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THE COURT OF APPEALS OF THE STATE OF ALASKA
DAVID C. REUTTER, )
) Court of Appeals No. A-4889
Appellant, ) Trial Court No. 1SI-S92-171CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1380 - December 9, 1994]
Appellee. )
________________________________)
Appeal from the Superior Court, First
Judicial District, Sitka, Larry C. Zervos,
Judge.
Appearances: William E. Olmstead,
Olmstead & Conheady, Juneau, for Appellant.
Nancy R. Simel, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
David C. Reutter was convicted by a jury of one count
of sexual abuse of a minor in the first degree, AS
11.41.434(a)(1), and one count of sexual abuse of a minor in the
second degree, AS 11.41.436(a)(2). The convictions stemmed from
Reutter's sexual abuse of his nine-year-old daughter, A.R. At
trial, over Reutter's objection, Superior Court Judge Larry C.
Zervos permitted A.R. to testify via one-way closed-circuit
television from a room adjacent to the courtroom. Reutter
appeals, contending that this arrangement violated his
constitutional right to confrontation. We affirm.
FACTS
1. Background Facts
On February 15, 1992, Reutter locked A.R. out of their
house in Sitka. The Division of Family and Youth Services (DFYS)
became involved and placed A.R. and her mother, Patti Reutter, in
a local women's shelter operated by Sitkans Against Family
Violence (SAFV). Patti eventually returned home to Reutter.
DFYS removed A.R. from the shelter and placed her in a foster
home.
While A.R. was staying at the shelter, and afterwards
while staying at the foster home, she attended support-group
sessions at the SAFV shelter for child victims of domestic
violence. During one of the support-group sessions, A.R. told
Elizabeth Willis,1 the children's program coordinator and A.R.'s
"child advocate," about Reutter's sexual abuse. Willis
immediately notified DFYS. A.R.'s case was assigned to DFYS
social worker Sandra Beare-Spencer, who reported the allegations
of sexual abuse to the Sitka police and arranged for A.R. to be
physically examined by Sitka family practitioner Dr. Debra
Pohlman. Pohlman found that A.R. had a larger than normal
vaginal opening and that she had scarring in the area, both signs
of sexual abuse. The state then filed a Child In Need of Aid
(CINA) petition to determine the most appropriate custodial
placement for A.R.
2. The CINA Hearing
A.R. was placed with relatives in Chevak pending the
CINA determination. She returned to Sitka in May to testify at
the CINA hearing. When A.R. first entered the courtroom to
testify, she appeared confident and very happy to see her
parents. However, during her testimony, she became anxious and
distracted by stares and smiles from her parents and by the
whispering and conferring between her parents and their
attorneys. Soon, A.R. simply "shut down." The court was forced
to recess, and A.R. had to be taken from the courtroom.
According to Beare-Spencer, A.R. became "[v]ery, very upset. Her
face contorted[,] . . . her eyebrows were together and . . . her
arms were tight in front of her, and she was leaning against a
wall and just shaking. She . . . was extremely upset." A.R.
told Beare-Spencer that "she couldn't talk about what happened,
that her mom was going to be hurt, that her dad would hurt her
mom."
Later, the court attempted to take A.R.'s testimony by
placing her in the district attorney's office with just Willis
and her guardian ad litem, Mary Hughes; the assistant attorney
general who was handling the CINA proceeding questioned her by
telephone from the courtroom. However, the electronic equipment
in the district attorney's office malfunctioned, causing A.R. to
become even more upset. The hearing was postponed for several
days. When it reconvened, A.R. was placed in a grand jury room,
again with just Willis and Hughes present in the same room. From
there, she was able to answer some questions over the
speakerphone, but she still refused to testify regarding the
sexual abuse.
3. Pretrial Hearing
On May 8, 1992, the same day the CINA hearing began,
Reutter was indicted for sexually abusing A.R. Prior to trial,
the state moved, pursuant to AS 12.45.046(a)(2), to have A.R. be
allowed to testify via one-way closed-circuit television or
through one-way mirrors. Reutter opposed on confrontation clause
grounds. Judge Zervos conducted a two-day evidentiary hearing to
determine whether A.R. should be permitted to testify without
actually confronting Reutter. At the hearing, the state
presented testimony from Beare-Spencer, Willis, Jan Rutherdale
(the assistant attorney general who had handled the CINA
proceeding), and Martha Ann Lyman (the mental health clinician
who treated A.R. while she was staying in Chevak). In addition,
Judge Zervos considered a psychological evaluation of A.R. that
had been written by Dr. Christiane Brems of the Yukon-Kuskokwim
Mental Health Center.
In the course of the hearing, Reutter questioned the
qualifications of each of the state's witnesses to testify as
experts on the issue of whether A.R. should be allowed to testify
without confronting Reutter. Judge Zervos overruled the
objections and allowed the witnesses to testify.
Beare-Spencer, the DFYS social worker assigned to
A.R.'s case, indicated that she had worked as a social worker for
DFYS in Sitka for five years. She had a bachelor's degree in
sociology and was only eighteen hours away from receiving a
master's degree from Boise State University. She testified that
her primary responsibility at DFYS was "protecting children from
physical or emotional harm" and that, when making decisions
regarding when to intervene, she relied primarily on the on-the-
job training and experience that she received, first in Idaho,
and then in Sitka.
