State v. Eastham

Per Curiam. The issue presented in this action is whether the procedure employed by the trial court violated appellant’s constitutional right to confront the witnesses against him. We hold that appellant’s right was violated and, accordingly, reverse the judgment of the court of appeals. Appellant possesses the right to confront the witnesses against him under both the federal and Ohio Constitutions. The Sixth Amendment to the Constitution of the United States provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”4 (Emphasis added.) Section 10, Article I of the Ohio Constitution provides in pertinent part: “* * * In any trial, in any court, the party accused shall be allowed to appear and defend in person with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process to procure the attendance of witnesses in his behalf * * *.” (Emphasis added.) Appellant contends that the procedure employed by the trial court with regard to the child’s testimony deprived him of his right to confront his accusers. Appellee argues that appellant’s right of confrontation was not violated because the procedure allowed appellant to effectively cross-examine and preserved the ability of the trier of fact to observe the demeanor of the testifying witness. The issue presented to this court by the instant action was recently addressed by the Supreme Court of the United States in Coy v. Iowa (1988), — 309 — 487 U.S ___, 101 L. Ed. 2d 857, 108 S. Ct. 2798. In Coy, the defendant “was convicted of two counts of lascivious acts with a child after a jury trial in which a screen placed between him and the two complaining witnesses blocked him from their sight.” Id. at _, 101 L. Ed. 2d at 862, 108 S. Ct. at 2799. The defendant was able to hear and dimly see the girls, and while they could not see him, they were made aware he was in the room. In rejecting the defendant’s confrontation argument the Iowa Supreme Court emphasized that the procedure allowed defense counsel to fully cross-examine both girls and allowed the trial judge and jury to observe the demeanor of the girls and determine the credibility of their testimony. State v. Coy (Iowa 1986), 397 N.W. 2d 730, 735. The United States Supreme Court rejected that analysis and reversed. The Coy decision relies upon how firmly rooted the right to confront witnesses is in jurisprudential history: “The Sixth Amendment’s guarantee of face-to-face encounter between witness and accused serves ends related both to appearances and to reality. This opinion is embellished with references to and quotations from antiquity in part to convey that there is something deep in human nature that regards face-to-face confrontation between accused and accuser as ‘essential to a fair trial in a criminal prosecution.’ * * * [Citation omitted.] What was true of old is no less true in modern times. * * * “The perception that confrontation is essential to fairness has persisted over the centuries because there is much truth to it. A witness ‘may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts. He can now understand what sort of human being that man is.’ Z. Chafee, The Blessings of Liberty 35 (1956), quoted in Jay v. Boyd, 351 U.S. 345, 375-376 * * * (1956) (Douglas, J., dissenting). It is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’ * * * 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.” Coy v. Iowa, supra, at _, 101 L. Ed. 2d at 864-866, 108 S. Ct. at 2801-2802. We find these observations to be equally applicable to the right of confrontation guaranteed by Section 10, Article I of the Ohio Constitution. In its discussion as to whether the right of confrontation was specifically violated in the case before it, the United States Supreme Court stated: “The screen at issue was specifically designed to enable the complaining witnesses to avoid viewing appellant as they gave their testimony, and the record indicates that it was successful in this objective. * * * It is difficult to imagine a more obvious or damaging violation of the defendant’s right to a face-to-face encounter.” (Emphasis added.) Id. at_, 101 L. Ed. 2d at 2802, 108 S. Ct. at 2802. In the cause sub judice, the child witness was totally cloistered from appellant. As opposed to the defendant in Coy, the appellant was not in the same room as the witness. Barring any exceptions, it is clear that appellant’s right of confrontation was violated by the procedure employed by the trial court and that his trial was defective. While the Coy decision left the question of whether any exceptions exist “for another day,” it did state that: “Whatever they may be, they would surely be allowed only when necessary — 310 — to further an important public policy.” Id. at _, 101 L. Ed. 2d at 867, 108 S. Ct. at 2803. We recognize that the protection of child victims of sexual abuse forms an important public policy in this state and across the nation. Many state legislatures, including our own, have established procedures which provide special consideration for sexually abused children to help them cope with the harsh demands of the legal system. See R.C. 2907.41; N.Y. Crim. Proc. Law 65.00-65.30 (McKinney Supp. 1988); Cal. Penal Code 1347 (West Supp. 1988); Ala. Code 15-25-3 (Supp. 1987) ; Ga. Code Ann. 81-1006.2 (Supp. 1988) . The Iowa statute involved in Coy in effect created a legislatively imposed presumption of trauma for all child witnesses called to testify. Based on this presumption, the screening procedure was employed. Coy dismissed such a generalized determination of whether an exception existed to the right of confrontation: “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 _, 101 L. Ed. 2d at 867, 108 S. Ct. at 2803. In the case at bar, the trial court noted that the many judicial and psychological hearings had affected the child and that it instituted the procedure “to prevent any further * * * traumatization of the child.” However, the record fails to reveal any specific facts upon which the trial court based its finding. No particularized finding concerning the emotional well-being of this child and the necessity for this procedure exists. While attempts to comfort the child are laudable, we must bear in mind that the procedure employed by the trial court severely violated appellant’s constitutional right to confrontation. The Coy holding makes that clear. Moreover, the procedure employed varied from the procedure adopted by our own General Assembly in one significant aspect. While R.C. 2907.41 was not yet in effect at the time, we do note that this section provides for a monitor to be placed in the same room as the witness so that he or she can observe the defendant.5 In light of the thin record before us concerning the necessity of this procedure, the United States Supreme Court’s holding in Coy and the severity of the violation of appellant’s constitutional right to confront witnesses against him, we cannot conclude that the strictures of both Confrontation Clauses must give way in this particular action. A more particularized finding of necessity would first be required for this court to employ an exception and uphold this judgment. Based on the foregoing, we hold that the procedure employed by the trial court in this action violated appellant’s rights under the federal and Ohio Constitutions to confront the witnesses against him. Accordingly, we reverse the judgment of the court of appeals and remand this cause for a new trial. Judgment reversed and cause remanded. Moyer, C.J., Sweeney, Locher, Douglas and Wright, JJ., concur. Holmes, Wright and H. Brown, JJ., concur separately. Footnotes [4] The right secured to criminal defendants by this amendment is applicable to the states by operation of the Fourteenth Amendment. Pointer v. Texas (1965), 380 U.S. 400, 403. [5] While we make no judgment on the constitutionality of that procedure today, we do recognize that it is somewhat less intrusive on a defendant’s right of confrontation than the procedure employed in the cause sub judice.