Court of Appeals of Maryland
Maryland v. Craig

September Term, 1988
No.110

Sandra Ann Craig
                         Petitioner

v.

State of Maryland
                               Respondent

Appeal from the Circuit Court for Howard County

Statement of the Case

On October 16, 1986, Sandra Ann Craig was indicted for the crimes of Child Abuse, 1st Degree Sexual Offense, 2nd Degree Sexual Offense, Perverted Practice, Assault and Battery.  On April 1, 1987, Mrs. Craig was convicted by a jury of Child Abuse, 1st Degree Sexual Offense, 2nd Degree Sexual Offense, Perverted Practice, Assault and Battery (Raymond Kane, Judge).  Mrs. Craig filed a Motion for New Trial which was amended by present counsel on June 5, 1988, August 11, 24, and 25 and September 21, 1987.  Hearings on the Motion for New Trial were held on August 11, 24 and 25, 1987.  When Wildermuth v. Maryland, 310 Md. 496, 530 A.2d 275 (1987) was decided on September 10, 1987, Mrs. Craig again moved for a new trial, which was denied on September 21, 1987.  She was then sentenced to terms totaling 10 years' imprisonment.  That day she noted her appeal to the Court of Special Appeals.  On August 3, 1988, Mrs. Craig's convictions were affirmed by the Court of Special Appeals, Craig v. State, 76 Md. App. 250 (1988).  (E.15)  On September 2, 1988, she filed a Motion for Reconsideration and Stay of the Mandate.  The Court of Special Appeals stayed the mandate until September 29, 1988, having denied her Motion for Reconsideration on September 28, 1988.  A petition for writ of certiorari to this Court was filed on the 14th day of October, 1988 and granted on December21, 1988.
  

Editor's note: The Court of Appeals of Maryland in July, 1989 reversed the judgment of the Court of Special Appeals.  The case was remanded to that Court with directions to reverse the judgment of the Circuit Court for Howard County and remand to the latter Court for a new trial in accordance with this opinion.  The State of Maryland appealed this decision to the United States Supreme Court, which agreed to hear the case.  Oral arguments in the case were presented before the Supreme Court on April 18, 1990, by William Murphy.  A decision is expected to be made in June.
  

The portion of the brief pertaining to the first question was presented in Issues in Child Abuse Accusations 1(3), 17-27).  The portion of the brief pertaining to the second question is presented here.
  

Questions Presented

I.  WAS EVIDENCE THAT COULD HAVE EXCULPATED MS. CRAIG OR CREATED A REASONABLE DOUBT OF HER GUILT WITH-HELD BY THE STATE?

II.  DID THE TRIAL COURT VIOLATE THE CONFRONTATION CLAUSE, DUE PROCESS, AND WILDERMUTH BY PERMITTING THE CHILD WITNESSES TO TESTIFY ON ONE-WAY CLOSED-CIRCUIT TELEVISION PURSUANT TO CJ9-102?

A. Because the Supreme Court said in Coy v. Iowa that "face-to-face presence may unfortunately upset the truthful child ... but may confound and undo the false accuser or reveal the child coached by a malevolent [or well intended] adult" the Maryland child video statute unconstitutionally prevents an accused from subjecting an untruthful child to "serious emotional distress" which would render the child "unable to reasonably communicate" a false accusation.

B. Because Coy approved only those state statutes which provide face-to-face confrontation at trial either by (1) two-way video, (2) one-way video with the accused present in the room with the child, or (3) by video deposition with the accused present, and because the Maryland Statute eliminates the right to face-to-face confrontation altogether, the statute is unconstitutional.

C. Because the trial judge did not personally examine any of the children as required by Wildermuth before invoking the child video statute, Mrs. Craig's conviction should be reversed.
  

Statement of Facts

On an indictment returned by the Howard County Grand Jury which alleged no facts, and after a 14-day trial involving 29 State's witnesses and 43 defense witnesses, Mrs. Craig was convicted of child abuse, assault and related charges and received a 10-year sentence based essentially on testimony by Brooke Etze, almost seven, who claimed that between September, 1984 and June, 1986, Mrs. Craig hit her "private parts" with a stick and stuck her with thumbtacks when Brooke was between four and six years old.  This testimony was corroborated by the testimony of Justin Peeples, four, who claimed that Mrs. Craig put a screwdriver in his anus at some time between March, 1985 and February, 1986, when he was between two and three years old; by the testimony of Jessie Sue Smith, five, who claimed that Mrs. Craig put a stick in her anus at some time between January, 1985 and April, 1985, when she was between two and three years old; and by the testimony of Drew Woodbury, five, who claimed that between January, 1985 and November, 1985, Mrs. Craig put an unidentified object in his anus when he was between three and four.  These children were permitted to testify under the "other crimes" exception.

