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holding sole purpose of Craig test was not to determine whether child's ability to testify in court while in the presence of defendant would be impaired, but describing a broader purpose to assess the extent of probable trauma to the child witness
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No. 2-420 / 01-0955
Filed October 16, 2002
Appeal from the Iowa District Court for Polk County, Robert Wilson and Linda Reade, Judges.
Defendant appeals the judgment and sentence entered upon his conviction for three counts of second-degree sexual abuse. AFFIRMED IN PART AND VACATED IN PART.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, John Sarcone, County Attorney, and Nan Horvat, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Eisenhauer, JJ.
Christopher Bailey appeals from the judgment and sentence entered upon his conviction for three counts of second-degree sexual abuse, in violation of Iowa Code sections 709.1 and 709.3 (1999). He contends (1) the court erred in permitting testimony of three child witnesses to be given by closed circuit television, (2) counsel was ineffective in failing to object to the prosecutor's misleading statements in closing arguments, and (3) the court erroneously imposed a $1000 fine.
I. Background facts and proceedings.
On August 22, 2000, the State charged Bailey with three counts of second-degree sexual abuse, for acts allegedly committed against three children, all under the age of twelve. The three children in question were Katrina N., step-daughter of Bailey's fiancé's brother, and Aryn B. and Amanda B., daughters of Bailey's sister Heather.
Chris and his fiancé often babysat Katrina and her brother. In May of 2000, when Katrina was in kindergarten, she and her mother, Cammie, had a discussion about "good touches and bad touches." During the conversation, Katrina related that on an evening when Bailey was babysitting her, he had pulled her underwear off, removed his pants, and rubbed his genital area against hers. She felt something bigger than a finger rubbing against her and said it felt "juicy."
After Cammie confided Katrina's story to Amanda and Aryn's parents, they questioned their two daughters. They both confirmed Bailey had touched them as well. Amanda recalled Bailey touched her when she stayed overnight at his apartment in West Des Moines. She related that, while she was sleeping, Bailey removed her underwear and pulled up her shirt. He then started licking her "privates." Aryn informed her mother that during another overnight stay at Bailey's, he woke her up by touching her. He took off her blanket and removed her underwear. He then touched her on the "part where you go pee" and rubbed her with his "weenie."
Prior to trial, the State filed an application requesting the depositions of Katrina, Amanda, and Aryn be taken by closed circuit television, outside of the presence of Bailey. It later amended its application to ask that the children's subsequent trial testimony be taken by closed circuit television as well. Following a hearing at which the children's therapists testified, the court granted the State's request and ordered that the children's trial testimony be made by closed circuit television. Following the trial, the jury found Bailey guilty of all three counts. The court sentenced him to a term of incarceration not to exceed twenty-five years and fined him $1000 on each count. Bailey appeals.
II. Bailey's Sixth Amendment Right to Confrontation.
Bailey first contends his Sixth Amendment right to confrontation was violated when the court permitted the trial testimony of the child witnesses be made by closed circuit television. In analyzing Bailey's claim regarding his rights under the Confrontation Clause, we review de novo. State v. Rupe, 534 N.W.2d 442, 444 (Iowa 1995).
On appeal, Bailey does not challenge the propriety of allowing closed circuit testimony under the provisions of Iowa Code section 915.38 (2001).
The Sixth Amendment's Confrontation Clause "guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact." Coy v. Iowa, 487 U.S. 1012, 1016, 108 S.Ct. 2798, 2801, 101 L.Ed.2d 857 (1988). The central concern of the Confrontation Clause is to ensure the reliability of the evidence against the defendant by subjecting it to rigorous testing through the adversarial process. Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666, 678 (1990). However, the rights conferred by the confrontation clause are not absolute and may give way to other important interests. Coy, 487 U.S. at 1020, 108 S.Ct. at 2803, 101 L.Ed.2d at 866. Accordingly,
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 [which] preserves the essence of effective confrontation.
Craig, 497 U.S. at 857, 110 S.Ct. at 3170, 111 L.Ed.2d at 686 (1990),
Craig sets forth a three-part test to determine necessity, a determination which must be case specific. Id. at 856, 110 S.Ct. at 3169, 111 L.Ed.2d at 685. First, 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. Id. Second, the trial court must find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. Id. Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than mere nervousness or excitement or some reluctance to testify. Id., 110 S.Ct. at 3169, 111 L.Ed.2d at 685.
Bailey appears to argue the sole purpose of the Craig test is to assess whether the witness's ability to testify in court while in the presence of the defendant would be impaired. We believe the Craig test to be broader in its purpose to also encompass the extent of probable trauma to the child witness. See id.
A review of the hearing on the application to present testimony by closed circuit television and the district court's oral and written rulings reveals case-specific evidence presented on the three Craig factors and a recognition of the appropriate test by the court. Psychotherapist Mary Pulscher testified regarding the effect testifying live in front of Bailey would have on Amanda and Aryn. She had held eight counseling sessions with the girls and had spoken with them both individually and together. When asked whether Aryn would suffer trauma if forced to testify in the presence of Bailey, Pulscher testified Aryn was suffering from "retraumatization" because she had previously been abused by another man. She further noted Aryn was suffering from nightmares about the alleged incident and that it was already difficult for her to talk about the abuse. Aryn stated to Pulscher she did not want to testify in front of Bailey or even see him. She also opined that testifying in front of Bailey would put Aryn in a position of helplessness and place her in a "detached state," which she described as a form of trauma.