Beare-Spencer testified that she had spent "[q]uite a
bit" of time with A.R. and had talked to her often on the
telephone in the previous six months and that she had even spent
"four solid days with her" while they traveled to Chevak
together. She testified that she knew "a lot of who [A.R.] is,"
but that there was a part of A.R. that she did not know because
A.R. "closes down" when she becomes upset. When asked whether
she believed A.R. could testify in the presence of Reutter, she
answered: "She can't do it." Beare-Spencer based her answer on
her observations of A.R.'s emotional condition during and after
the CINA proceeding and on A.R.'s statement to Beare-Spencer
regarding her desire to protect her mother by remaining silent.
Reutter objected, on hearsay grounds, to Beare-Spencer's
testimony concerning A.R.'s statement. Judge Zervos overruled
the objection.
The prosecution also asked Beare-Spencer whether, in
her opinion, "Reutter's presence would significantly impair the
substance of [A.R.'s] testimony if she were forced to testify."
Reutter objected, arguing that the witness did not have the
psychological expertise to testify regarding "this child's
psyche." Judge Zervos overruled the objection, and Beare-Spencer
testified that she did not believe that A.R. could testify in an
open courtroom.
Next, Elizabeth Willis, A.R.'s child advocate,
testified. Willis testified that, prior to becoming a child
advocate in Sitka, she completed "early childhood trainings" and
had taken many classes and workshops in psychology. In addition,
she testified that she operated a day-care business for five
years in Anchorage before she moved to Sitka. She testified that
she and A.R. developed a trusting relationship soon after A.R.
arrived at the SAFV shelter and that they thereafter exchanged
letters. Willis had accompanied A.R. at the previous CINA
hearing.
Willis was asked whether, in her opinion, A.R. would be
able to testify in the presence of her father. Reutter again
objected for lack of expert qualification. The court again
overruled the objection. Willis stated that she believed that
A.R.'s ability to effectively communicate would be affected by
Reutter's presence in the courtroom. She based her opinion on
A.R.'s statements after the CINA hearing that she was unable to
talk because Reutter had been staring and smiling at her and
whispering about her. Again, Reutter objected on hearsay
grounds, but was overruled.
Jan Rutherdale, the state's CINA counsel, testified
next. Rutherdale stated that, for the previous three and one-
half years, she had been employed by the attorney general's
office in Juneau, exclusively handling child-in-need-of-aid and
juvenile-delinquency matters. Prior to becoming an assistant
attorney general, she had worked as an assistant public defender
in Juneau. In the years of her practice, she testified, she had
interviewed roughly twenty children. Over Reutter's objection,
the trial court found Rutherdale to have substantial expertise in
the behavior of witnesses; the court also indicated that
Rutherdale was qualified to testify about A.R.'s conduct at the
CINA hearing -- "what happened on the days in question."
Rutherdale testified that she first met A.R. the
evening before the CINA hearing. On the morning of the CINA
hearing, A.R. seemed to be "friendly" and "bouncy," but a little
immature. Rutherdale recalled that A.R. did not appear to be too
shy to testify, that she was happy to see her parents, and that
she was able to answer some preliminary questions. She testified
that A.R. soon became distracted by her parents and was unable to
continue. The first question that A.R. was unable to answer was
"[Do you] remember the night that you were removed from your
house?" Again over Reutter's objection, Rutherdale testified
that, based on her previous experience with and observations of
A.R. in the courtroom and on questions that A.R. asked her about
the conduct of her parents during the proceeding, Rutherdale did
not think that A.R. would testify in Reutter's presence: "[S]he
was just so affected by his presence. I mean, . . . it was like
her attention to me evaporated and - and all she could think
about or . . . react to was her father." She testified that A.R.
asked her in a whispered voice why her parents were talking to
each other during her testimony.
Rutherdale further testified that A.R. had been a very
isolated child, that the Reutters had restricted her movement
considerably, and that the particular dynamics of her family "may
make it impossible for her to testify." She stated that she did
not know whether A.R. would ever be able to testify to the sexual
abuse under any circumstances. When asked by the trial court
whether A.R. would be able to testify in the presence of Reutter
if the testimony occurred outside a formal courtroom setting,
Rutherdale responded: "[T]he problem with getting Mr. Reutter and
her in a small room, I think that might almost be worse."
Next, the trial court requested that Martha Ann Lyman
be called to testify telephonically. She testified that, as a
mental health clinician in the Yukon-Kuskokwim delta region, she
treated A.R. for three sessions during A.R.'s stay in Chevak.
She testified that A.R. was very bright, but guarded and
distrustful. She stated that she thought A.R. should not be
forced to testify in the presence of Reutter because she would
not feel safe doing so, she would suffer emotional harm, and she
would not "be able to give a real open testimony in front of her
father."
In addition to the foregoing testimony, Judge Zervos
considered the psychological evaluation of A.R. that had been
submitted by Dr. Brems. Brems' report stated that A.R.
"currently functions in the low average range of intelligence,"
but that this level of function "may be largely explained by her
academic deprivation." Brems concluded that A.R. exhibited
"strong traits of a borderline personality disorder"; and Brems
summarized the results of her evaluation as follows:
[T]his is a child who has been severely
traumatized and whose sexual trauma has
resulted in clear implications for all areas
of functioning. Specifically it is likely
that her social, academic, and psychological
deprivation have interfered with her
cognitive and perceptual-motor development.
With regard to intrapsychic functioning, her
coping is impaired and she has difficulty
controlling affect and behavior. She tends
to isolate herself from others to avoid being
overwhelmed by her own needs which would
result in acting out. Hence, she initiates a
vicious cycle of isolation and lack of
nurturance in her own life. Her view of the
world is largely hostile and unpredictable,
leaving her in a conflict, as she also has
very strong dependency and security needs.
Finally, prior to issuing his written decision on the state's
motion to allow A.R. to testify by closed-circuit television,
Judge Zervos reviewed a tape recording of the previous CINA
proceeding.
