and (3). The findings are ambiguous on whether this was caused by the psychological traumatization of testifying in the presence of the defendant. The court said: “I don’t know if she is traumatized, as such, psychologically. I’m not an expert. I haven’t heard any testimony.” At the hearing, on the issue of psychological traumatization, Diane Schroedl was the only witness. She testified that L.C. was nervous and that was causing her problems with remembering the events about which she was questioned. She opined that the video camera might be the source of L.C.-’s nervousness. The trial court noted that L.C. appeared more nervous during the videotaping of her trial testimony than she had been during the competency hearing earlier that day which was not videotaped, and at which appellant was not present. Regarding L.C.’s nervousness the trial judge said: “I don’t know the reason for that. It could be the video camera. Who knows.”

Using the Coy requirement of an “individualized finding” or the statutory requirement, the trial court’s findings in this case are insufficient. The court made no finding that it was necessary to exclude the defendant during the witness’ testimony because his presence was causing psychological traumatization to the child witness. This is especially troublesome since the witness herself testified that she was not afraid of appellant. Like the defendant in Coy v. Iowa, appellant has been denied his right to confront the witness against him based on an impermissible presumption that his presence would traumatize the child witness.⁴

Other courts have reached this same result. In State v. Vincent, 159 Ariz. 418, 768 P.2d 150 (1989), the trial court had also failed to make a particularized showing that exclusion of the defendant during the testimony of two child witnesses would be necessary. The trial court stated merely that the child witnesses “could be traumatized.” Id. 159 Ariz. at 428, 768 P.2d at 160. There was no specific evidence concerning the likely impact of the courtroom testimony on the witnesses. The court held that statute permitting the testimony of a child witness to be videotaped out of the presence of the defendant, Ariz.Stat. § 13-4253 was unconstitutional as applied. Id. at 429, 768 P.2d at 160-61. See also People v. Thomas, 770 P.2d 1324, 1328 (Colo.Ct.App.1988) cert. granted (1989); State v. Eastham, 39 Ohio St.3d 307, 530 N.E.2d 409, 412 (1988).

Neither the Coy decision nor the statute provide any guidance on what constitutes an individualized finding or determination that the child witness would be psychologically traumatized so as to be unavailable to testify if required to testify in the presence of the defendant. The inquiry to be made by the trial court on this issue will necessarily vary with each case. However, in every case it must be established by specific evidence that the particular witnesses is or would be psychologically traumatized and that traumatization is substantially caused by the presence of the defendant rather than by other reasons. The evidence of psychological traumatization “must show more than mere nervousness or excitement or some reluctance to testify.” Craig v. State, 316 Md. 551, 569, 560 A.2d 1120, 1129 (1989) (citation omitted).

The finding may be based on the trial court’s personal observation of the witness, but there must be sufficient evidence in the record to support the court’s finding. The trial judge is permitted, if not encouraged, to question the child witness in camera if necessary. Additional testimony should be taken from witnesses having personal knowledge of the child. Their testimony must be about the consequences of having the child testify in the presence of the defendant, must be specific, and must be based on their experience with that particular child. This pertains to expert testimony as well. While expert testimony is not required in every case, it may be necessary in cases where the cause of the child’s testimonial difficulties and trauma is not clear.⁵

This standard is intended to require more than a showing of mere distress on the part of a child who is faced with the prospect of testifying. It is a strict standard, which is imposed in recognition of the fact that live testimony and cross-examination is the preferred mode of proof. It is not contemplated that the court will necessarily receive expert testimony concerning the minor’s emotional state in making this determination. The court is in an adequate position to assess the surrounding circumstances and to form a judgment concerning the likely effect of live testimony in open court on the minor without expert assistance.

The next question is whether the violation of the right to confrontation was harmless error. In Coy v. Iowa, the Court stated that the harmless error rule should be applied when a defendant’s rights under the confrontation clause have been violated. 108 S.Ct. at 2803. The harmless error analysis has been applied in other cases involving violations of the confrontation clause. See Delaware v. Van Arsdall, 475 U.S. 673, 682, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). When constitutional errors are involved, the state has the burden to show that the errors are harmless beyond a reasonable doubt by showing that the error did not contribute to the verdict obtained. Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 827-828, 17 L.Ed.2d 705 (1967), State v. Crisler, 285 N.W.2d 679, 682 (Minn.1979). Thus, constitutional errors are presumed to be prejudicial.