Mary Burke, Brooke's therapist, who was not qualified at trial as an expert, was permitted to tell the jury that Brooke was an abused child who manifested the symptoms of child abuse and was permitted to relate Brooke's allegations of abuse by Mrs. Craig.  The children's parents were permitted to tell the jury what their children had said to them about being abused by Mrs. Craig.  All these acts were alleged to have happened at Craig's Country Pre-School, a highly regarded nursery school near Columbia owned by Mrs. Craig.

Dr. Charles Shubin, a pediatrician, testified that Brooke had a small scar in her vagina consistent with being penetrated by a stick and was permitted to characterize the scar and what he called an abnormally large vagina as a "healed sexual injury."  He testified that Jessie Sue had a "severe sexual injury" to her vagina and that her vagina was also abnormally large.  He testified that Justin and Drew had small scars in their anuses which he similarly characterized as "sexual" injuries;

For the defense, Dr. Larry Wissow, a pediatrician appointed by the court at Mr. Kolodner's request to examine the children, testified that Brooke's vagina was a normal size for her age.  He said, however, she had a vaginal infection at the time of his examination which prevented him from determining whether she was scarred inside.  Otherwise, Dr. Wissow's testimony was similar to Dr. Shubin's.

The defense called Dr. Leopold Walder, a clinical psychologist, to rebut Mary Burke's opinion that Brooke manifested the behavior profile of an abused child and her opinion that in fact she had been abused.  The trial judge did not permit Dr. Walder to testify in these areas but did permit him to testify that it was possible in the abstract for children to be influenced by adults to make false complaints of child abuse.  The last significant witness for the defense was the defendant herself, who denied the charges.

On rebuttal, Dr. Leon Rosenberg, a clinical psychiatrist, testified that in his opinion it was not possible for adults to interact with children in such a way as to cause them to make false complaints of child abuse.

Before trial, on January 20 and 21, 1987, in response to a request by the State that the children not be required to testify in open court, trial judge Raymond Kane heard testimony from their therapists and concluded, without questioning or observing any of the children, that they should testify at trial on one way closed-circuit television.

After the trial, Mrs. Craig discharged Mr. Kolodner and hired new counsel, who filed a motion for new trial which was heard on August 11, 24, and 25, and on September 21, 1987.  Before the hearing, new counsel obtained by subpoena the therapists', psychologists', and psychiatrists' notes of each of the many dozens of sessions they had with the four children.  Defense counsel also obtained by subpoena the records of the Howard County Health Department (HD), the Howard County Department of Social Services (DSS) and the Howard County Sexual Assault Center (SAC).  None of these records had been sought or obtained by Mr. Kolodner.  The prosecutors also claimed not to have seen these voluminous documents.

Among other things, these records established that Mary Burke, Brooke Etze's therapist, believed that "fantasy and reality were mixed up for this child."  Her notes revealed that Brooke told Dr. Shubin that a child named "Mica" caused the injury to her vagina.  Brooke told Mrs. Burke that "Jamal" had put his penis in her vagina and hurt her "privates" with his hand.  Brooke had said that other children had bit her in her private parts and that Mrs. Craig had hit her with a rock, not a stick as she had testified at trial.  Mary Burke's notes indicated that Brooke had misidentified Zena Craig, 17, as Mrs. Craig, 40, and Jamal, 15, as Michael Craig, 42.  Her notes revealed that Brooke also implicated children named "Stacey" and "Shannon" in the alleged abuse, that she had accused a "black boy" and a "red-haired boy" of injuring her in her "privates," and that a boy named "Chris" bit her in her "privates."  The records revealed similar information about Jessie Sue Smith, Drew Woodbury, and Justin Peeples, as will be discussed during argument infra.  Finally, the records revealed a wealth of information casting doubt on both the credibility of the children and their competency to testify.  At the hearing on the motion for new trial, prosecutor Kate O'Donnell testified that she had attended 11 therapy sessions with Brooke Etze where much of this evidence was revealed.  Likewise, she attended dozens of other sessions with the other children.

Notwithstanding this information, Judge Kane denied the motion for new trial on August 25, 1987 and sentenced Mrs. Craig on September 21, 1987 to concurrent terms of 10 years.  Mrs. Craig noted her appeal the same day.  Mrs. Craig's conviction was upheld by the Court of Special Appeals in Craig v. State, supra, on August 3, 1988, and her motion for reconsideration was denied by that Court on September 28, 1988.  The mandate was issued on September29, 1988.  A Petition for Writ of Certiorari was filed on October 14, 1988 and granted as to the issues presented in this appeal on December21, 1988.
  

Argument

THE TRIAL COURT VIOLATED THE CONFRONTATION CLAUSE, DUE PROCESS, AND WILDERMUTH BY PERMITTING THE CHILD WITNESSES TO TESTIFY ON ONE-WAY CLOSED-CIRCUIT TELEVISION PURSUANT TO CJ9-102

A.  Because the Supreme Court said in Coy v. Iowa that "face-to-face presence may unfortunately upset the truthful child ... but may confound and undo the false accuser or reveal the child coached by a malevolent [or well intended] adult" the Maryland child video statute unconstitutionally prevents an accused from subjecting an untruthful child to "serious emotional distress" which would render the child "unable to reasonably communicate" a false accusation.