Judge Zervos ultimately granted the state's motion to
take A.R.'s testimony via closed-circuit television. In a
written order issued on August 11, 1992, the judge set out
specific findings and conclusions in support of the decision.
Specifically, in conclusion number six of the decision, Judge
Zervos stated:
It is clear that [A.R.] will not
testify because of fear, guilt or severe
psychological distress. It is also clear
that [A.R.'s] failure to testify is due, in
large part, to the presence of her father.
Therefore, under the statutes and the case
law the confrontation clause must give way in
the most minimal way possible. Allowing the
child's testimony to be taken outside of the
defendant's presence may facilitate the
child's ability to testify. Denying the
request to take the testimony outside the
defendant's presence, based in [sic] past
attempts, guarantees the child's silence.
4. Trial
At the time of trial, Judge Zervos finalized the
arrangements for A.R.'s testimony. A.R. testified from a
separate room adjacent to the courtroom. In the room with A.R.
were the videocamera operator, the prosecutor, Reutter's counsel,
and A.R.'s guardian ad litem, Mary Hughes; Hughes, who was to
provide moral support for A.R., remained out of the camera's
focus. Reutter was given the option of observing A.R. from a
third room, outside the presence of both A.R. and the jury. He
elected instead to remain in the courtroom, so that the jury
could observe his reaction to A.R.'s testimony. Reutter had
continuous access to his attorney by a telephone connected to the
room from which A.R. testified.2
Although Reutter preserved a general, continuing
objection to the taking of A.R.'s testimony via one-way closed-
circuit television, he indicated that he did not object to the
specific procedure outlined above.
The state called A.R. to testify as its first witness.
Before A.R. testified, the trial court instructed the jury as
follows:
Ladies and gentlemen, what we're
going to do next is a little unusual. As
you'll see for the rest of the trial, most
all witnesses will always testify in this
chair here. But the parties have decided,
both the prosecution and the defense, that
because of the age of [A.R.] and of twelve
strangers and me sitting up here in this
black robe, it may be less disconcerting to
her to take the testimony in another room in
a closed circuit kind of TV arrangement.
She will be testifying live and
we'll be able to witness everything. Of
course, you can watch her as she testifies on
these monitors. [The attorneys] will be in
the room asking questions of her.
On direct examination, A.R. testified that her father
had touched her "in [her] privates" on several occasions and that
he "made [her] touch his private part." She testified that, in
February, her father had "pulled up" on her "privates," making
them bleed. She testified that her father had told her, "Don't
tell no one" and that he would "hurt" her if she did tell
someone. A.R. testified that, although she did not tell anyone,
her father hurt her anyway.
During a break between direct and cross-examination,
Reutter encountered A.R. in the hallway and said, "Hi, [A.R.],
hi, honey, I love you." Since such direct contact had been
forbidden by the court under the previously issued CINA order,
Judge Zervos admonished Reutter not to let it happen again.
Cross-examination was eventually postponed until the day after
direct examination was completed, since only fifteen minutes
remained in the trial day and Reutter decided that he would
rather start fresh the next morning.
Before proceedings commenced the next morning, the
prosecutor reported that Patti Reutter had intercepted A.R. after
trial the previous day and had whispered, "Don't say nothing,"
and "Daddy loves you, Daddy loves you." The trial court
admonished Patti Reutter not to interfere with A.R.'s testimony
and not to have any contact with her inside the courthouse
building. Then, after a short recess, the prosecutor reported:
[A.R. is] in my office, basically in
tears, refuses to come forward. She's
basically locked in the office at this point
so she just doesn't run away.
The reason being as they - she
arrived this morning with Ms. Willis, I mean,
essentially she was a little nervous as we
expected her to be. As Mr. and Mrs. Reutter
took a seat in the hallway they saw each
other, they were waving back and forth. And
as Ms. [Willis] and Ms. Hughes would
actually testify to, you could just see her
just, the term is shut down. And now she is
basically sitting on the floor, refuses to
budge, period.
A.R. nevertheless eventually did testify on cross-examination.
DISCUSSION
In moving for an order allowing A.R. to testify by
closed-circuit television outside Reutter's physical presence,
the state relied on AS 12.45.046. This statute permits the trial
court to order the testimony of a child to be communicated to the
jury and the defendant by closed-circuit television, but only in
exceptional cases, and only upon a case-specific showing of
actual necessity.3 For such testimony to be received, the
accused must be charged with an assault under chapter 41 of the
Alaska Revised Criminal Code. AS 12.45.046(a). The crime
charged must involve a victim or witness who is under the age of
thirteen; the proposed witness must be either the alleged child-
victim or the child-witness. Id. In such cases, the court may
order testimony to be taken by closed-circuit television, "if the
court determines that the testimony by the child victim or
witness under normal court procedures would result in the child's
inability to effectively communicate." AS 12.45.046(a)(2).
On appeal, Reutter contends that, on its face, AS
12.45.046 violates the confrontation clauses of the federal and
Alaska constitutions. Alternatively, Reutter maintains that the
application of this statute in his case resulted in a violation
of his right to confrontation under both constitutions. Reutter
lastly claims that the manner in which the questioning of A.R.
occurred separately violated his constitutional right to due
process.
1. Constitutionality of AS 12.45.046
A. Applicable Constitutional Standard
The confrontation clause of the sixth amendment to the
United States Constitution guarantees that "In all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him."4 In Coy v. Iowa, 487
U.S. 1012 (1988), the United States Supreme Court held that the
federal constitution's confrontation clause protects not only the
right to effective cross-examination but also the right to a face-
to-face confrontation between the accuser and the accused. Coy
left open the question of whether the right of face-to-face
confrontation was absolute. Id. at 1021.
