State v. Jackson

717 S.E.2d 35

STATE of North Carolina

v.Thomas Lamonte JACKSON.

No. COA10–1135.

Court of Appeals of North Carolina.

Oct. 4, 2011.

Appeal by Defendant from judgments entered 14 April 2010 by Judge W. Erwin Spainhour in Stanly County Superior Court. Heard in the Court of Appeals 9 March 2011.

Attorney General Roy Cooper, by Special Deputy Attorney General Celia Grasty Lata, for the State.

Michael E. Casterline, Asheville, for Defendant.

BEASLEY, Judge.

Thomas Lamonte Jackson (Defendant) appeals from judgment entered on his several convictions of sex offenses committed against child victim, C.G. ¹ For the following reasons, we find no prejudicial error.

Where Defendant's arguments as to the guilt phase of trial deal solely with the procedure by which C.G. testified, a brief summary of underlying facts suffices. The evidence showed that Defendant, known as “Blue,” sexually abused four-year-old C.G. on 19 April 2008. C.G. told her mother that Blue had “put his privacy part in her mouth and told her to lick and suck,” “pulled her pants down,” and “mashed really hard” with his fingers; and the nurse practitioners who examined C.G. observed symptoms consistent with child sexual assault. C.G. began wetting the bed, having bad dreams, and displaying a fear of men. On 29 April 2008, C.G. saw child sexual abuse and forensic examiner Amy Yow at the Butterfly House Children's Advocacy Center, and their videotaped interview was reviewed by child psychologist Dr. Mark Everson, who met with C.G. in late 2009. Dr. Everson noted behavior consistent with child sex abuse and, while admitting some variation in C.G.'s statements, stressed the consistency, in light of C.G.'s age at the time of the assault, as to the core elements thereof.

C.G. gave her account of the incident at trial and did so by closed-circuit television (CCTV). Where the State had moved for remote testimony under N.C. Gen.Stat. § 15A–1225.1, C.G.'s mother and Dr. Everson testified at a pre-trial hearing on 6 April 2010. The State urged the trial court to authorize the procedure so C.G. could be an effective witness. Defendant argued insufficient evidence supported the requisite statutory findings, and he also objected on the grounds of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Based primarily on Dr. Everson's testimony that C.G. would experience trauma by testifying in Defendant's presence, which would affect her ability to communicate with the jury, the trial court authorized the remote testimony and then found six-year-old C.G. competent to testify. Accordingly, C.G. testified by CCTV on the second day of trial that Blue had taken her into a bathroom, where he “put his priva[te] part in [her] mouth” while wiggling his body and “put his finger in [her] private part.”

The jury found Defendant guilty of first degree sex offense with a child, crime against nature, and indecent liberties. The court consolidated the convictions and imposed a presumptive-range prison sentence of 384 to 470 months. On appeal, Defendant challenges the trial court's decision allowing C.G. to testify by CCTV. He also alleges that aggravating factors not found by the jury were improperly considered at sentencing.

I. Remote Testimony

A child witness, a minor under 16 at the time of testimony, may testify outside the defendant's physical presence in a criminal proceeding, but only if certain conditions are met. See N.C. Gen.Stat. § 15A–1225.1(a)(1), (3) (2009). Upon a motion for remote testimony, the trial court must “hold an evidentiary hearing,” and can permit a child to testify “other than in an open forum” only if it first finds that, otherwise, (1) “the child witness would suffer serious emotional distress, not by the open forum in general, but by testifying in the defendant's presence, and” (2) “the child's ability to communicate with the trier of fact would be impaired.” N.C. Gen.Stat. § 15A1225.1(b)-(c) (2009).