In Coy v. Iowa, 56 L.W. 4931 (1988), the Supreme Court of the United States reversed a child abuse conviction because under the provisions of an Iowa Child Protection statute, the trial judge separated the accused in the courtroom from the child witness by a semi-opaque screen which prevented defendant from seeing, or being seen by, the child.  Speaking for a six-judge majority, Justice Scalia said:

The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses, since that is the very phenomenon it relies upon to establish the potential "trauma" that allegedly justified the extraordinary procedure in the present case.  That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult.  It is a truism that constitutional protections have costs.  Id. at 4933.

* * *

We leave for another day, however, the question whether any exceptions exist.  Whatever they may be, they would surely be allowed only when necessary to further an important public policy. Cf. Ohio v. Roberts, 448 U.S. at 64; Chambers v. Mississippi, supra, at 295.  The State maintains that such necessity is established here by the statute, which creates a legislatively imposed presumption of trauma.  Our 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." Bourjaily v. United States, 483 U.S. (1987) (citing Dutton v. Evans, 400 U.S. 74 (1970).  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.  Id. at 4934.

In a concurring opinion joined by Justice White, Justice O'Connor said:

... 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.  See ante, at 7 (citing Ohio v. Roberts, supra; Chambers v. Mississippi, supra).  The protection of child witnesses is, in my view and in the view of a substantial majority of the States, just 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, see, e.g., Cal. Penal Code Ann. 1347(d)(1) (West Supp. 1988); Fla. Stat. 92.54(4) (1987); Mass. Gen. laws 278:1GD(b)(1) (1986); N.J. Stat. Ann. 2A:84A-32.4(b) (Supp. 1988), 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 conclusion, I join it.  Id. at 4934

Coy establishes that an accused, by seeing and being seen by the witness, has the constitutional right to inflict a level of trauma even on a child witness.  That level of trauma [Level I Trauma], as Justice Scalia observed, is an integral part of the truth-producing power of confrontation.

Thus, there is a constitutionally protected level of trauma which by face-to-face confrontation the accused is privileged to inflict to "confound and undo the false accuser, or reveal the child coached by a malevolent adult" which "may, unfortunately, upset the truthful ... abused child" [Level I Trauma].  Obviously, a trial judge has the inherent power to limit trauma in excess of this amount [Level II Trauma]; but under the majority holding, he may not eliminate or limit an accused's right to inflict Level I Trauma.

Justices O'Connor and White, however, would eliminate or limit the infliction of Level I Trauma to the degree required by "a case-specific finding of necessity" to "further an important public policy" such as "the protection of children."  Under the O'Connor-White view, even if the trial judge makes an "individualized finding that a particular child witness is in need of special protection," such protection must go no further than dictated by necessity.  Indeed, Justice O'Connor noted with approval the existence of many state statutes which provide variable levels of protection to child witnesses in child abuse cases depending on case-specific findings of necessity.  These statutes reveal the following levels of protection:

  1. Protection from the jury and the public with limited protection from the defendant.
    1. Testimony in a room away from the courtroom on one-way closed-circuit television.
      1. With a defendant and the attorneys present.
      2. With a defendant, the attorneys and an adult trusted by the child (such as a parent or support person) present.
    2. Pretrial video deposition
      1. With a defendant and the attorneys present.
      2. With a defendant, the attorneys and an adult trusted by the child (such as a parent or support person) present.
  2. Total protection from the defendant but not from the jury and the public (by a screen or the like).
  3. Total protection from the jury, the public and the defendant by
    1. One-way closed-circuit television where the defendant, the jury and the public can see and hear the child but not vice versa.
    2. Two-way closed-circuit television where the defendant, the jury and the public can see and hear the child, and
      1. The child can see the defendant, the jury and the public;
      2. The child can see the defendant, but not the jury and the public; or
      3. The child can see the jury and the public, but not the defendant.

Obviously, varying levels of protection concomitantly erode corresponding levels of an accused's Confrontation Clause rights.

Utilizing the above analysis reveals several problems with CJ 9-102.  First, the language "serious emotional distress such that the child cannot reasonably communicate" is vague because it is impossible for a judge or expert witness to determine whether this is Level I Trauma, which cannot be eroded, or Level II Trauma, which can.  How is a judge to know whether he is incorrectly "protecting" a truthful child from the "serious emotional distress" necessary to render the child "unable to reasonably communicate" a false accusation, as opposed to correctly protecting a truthful child from Level II Trauma, given that Level I Trauma is part of the "cost" of the Confrontation Clause to which a presumed innocent defendant is entitled.

CJ 9-102 also necessarily requires an expert witness to make a judgment or assumption that the child (1) has been abused (2) by the defendant and therefore needs protection from any level of trauma from the perpetrator.  This clearly does violence to the presumption of innocence because if one were to utilize it instead of the presumption of guilt, there would be no theoretical basis for the Statute.