The Court answered this question two years later in
Maryland v. Craig, 497 U.S. 836 (1990). Craig holds that the
right to literal confrontation is not absolute. Rather, in
exceptional cases, the right may be required to yield in order to
protect the state's vital interest in protecting the physical and
psychological well-being of child abuse victims:
In sum, we conclude that where
necessary to protect a child witness from
trauma that would be caused by testifying in
the physical presence of the defendant, at
least where such trauma would impair the
child's ability to communicate, the
Confrontation Clause does not prohibit use of
a procedure that, despite the absence of face-
to-face confrontation, ensures the
reliability of the evidence by subjecting it
to rigorous adversarial testing and thereby
preserves the essence of effective
confrontation.
Id. at 857.
In reaching this conclusion, the Court in Craig set out
the factors that trial courts must consider before finding it
necessary to subordinate the accused's right of face-to-face
confrontation to a child victim's need for protection:
The requisite finding of necessity
must of course be a case-specific one: the
trial court must hear evidence and determine
whether use of the one-way closed circuit
television procedure is necessary to protect
the welfare of the particular child witness
who seeks to testify. The trial court must
also find that the child witness would be
traumatized, not by the courtroom generally,
but by the presence of the defendant. Denial
of face-to-face confrontation is not needed
to further the state interest in protecting
the child witness from trauma unless it is
the presence of the defendant that causes the
trauma. In other words, if the state
interest were merely the interest in
protecting child witnesses from courtroom
trauma generally, denial of face-to-face
confrontation would be unnecessary because
the child could be permitted to testify in
less intimidating surroundings, albeit with
the defendant present. Finally, the trial
court must find that the emotional distress
suffered by the child witness in the presence
of the defendant is more than de minimis,
i.e., more than "mere nervousness or
excitement or some reluctance to testify[.]"
Id. at 855-56 (citations omitted)(quoting Wildermuth v. State,
530 A.2d 275, 289 (Md. 1987)).
The Craig Court did not specify the minimum level of
emotional trauma that would justify a denial of confrontation.
Instead, the Court found the Maryland statute that was at issue
in the case to be clearly sufficient to meet constitutional
standards. That statute required the trial court to determine
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." See Md. Cts. & Jud. Proc.
Code Ann. 9-102(a)(1)(ii) (1989) (quoted in Craig, 497 U.S. at
841 n.1).
This court has read Craig to establish a rule premised
on actual necessity:
We are convinced that, at a minimum, the
constitution forbids denying the accused face-
to-face confrontation with an accuser in a
criminal trial absent specific evidence and
an express finding that the probable effect
of the defendant's presence on the witness
would significantly impair the substance of
the witness's testimony. A mere finding of
some general, or de minim[i]s effect will not
suffice. Likewise, generalized, subjective
impressions or assumptions will not
substitute for case-specific evidence.
Blume v. State, 797 P.2d 664, 674 (Alaska App. 1990) (footnotes
omitted).
B. AS 12.45.046's Compliance with the
Constitutional Standard
In the present case, Reutter correctly notes that AS
12.45.046 does not, on its face, comport with the minimal
requirements of Craig. Although the statute does incorporate
procedures aimed at maintaining the rigorously adversarial
atmosphere that Craig demands in order to ensure effective cross-
examination, it does not explicitly require a finding of
necessity based on the likelihood of serious emotional distress.
Nor does it explicitly address another Craig requirement: a
finding that the child witness' emotional distress will be caused
specifically by the presence of the defendant, rather than the
general courtroom atmosphere.
In our view, however, although these requirements are
not explicitly stated in AS 12.45.046, they should be deemed an
implicit part of the statutory provision. Nothing in AS
12.45.046 is incompatible with or otherwise bars a reading of the
provision to be consistent with Craig. Such a reading is in
keeping with the legislature's intent to promote the state's
vital interest in protecting the emotional well-being of child
victims and witnesses.5 Such a reading is also in keeping with
the traditional preference for interpreting statutes in a manner
that avoids constitutional problems.
We have previously found AS 12.45.046 to be in
"substantial accord" with Craig "as to the minimal requirements
of the confrontation clause." Blume, 797 P.2d at 674. See also
Brandon v. State, 839 P.2d 400, 409 & n.6 (Alaska App. 1992);
Renkel v. State, 807 P.2d 1087, 1094 & n.7 (Alaska App. 1991).
We have similarly found AS 12.45.046 in substantial accord with
the Maryland statute that Craig upheld. Blume, 797 P.2d at 674.
Like Alaska's statute, the Maryland provision upheld in Craig did
not expressly require a finding that the child witness would
suffer "serious emotional distress" as a result of the presence
of the defendant.6 Rather, the Maryland Court of Appeals had
interpreted its statute to include this requirement, and the
Craig Court ratified the Maryland court's interpretation. See
Craig, 497 U.S. at 858. Other states have shown little
reluctance to construe similar statutory provisions as being
consistent with Craig's requirements.7
In short, we conclude that AS 12.45.046 must be
construed to incorporate the requirements of Craig. In order to
comply with Craig, a determination of "the child's inability to
effectively communicate" under AS 12.45.046(a)(2) must be based
on case-specific evidence establishing that (1) "the child
witness would be traumatized, not by the courtroom generally, but
by the presence of the defendant," Craig, 497 U.S. at 856; (2)
confrontation would pose a threat of serious emotional harm to
the child -- in other words, "that the emotional distress
suffered by the child witness in the presence of the defendant is
more than de minimis,"; and (3) the use of the special procedure
authorized under AS 12.45.046 is therefore "necessary to protect
the welfare of the particular child witness who seeks to
testify." Id. at 855.