In. Coy the Court stated that the harmless error analysis in confrontation clause cases should not attempt to evaluate what effect the defendant’s presence or absence would have on a particular witness because that would involve mere speculation. 108 5.Ct. at 2803. In this case, however, the record clearly reflects the effect that appellant’s presence and then absence had on the testimony of L.C. Before the defendant was removed, L.C. said nothing in her testimony to implicate appellant. She denied or could not remember whether appellant had engaged in the conduct on which he was charged. Only after appellant was excluded did L.C. say that he “punched” her in the vaginal area. The only other evidence of guilt was L.C.’s out of court statements to her foster mother, Lonnie Payne and Dr. Levitt. Although those hearsay statements are deemed to be “substantive evidence” by Minn.Stat. § 595.02, subd. 3 if properly admissible, it is impossible to say that the jury would have convicted appellant anyway had appellant remained in the room during L.C.’s testimony, and she had continued to deny or lack recollection of her previous statements. The weight the jury would give to her prior unsworn, out of court statements is simply not known, and thus we cannot say that the error in removing appellant was harmless beyond a reasonable doubt. The state has not met its burden to show that the error was harmless beyond a reasonable doubt.

3. The confrontation clauses of the United States and Minnesota Constitutions are also implicated by the use at trial of prior out-of-court statements that L.C. made to her foster mother, Lonnie Payne and Dr. Levitt. Minn.Stat. § 595.02, subd. 3 (1988) permits the admission of such statements at trial as “substantive evidence” in child sexual abuse cases.⁶ The underlying purpose of the confrontation requirement is to “augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence.” Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980). The use of hearsay statements deprives the defendant of the right to . confront and cross examine the witness, and violates the requirement that testimony be sworn, all of which are intended to protect the integrity of the factfinding process by ensuring that only reliable evidence will be used against a defendant. Thus hearsay can be used against a criminal defendant at trial only if its use is necessary, and only if the hearsay evidence is demonstrably reliable. Ohio v. Roberts 448 U.S. at 65-66, 100 S.Ct. at 2538-2539; State v. Hansen, 312 N.W.2d 96, 102 (Minn.1981).

The trial court in this case conducted a pretrial hearing to determine whether L.C.’s prior statements were reliable so as to be admissible under the confrontation clauses, and Minn.Stat. § 595.02, subd. 3 (1988). See State v. Dana, 422 N.W.2d 246, 249 (Minn.1988). Testimony was taken from Schroedl, Payne and Dr. Levitt, and the court ruled that the statements L.C. made to these three were reliable. The factors set out in the statute for determining the reliability of hearsay evidence include the “time, content and circumstances of the statement and the reliability of the person to whom the statement is made.” Minn.Stat. § 595.02, subd. 3. As part of this analysis, the court must consider, among other things, the spontaneity of the statements, the consistency of the statements, the knowledge of the declar-ant, the motives of the declarant and witnesses to speak truthfully and the proximity in time between the statement and the events described. See State v. Allen, 157 Ariz. 165, 174, 755 P.2d 1153, 1162 (1988). The court also should consider possible suggestiveness created by leading questions, particularly by a parent or close authority figure; and should evaluate corroborating factors, such as whether the declar-ant has recanted or reaffirmed the statement and also any corroborating physical evidence. Graham, The Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship, 72 Minn.L.Rev. 523, 532 (1988). In State v. Dana, 422 N.W.2d 246, we stated that “the heart of the matter of determining whether to admit hearsay is that unreliable evidence should be kept from the jury; this is a legal determination that the trial court makes on the basis of experience and legal education.” Id. at 249 (citation omitted). A ruling on the reliability of hearsay statements is for the court to make and is of vital importance in cases such as this.

Because of our disposition of this case, it is not necessary that we rule on whether the admission of those statements violated appellant’s right to confrontation. We note, however, that evidence was adduced at trial that may have some bearing on the reliability of some of those statements, specifically, the fact that the victim and some of the witnesses were unhappy or concerned about the county’s plan to reunite appellant with his children. This is another factor to be considered by the trial court in ruling on whether the out-of-court statements were reliable.

Finally, we note in passing that we are troubled by the prosecution’s conduct at trial of stopping the videotaped testimony of L.C. at the point where appellant was excluded from the room and noting that fact to the jury. The jury would have had no other way of knowing that the defendant had been removed during L.C.’s testimony. This practice was unnecessarily prejudicial to the defendant, and may have affected the fairness of the trial by undermining the presumption of innocence in favor of the accused. See Estelle v. Williams, 425 U.S. 501, 503-04, 96 S.Ct. 1691, 1692-93, 48 L.Ed.2d 126 (1976) (requirement that defendant stand trial in prison clothes unnecessarily impairs the presumption of innocence). However, this issue was not raised on appeal, and our disposition of this case does not require us to rule on it.

