IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT X.D.M., ) Appellant, ) ) v. ) WD84520 ) JUVENILE OFFICER, ) FILED: July 5, 2022 Respondent. ) Appeal from the Circuit Court of Jackson County The Honorable Jalilah Otto, Judge Before Division One: Lisa White Hardwick, P.J., and Alok Ahuja and Mark D. Pfeiffer, JJ. The Circuit Court of Jackson County entered a judgment finding that X.D.M.,
a juvenile, committed acts which would constitute the class D felony of stealing if
committed by an adult. The court placed X.D.M. on probation in the custody of his
mother. X.D.M. appeals. He contends that the circuit court violated his Sixth
Amendment right to confront adverse witnesses when it permitted the Juvenile
Officer’s witnesses to testify by two-way videoconferencing, based on generalized
health concerns involving the COVID-19 pandemic. The Missouri Supreme Court
recently addressed the identical Confrontation Clause issue in C.A.R.A. v. Jackson
County Juvenile Office, 637 S.W.3d 50 (Mo. 2022). In light of C.A.R.A., the
judgment of the circuit court is reversed, and the case is remanded for further
proceedings. Factual Background On December 8, 2020, the Jackson County Juvenile Officer filed a petition
alleging that X.D.M. committed an act that would constitute class D felony stealing
if committed by an adult, by stealing a handgun.
The circuit court scheduled an adjudication hearing for February 10, 2021,
and specified that all parties and witnesses would appear for the hearing using the
WebEx two-way videoconferencing platform. On January 21, 2021, X.D.M. filed a
written Objection to Adjudication by Video, in which he argued, among other things,
that he had the right to confront adverse witnesses in person, face-to-face, under
both the United States and Missouri Constitutions.
The Juvenile Officer filed a response contending that two-way
videoconferencing would preserve many of the attributes of face-to-face
confrontation, including the ability to observe the witnesses while they were
testifying in real time. The Juvenile Officer also argued that the unprecedented
risks associated with the COVID-19 pandemic necessitated that the hearing be
conducted by two-way videoconferencing rather than in-person, and that the health
and safety risks “outweigh[ed] the juvenile’s right to pure face-to-face
confrontation.” The Juvenile Officer also contended that operational directives issued by both the Missouri Supreme Court and by the Presiding Judge of the
Sixteenth Circuit authorized the conduct of the adjudication hearing by
videoconference.
The circuit court denied X.D.M’s Objection to Adjudication by Video. In its
order, the court stated that “Covid 19 is an airborne virus. The juvenile will be
provided a full and fair hearing without subjecting the participants in the hearing
to a risk of serious harm or death.” The court’s order made no witness- or case-
specific findings establishing a need to conduct the proceedings virtually.
2 The adjudication hearing was held on February 10, 2021. X.D.M., his
counsel, and the witnesses all participated in the hearing virtually, through the
WebEx platform. At the outset of the hearing, X.D.M. renewed his objection to
permitting the witnesses to testify by videoconference. The circuit court overruled
the objection. During the adjudication hearing, both of the Juvenile Officer’s
witnesses testified by WebEx. The victim of the theft identified the stolen handgun,
and testified that she had not given anyone permission to remove the handgun from
her home. The police officer who arrested X.D.M. testified to a traffic stop he
conducted of a vehicle X.D.M. was driving (the vehicle had also apparently been
stolen from the victim). During the traffic stop, X.D.M. advised the arresting officer
that he had the victim’s handgun concealed in the leg of his pants, and the officer
recovered it.
The trial court found beyond a reasonable doubt that X.D.M. committed what
would be the class D felony of stealing if committed by an adult. Following a
disposition hearing, the court ordered that X.D.M. be committed to the custody of
Family Court Services for residential placement, but suspended the execution of
this commitment and placed X.D.M. on probation in the custody of his mother.
X.D.M. appealed. On X.D.M.’s unopposed motion, this Court stayed proceedings on appeal pending the Missouri Supreme Court’s decisions in C.A.R.A.
and J.A.T. v. Jackson County Juvenile Office, 637 S.W.3d 1 (Mo. 2022), each of
which raised similar Confrontation Clause arguments.
