United States v. Williams

33 M.J. 754, 1991 CMR LEXIS 1198, 1991 WL 185344
CourtU.S. Army Court of Military Review
DecidedSeptember 18, 1991
DocketACMR 9000540
StatusPublished
Cited by1 cases

This text of 33 M.J. 754 (United States v. Williams) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Williams, 33 M.J. 754, 1991 CMR LEXIS 1198, 1991 WL 185344 (usarmymilrev 1991).

Opinion

OPINION OF THE COUET

JOHNSTON, Judge:

Contrary to his pleas, appellant was convicted by a military judge sitting as a general court-martial of attempted sodomy upon a child, two specifications of rape, sodomy upon a child, and two specifications of indecent acts with a child, in violation of Articles 80, 120, 125, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 920, 925, and 934 (1982) [hereinafter UCMJ]. The convening authority approved the adjudged sentence of a dishonorable discharge, confinement for twenty years, forfeiture of all pay and allowances, and reduction to Private El.

The charges in this case resulted from the appellant’s conduct from 1987 to 1989 with his two young daughters who were ages ten and eleven at the time of trial. His reprehensible acts include raping the girls in their bedrooms, attempting to force one of them to sodomize him, fondling one of them in the family kitchen after a New Year’s party, and masturbating in front of them in the family bathroom. The appellant admitted to criminal investigators that he fondled his daughter’s vagina after the party, but either denied or claimed not to remember the other alleged misconduct.

At trial the military judge denied the Government’s request to allow the girls to testify by a two-way video system or from behind a screen that would prevent them from seeing their father. One of the girls testified from the normal witness chair while the other girl testified from a special witness chair in the center of the courtroom.

Appellant contends that his constitutional right to be face-to-face and eye-to-eye with his daughter was violated when the military judge failed to enter a specific finding of necessity and allowed her to testify from a special witness chair about his numerous sexual attacks.1 We disagree.

I.

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 witness against him.” U.S. Const., amend VI. The Supreme Court has held that the confrontation clause does not guarantee criminal defendants the absolute right to a face-to-face meeting at trial with the witnesses against them. Maryland v. Craig, — U.S. -, 110 S.Ct. 3157, 3159, 111 L.Ed.2d 666 (1990). The opinions of the Supreme Court have clearly established that the preference for face-to-face confrontation at trial must occasionally give way to considerations of public policy and the necessities of the case. Id.; Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988).

In Maryland v. Craig, the Supreme Court concluded that the public policy interests in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh a defendant’s right to face his or her accusers in court. The Supreme Court in Craig stated that "[t]he combined effect of these elements of confrontation — physical presence, oath, cross-examination, and observation of demeanor by the trier of fact — serves the purposes of the confrontation clause by [756]*756ensuring that evidence admitted against an accused is reliable and subjected to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings.” 110 S.Ct. at 3163. [Emphasis added].

A trial judge has wide latitude in ensuring that constitutional rights are protected in the context of the necessities of trial and the adversary process. For example, a judge may preclude testimony of a surprise defense witness without violating the right to compulsory process. Pennsylvania v. Ritchie, 480 U.S. 39,107 S.Ct. 989, 94 L.Ed.2d 40 (1987). He may also prevent a testifying defendant from conferring with counsel during a short break in testimony without violating the right to effective assistance of counsel. Perry v. Leeke, 488 U.S. 272,109 S.Ct. 594,102 L.Ed.2d 624 (1989). Likewise, a trial judge does not violate the right of a defendant to be present at trial and confront his accusers when he is ordered removed for disruptive behavior. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). The trial judge also may allow a child-abuse victim to whisper answers to an adult “interpreter” on the basis of an implied finding of necessity without violating the accused’s right to confrontation. United States v. Romey, 32 M.J. 180 (C.M.A.1991).

In this case the military judge acted properly and did not abuse his discretion in balancing the competing interests of the confrontation clause with the public interest of protecting the child victims of sexual abuse. Prior to the ruling, he considered the testimony of a psychologist who specialized in child abuse and the opinions of a psychiatrist and therapist regarding the children’s ability to testify in the presence of the appellant. After considering this evidence, he rejected the trial counsel’s request to allow either a two-way video presentation or to have the child witnesses testify from behind a screen. See United States v. Batten, 31 M.J. 205 (C.M.A.1990). He allowed the ten-year-old child witness to testify from the witness stand. The other child, age 11, testified from a chair facing the military judge and the court reporter. Her position allowed the judge to have a better view of her demeanor, and placed her closer to the accused. Later in the proceedings the trial judge repositioned her chair so that the court reporter could better record her testimony. In addition, the judge allowed both defense counsel and the prosecutors to gather around her chair so they could hear her comments and conduct their examinations.

At trial the defense counsel argued that “anything shy of face-to-face confrontation is a denial of the 6th Amendment right” to confrontation. The appellant argues for the first time on appeal that the trial judge failed to make special findings that justified the witness chair arrangement for the second child witness. In our view, however, the seating arrangement for the young girl who testified from the special witness chair in front of the trial judge fully complied with the requirements of the confrontation clause. In addition, the trial judge stated on the record that the seating arrangement would ensure that the child witnesses would be “less inhibited,” and the accused would have “direct visual contact with the witness.” See the courtroom arrangement at the appendix (App.Ex. IX).

While we clearly recognize a preference for a face-to-face confrontation, we are satisfied that the requirements of the confrontation clause may be met so long as the witnesses testify under oath, are cross-examined in the presence of the accused, and the fact-finder has the opportunity to observe their demeanor and assess their credibility.

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Related

United States v. Williams
37 M.J. 289 (United States Court of Military Appeals, 1993)

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Bluebook (online)
33 M.J. 754, 1991 CMR LEXIS 1198, 1991 WL 185344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-williams-usarmymilrev-1991.