State of West Virginia v. David K. ( 2016 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2016 Term
_______________ FILED
October 11, 2016
No. 15-0543
released at 3:00 p.m.
RORY L. PERRY II, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
Respondent
v.
DAVID K.,
Petitioner
____________________________________________________________
Appeal from the Circuit Court of Wetzel County
The Honorable David W. Hummel, Jr., Judge
Criminal Case No. 15-F-4
AFFIRMED
____________________________________________________________
Submitted: September 14, 2016
Filed: October 11, 2016
Brett M. Ferro, Esq. Patrick Morrisey
Public Defender Corporation for Attorney General
the Second Judicial Circuit David A. Stackpole
Moundsville, West Virginia Assistant Attorney General
Counsel for the Petitioner Charleston, West Virginia
Counsel for the Respondent
CHIEF JUSTICE KETCHUM delivered the Opinion of the Court.
JUSTICE BENJAMIN concurs and reserves the right to file a concurring Opinion.
JUSTICE LOUGHRY concurs, in part, and dissents, in part, and reserves the right to file
a separate Opinion.
JUSTICE WORKMAN concurs, in part, and dissents, in part, and reserves the right to
file a separate Opinion.
SYLLABUS BY THE COURT
1. Pursuant to W.Va. Code § 62-6B-3(a) [2013], a circuit court may
order the testimony of a child witness be given via live closed-circuit television upon (1)
a written motion filed by the prosecuting attorney, the child’s attorney, or the child’s
guardian ad litem and (2) the requisite findings of fact determined in accordance with
W.Va. Code § 62-6B-3(b).
2. Prior to permitting the trial testimony of a child witness to be given
via live two-way closed-circuit television, the circuit court must conduct an evidentiary
hearing and consider the necessity of allowing such testimony in light of the five factors
contained in W.Va. Code § 62-6B-3(c) [2013]. Thereafter, the circuit court must find by
clear and convincing evidence that: (1) The child is otherwise competent; (2) Absent the
use of live, closed-circuit television, the child witness will be unable to testify due solely
to being required to be in the physical presence of the defendant while testifying; (3) The
child witness can only testify if live, two-way closed-circuit television is used in the trial;
and (4) The State’s ability to proceed against the defendant without the child witness’ live
testimony would be substantially impaired or precluded. W.Va. Code § 62-6B-3(b)
[2013].
3. Pursuant to W.Va. Code § 62-6B-3(d) [2013], a circuit court
considering whether to allow a child witness to testify via live closed-circuit television
i
shall appoint a psychiatrist or a licensed psychologist with at least five years of clinical
experience who shall provide the court with an expert opinion, to a reasonable degree of
professional certainty, as to whether the child witness will suffer severe emotional harm,
be unable to testify based solely on being in the physical presence of the defendant while
testifying, and that the child witness does not evidence signs of being subjected to undue
influence or coercion. The opinion of the expert psychiatrist or licensed psychologist
must be filed with the court at least thirty days prior to the final evidentiary hearing and
the defendant shall be allowed to review this opinion and present his/her own expert
opinion on the issue.
4. Pursuant to W.Va. Code § 62-6B-4(a) [2013], if the circuit court
determines that a child witness may testify via live closed-circuit television, the
defendant may elect to absent himself from the courtroom during the child witness’
testimony. If the defendant so elects, the child witness is required to testify in the
courtroom.
5. Pursuant to W.Va. Code § 62-6B-4(c) [2013], if a child witness is
permitted to testify via live closed-circuit television, the circuit court must instruct the
jury, unless the defendant waives such an instruction, that “the use of live, closed-circuit
television is being used solely for the child’s convenience, that the use of the medium
cannot as a matter of law and fact be considered as anything other than being for the
ii
convenience of the child witness and that to infer anything else would constitute a
violation of the oath taken by the jurors.”
iii
Chief Justice Ketchum:
Petitioner David. K. appeals following his conviction on two counts of
felony sexual assault and two counts of felony sexual abuse by a custodian. These
convictions stem from an incident involving David K.’s teenage stepdaughter, A.R.