Following the issuance of the Supreme Court’s decision in C.A.R.A. and
J.A.T., X.D.M. filed a Motion for Remand, which the Juvenile Officer did not oppose.
The Motion for Remand asked this Court to summarily vacate the circuit court’s
judgment in light of the C.A.R.A. and J.A.T. decisions, and remand the case to the
circuit court for a new adjudication hearing. We denied the motion for summary disposition. We advised the parties, however, that they were free to expedite the
3 briefing of the case, and that the Juvenile Officer “may choose to join Appellant’s
brief or may choose to notify this court that Respondent does not intend to file a
brief after the Appellant’s brief is filed.”
Following the filing of X.D.M.’s merits brief, the Juvenile Officer notified the
Court that it “will not be filing a brief in response to Appellant’s brief.”
Discussion As the parties have recognized, reversal is mandated in this case by the
Supreme Court’s decision in C.A.R.A. v. Jackson County Juvenile Office, 637 S.W.3d
50 (Mo. 2022). Like this case, C.A.R.A. was a juvenile delinquency proceeding in
which the circuit court heard the testimony of the Juvenile Officer’s witnesses by
two-way videoconferencing, despite the juvenile’s timely objections.
C.A.R.A. recognized that “‘[t]he constitutional protections applicable in
criminal proceedings are also applicable in juvenile delinquency proceedings due to
the possibility of a deprivation of liberty equivalent to criminal incarceration.’
‘Included among these rights are the rights to confrontation and cross-examination
of witnesses.’” Id. at 54 (quoting In re N.D.C., 229 S.W.3d 602, 605 (Mo. 2007)).
C.A.R.A. analyzed the Confrontation Clause issue under the varying
approaches adopted in two decisions of the Supreme Court of the United States:
Crawford v. Washington, 541 U.S. 36 (2004); and Maryland v. Craig, 497 U.S. 836
(1990). C.A.R.A. explained that, “[u]nder Crawford, witnesses may testify via two-
way video only when the circuit court determines the witness is unavailable and the
defendant had a prior chance to cross-examine the witness.” 637 S.W.3d at 65
(citing Crawford, 541 U.S. at 68). Under Craig, “a defendant's rights under the
Confrontation Clause are violated by the use of two-way video procedure unless
such procedure is necessary to further an important public policy and the reliability
of the testimony is otherwise assured.” 637 S.W.3d at 58 (citations omitted). C.A.R.A. explained that “Craig’s test requires courts to engage in a case-specific
4 finding to analyze the necessity prong.” Id. C.A.R.A. reasoned that, in applying the
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IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT X.D.M., ) Appellant, ) ) v. ) WD84520 ) JUVENILE OFFICER, ) FILED: July 5, 2022 Respondent. ) Appeal from the Circuit Court of Jackson County The Honorable Jalilah Otto, Judge Before Division One: Lisa White Hardwick, P.J., and Alok Ahuja and Mark D. Pfeiffer, JJ. The Circuit Court of Jackson County entered a judgment finding that X.D.M.,
a juvenile, committed acts which would constitute the class D felony of stealing if
committed by an adult. The court placed X.D.M. on probation in the custody of his
mother. X.D.M. appeals. He contends that the circuit court violated his Sixth
Amendment right to confront adverse witnesses when it permitted the Juvenile
Officer’s witnesses to testify by two-way videoconferencing, based on generalized
health concerns involving the COVID-19 pandemic. The Missouri Supreme Court
recently addressed the identical Confrontation Clause issue in C.A.R.A. v. Jackson
County Juvenile Office, 637 S.W.3d 50 (Mo. 2022). In light of C.A.R.A., the
judgment of the circuit court is reversed, and the case is remanded for further
proceedings. Factual Background On December 8, 2020, the Jackson County Juvenile Officer filed a petition
alleging that X.D.M. committed an act that would constitute class D felony stealing
if committed by an adult, by stealing a handgun.
