United States v. Thompson

29 M.J. 541, 1989 WL 108610

• Court: U S Air Force Court of Military Review
• Decided: August 4, 1989
• Docket: ACM 26797
• Status: Published

Opinions

DECISION

MURDOCK, Judge:

The appellant was tried by a military judge sitting alone as a general court-martial. Contrary to his pleas, he was found guilty of three specifications of sodomy with a child under 16 years old, and one specification of assault. The sodomy specifications were based on misconduct with his two stepsons, and the assault was based on misconduct against his wife. He was sentenced to a dishonorable discharge, confinement for 30 years, total forfeitures, and reduction to airman basic.

We will discuss the appellant’s two asserted errors in reverse order. He asserts he was denied a speedy trial. We adopt the trial judge’s findings on this issue and hold that he was not denied a speedy trial. R.C.M. 707(c)(1)(A) and 707(c)(3); United States v. Palumbo, 24 M.J. 512 (A.F.C.M.R.1987); United States v. Jones, 21 M.J. 819 (N.M.C.M.R.1985).

In his other assertion of error, the appellant has objected, both at trial and on appeal, to the method used to protect the young victims from having to face him during their testimony. He asserts that he was denied his right to confront witnesses because the children were permitted to testify with their backs toward him. We find no error in the procedure.

During the pendency of this appeal, the United States Supreme Court decided Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), which reversed an Iowa decision allowing children to testify from behind a darkened screen.

Our legal system has traditionally had different procedures for child witnesses. For example, traditional common law rules of witness competency limited the extent to which courts could rely on child testimony. However, these rules have undergone a “process of piecemeal revision by statutes for over a century, so that today most of the former grounds for excluding a witness altogether have been converted into mere grounds for [impeachment]”. McCormick’s Handbook of the Law of Evidence, 2d Ed, Sec. 61. (1972). Other procedures have attempted to reduce the negative impact of court proceedings on sensitive child witnesses. For example, a number of jurisdictions allow use of video tape or television systems to capture the testimony while allowing the child to avoid sitting in the courtroom. See Coy, at 108 S.Ct. 2804 (O’Conner, J., concurring).

The growing importance of child testimony has forced the courts and legislatures to rethink some of the traditional approaches to child testimony. Prosecution of child abuse relies heavily on child testimony. Reported instances of this sad offense are increasing and there is often little evidence beyond the injuries and the child’s testimony. Many states have mechanisms for protecting child victims and child witnesses from the full rigor of a courtroom trial. See Coy, at 108 S.Ct. 2804 (O’Conner, J., concurring). These mechanisms include allowing videotaping children’s testimony for use at trial later, using hearsay exceptions to admit statements from absent children, authorizing closure of the courtroom, and using closed-circuit television. See, Note, To Keep the Balance True: The Case of Coy v. Iowa, 40 The Hastings Law Review 437 (1989) (discussion of state action in this area).

The present case represents one attempt to respect the special concerns of dealing with child witnesses while providing a criminal accused with all required protections. The two child witnesses in this case were the appellant’s stepsons. They were 12 and 10 years old at the time of trial. Before the boys were called to testify, the defense counsel notified the judge that he was concerned about the prosecution’s plan to rearrange the courtroom so that the appellant could not see the witness’ faces. The trial counsel confirmed that he intended to request the unusual courtroom arrangement. When the changes were finally approved and completed, the witnesses sat facing the judge with their backs to the appellant. The defense counsel was allowed to sit near the judge’s area so he could see the witness’ faces.

Before approving it, the military judge conducted an extended discussion with both counsel about this seating plan. As we mentioned earlier, at the time of this trial, the United States Supreme Court had not yet issued their decision in Coy. Previously, the Iowa Supreme Court had upheld Coy’s conviction for engaging in lascivious acts with a child. The two teenage female victims in Coy had testified from behind a glass partition which blocked their vision of the defendant while allowing him to view them dimly. State v. Coy, 397 N.W.2d 730 (1986). Unlike the present case, Coy involved a recently enacted statute which allowed a screen to be erected without a judicial determination of the need for such protection.

In the United States Supreme Court opinion, Justice Scalia, writing for the Court, held that the Confrontation Clause of the Sixth Amendment “guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” The Court stated that “[i]t is difficult to imagine a more obvious or damaging violation of the defendant’s right to a face-to-face encounter [than the use of the screen in Coy’s case]”. Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 2802, 101 L.Ed.2d 857 (1989).

The Court left undecided whether there were any exceptions to the requirement for a literal face-to-face confrontation. The Court stated:

ur cases suggest, however that even as to exceptions from the normal implications of the Confrontation Clause, as opposed to its most literal application, something more than the type of generalized finding underlying such a statute is needed when the exception is not ‘firmly ... rooted in our jurisprudence.’ [citations omitted]. The exception created by the Iowa statute, which was passed in 1985, could hardly be viewed as firmly rooted. 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.