After hearing the State's motion, the trial court found that the evidence supported the requisite findings, allowed C.G. to testify by one-way CCTV, and explained that a television camera would be set up in a room next to the judge's chambers. The prosecutor, defense counsel, and C.G.'s mother, who had to keep silent, were allowed in the room with C.G. Defendant would remain in the courtroom, but a telephone system would enable him to speak privately with his attorney during C.G.'s testimony. C.G.'s image would be projected onto screens facing Defendant, the court, and the jury, who would be able to hear and see C.G. but would not be visible to anyone in the room with her. The trial court underscored that this method was intended to allow those in the courtroom to observe C.G.'s demeanor as she testified “in a similar manner as if [she] were in the open forum.” ²

Defendant claims the admission of evidence through remote broadcast violated the Confrontation Clause of the Sixth Amendment. Acknowledging the United States Supreme Court's Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), decision that the Confrontation Clause does not categorically prohibit the use of one-way CCTV to procure a child sex offense victim's testimony, he argues that Crawford so unraveled Craig's reasoning that “ Craig can no longer be seen as good law.” ³ Alternatively, he contends that the evidence did not support the statutory findings. We hold the CCTV testimony did not violate Defendant's confrontation rights and that sufficient evidence existed to permit C.G. to testify outside his physical presence.

A. Confrontation Clause Issue

We review de novo whether the right to confrontation was violated. State v. Hurt, ––– N.C.App. ––––, ––––, 702 S.E.2d 82, 87 (2010). The Confrontation Clause, applied to the states by the Fourteenth Amendment, protects the fundamental right of an accused “to be confronted with the witnesses against him.” U.S. Const. amend. VI; see also Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). It aims to ensure the evidence is reliable “by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Craig, 497 U.S. at 845, 110 S.Ct. at 3163, 111 L.Ed.2d at 678. The elements of confrontation include the witness's: physical presence; under-oath testimony; cross-examination; and exposure of his demeanor to the jury. Id. at 845–46, 110 S.Ct. at 3163–64, 111 L.Ed.2d at 678–79. The physical presence, or “face-to-face,” requirement embodies the general Confrontation Clause protection of an accused's “right [to] physically face those who testify against him.” Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40, 53 (1987). But, this general rule “must occasionally give way to considerations of public policy and the necessities of the case.” Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409, 411 (1895). One policy area that often arises in the constitutional context is the protection of youth by using witness “shielding” procedures to balance the need for child sex crime victims' testimony against the risk of engendering further emotional distress. See Coy v. Iowa, 487 U.S. 1012, 1023, 108 S.Ct. 2798, 2804, 101 L.Ed.2d 857, 868 (1988) (O'Connor, J., concurring) (noting child abuse prosecutions are difficult, as the victim may be the only witness, and observing the various “ameliorative measures” taken by states to shield the child from added trauma occasioned by the courtroom atmosphere). The Supreme Court has deemed the interest in safeguarding child abuse victims from further trauma and embarrassment to be a compelling one that, depending on the necessities of the case, may outweigh a defendant's right to face his accusers in court. See Craig, 497 U.S. at 852–53, 110 S.Ct. at 3167–68, 111 L.Ed.2d at 683.

When the Supreme Court first examined witness shielding in this context, however, it held the child victims' testimony from behind an opaque screen violated the Confrontation Clause. See Coy, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857. But, two years later in Craig, the Court was faced with the same policy issue and held the face-to-face element of confrontation was outweighed by necessity, emphasizing significant differences from Coy. First, Craig involved the use of one-way CCTV, which allowed the child sex offense victims to testify without seeing anyone in the courtroom but permitted the accused to see them on a video monitor. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666. While denying literal face-to-face confrontation, the method preserved all other elements of confrontation-oath, cross-examination, and the jury's observation of the witness' demeanor-thus subjecting the testimony “to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony.” Id. at 851, 110 S.Ct. at 3166, 111 L.Ed.2d at 682. The trial court in Craig also made individualized findings that the child witnesses needed special protection, id. at 845, 110 S.Ct. at 3163, 111 L.Ed.2d at 678, where Coy contained no case-specific findings of necessity, see Coy, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (leaving “for another day” whether there are any exceptions to the Confrontation Clause's “irreducible literal meaning”—namely, an accused's right “to meet face to face” those who give evidence at trial).

Craig elaborated that a finding of necessity is proper only if a trial court likewise finds, upon an evidentiary hearing, that: (1) the “procedure is necessary to protect the welfare of the particular child witness who seeks to testify”; (2) “the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant”; and (3) “the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis.” Id. at 855–56, 110 S.Ct. at 3169, 111 L.Ed.2d at 685. Where a case-specific finding of necessity...