The circuit court scheduled an adjudication hearing for February 10, 2021,
and specified that all parties and witnesses would appear for the hearing using the
WebEx two-way videoconferencing platform. On January 21, 2021, X.D.M. filed a
written Objection to Adjudication by Video, in which he argued, among other things,
that he had the right to confront adverse witnesses in person, face-to-face, under
both the United States and Missouri Constitutions.
The Juvenile Officer filed a response contending that two-way
videoconferencing would preserve many of the attributes of face-to-face
confrontation, including the ability to observe the witnesses while they were
testifying in real time. The Juvenile Officer also argued that the unprecedented
risks associated with the COVID-19 pandemic necessitated that the hearing be
conducted by two-way videoconferencing rather than in-person, and that the health
and safety risks “outweigh[ed] the juvenile’s right to pure face-to-face
confrontation.” The Juvenile Officer also contended that operational directives issued by both the Missouri Supreme Court and by the Presiding Judge of the
Sixteenth Circuit authorized the conduct of the adjudication hearing by
videoconference.
The circuit court denied X.D.M’s Objection to Adjudication by Video. In its
order, the court stated that “Covid 19 is an airborne virus. The juvenile will be
provided a full and fair hearing without subjecting the participants in the hearing
to a risk of serious harm or death.” The court’s order made no witness- or case-
specific findings establishing a need to conduct the proceedings virtually.
2 The adjudication hearing was held on February 10, 2021. X.D.M., his
counsel, and the witnesses all participated in the hearing virtually, through the
WebEx platform. At the outset of the hearing, X.D.M. renewed his objection to
permitting the witnesses to testify by videoconference. The circuit court overruled
the objection. During the adjudication hearing, both of the Juvenile Officer’s
witnesses testified by WebEx. The victim of the theft identified the stolen handgun,
and testified that she had not given anyone permission to remove the handgun from
her home. The police officer who arrested X.D.M. testified to a traffic stop he
conducted of a vehicle X.D.M. was driving (the vehicle had also apparently been
stolen from the victim). During the traffic stop, X.D.M. advised the arresting officer
that he had the victim’s handgun concealed in the leg of his pants, and the officer
recovered it.
The trial court found beyond a reasonable doubt that X.D.M. committed what
would be the class D felony of stealing if committed by an adult. Following a
disposition hearing, the court ordered that X.D.M. be committed to the custody of
Family Court Services for residential placement, but suspended the execution of
this commitment and placed X.D.M. on probation in the custody of his mother.
X.D.M. appealed. On X.D.M.’s unopposed motion, this Court stayed proceedings on appeal pending the Missouri Supreme Court’s decisions in C.A.R.A.
and J.A.T. v. Jackson County Juvenile Office, 637 S.W.3d 1 (Mo. 2022), each of
which raised similar Confrontation Clause arguments.
Following the issuance of the Supreme Court’s decision in C.A.R.A. and
J.A.T., X.D.M. filed a Motion for Remand, which the Juvenile Officer did not oppose.
The Motion for Remand asked this Court to summarily vacate the circuit court’s
judgment in light of the C.A.R.A. and J.A.T. decisions, and remand the case to the
circuit court for a new adjudication hearing. We denied the motion for summary disposition. We advised the parties, however, that they were free to expedite the
3 briefing of the case, and that the Juvenile Officer “may choose to join Appellant’s
brief or may choose to notify this court that Respondent does not intend to file a
brief after the Appellant’s brief is filed.”
Following the filing of X.D.M.’s merits brief, the Juvenile Officer notified the
Court that it “will not be filing a brief in response to Appellant’s brief.”
Discussion As the parties have recognized, reversal is mandated in this case by the
Supreme Court’s decision in C.A.R.A. v. Jackson County Juvenile Office, 637 S.W.3d
50 (Mo. 2022). Like this case, C.A.R.A. was a juvenile delinquency proceeding in
which the circuit court heard the testimony of the Juvenile Officer’s witnesses by
two-way videoconferencing, despite the juvenile’s timely objections.