One additional problem of interpretation remains.
Craig did not determine the standard of proof governing these
requirements. In Blume v. State, this court similarly found it
unnecessary to decide the standard of proof required under Craig.
We did acknowledge, however, that a finding of necessity under
Craig would, at a minimum, have to be based on proof by a
preponderance of the evidence. Blume, 797 P.2d at 674. The
issue of standard of proof is squarely presented in Reutter's
case and may no longer be avoided. Our decision on this point
must be guided by the due process analysis specified in Santosky
v. Kramer, 455 U.S. 745, 755 (1982), which ties the applicable
standard of proof to a consideration and balancing of three
factors: "the private interests affected, the public interests,
and a societal judgment about how the risk of error should be
distributed between the litigants." See W.M.F. v. State, 723
P.2d 1298, 1300 (Alaska App. 1986).
Given the constitution's express protection of
confrontation as an individual right of the accused, and given
further the traditional significance of that right, the private
interest affected by AS 12.45.046 is of utmost significance. On
the other side of the balance, however, the public unquestionably
has a vital interest in promoting the well-being of children who
are victims of or witnesses to acts of assault and sexual abuse.
Yet the public also has a vital and undeniable interest in
protecting the innocent against conviction. Because of the
integral role confrontation plays in the adjudication of
innocence and guilt, and its direct bearing on the integrity of
fact-finding at trial, see Coy, 487 U.S. at 1017-20, it would be
difficult to maintain that the public's interest in securing the
right of confrontation against unnecessary incursion should be
deemed any less significant than its interest in protection of
the child victim or witness of abuse.
These considerations counsel that any risk of error in
balancing the individual right against the countervailing public
interest must fall on the side of protecting the innocent from an
unjust conviction. In our view, the preponderance of the
evidence standard cannot provide such protection, and no dilution
of the right to confrontation should be permitted without an
express finding that the requirements of AS 12.45.046, including
the Craig requirements that are implicit therein, have been met
by clear and convincing evidence. So construed, AS 12.45.046 is
not constitu- tionally infirm.8
2. Constitutionality of AS 12.45.046 as Applied
to this Case
In applying AS 12.45.046 to the circumstances of
Reutter's case, Judge Zervos interpreted the statute to
incorporate the Craig requirements and found the clear and
convincing evidence standard of proof to be applicable. Reutter
nonetheless argues that the application of AS 12.45.046 to his
case violated his right to confrontation. Reutter advances this
argument in three prongs: (1) he contends that the trial court
erred in allowing unqualified expert witnesses to testify and in
admitting hearsay statements through their testimony; (2) he
argues that the trial court's findings and conclusions are
erroneous; and (3) he maintains that insufficient evidence was
presented to support the conclusion that the applicable
constitutional standards were met. We address each facet of
Reutter's argument in turn.
A. Expert Qualifications and Hearsay
Reutter argues that the trial court erroneously
received expert testimony from three of the four witnesses who
testified at the evidentiary hearing: DFYS Social Worker Sandra
Beare-Spencer, child advocate Betsy Willis, and Assistant
Attorney General Jan Rutherdale. He contends that the witnesses
were asked questions that called for psychological education and
expertise beyond their qualifications.
Reutter relies on Alaska Rule of Evidence 702(a):
If scientific, technical, or other
specialized knowledge will assist the trier
of fact to understand the evidence or to
determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience, training, or education, may
testify thereto in the form of an opinion or
otherwise.
This rule, however, gives the trial court broad latitude to allow
a witness to testify as an expert when the court finds that the
testimony will be helpful to the factfinder. There is no
requirement that a witness possess a particular license or
academic degree, provided that the factfinder can receive
appreciable help from the witness' testimony. Handley v. State,
615 P.2d 627, 630-31 (Alaska 1980); Dymenstein v. State, 720 P.2d
42, 45 (Alaska App. 1986). The trial court's decision to allow a
witness to testify as an expert is reviewable only for an abuse
of discretion. Handley, 615 P.2d at 630; New v. State, 714 P.2d
378, 380 (Alaska App. 1986).
In the present case, all of the challenged witnesses
had professional experiences that made their opinions helpful to
the trial court, and all had considerable contact with A.R.
While these witnesses did not possess expertise in the field of
psychology, neither did they pretend to address deep
psychological issues. The trial court did not abuse its
discretion in finding the qualifications of these witnesses
sufficient to allow them to testify as experts. See, e.g.,
Kosbruk v. State, 820 P.2d 1082, 1086-87 (Alaska App. 1991); see
also Hilburn v. State, 765 P.2d 1382, 1386 (Alaska App. 1988).
Moreover, although the testimony of the challenged
witnesses was necessarily informed by their educational and
professional backgrounds, their opinions were almost wholly based
on reasonable inferences drawn from their own recent observations
of A.R. In this regard, Alaska Rule of Evidence 701 provides:
If the witness is not testifying as
an expert, his testimony in the form of
opinions or inferences is limited to those
opinions or inferences which are (a)
rationally based on the perception of the
witness and (b) helpful to a clear
understanding of his testimony or the
determination of a fact in issue.
Hence, even if the expertise of Beare-Spencer, Willis, and
Rutherdale to some degree fell short of meeting the standard
established for experts under Alaska Rule of Evidence 702, their
opinions were properly admitted under Alaska Rule of Evidence
701's more permissive standard governing opinion testimony by lay
witnesses. See, e.g., In re D.J.A., 793 P.2d 1033, 1036 (Alaska
1990); see also Callahan v. State, 769 P.2d 444, 446 (Alaska App.