During the trial, A.R. began testifying in-court but became unresponsive when the State
questioned her about David K.’s alleged sexual abuse. Thereafter, the circuit court
consulted with counsel for the State and David K., and ordered that A.R. testify by live
closed-circuit television. Trial counsel for David K. did not object to A.R. testifying by
live closed-circuit television
On appeal, David K. asserts that the circuit court erred by ordering A.R. to
testify by live closed-circuit television. After review, we affirm David K.’s convictions.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2015, a Wetzel County Grand Jury indicted David K. on three
felony counts of sexual assault in the third degree in violation of W.Va. Code § 61-8B­
5(a)(2) [2000], and three felony counts of sexual abuse by a custodian in violation of
W.Va. Code § 61-8D-5(a) [2010]. These six felony offenses were based on one alleged
incident in which David K. had sexual contact with his step-daughter, A.R., who was
fourteen-years-old at the time of the alleged incident.
1
The prosecutor met with A.R. a few days before the trial. The prosecutor
stated that during this private meeting A.R. “was able to articulate what happened. It
took about an hour to get her there, but she was able to articulate.” While it took A.R. an
hour to articulate what happened during this private meeting, the prosecutor did not file a
motion with the circuit court requesting that A.R. testify by closed-circuit television
during the trial.
During the trial, Sergeant Brian Collins, a West Virginia State Policeman,
testified that he conducted an interview with David K. in April 2014 in which David K.
admitted that he “had sex” with A.R. on one occasion in the living room of his residence.
When asked how old A.R. was at the time this incident occurred, David K. stated,
“fifteen, I mean fourteen.” David K. further stated that he and A.R. were planning on
getting married once she turned eighteen. Sergeant Collins prepared a written report of
this interview that David K. signed.1 Sergeant Collins testified that after this interview,
he drove David K. back to his residence in a police cruiser. A video recording of this trip
in the police cruiser was made and played for the jury. David K. made incriminating
statements while in the police cruiser, including the following: (1) “I should be put away
1
The written statement prepared by Sergeant Collins was in a question and answer
format. Sergeant Collins wrote down the questions and answers and David K. signed the
bottom of each page of the written statement.
2
for life,” (2) “I wish I could go back in time and change what happened,” and (3) “there’s
some pretty sick people out there, and I just realized I’m one of them.”2
Another West Virginia State Policeman, Sergeant Charlie Kush, testified
that he also conducted an interview with David K. in April 2014, in which David K.
admitted that he had sexual intercourse with A.R. Mary Jane R., A.R.’s mother and
David K.’s wife, testified that David K. admitted to her that he had sexually abused A.R.
on one occasion.
A.R. also testified during the trial. She was fifteen years old at the time of
the trial. A.R. answered a few preliminary questions but became unresponsive when the
State asked her about the alleged sexual abuse by David K. After A.R. failed to reply to a
number of questions, the trial judge asked the parties to approach the bench, whereupon
the trial judge stated:
The transcript reveals that the testimony has been
essentially nil at this point. The young lady appears to be
becoming traumatized – my words – as [sic] this traditional
method of testimony.
What I suggest and will implement, subject to
counsels’ thoughts, is having her taken to magistrate court . . .
have her testify by audio/video system that the court utilizes
in magistrate court for purposes of arraignment, and the
2
A transcript of this video recording is not in the appendix-record. However,
when David K. was asked during cross-examination whether the video in the police
cruiser included the three statements set forth above, David K. agreed that he had made
those statements.
3
circuit court uses for reasons, and have her testify via video
link. Any objections by the State?
Neither party objected to the trial judge’s plan to have A.R. testify via live
closed-circuit television. Thereafter, A.R. was taken to the magistrate court and testified
via live closed-circuit television that was broadcast in the courtroom in front of the jury.
During her live closed-circuit television testimony, A.R. testified that David K. had
sexual contact with her. Following her testimony, the State rested. At the conclusion of
the State’s case, the circuit court dismissed counts five and six of the indictment.3
The defense called the defendant, David K., to testify. He testified that he
was never alone with A.R. and denied having sexual contact with her. David K. did not
deny that he confessed to sexually abusing A.R. when he was questioned by the police in
April 2014. However, he stated that this confession “was false” and explained that he
gave this false confession because “I just wanted to go home.” Further, David K. was
asked if he remembered telling his wife that he sexually abused A.R. and he stated, “I
don’t know. I really don’t know.” During cross-examination, David K. did not dispute
that he had made incriminating statements while he was in the police cruiser.