C.A.R.A. recognized that “‘[t]he constitutional protections applicable in
criminal proceedings are also applicable in juvenile delinquency proceedings due to
the possibility of a deprivation of liberty equivalent to criminal incarceration.’
‘Included among these rights are the rights to confrontation and cross-examination
of witnesses.’” Id. at 54 (quoting In re N.D.C., 229 S.W.3d 602, 605 (Mo. 2007)).
C.A.R.A. analyzed the Confrontation Clause issue under the varying
approaches adopted in two decisions of the Supreme Court of the United States:
Crawford v. Washington, 541 U.S. 36 (2004); and Maryland v. Craig, 497 U.S. 836
(1990). C.A.R.A. explained that, “[u]nder Crawford, witnesses may testify via two-
way video only when the circuit court determines the witness is unavailable and the
defendant had a prior chance to cross-examine the witness.” 637 S.W.3d at 65
(citing Crawford, 541 U.S. at 68). Under Craig, “a defendant's rights under the
Confrontation Clause are violated by the use of two-way video procedure unless
such procedure is necessary to further an important public policy and the reliability
of the testimony is otherwise assured.” 637 S.W.3d at 58 (citations omitted). C.A.R.A. explained that “Craig’s test requires courts to engage in a case-specific
4 finding to analyze the necessity prong.” Id. C.A.R.A. reasoned that, in applying the
Craig standard, “even if we assume the existence of COVID-19 could satisfy the
‘important public policy’ standard, the circuit court would still be required to make
witness-specific findings to determine it was necessary for a particular witness to
testify via two-way video due to an enhanced risk associated with COVID-19.” 637
S.W.3d at 65-66.
C.A.R.A. determined that the circuit court had failed to make sufficient
findings to justify witness testimony by videoconference, under either the Crawford
or Craig standards. Under the Crawford standard, the Missouri Supreme Court
noted that “the circuit court made no finding as to the unavailability of any
witness.” 637 S.W.3d at 65. Under the Craig standard, the Court noted that,
despite “the circuit court's general statements concerning COVID-19,” “no evidence
whatsoever was presented to the circuit court concerning the particular risks facing
[the Juvenile Officer’s witnesses]. And the circuit court made no finding that
anything about the health or circumstances of these witnesses required they be
permitted to testify remotely.” Id. at 66.
C.A.R.A. also emphasized that the COVID-19-related administrative orders
issued by the Missouri Supreme Court, and by the Presiding Judge of the Sixteenth Circuit, had not authorized contested juvenile-delinquency hearings to be conducted
by videoconference. To the contrary, none of those administrative orders authorized
the circuit courts to hold virtual hearings where the conduct of such hearings was
inconsistent with the constitutional or statutory rights of any litigant. Id. at 64-65.
C.A.R.A. concluded its discussion by emphasizing that, despite “the
devastating toll the COVID-19 pandemic has taken in this country,” “generalized
concerns about the virus may not override an individual's constitutional right to
confront adverse witnesses in a juvenile adjudication proceeding.” Id. at 66.
5 As the parties have recognized, the decision in C.A.R.A. requires that we
reverse the circuit court’s judgment in this case. As in C.A.R.A., the circuit court
made no findings that the Juvenile Officer’s witnesses were unavailable to testify,
and no evidence was presented to the circuit court concerning any particular risks
which those witnesses faced if they were required to testify in person. The circuit
court could not rely on the COVID-19-related administrative orders issued by the
Supreme Court or the Sixteenth Circuit to justify the virtual hearing, since those
orders did not – and could not – override X.D.M.’s rights under the Confrontation
Clause.
Conclusion The circuit court erred when it admitted testimony taken by two-way
videoconferencing, over X.D.M.’s objections, to substantiate the court’s delinquency
finding, without making any case- or witness-specific findings of the necessity to
dispense with face-to-face confrontation. The judgment is reversed, and the case is
remanded for further proceedings consistent with this opinion.
_______________________________________ Alok Ahuja, Judge All concur.