CJ 9-102 is also overbroad because the language "serious emotional distress" encompasses both privileged infliction of trauma (Level I Trauma) and excess infliction (Level II Trauma) without providing a rational standard to determine where one ends and the other begins.

Thus, in this case, the vague and overbroad standard of CJ 9-102 required the trial judge to deprive Ms. Craig of her right to inflict Level I trauma on the child witnesses in violation of the Confrontation Clause and due process of law because the trial judge had no way of knowing the extent to which protection from "serious emotional distress such that the child would be unable to communicate" eroded one rather than the other.  Thus, on this account alone, Ms. Craig's convictions should be reversed.
  

B.  Because Coy approved only those state statutes which provide face-to-face confrontation at trial either by (1) two-way video, (2) one-way video with the accused present in the room with the child, or (3) by video deposition with the accused present, and because the Maryland Statute eliminates the right to face-to-face confrontation altogether, the statute is unconstitutional.

As recognized by this Court in Wildermuth v. State, 310 Md. 496 (1987) and by Justice O'Connor in Coy, supra, at 4934, in her concurring opinion (referring to the American Bar Association Amicus Curiae brief appendix which categorized State Statutes), the Maryland child video statute provides for one-way closed-circuit television permitting the accused to see the witness but "the child cannot see the defendant or other persons in the courtroom."  Speaking for the Court of Appeals in Wildermuth, Judge Adkins said:

Section 9-102 ... provides for most of the aspects of confrontation that enhance the reliability of testimony: cross-examination, testimony under oath, ability of judge, jury, and accused to view the witness during the testimony.

* * *

The only reliability function not substantially provided by one-way closed-circuit television is that derived from the witness's view of the accused.  The question becomes whether the showing under the "necessity" prong of the test is sufficiently strong to overcome that lack. 310 Md. at 516.

The Wildermuth court specifically held that the statute properly permitted the elimination of the accused's right to be viewed by the witness if the State met its burden of showing "necessity" under Section 9-102(a)(l)(ii) by proving "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."

However, both Justices O'Connor and White indicated in the concurring opinion that one-way video statutes such as Maryland's violate the Sixth Amendment requirement that the witness see the accused. Justice O'Connor said:

Many [state statutes] may raise no substantial Confrontation Clause problem since they involve testimony in the presence of the defendant.  See, Ala. Code 15-25-3 (Supp. 1987) (one-way closed-circuit television; defendant must be in the same room as witness); Georgia Code Annotated, 17-8-55 (Supp. 1987) (same); New York Crim. Proc. Law 65.00-65.30 (McKinney Supp. 1988) (two-way closed-circuit television); Cal. Penal Code Annotated, 1347 ((West Supp. 1988)(same).  Indeed, part of the statute involved here seems to fall into this category since in addition to authorizing a screen, Iowa Code 910A14 (1987) permits the use of one-way closed-circuit television with "parties" in the same room as the child witness. Coy, at 4934.

After observing that "even if the particular state procedure runs afoul of the Confrontation Clause's general requirements, it may come within an exception that permits its use," Justice O'Connor said:

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.  Id. at 4935.

Assuming that this analysis requires a trial judge to limit infringement, if any at all is permitted, of an accused's Confrontation Clause rights only to the extent necessary to protect a particular child, and given the variable levels of infringement provided by the state child protection Statutes Justice O'Connor approves, it is clear that the Confrontation Clause compels a trial judge to utilize the minimum protection the state proves adequate to protect the interest of a child in a given case.  Because CJ 9-102 does not do this and instead presumes that the level of protection necessary in all cases is one-way closed-circuit television, it is unconstitutional.  Put another way, unlike other State statutes approved by Justice O'Connor, CJ 9-102 does not permit the trial judge to individualize the protection to fit a particular child and correspondingly to take away only that part of an accused's Confrontation Clause right to be seen by the witness as is absolutely necessary to protect the child.  The all or nothing approach of CJ 9-102 does not permit the trial judge to utilize two-way video, or to place the defendant in the room with the child away from the jury and the public or to permit any of the other options outlined in II A, supra.  The fact that many states, including New York and California have similar problems with child abuse as does Maryland but require two-way video to enable the child to view the accused or one-way video with the accused's having the right to be present in the same room as the child is a powerful argument that the Maryland approach of eliminating altogether an accused's right to be seen by the child is not per se "necessary" and is tantamount to a forbidden statutory presumption of necessity.  The Maryland statute overprotects the child and underprotects the presumed innocent defendant by the per se use of one-way closed-circuit television.