Reversed and remanded for a new trial.

1 . We note that the trial court did not follow the proper procedures under § 595.02, subd. 4(c) when it excluded appellant. The trial court used a one-way video monitor, on which appellant could see L.C. testify, but she could not see or hear appellant. Subdivision 4(c)(2) requires that if a video monitor is used the defendant and the witness must be able to view "each other.” This contemplates a two-way video connection. Subdivision 4(c)(1), the only other alternative, requires that the defendant be allowed to observe the witness “in person " while the child witness cannot see or hear the defendant. This section does not authorize a one-way video connection. The procedures used in this case violated the procedures outlined by the statute.

2 . Iowa Code § 910A.14(1) (1987) provides:

A court may, upon its own motion or upon motion of any party, order that the testimony of a child, as defined in section 702.5, be taken in a room other than the courtroom and be televised by closed circuit equipment in the courtroom to be viewed by the court. Only the judge, parties, counsel, persons necessary to operate the equipment, and any person whose presence, in the opinion of the court, would contribute to the welfare and well-being of the child may be present in the room with the child during the child’s testimony.

The court may require a party be confined to an adjacent room or behind a screen or mirror that permits the party to see and hear the child during the child's testimony, but does not allow the child to see or hear the party. However, if a party is so confined, the court shall take measures to insure that the party and counsel can confer during the testimony and shall inform the child that the party can see and hear the child during testimony.

3 . State v. Bonello, 210 Conn. 51, 554 A.2d 277, cert. denied, — U.S.-, 109 S.Ct. 2103, 104 L.Ed.2d 664 (1989); Glendening v. State, 536 So.2d 212, 218 (Fla.1988), cert. denied, — U.S. -, 109 S.Ct. 3219, 106 L.Ed.2d 569 (1989); Wildermuth v. State, 310 Md. 496, 518-20, 530 A.2d 275, 286-87 (1987); State v. Tafoya, 108 N.M. 1, 765 P.2d 1183 (Ct.App.1988), cert. denied, — U.S.-, 109 S.Ct. 1572, 103 L.Ed.2d 938 (1989). See also State v. Vincent, 159 Ariz. 418, 768 P.2d 150, 161 (1989).

4 . The insufficient finding of psychological trau-matization was not "cured prior to trial,” as the dissent asserts, by the findings of another judge who reviewed L.C.’s videotaped trial testimony and the record of the hearing four weeks after L.C.’s trial testimony was taken. The second judge ruled that the presence of appellant had a "chilling effect" upon L.C.’s testimony. He did not, however, make any finding that L.C. would be psychologically traumatized if required to testify in the presence of the appellant. Nor could the judge make such a finding. He relied solely on the same evidence that the first judge used in making his ruling, and that evidence is simply insufficient to support a finding of psychological traumatization since it did not show that L.C. was anything more than just nervous, excited or reluctant to testify. Moreover, the second judge had no opportunity to observe L.C. personally, and there is nothing in the record to indicate that he ever met her. This is not the finding of psychological traumatization needed to meet the requirements of the statute or the constitution.

5 . See also Uniform Rules of Evidence 807(a)(i) (adopted Nov. 1986) providing for special procedures to protect child witnesses upon a finding by the court that "there is a substantial likelihood that the minor will suffer severe emotional or psychological harm if required to testify in open court.” Comments to the rule provide in part:

6 . Section 595.02, subd. 3 provides:

An out-of-court statement made by a child under the age of ten years or a person who is mentally impaired as defined in section 609.-341, subdivision 6, alleging, explaining, denying, or describing any act of sexual contact or penetration performed with or on the child or any act of physical abuse of the child or the person who is mentally impaired by another, not otherwise admissible by statute or rule of evidence, is admissible as substantive evidence if:

(a)the court or person authorized to receive evidence finds, in a hearing conducted outside of the presence of the jury, that the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made provide sufficient indicia of reliability; and

(b) the child or person mentally impaired as defined in section 609.341, subdivision 6, either:

(i) testifies at the proceedings; or

(ii) is unavailable as a witness and there is corroborative evidence of the act; and

(c) the proponent of the statement notifies the adverse party of the proponent’s intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence to provide the adverse party with a fair opportunity to prepare to meet the statement.

For purposes of this subdivision, an out-of-court statement includes video, audio, or other recorded statements. An unavailable witness includes an incompetent witness.

See also Minn.Stat. § 260.156 (1988).