Also in their therapy sessions, Amanda told Pulscher she did not want to testify in front of Bailey. Bailey testified to her conclusion Amanda would also be "retraumatized," which occurs when children feel helpless or put in a position by adults to have to speak up. She found it would be "very damaging" to Amanda.
Emily Holub, a family therapist at Children Families of Iowa, provided counseling to Katrina on at least eight sessions. Holub noted that when she asked Katrina how she felt about seeing Bailey face to face again, Katrina responded that she did not want to see him again, did not want to testify, and wants him to go to jail. Holub opined Katrina would be "harmed" by seeing Bailey again and diagnosed her with "adjustment disorder," caused by her difficulty in adjusting to the sexual abuse, and noted it caused Katrina difficulty with functioning or memories. Furthermore, in a letter to the court, Holub stated testifying in front of Bailey would be "emotionally harmful" to Katrina and the "experience would cause damage to [her] by bringing up memories of the original abuse." She also stated, "It appears difficult enough for Katrina to talk to me in a safe, therapeutic setting, let alone discussing the sexual abuse in front of the perpetrator."
The foregoing evidence was derived from numerous interviews and first-hand observations of the three girls. On our de novo review, we agree with the trial court the children would be traumatized and have difficulty testifying in front of Bailey. Moreover, the evidence supports the conclusion the harm caused by testifying before Bailey would be more than the mere nervousness or excitement of testifying in court in general. The harm detailed by Holub and Pulscher related directly to having the children testify in the presence of their alleged abuser. The court's oral ruling in combination with its subsequent written amended ruling demonstrates it considered the proper factors as set forth in Craig. Accordingly we affirm the trial court's decision to allow Katrina, Amanda, and Aryn to testify via closed circuit television and thereby affirm the court's denial of Bailey's motion for new trial.
III. Ineffective Assistance of Counsel.
Bailey next asserts trial counsel rendered ineffective assistance in failing to object and move for a mistrial when the prosecutor made misleading statements during closing arguments. We review claims of ineffective assistance de novo. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999).
To prevail on an ineffective-assistance claim, Bailey must prove by a preponderance of the evidence that (1) his trial counsel failed to perform an essential duty, and (2) prejudice resulted from counsel's error. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998). We presume counsel has performed competently. State v. Mapp, 585 N.W.2d 746, 747 (Iowa 1998). While we often preserve ineffective-assistance claims for postconviction relief, we consider such claims on direct appeal if the record is sufficient. Casady, 597 N.W.2d at 807.
To prevail on a claim of prosecutorial misconduct, Bailey must not only prove misconduct occurred, but also that it prejudiced him. State v. Ruble, 372 N.W.2d 216, 218 (Iowa 1985). Prosecutorial misconduct warrants a new trial when it is "so prejudicial as to deprive the defendant of a fair trial." State v. Lyons, 210 N.W.2d 543, 549 (Iowa 1973). Prejudice ordinarily results from persistent efforts to inject prejudicial matter before the jury. State v. Webb, 244 N.W.2d 332, 333 (Iowa 1976). However, in closing arguments, counsel is allowed some latitude. State v. Phillips, 226 N.W.2d 16, 19 (Iowa 1975). Counsel may draw conclusions and argue permissible inferences which reasonably flow from the evidence presented. Id.
Bailey complains of the following comments made by the prosecutor during closing arguments:
Katrina's description of what the defendant did is different than Amanda's, is different from Aryn's. Now, there are some consistencies between these kids, and that's why they corroborate each other because you see a scheme. You see a plan. You see a course of conduct on the part of this man when they spend the night at his house. When they're all by themselves, he takes advantage of them, and he does it to everyone. Isolating them and touching them. Every kid individually tells you the same plan. It's his ID. It's got his signatures on it all by himself. But they don't describe the same sex act and that's why, ladies and gentlemen, when you go back and look at their credibility, they're believable because they didn't put a whoopee story together that matches.
We find the record sufficient to address this claim on direct appeal.
Because of some sexually "acting out" behavior by Aryn, she was not to be left alone with another child. This information was excluded from the trial following a hearing on Bailey's application for an Iowa Rule of Evidence 412 hearing. Bailey argues the prosecutor's comment on his "isolating them and touching them" was misconduct because the prosecutor was fully aware of the reason for keeping Aryn and Amber in separate rooms. As the prosecutor was precluded from questioning the witnesses about keeping Aryn separate from other children, this reference in closing argument should have been objected to. We find his argument without merit. The passage of which Bailey now complains appears to consist of a minor commentary on one of the many facts, permissible inferences drawn from those facts, and conclusions available from the evidence. Read in its entirety, the passage in question appears to dispel the idea the girls merely hatched a story to accuse Bailey. We find no misconduct and therefore counsel was not ineffective in failing to object to it.
Now Iowa Rule of Evidence 5.412.
IV. Imposition of the $1000 Fine.
Finally, Bailey asserts the court erred in illegally imposing a fine of $1000 on all three counts. The State concedes the court erred in its imposition of the fines on Bailey's second-degree sexual abuse convictions. We concur and therefore vacate the fine portion of the sentence.
V. Conclusion.
We reject Bailey's contention the court violated his Sixth Amendment Right to Confrontation by allowing Katrina, Amanda, and Aryn to testify at trial via closed circuit television. We conclude counsel did not render ineffective assistance by failing to object to comments made during the prosecutor's closing arguments or to move for a mistrial. Finally, we conclude the court erred when it imposed $1000 fines on each of Bailey's second-degree sexual abuse convictions and we vacate that portion of the sentence.