The jury convicted David K. of the four remaining counts contained in the
indictment. Thereafter, David K. filed a motion for a new trial, alleging that the trial
3
Counts five and six alleged that David K. forced A.R. to engage in oral sex.
A.R.’s testimony did not support this allegation and the circuit court dismissed these two
charges.
4
judge’s sua sponte decision to allow A.R. to testify via live closed-circuit television was
improper under W.Va. Code § 62-6B-1 [2001] et seq. After conducting a hearing, the
circuit court denied David K.’s motion for a new trial. It thereafter sentenced David K. to
an effective incarceration term of twenty to forty years. David K. appeals the circuit
court’s order denying his motion for a new trial.
II.
STANDARD OF REVIEW
This Court has previously held that:
In reviewing challenges to findings and rulings made
by a circuit court, we apply a two-pronged deferential
standard of review. We review the rulings of the circuit court
concerning a new trial and its conclusion as to the existence
of reversible error under an abuse of discretion standard, and
we review the circuit court’s underlying factual findings
under a clearly erroneous standard. Questions of law are
subject to a de novo review.
Syllabus Point 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). We have
further recognized that “[i]t is well settled that a trial court’s rulings on the admissibility
of evidence, ‘including those affecting constitutional rights, are reviewed under an abuse
of discretion standard.’” State v. Kaufman, 227 W.Va. 537, 548, 711 S.E.2d 607, 618
(2011) (citing State v. Marple, 197 W.Va. 47, 51, 475 S.E.2d 47, 51 (1996)).
III.
ANALYSIS
5
The issue in this case is whether the circuit court erred when it ordered the
child witness, A.R., to testify via live closed-circuit television. David K. argues that his
rights under the Confrontation Clause—set forth in the Sixth Amendment to the United
States Constitution and in Section 14 of Article III of the West Virginia Constitution—
were violated when the circuit court, sua sponte, ordered A.R. to testify via live closed-
circuit television. David K. asserts that the circuit court failed to follow the mandatory
procedural safeguards set forth in W.Va. Code § 62-6B-1 et seq. that must be observed
before a child witness may testify via live closed-circuit television.
By contrast, the State argues that the procedural safeguards contained in
W.Va. Code § 62-6B-1 et seq. were “not triggered as there were no pre-trial motions
regarding the use of closed-circuit television for the child victim’s testimony. The Trial
Court’s decision to use closed-circuit testimony did not fall under [W.Va. Code § 62-6B­
1 et seq.].” Rather, the State asserts that the circuit court’s decision to permit A.R. to
testify via live closed-circuit television was proper under the court’s “inherent authority .
. . to manage issues in the courtroom during trial.” Further, the State contends that any
error committed by the trial court was not plain error, and did not affect David K.’s
substantial rights.
At the outset, we note that neither party cited or discussed Maryland v.
Craig, 497 U.S. 836 (1990), a case in which the United States Supreme Court addressed
the Confrontation Clause in the context of whether a child witness in a sexual abuse case
may testify via live closed-circuit television. Our analysis of this issue is guided by the
6
Supreme Court’s holding in Maryland v. Craig, and by W.Va. Code § 62-6B-1 et seq., a
statute that was enacted after the Supreme Court’s ruling in Maryland v. Craig. We
begin our analysis with a brief review of the Confrontation Clause.
The Sixth Amendment to the United States Constitution and Section 14 of
Article III of the West Virginia Constitution guarantee an accused the right to confront
and cross-examine witnesses. The Confrontation Clause contained in the Sixth
Amendment provides: “In all criminal prosecutions, the accused shall . . . be confronted
with the witnesses against him[.]” Likewise, the Confrontation Clause contained in the
West Virginia Constitution, Section 14 of Article III, provides that in the “[t]rials of
crimes, and misdemeanors . . . the accused shall be . . . confronted with the witness
against him[.]”