108 S.Ct. at 2803 (emphasis added).

The present case differs from Coy in two key respects. First, there is no statute or regulation mandating a particular courtroom arrangement for child witnesses or child victims. Second, the military trial judge made an extensive inquiry into the need for special protections before he approved the plans for allowing the children to testify with their backs to the appellant.

We will turn to the absence of statute or regulation first. A trial judge’s actions in directing arrangements of the courtroom are, in general, well within his discretion as presiding officer of the court-martial. R.C.M. 801(a) and (c); See United States v. Hershey, 20 M.J. 433 (C.M.A.1985) (closure of courtroom in some cases); United States v. Johnson, 15 M.J. 518 (A.C.M.R.1983) (moral supporter allowed to sit near child witness). We hold that the trial judge did not abuse his discretion by authorizing an unusual seating arrangement.

That leaves the more difficult question of whether the inquiry made by the trial judge was sufficient to justify allowing the witnesses to testify without actually confronting the appellant face-to-face. Justice O’Conner, joined by Justice White, wrote a concurring opinion in Coy which we find helpful. She stated that an appellant’s rights under the Confrontation Clause were “not absolute but rather may give way in an appropriate case to other competing interests so as to permit the use of certain procedural devices designed to shield a child witness from the trauma of courtroom testimony.” 108 S.Ct. at 2803. She continued:

In short, our precedents recognize a right to face-to-face confrontation at trial, but have never viewed that right as absolute. I see no reason to do so now and would recognize exceptions here as we have elsewhere.

Thus, I would permit use of a particular trial procedure that called for something other than face-to-face confrontation if that procedure was necessary to further an important public policy, [citations omitted]. The protection of child witnesses is, in my view and in the view of a substantial majority of the States, just such a policy. The primary focus therefore likely will be on the necessity prong. I agree with the Court that more than the type of generalized legislative finding of necessity present here is required. But if a court makes a case-specific finding of necessity, as is required by a number of state statutes, [citations omitted] our cases suggest that the strictures of the Confrontation Clause may give way to the compelling state interest of protecting child witnesses. Because nothing in the Court’s opinion conflicts with this approach and this conclusion, I join it.

108 S.Ct. at 2805 (emphasis added).

We agree. In the present case, the trial judge made specific inquiry and findings about the need to protect child witnesses from facing the appellant directly.

During the inquiry, the trial counsel called a psychologist to testify about her knowledge of the witnesses and the impact face-to-face testimony might have on them. She testified that she had counselled with the children every two weeks for about eight months before the trial. She stated that the boys had “a great deal of anxiety and fear about participation in [the] proceedings” and had

spontaneously talked with me last week about their fear of being in the courtroom with Mr. Thompson, and talked about a fear that they might even be attacked by him in the courtroom. The boys enter these proceedings having stated a great deal of anxiety and shame and fear about participation. Attempts have been made to help them to modulate that fear and to provide them with feelings of greater safety in being in this room and participating in the proceedings. However, both of the children will have difficulty in talking about their experience that they have identified in terms of being in a more public setting and being in front of strangers and for them to be in direct line of vision with defendant in this case, I think, would tend to block their ability to respond and to think about the questions. There’s a great deal of anxiety and it’s easy to be distracted by what is in your line of vision rather than to be able to respond to the questions that are asked. I think that their being in the direct line of vision with the defendant will impair their ability to talk about their experiences and to actively think about the questions that they’re responding to.

When the trial counsel asked the psychologist about turning the witness chair so the children’s backs would be to the appellant, she responded:

I think that that would lessen their anxiety and would be less likely to produce blocks in their intellectual capacity to respond to questions if they do not have Mr. Thompson in their direct line of vision.

On cross-examination, the psychologist stated that she did not think the boys would “adamantly refuse to participate in the proceedings”. Trial counsel then asked whether their anxiety level would be so high as to “block” their “articulation of anything that happened” if they were to testify face-to-face. She replied:

Yes, Michael in particular has a stuttering problem that increases when he is anxious and anxiety is such an overwhelmingly strong emotion that it blocks intellectual function, so that if you raise the anxiety level of someone, it’s normal for intellectual, the ability to intellectually think about something, to be shut off. And I think that their ability to respond to questions with their full recollection would be impaired by that situation.

She added that her opinion was not based solely on the nature of the crimes alleged, but also on the boys’ relationship with the accused. She concluded by admitting that “in general” she would prefer any of her child clients to be allowed to testify without having to face the accused.