Moreover, the Maryland Statute does not require a case-specific finding that the child would be traumatized by seeing the accused.  Rather, it requires only a finding of "serious emotional distress such that the child cannot reasonably communicate" under circumstances which may or may not require the child from being prevented from seeing the accused on two-way closed-circuit television or in a room away from the jury and the public.  The Supreme Judicial Court of Massachusetts in Commonwealth v. Bergstrom, 402 Mass. 534, 524 N.E.2d 366 (1988) held that invocation of a similar (but more restrictive) statute violated Massachusetts' constitutional guarantee for face to face confrontation.  The Court said:

[The Statute] ... creates a rule of witness protection that is too broad to pass constitutional muster.  While we are willing to consider the validity of new techniques of preserving and presenting evidence at a criminal trial on a case-by-case basis, we are unable to uphold broad categorical exemptions from constitutional mandates.  Id. at 374

In reversing, the Massachusetts' Court outlined the compelling circumstances which would be required to justify the confrontational right abridgement:

Further in the absence of a waiver, the Commonwealth must show, by more than a mere preponderance of evidence, compelling need of use of such a procedure.  Such a compelling need could be shown where, by proof beyond a reasonable doubt, the recording of the testimony of a child witness outside the courtroom (but in the presence of the defendant) is shown to be necessary so as to avoid severe and long lasting trauma to the child. (emphasis added)  Id. at 376

The Court went on to say:

Society may justify a presumed innocent person's conviction only after a trial scrupulous in its adherence to a process, which so far as is humanly possible assures that the innocent are not mistakenly deprived of liberty.  The right of the accused to be tried in the manner which the Constitution guarantees cannot dissolve under the pressures of changing social circumstances or societal focus.  Id. at 377

The right of a presumed innocent Mrs. Craig to be tried in a manner guaranteed by The Sixth Amendment and Article 21 should not be dissolved absent such compelling circumstances.  Nothing in the record here supports such compulsion.

For these reasons, the statute violates the Coy requirement of a finding of case-specific necessity as a condition precedent to depriving an accused of his Confrontation Right to be seen by a child accuser.  Ms. Craig's convictions should therefore be reversed.
  

C.  Because the trial judge did not personally examine any of the children as required by Wildermuth before invoking the child video statute, Mrs. Craig's conviction should be reversed.

This Court reversed in Wildermuth because the testimony of the experts concerning the invocation of CJ 9-102 did not meet the foundation requirements of the statute and because, under those circumstances, the trial judge should have questioned the child to determine if the foundation requirements could have been met, but did not.  In this case, two experts testified for the State about the four children involved.  On Wildermuth grounds, their testimony did not meet the foundation requirements of the statute or establish, as required by Coy, that the total abridgement of Mrs. Craig's Confrontation Clause right to be seen by the children while they testified was "necessary to further an important public policy" based on "individualized findings that these individual witnesses needed [the] special protections" of CJ 9-102 as opposed to adequate protections less intrusive of Mrs. Craig's Confrontation Clause rights based on what Justice O'Connor described in her concurring opinion as a "case-specific finding of necessity."

To justify taking away Mrs. Craig's Confrontation Clause right to see and be seen by Brook Etze, the State called Mary Anne Burke as an expert.  Although she rendered opinions about Brooke Etze, she gave none of them to a reasonable medical certainty or to any other appropriate standard.  After her voir dire, the trial judge said:

I am satisfied from the interrogation of the witness that by virtue of her training and background and her present employment that she is competent to testify with reference to the issue of whether a particular child who might be called to testify in this proceeding might suffer serious emotional distress so that the child could not reasonably communicate in a courtroom.

During her testimony concerning CJ 9-102, the following colloquy took place:

[BY MR. WARFIELD]

Q: Have you formed-based on your training and expertise have you formed an opinion as to her ability to be able to come into a courtroom during the course of these trials and be able to testify face-to-face with Mrs. Craig?

* * *

A: My opinion is that it would be very difficult if not impossible for Brooke to sit in the same room with Mrs. Craig and discuss the alleged abuse incidents.  I believe it would also be difficult for her because of her age to sit in front of a group of strangers whether they be Mrs. Craig or any others and discuss the allegations.  A second factor would be .. . she perceives herself as having been threatened.  She truly believes that those threats will be carried out against her.
Q: By whom is she perceiving the threats?
A: She's perceiving that she was threatened by Ms. Craig and that she fears that her life is in jeopardy and part of her family and the household pet and I find that it would be very difficult for her to sit in front of this person and be able to tell what she w hat's happening.
Q: And can you characterize that in terms of emotional distress in the courtroom and ability to communicate in the courtroom.
A: Yes.  I think that Brooke coming into the courtroom where she would be faced with the alleged perpetrator and a courtroom of strangers would be unable to talk about what happened to her.  She currently in preparation for the pending hearings is experiencing disruption in her breathing which is definitely manifested in distress and fear and anxiety visible in a physical manner and also emotional.