The United States Supreme Court examined whether a child witness
testifying by live closed-circuit television violates the Confrontation Clause in Maryland
v. Craig, supra. In Craig, the Court rejected a Confrontation Clause challenge to a
Maryland statute that allowed a child witness in a sexual abuse case to testify via live
closed-circuit television. 497 U.S. at 860. The Court explained that the Confrontation
Clause “reflects a preference for face-to-face confrontation at trial,” but that this
preference “must occasionally give way to considerations of public policy and the
necessities of the case.” Id. at 849 (internal quotations omitted). It emphasized, however,
that the preference is a strong one and that a defendant’s Sixth Amendment confrontation
right “may be satisfied absent a physical, face-to-face confrontation at trial only where
7
denial of such confrontation is necessary to further an important public policy and only
where the reliability of the testimony is otherwise assured.” Id. at 850.
The Supreme Court in Craig set out three findings that a court must make
before allowing a child witness to testify by live closed-circuit television. Id. at 855-56.
These findings must be made after a court holds an evidentiary hearing and considers and
determines on a case-by-case basis whether the use of live closed-circuit television
testimony is necessary to protect the welfare of a particular child. The Supreme Court
described this process and the three specific findings that must be made as follows:
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 (internal citation and quotation omitted, emphasis added).
Eleven years after the Supreme Court’s decision in Maryland v. Craig, our
Legislature enacted W.Va. Code § 62-6B-1, entitled “Protection and Preservation of
8
Statements and Testimony of Child Witness.” Trial Court Rule 14.03(b) [2003] instructs
a circuit court in a criminal proceeding4 to follow this statute. Trial Court Rule 14.03(b)
states: “The court may use videoconferencing to obtain the testimony of a child witness
in accordance with West Virginia Code § 62-6B-1 to -4.”
West Virginia Code § 62-6B-1 et seq. allows a child5 to testify outside the
physical presence of a defendant when required by “the interests of justice.” The statute
seeks to balance the welfare of a child with the defendant’s constitutional right to
confront his/her accuser. The purpose of the statute is set forth explicitly in W.Va. Code
62-6B-1 [2001]:
The Legislature hereby finds that there are rare
occasions when the interests of justice cannot be served
because a child who is alleged to be the victim of certain
offenses is unable to testify while in the physical presence of
the defendant in the courtroom.
The Legislature further finds that the constitutional
right of the accused to be confronted with the witnesses
against him or her must be protected and that this
constitutional guarantee can be protected while, at the same
time, allowing a child to testify outside of the physical
presence of a defendant in the courtroom.
4
The title of Trial Court Rule 14.03 is “Criminal Proceedings in Circuit Courts.”
5
West Virginia Code § 62-6B-2(1) [2013] defines “[c]hild witness” as “a person
under the age of sixteen years of age who is or will be called to testify in a criminal
matter concerning an alleged violation of the provisions of sections three, four, five and
seven, article eight-b, chapter sixty-one of this code in which the child is the alleged
victim.”
9
The Legislature further finds that a child, more so than
an adult, may be subject to coercion and pressure by
interested adults and the interests of justice would be served
by requiring, unless infeasible, memorialization of child
victim statements in certain criminal matters.
In order to accomplish the twin goals of protecting child victims when
justice so requires and ensuring the constitutional right of a defendant to confront his/her
accuser, W.Va. Code § 62-6B-3(a) requires “the prosecuting attorney, the child’s
attorney, or the child’s guardian ad litem” to file a written motion requesting that a child
witness testify via live closed-circuit television. West Virginia Code § 62-6B-3(a) does
not permit a trial judge to sua sponte order a child witness to testify via live closed-circuit
television.
After “the prosecuting attorney, the child’s attorney, or the child’s guardian
ad litem” files a motion requesting that a child testify via live closed-circuit television,
the circuit court must conduct an evidentiary hearing and make four specific findings.
This requirement is set forth in W.Va. Code § 62-6B-3(b). It states:
Prior to ordering that the testimony of a child witness
may be taken through the use of live, two-way closed circuit
television, the circuit court must find by clear and convincing
evidence, after conducting an evidentiary hearing on the
issue, that:
1) The child is otherwise competent;
2) That, absent the use of live, closed-circuit television
the child witness will be unable to testify due solely to being
required to be in the physical presence of the defendant while
testifying;
10
3) The child witness can only testify if live, two-way
closed-circuit television is used in the trial; and
4) That the state’s ability to proceed against the
defendant without the child witness’ live testimony would be
substantially impaired or precluded.