1989).9
Reutter also advances a conclusory argument that the
state's witnesses were improperly allowed to introduce
inadmissible hearsay. Reutter's claim pertains to testimony of
the witnesses relating various statements made by A.R., primarily
those in connection with her inability to testify at the CINA
hearing.10 "Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted." Alaska Rule
of Evidence 801(c). As correctly recognized by Judge Zervos, the
bulk of the contested testimony was not introduced to prove the
truth of the matter asserted and was therefore not hearsay; the
limited statements arguably admitted to prove the truth of the
matter they asserted were properly received under the hearsay
exceptions governing present sense impression, excited utterance,
and existing mental or emotional condition. Alaska Rule of
Evidence 803 (1), (2), & (3). We find no abuse of discretion.
Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980); Lipscomb v.
State, 700 P.2d 1298, 1306 (Alaska App. 1985).11
B. Errors in Factual Findings and Legal
Conclusions
Reutter argues that the trial court made several
erroneous factual findings in its written order that affected its
decision to allow A.R. to testify via one-way closed-circuit
television. This court will reverse factual findings only when
they are clearly erroneous. Matter of R.K., 851 P.2d 62, 66
(Alaska 1993). "Findings are clearly erroneous when the
reviewing court is left with a definite and firm conviction after
reviewing the entire record that a mistake has been made." Id.
Having carefully reviewed the record, we conclude that Reutter's
claims of erroneous fact findings are either unfounded or involve
facts that were clearly inconsequential to the resolution of the
disputed legal issues. The trial court's findings and
conclusions are not clearly erroneous.
C. Sufficiency of the Evidence
Reutter further contends that, even if no other error
occurred, Judge Zervos could not have properly concluded, based
on the evidence presented, that A.R.'s inability to testify at
trial would be caused by Reutter's presence, rather than by the
general courtroom setting. He argues that, while the witnesses
at the evidentiary hearing all testified that A.R. would not be
able to testify in front of her father, they also indicated that
A.R. would likely not testify even if Reutter were not present.
In effect, Reutter challenges the trial court's conclusions
number five and six, which read:
5. The court recognizes that it
may be that [A.R.] also has difficulty
testifying in front of a room full of people.
However, it is very clear, based on the CINA
hearing, that [A.R.] does have great
difficulty in testifying in front of her
parents. The court concludes, based on what
has gone on before, that if the child were
brought into the courtroom in an attempt to
have her testify in front of her father, that
she would "shut down" as she did in the CINA
hearing and not testify under any other
circumstances after that.
6. It is clear that [A.R.] will
not testify because of fear, guilt or severe
psychological distress. It is also clear
that [A.R.'s] failure to testify is due, in
large part, to the presence of her father.
Therefore, under the statutes and the case
law the confrontation clause must give way in
the most minimal way possible. Allowing the
child's testimony to be taken outside of the
defendant's presence may facilitate the
child's ability to testify. Denying the
request to take the testimony outside the
defendant's presence, based in [sic] past
attempts, guarantees the child's silence.
Reutter makes the mistake of viewing the evidence in
the light most favorable to his case, rather than in light of the
factual findings made by the trial court. Judge Zervos' findings
were based on a careful consideration of the factors specified in
AS 12.45.046(b). As directed by the statute, the judge
considered A.R.'s chronological age, her developmental level, and
the degree of emotional and psychological injury that she had
already suffered and would likely suffer if forced to testify in
court. As we have already determined, Judge Zervos' factual
findings are not clearly erroneous. In our view, these findings
amply support the court's ultimate conclusions that "[A.R.] will
not testify because of fear, guilt or severe psychological
distress," and that requiring her to testify in Reutter's
presence would virtually guarantee her silence.
Reutter's argument also overlooks the unique
significance of A.R.'s "shut down" at the prior CINA hearing and
the central role of that event in Judge Zervos' determination.
As Judge Zervos concluded, "Denying the request to take the
testimony outside the defendant's presence, based in [sic] past
attempts, guarantees the child's silence." (Emphasis added.)
Even if the opinions expressed by the witnesses at the
evidentiary hearing were fully discounted, their compelling
testimony concerning A.R.'s demeanor and conduct at the CINA
hearing provided strong support for the court's conclusion that
A.R.'s inability to testify stemmed from Reutter's presence, not
the generally stressful atmosphere prevailing in the courtroom.
We conclude that the evidence presented below was
sufficient to support the trial court's finding of necessity
under AS 12.45.046 and that application of the statute to
Reutter's case did not result in a violation of his
constitutional right to confrontation.12
The convictions are AFFIRMED.
_______________________________
1. Throughout the proceedings Willis was also referred to
by her former married name, Elizabeth Sayer or Elizabeth Willis
Sayer.
2. The trial court indicated that it would declare a
recess any time Reutter wished to confer with his attorney.
Objections by either attorney would be handled in the same way;
the court would declare a recess and discuss the objection
outside the presence of the jury. The trial court instructed the
attorneys not to make objections and arguments while the
videotape was running, but to request an immediate hearing.
3. The full text of AS 12.45.046 is as follows:
Testimony of children in criminal
proceedings. (a) In a criminal proceeding
under AS 11.41 involving the prosecution of
an offense committed against a child under
the age of 13, or witnessed by a child under
the age of 13, the court
(1) may appoint a guardian ad litem
for the child;
(2) on its own motion or on the
motion of the party presenting the witness or
the guardian ad litem of the child, may order
that the testimony of the child be taken by
closed circuit television or through one-way
mirrors if the court determines that the
testimony by the child victim or witness
under normal court procedures would result in
the child's inability to effectively
communicate.