On cross-examination, concerning another child, Mr. Kolodner asked "how his emotional state would be affected were he ... would he be required to come into the courtroom."  Then, as to Brooke Etze, he asked the same question:

[BY MR. KOLODNER]

Q: Well let's talk about Brooke Etze, what would that child do?  What do you think the reaction as to that child would be?
A: I think that Brooke would probably stop talking and she would withdraw and curl up.
Q: Would that occur if she would just see Mrs. Craig in a room someplace or walking on a street?
A: I think that would vary if Brooke's parents were available and if Brooke felt that she could escape, I think that you might see a variable response. . . . The response could vary if Brooke's parents were present, if there were an opportunity for her to escape, that she might or might not respond in the way that you suggested.

First, Ms. Burke's testimony does not meet the requirement 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."  Assuming, arguendo, that it does, however, Ms. Burke conceded that if Brooke "would just see Mrs. Craig in a room someplace" that "I think that would vary if Brooke's parents were available and if Brooke felt that she could escape, I think that you might see a variable response" and that I thought that the response could vary if Brooke's parents were present, if there were an opportunity for her to escape, that she might or might not respond in the way that you suggested."

In constitutional terms, the State did not prove that the solution to the problem that Brooke could not testify in open court with Mrs. Craig present was to exclude Mrs. Craig altogether from being seen by the child.  Indeed, Ms. Burke could not exclude having Brooke testify in a room with Mrs. Craig present along with her parents on one-way closed-circuit television piped to the judge, jury and courtroom; nor could, based on that testimony, Ms. Burke have concluded that the child could not have testified reliably on two-way video in a room with the lawyers and a trusted person or parents present.  Clearly, the statutory cure was worse than the constitutional disease.  Under the authority of CJ 9-102, the trial judge took away more of Mrs. Craig's Confrontation Clause rights than it was necessary to do under the unique circumstances of this case.  Because Mrs. Craig was entitled to as much of her Confrontation Clause rights as she could get consistent with the State's desire to protect the child, and because she got far less than the Constitution requires even under the O'Connor-White formulation, and because the judge did not personally observe and question Brooke in determining the predicate, her conviction should be reversed.

As to Justin Peeples, Ms. Burke said:

For Justin, I believe that Justin would be, once again, he would have great difficulty talking in front of people, particularly in front of Mrs. Craig, whom he sees as a threatening figure. ... I think that it would be very it would impair his ability to communicate.  My feeling is that if the goal would be to allow this child to be heard, to maximize that opportunity you would provide him with privacy in his disclosure and to remove the threatening agents which he perceives as Mrs. Craig.

On cross-examination, Ms. Burke said that if Justin were brought into the courtroom, "I think that Justin would become highly agitated, that he may refuse to talk or if he did talk, that he would choose his subject regardless of the questions."  She did not answer Mr. Kolodner's question about "what do you think that his reaction would be if he were just just came in contact in an ordinary manner with Mrs. Craig such as in a room?

Clearly, this testimony does not meet the requirements of CJ 9-102; nor does it justify preventing Mrs. Craig from being in a private room with Justin during his testimony or from being viewed by Justin on two way closed-circuit television.  To make matters worse, Ms. Burke again was not required to testify as to any degree of reasonable scientific, or other, certainty.  Under Wildermuth, the trial judge had a duty to question the child but alas, he did not.  Again, Mrs. Craig was stripped of more of her Confrontation Clause rights than the State proved was necessary under these specific circumstances.

Concerning Jessie Sue Smith, Ms. Burke testified:

[BY MR. KOLODNER]

As to Mrs. Craig she perceives herself again as her life has been threatened, her family, her parents and her siblings have been threatened.  She believes that the Mrs. Craig is capable and willing to carry out those threats at home and Jessie is fearful of this person.  I believe that that fear would impair preventing her to sit in front of that person or to be in the same room with that person, would be unable to discuss or to share with the required individuals that information which she has to share regarding these allegations.

* * *

Jessie has been in therapy for over a year at this point trying to deal with the issues that have been surfaced regarding the stress and destruction of her life emotionally.  I think that that would be a step back for Jessie to have to face this person.  I think that her fear, again that her life may be jeopardized or that of her family.  When I discuss it by talking to her, you can see it would cause her not to share that information.

On cross-examination, Ms. Burke testified as follows:

[BY MR. KOLODNER]

Q: What do think the reaction of Jessie Sue Smith would be if brought into the courtroom to testify?
A: I think she would probably Jessie would probably look around and become extremely timid and unwilling to talk.
Q: What would her reaction be, do you believe, if she had contact with Mrs. Craig outside of the courtroom at her home at Mrs. Craig's home for instance if taken to her home.
A:  I again I've had no opportunity to you know that's speculative.  I think that situation would never occur.

Clearly, Ms. Burke's testimony about Jessie Sue did not meet the requirements of CJ 9-102.  Again, Ms. Burke offered no testimony to any degree of reasonable scientific or other certainty from which the trial judge could conclude that Jessie Sue would have been unable to testify if accompanied by Mrs. Craig and other adults in a room away from the courtroom or that Jessie Sue could not have testified while viewing Mrs. Craig on two-way closed-circuit television.  Clearly, the trial judge had the duty to explore options which would have prevented Mrs. Craig from losing all of her Confrontation Clause rights rather than being confined to the single option presented by the statute.  Likewise, he had the duty imposed by Wildermuth to question and observe the child to determine the statutory predicate and to determine the viability of options short of those imposed either by the statute or of his own creation.