After considering the testimony and arguments on the motion, the trial judge issued his findings. We find them to be fair. He found:

The defense has objected to the prosecution’s proposal that [the children] testify not from the witness stand but while seated in a chair facing the witness stand and the military judge. This position is indicated by the letter “C:” on Defense Exhibit C [should be Defense Exhibit W]. Trial counsel has presented evidence through Linda Ann Sweeney Frawley [the psychologist] that the children if required to testify from the witness stand where they would be looking directly at the accused would have their ability to think and testify accurately impaired and that they could respond better if the accused were not in their direct line of sight, and I find by a preponderance of the evidence that that’s a fact.

I further find that:

One, such a [sic] arrangement will not have any effect on the Court with regard to the presumption of innocence of the accused;

Two, that the arrangement proposed by trial counsel is in no way obtrusive and certainly not comparable with the arrangements in Coy v. Iowa cited by defense counsel;

Three, the accused and witnesses will be in the same room with no barrier between them and the fact that the witnesses will not be facing the accused will not deprive the accused of his right to confrontation;

Four, considering the testimony concerning the trauma to the children if forced to testify facing the accused, and balancing that factor against the accused’s alleged right to have witnesses facing him, I find the procedure proposed by the trial counsel will not prejudice the rights of the accused and will insure the witnesses testify freely.

The objection is therefore overruled.

The military judge’s inquiry was adequate to satisfy Coy and to justify the particular steps taken to accommodate the fears of the child witnesses in this ease. We are not indicating our advance approval of every situation in which witnesses testify with their backs to the accused, even where there is an inquiry into the necessity for such a procedure. Coy holds that the general rule is to the contrary. When exceptions are found, the military judge will, undoubtedly, have conducted a careful inquiry into the reasons for the proposed seating arrangement. That inquiry will have satisfied the judge that there are compelling reasons for changing the traditional witness seating arrangement. A thorough inquiry would probably include an in camera interview by the judge with the witnesses who might need the special arrangement. This procedure would allow the judge to evaluate the testimony of any experts who have testified about the need for protections.

In the present case, the information presented to the judge indicated that the witnesses were young and frightened of testifying. The psychologist testified that their fright was not just a generalized stage fright, but was also a fear of being physically attacked by the appellant. Many witnesses may harbor a fear of being attacked for their adverse testimony, but these children had already been repeatedly beaten by the appellant during his commission of the offenses for which he was being tried. Their fear was based on their actual knowledge of the physical harm he was capable of inflicting. The psychologist also testified that both boys, and particularly the younger one, were likely to be so confounded by facing the appellant directly that their mental capabilities might be blocked, rendering them incapable of testifying.

We are also concerned that in such a stressful situation child witnesses might eventually lie in order to end the session and relieve the stress. See Coy at 108 S.Ct. 2809 (Blackmun, J., dissenting). This might happen with any witness, but particularly with a child witness where the accused is a parent or one standing in loco parentis. The North Carolina Supreme Court expressed our concerns well:

Sexual activity between a parent and a minor child is not comparable to sexual activity between two adults with a history of consensual intercourse. The youth and vulnerability of children, coupled with the power inherent in a parent’s position of authority, creates a unique situation of dominance and control in which explicit threats and displays of force are not necessary to effect the abuser’s purpose.

State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673, 681 (1987). We quoted Etheridge and expressed similar concerns in United States v. Torres, 27 M.J. 867 (A.F.C.M.R.1989).

There is a good possibility that screening a child from a related accused, or one standing in loco parentis, might facilitate obtaining truthful testimony rather than encourage falsity. If confronting the accused is designed to encourage truthful testimony, surely a child testifying about a related accused, or one standing in locoparentis, will feel the presence of the accused when they are in the courtroom together, even when they are not facing them directly. When this presence is coupled with the opportunity for the fact-finder and the defense counsel to observe the child’s demeanor directly, and the opportunity for the accused to observe all but the facial expressions of the witness, we believe the accused’s rights have been properly protected.

The United States Court of Military Appeals mentioned Coy in a recent case involving the admissibility of an out of court statement. United States v. Hubbard, 28 M.J. 27 (C.M.A.1989). In our view, the present case is distinguishable. Hubbard did not involve either child witnesses or a procedure for screening the witnesses. The discussion of Coy in Hubbard was primarily in the context of whether admitting an out of court statement violated Hubbard’s right to confrontation and does not appear to have been intended to announce a rule for use in all cases.

We hold that under the circumstances of this case, the military judge was correct in allowing the children to testify in the presence of, but not facing, the appellant. After examining the record of trial, the assignment of errors, and the government’s reply thereto we have concluded that the findings and sentence are correct in law and fact and that no error prejudicial to the substantial rights of the accused was committed. Accordingly, the findings of guilty and sentence are

AFFIRMED.

Chief Judge HODGSON, Senior Judges FORAY and KASTL, and Judges HOLTE, BLOMMERS, and PRATT concur. Judge MICHALSKI participated in oral argument but not in the decision in this case, Judge HOLTE participated in both oral argument and the decision.