(b) In making a determination under
(a)(2) of this section, the court shall
consider factors it considers relevant,
including
(1) the child's chronological age;
(2) the child's level of
development;
(3) the child's general physical
health;
(4) any physical, emotional
or
psychological injury experienced by the
child; and
(5) the mental or emotional strain
that will be caused by requiring the child to
testify under normal courtroom procedures.
(c) If the court determines under
(a)(2) of this section that the testimony by
the child victim or witness under normal
court procedures would result in the child's
inability to effectively communicate, the
court may order that the testimony of the
child be taken in a room other than the
courtroom and be televised by closed circuit
equipment in the courtroom to be viewed by
the defendant, the court, and the finder of
fact in the proceeding. If the court
authorizes use of closed circuit televised
testimony under this subsection,
(1) each of the following may be in
the room with the child when the child
testifies:
(A) the prosecuting attorney;
(B) the attorney for the defendant;
and
(C) operators of the closed
circuit
television equipment;
(2) the court may, in addition to
persons specified in (1) of this subsection,
admit a person whose presence, in the opinion
of the court, contributes to the well-being
of the child.
(d) When a child is to testify
under (c) of this section, only the court and
counsel may question the child. The persons
operating the equipment shall do so in as
unobtrusive a manner as possible. If the
defendant requests, the court shall excuse
the defendant from the courtroom, shall
permit the defendant to attend in another
location, and shall afford the defendant a
means of viewing the child's testimony and of
communicating with the defendant's attorney
throughout the proceedings. Upon request of
the defendant or the defendant's attorney,
the court shall permit a recess to allow them
to confer. The court shall provide a means
of communicating with the attorneys during
the questioning of the child. Objections
made by the attorneys to questions of a child
witness may be resolved in the courtroom if
the court finds it necessary.
(e) If the court determines under
(a)(2) of this section that the testimony by
the child victim or witness under normal
court procedures would result in the child's
inability to effectively communicate, the
court may authorize the use of one-way
mirrors in conjunction with the taking of the
child's testimony. The attorneys may pose
questions to the child and have visual
contact with the child during questioning,
but the mirrors shall be placed to provide a
physical shield so that the child does not
have visual contact with the defendant and
jurors.
(f) If the court does not find
under (a)(2) of this section that the
testimony by the child victim or witness
under normal court procedures will result in
the child's inability to effectively
communicate, the court may, after taking into
consideration the factors specified in (b) of
this section, supervise the spatial
arrangements of the courtroom and the
location, movement, and deportment of all
persons in attendance so as to safeguard the
child from emotional harm or stress. In
addition to other procedures it finds
appropriate, the court may
(1) allow the child to testify
while sitting on the floor or on an
appropriately sized chair;
(2) schedule the procedure in a
room that provides adequate privacy, freedom
from distractions, informality, and comfort
appropriate to the child's developmental age;
and
(3) order a recess when the energy,
comfort, or attention span of the child
warrants.
4. The Alaska Constitution uses similar language to secure
the right to confrontation. The Alaska Constitution, article I,
section 11, provides, in relevant part: "In all criminal
prosecutions, the accused. . . . is entitled . . . to be
confronted with the witnesses against him."
5. The legislative intent behind AS 12.45.046 was stated
as follows:
It is the purpose of this Act that, in
providing alternative methods for taking the
testimony of a child in certain criminal
proceedings in which that child was the
victim or is to be a witness, the legislature
is acting (1) to balance the need for the
victim's or witness's testimony against the
right of the defendant to confront witnesses;
(2) to mitigate the mental and emotional
distress that may arise as the child is
required to testify; and (3) to minimize
possible victim harassment by limiting the
opportunities for unnecessary examination of
the child by the parties' counsel.
CS for House Bill No. 323, section 1, ch. 92 SLA 1988
(Judiciary).
6. See Section 9-102 of the Courts and Judicial
Proceedings Article of the Annotated Code of Maryland (1989):
(a)(1) In a case of abuse of a
child as defined in 5-701 of the Family Law
Article or Article 27, 35A of the Code, a
court may order that the testimony of a child
victim be taken outside the courtroom and
shown in the courtroom by means of a closed
circuit television if:
(i) The testimony is taken
during the proceeding; and
(ii) The judge determines 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.
(2) Only the prosecuting attorney,
the attorney for the defendant, and the judge
may question the child.
(3) The operators of the closed
circuit television shall make every effort to
be unobtrusive.
(b)(1) Only the following persons
may be in the room with the child when the
child testifies by closed circuit television:
(i) The prosecuting attorney;
(ii) The attorney for the
defendant;
(iii) The operators of the
closed circuit television equipment; and
(iv) Unless the defendant
objects, any person whose presence, in the
opinion of the court, contributes to the well-
being of the child, including a person who
has dealt with the child in a therapeutic
setting concerning the abuse.
(2) During the child's testimony by
closed circuit television, the judge and the
defendant shall be in the courtroom.
(3) The judge and the defendant
shall be allowed to communicate with the
persons in the room where the child is
testifying by any appropriate electronic
method.
(c) The provisions of this section
do not apply if the defendant is an attorney
pro se.
(d) This section may not be
interpreted to preclude, for purposes of
identification of a defendant, the presence
of both the victim and the defendant in the
courtroom at the same time.
Quoted in Craig, 497 U.S. at 840-41 n.1.
7. See State v. Chisholm, 825 P.2d 147, 151-52 (Kan.
1992). Accord Thomas v. People, 803 P.2d 144, 149-51 (Colo.