Because Ms. Burke's testimony as to Jessie Sue did not meet the requirements of CJ 9-102, because Mrs. Craig was unnecessarily stripped of her Confrontation Clause rights, and because the trial judge did not question the child to determine whether remedies existed short of the drastic measures imposed by CJ 9-102 to adequately balance Mrs. Craig's rights against the need to protect the child, Mrs. Craig's conviction should be reversed.

Concerning Drew Woodbury, the State called Dr. Gladys Sweeney, a clinical psychologist.  Dr. Sweeney was found by the trial judge to be qualified "to render an opinion [whether] that child's testimony in a courtroom will result in the child suffering serious emotional distress, such that the child could not reasonably communicate."  She testified as follows:

[BY MR. WARFIELD]

Q: ... [H]ave you been able to form an opinion as to the ability of this child to come into the courtroom with Mrs. Craig present in the courtroom and to testify or, in the alternative to be permitted to testify by way of closed-circuit television?

* * *

A:

I personally believe my professional opinion and my observations in the sessions with Drew that he would he has experienced an extreme level of high anxiety and distress by talking about this very traumatic event and that his ability to communicate would be grossly impaired if he were to testify in an open court in the presence of Mrs. Craig.

I particularly feel he would be very his ability to communicate would be very impaired if he were to talk about these private events in front of strangers and particularly in front of Mrs. Craig.

Q: [W]hat would his emotional state be if he were required to come into the courtroom, that's what I'm asking?
A: Oh, I think he would he would be highly, highly distressed and it would show in different ways.

On cross-examination, Dr. Sweeney testified in pertinent part as follows:

[BY MR. KOLODNER]

Q: Well, wouldn't he be upset if the judge asked his questions and if he were just alone with the judge?
A: I think that it causes him anxiety to talk about these issues no matter who asks the questions, but I think the point is to minimize the anxiety and I think what causes him what caused him the most anxiety would be to testify in front of Mrs. Craig, the alleged perpetrator.
Q: What reaction do you think that be would have if he were required to testify in this courtroom in the presence of Mrs. Craig?
A: Well, I can't predict 100 percent what kind of behavior he would have, or reactions he would have, but I can tell you my opinion based on what I've seen while he's been in sessions with me.  One of the things that I do is compare his reaction and his behavior when he talks about general non-threatening topics such as school now, things that are going on at home and he is fine.  When he is talking about the traumatic events that happened while attending Country Pre-School, he has a great deal of difficulty.  [H]e [h]as been very anxious, as I said, thumb sucking, crying, whining and my feeling is that probably that would even be more upsetting if he had to say it here in an open courtroom.  It would be even more enhanced, those kind of behaviors and he wouldn't be able to communicate as ...
Q: I couldn't hear what you said?
A: He wouldn't be able to communicate effectively.

* * *

Q: Well, would he have these same reactions if he were in a room just with the judge?

* * *

A: I think he would experience anxiety talking about these issues, but the degree of the anxiety would be less and therefore his chances of communicating clearly what happened to him are maximized by diminishing the anxiety or the degree of the anxiety.

* * *

Q: If he's taken to a room where Mrs. Craig is not present and he's told that he's going to testify about Mrs. Craig ...
A: Right, right, right.
Q: ... why would his reaction be any different than if he's told that he's going to be in a room with Mrs. Craig?
A: One of the things that is very difficult for children, especially at this young age, is to tell about very embarrassing, private and traumatic events that happened especially in front of the alleged perpetrator.  So, again, that is what is involved in an open courtroom.  He would have to say those things in her presence and that's what would enhance his anxiety to a maximum.  If he were to meet Mrs. Craig on the street, these are very casual kinds of things and the variables are unknown.  Where would the child be with, if the child's in anxiety, he can always go away or ask his mother or father to remove him from the situation.  But if he's in an open court facing her, telling the court what happened, if he has that anxiety he has no resource other than an inability to communicate clearly of what happened and that's what I'm mostly concerned.
Q: Have you ever had an opportunity to compare a child's reaction that has testified in closed-circuit as compared to confrontation with the person accused?
A: I have not.
Q: You have not.  So that you do not know what the reaction would be in one instance as compared to the other, is that correct?
A: No.  That's correct.

* * *

Q: Have there been any to your knowledge have there been any tests made to compare the reaction of a child in the actual setting with the perpetrator in presence as compared to the perpetrator not in presence?
A: Well, I can tell you what the ...
Q: Do you know of any such study or any comparison?
A: No, I don't know of a study.  I've seen reports written saying that the degree of anxiety is very high.  In fact, I have it in my briefcase ...
Q: But no such tests have ever been made?
A: But not a test, no.
Q: So that this is only a supposition based on what they think will happen, is that correct?
A: Based upon based upon professional experience and basically the training experience that l have had, yes, and that other psychologists have had.
But to your knowledge and from your studies, no study has ever been made actually comparing the actual reaction of any child in both settings, is that correct, doctor?
I don't know of one.

Dr. Sweeny's testimony about Drew clearly does not meet the requirements of CJ 9-102.  Dr. Sweeney offered no opinion to any degree of reasonable scientific or other certainty.  The testimony meets neither the standards of CJ 9-102, Wildermuth, or the Confrontation Clause as interpreted in Coy.  Clearly, the trial judge should have personally observed and questioned Drew to determine whether his testimony in the courtroom "will result in the child suffering serious emotional distress such as the child cannot reasonably communicate" and to determine whether procedures short of that prescribed by CJ 9-102 were available to preserve Mrs. Craig's Confrontation Clause right to be viewed by and to view Drew during his testimony.

In Wildermuth, this Court, having already decided that sufficient "unavailability" under the prerequisites of Ohio v. Roberts, 448 U.S. 96 (1980), would exist to constitutionally justify the confrontational limitation imposed by CJ 9-102 if there was a specific demonstration that the particular child witness crossed the high and difficult threshold that testimony in open court would result in the child suffering serious emotional distress, went on to examine with great care the sufficiency of the evidence in Wildermuth's case.  This Court particularly noted that the trial judge did not question or even observe the child witness in determining whether the predicate had been met. Cited repeatedly with approval was People v. Algarin, 129 Misc.2d 1016, 498 N.Y.S.2d 977 (1986), invoking a similar statute in a case involving 15 child witnesses (of which only three were found to be sufficiently "vulnerable" to justify the closed-circuit television procedures), which required the judge to use his own observations to establish the necessary predicate for New York's closed-circuit television procedures.

Of importance here is that Judge Kane heard "expert" testimony concerning thirteen child witnesses.  The Court held the CJ9- 102 motion hearing on all child witnesses in all indictments then pending against both Mrs. Craig and her son Jamal Craig.  Judge Kane did not observe or question any of the thirteen children.  In fact, the Judge's first observation of any of the four child witnesses in this case occurred during Mrs. Craig's trial.  Unlike Algarin, the Judge here found that all thirteen met the statutory predicate.

While this Court declined to make personal observations by the Judge a sine qua non under CJ 9-102, Wildermuth clearly stands for the proposition that "it should be the rule rather than the exception."  Id., at 289.  And further, this Court in providing some general guidance as to what would be necessary to meet the statutory standard always included the trial judge's observation and questioning of the child as a factor. Here, Judge Kane in one fell swoop made thirteen exceptions, including all four child witnesses in this case Brooke Etze, Justin Peeples, Jessie Sue Smith and Drew Woodbury.  Nothing in the record supports these four exceptions to the rule that the Judge should ordinarily personally observe and question the child.

A trial judge could not attempt to rule on the competency of a child witnesses absent personal observation and inquiry of each child.  There is no reason for a different result under Section 9-102.  Wildermuth distinguished the companion case, McCoy v. State, 310 Md. 496 (1987), on the ground that Judge Heller actually observed the child witness having difficulty as she was questioned.  Id., at 289 n. 13.  And in Pennsylvania v. Ludwig, 41 Cr.L.Rptr. 2460 (1987), the use of a closed circuit television procedure was permitted only after the child victim had attempted unsuccessfully to testify in open court in the defendant's presence and said that her ability to continue testifying resulted from her fear of the defendant.  Additionally, the trial judge then heard expert testimony that continuing to testify in open court would irreparably damage the child emotionally.

Further, although Wildermuth did not establish absolute requirements to meet both the statutory and the Roberts mandatory standards, the Court discussed at length the facts which might justify a trial court's decision to eschew the courtroom always including the judge's personal observation and questioning as a factor.  The Court then repeated the cautionary guideline that "ordinarily the judge should observe and question the child."  Nothing in this case supports the exception.

As to all of the foundation testimony concerning the use of one-way closed-circuit television, it has been argued supra that the statutory standard of CJ 9-102 "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" is constitutionally flawed because it is over-broad and void for vagueness.

Finally, under Dorsey v. State, 276 Md. 638 (1976), the testimony of any one of these children on closed-circuit television cannot possibly be viewed as being harmless error beyond a reasonable doubt for self-evident reasons.
  

Conclusion

Wherefore, for all these reasons, Mrs. Craig's convictions should be reversed.

Respectfully submitted,
William H. Murphy, Jr.
M. Cristina Gutierrez
Gary S. Bernstein
Frederick P. Charleston           

 

* William H. Murphy, Jr. is an Attorney at Law and can be contacted at 1007 N. Calvert Street, Baltimore, Maryland 21202.  [Back]

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