1990); People v. Weninger, 611 N.E.2d 77, 82-83 (Ill. App. 1993);
Brady v. State, 575 N.E.2d 981, 986 (Ind. 1991); State v. Naucke,
829 S.W.2d 445, 450 (Mo. 1992)(en banc); State v. Peters, 587
A.2d 587, 590 (N.H. 1991); State v. Self, 564 N.E.2d 446, 453-54
(Ohio 1990); Shipman v. State, 816 P.2d 571, 574-75 (Okla. Crim.
App. 1991); Gonzales v. State, 818 S.W.2d 756, 764 (Tex. Crim.
App. 1991); State v. Lomprey, 496 N.W.2d 172, 175 (Wis. App.
1992), review denied 497 N.W.2d 130 (Wis. 1993). Cf. Starnes v.
State, 414 S.E.2d 582 (S.C. 1991).
8. Reutter argues that we should construe the Alaska
Constitution's confrontation clause to provide broader
protections than those provided for by the federal constitution,
as interpreted by the United States Supreme Court in Craig.
However, Reutter points to nothing in the text, context, or
history of the Alaska Constitution that would justify construing
article I, section 11 more broadly than the sixth amendment under
the circumstances presented here; nor has Reutter advanced any
cogent argument to support the conclusion that we should reject,
as unpersuasive, the United States Supreme Court's interpretation
of the federal constitution's confrontation clause. See Mitchell
v. State, 818 P.2d 1163, 1165 (Alaska App. 1991) (broader
interpretation of the Alaska Constitution justified only if
United States Supreme Court's interpretation of the federal
constitution is unpersuasive or if the text, context, or history
of the Alaska Constitution justify departure). Under the
circumstances presented here, we decline to construe article I,
section 11, of the Alaska Constitution more broadly than the
United States Supreme Court has interpreted the federal
constitution.
9. To the extent Reutter means to suggest that the
testimony of a qualified psychologist or psychiatrist should be a
prerequisite to a finding of necessity under AS 12.45.046, the
suggestion is unwarranted under the peculiar circumstances of
this case. Although there is much to be said for the proposition
that psychological evidence will normally be necessary to meet
the requirements of AS 12.45.046, cf. Craig v. State, 588 A.2d
328, 335-36 (Md. 1991), Reutter disregards the fact that Judge
Zervos had available and did consider the extensive written
evaluation of A.R. submitted by Dr. Brems, a clinical
psychologist. While Brems did not expressly address the Craig
requirements, her evaluation of A.R. provided perspective for the
court's assessment of the opinions of Beare-Spencer, Willis, and
Rutherdale.
An even more significant flaw in Reutter's argument is
his disregard of Judge Zervos' reliance on evidence of A.R.'s
"shutdown" at the CINA proceeding -- a virtual dry run of the
situation that could have arisen had A.R. been called upon to
testify in Reutter's presence at the criminal trial. Judge
Zervos was able to review the tape recording of the CINA hearing,
and the bulk of the testimony presented by the challenged
witnesses was devoted to describing in greater detail the
recorded events that Judge Zervos heard on the tape. The
availability of this experiential base for predicting A.R.'s
probable reaction to Reutter's presence at trial adds a unique
dimension to Reutter's case and significantly reduces the need
for speculation based on psychological prediction.
10. The hearsay statements that Reutter contends were
improperly admitted are as follows: (1) Beare-Spencer's
recapitulation, in response to the prosecutor's inquiry into the
basis of her opinion that A.R. would not be able to communicate
effectively in Reutter's presence, of A.R.'s concern that her
father would hurt her mother if she talked about what happened to
her; (2) Willis' testimony, in response to the prosecutor's
inquiry into the nature of her relationship with A.R., that A.R.
had first disclosed to her that she had been sexually abused by
Reutter; (3) Willis' testimony that some of the bases for her
opinion that A.R. would not be able to communicate effectively in
Reutter's presence were A.R.'s statements, "I can't talk when
he's smiling at me[, h]e's staring at me[, h]e's whispering about
me"; and (4) Rutherdale's testimony that one of the bases for her
opinion that A.R. would not be able to communicate effectively in
Reutter's presence was A.R.'s whispered concern about her
parents' talking to each other during her testimony.
11. Both parties have assumed, without discussing the
issue, that the formal rules of evidence should apply to a
finding of necessity under AS 12.45.046. The assumption is
questionable. See A.R.E. 101(c)(1). Our conclusion that no
hearsay violations occurred makes it unnecessary for us to decide
the point.
12. Reutter separately alleges a violation of his right to
procedural due process occasioned by the specific manner in which
the court implemented A.R.'s questioning outside Reutter's
presence. In particular, Reutter asserts that (1) A.R. refused
to respond during the cross-examination; (2) his attorney was not
able to gauge the reaction of the jury while he cross-examined
A.R.; and (3) the jury was not able to view his interaction with
A.R. during her testimony. However, Reutter did not complain to
the trial court that he was unable to effectively cross-examine
A.R.; from the record as a whole, it appears that Reutter's
attorney did cross-examine A.R. effectively. Moreover, any
difficulty that Reutter experienced in attempting to cross-
examine appears to have been brought on, not by the closed-
circuit television procedure, but by the inappropriate encounters
between A.R. and her parents. Cf. Brandon v. State, 778 P.2d
221, 227-28 (Alaska App. 1989)(no violation of defendant's right
of confrontation when witness' absence results from conduct of
the accused). With respect to the remaining assertions, it is
sufficient to observe that, although Reutter continued throughout
the trial to object to the taking of A.R.'s testimony by closed-
circuit television generally, he specifically stated that he did
not object to the procedure that the trial court implemented.
Reutter's claims of interference with the jury's view of his
interaction with A.R. are wholly unsubstantiated by the record.