Prior to making the four specific findings required by W.Va. Code § 62-6B­
3(b), the circuit court must consider the five factors set forth in W.Va. Code § 62-6B­
3(c):
(1) The age and maturity of the child witness;
(2) The facts and circumstances of the alleged offense;
(3) The necessity of the child’s live testimony to the
prosecution’s ability to proceed as well as any prejudice to
the defendant by allowing testimony through closed-circuit
television;
(4) Whether or not the facts of the case involve the alleged
infliction of bodily injury to the child witness or the threat of
bodily injury to the child or another; and
(5) Any mental or physical handicap of the child witness.
Additionally, the circuit court shall appoint a psychiatrist or psychologist to
provide the court with an expert opinion. This expert psychiatrist or psychologist must
file a written report with the circuit court at least thirty days prior to the evidentiary
hearing. This requirement is set forth in W.Va. Code § 62-6B-3(d):
In determining whether to allow a child witness to
testify through live, closed-circuit television the court shall
appoint a psychiatrist or a licensed psychologist with at least
five years clinical experience who shall serve as an advisor or
friend of the court to provide the court with an expert opinion
as to whether, to a reasonable degree of professional
11
certainty, the child witness will suffer severe emotional harm,
be unable to testify based solely on being in the physical
presence of the defendant while testifying and that the child
witness does not evidence signs of being subjected to undue
influence or coercion. The opinion of the psychiatrist or
licensed psychologist shall be filed with the circuit court at
least thirty days prior to the final hearing on the use of live,
closed-circuit television and the defendant shall be allowed to
review the opinion and present evidence on the issue by the
use of an expert or experts or otherwise.
Further, if a court determines that a child witness may testify via live
closed-circuit television, the defendant may “elect to absent himself from the courtroom
during the child witness’ testimony. If the defendant so elects the child shall be required
to testify in the courtroom.” W.Va. Code § 62-6B-4(a) [2001]. The defendant must then
be provided with a live, two-way television connection to the courtroom. See W.Va.
Code § 62-6B-4(b)(2). Finally, if the use of live closed-circuit television is used, the
circuit court must instruct the jury, unless the defendant waives such an instruction, that
“the use of live, closed-circuit television is being used solely for the child’s convenience,
that the use of the medium cannot as a matter of law and fact be considered as anything
other than being for the convenience of the child witness and that to infer anything else
would constitute a violation of the oath taken by the jurors.” W.Va. Code § 62-6B-4(c).
Based on the foregoing, we hold that pursuant to W.Va. Code § 62-6B-3(a),
a circuit court may order the testimony of a child witness be given via live closed-circuit
television upon (1) a written motion filed by the prosecuting attorney, the child’s
attorney, or the child’s guardian ad litem and (2) the requisite findings of fact determined
in accordance with W.Va. Code § 62-6B-3(b).
12
Prior to permitting the trial testimony of a child witness to be given via live
two-way closed-circuit television, the circuit court must conduct an evidentiary hearing
and consider the necessity of allowing such testimony in light of the five factors
contained in W.Va. Code § 62-6B-3(c) [2013]. Thereafter, the circuit court must find by
clear and convincing evidence that: (1) The child is otherwise competent; (2) Absent the
use of live, closed-circuit television, the child witness will be unable to testify due solely
to being required to be in the physical presence of the defendant while testifying; (3) The
child witness can only testify if live, two-way closed-circuit television is used in the trial;
and (4) The State’s ability to proceed against the defendant without the child witness’ live
testimony would be substantially impaired or precluded. W.Va. Code § 62-6B-3(b)
[2013].
Pursuant to W.Va. Code § 62-6B-3(d), a circuit court considering whether
to allow a child witness to testify via live closed-circuit television shall appoint a
psychiatrist or a licensed psychologist with at least five years of clinical experience who
shall provide the court with an expert opinion, to a reasonable degree of professional
certainty, as to whether the child witness will suffer severe emotional harm, be unable to
testify based solely on being in the physical presence of the defendant while testifying,
and that the child witness does not evidence signs of being subjected to undue influence
or coercion. The opinion of the expert psychiatrist or licensed psychologist must be filed
with the court at least thirty days prior to the final evidentiary hearing and the defendant
13
shall be allowed to review this opinion and present his/her own expert opinion on the
issue.
Further, pursuant to W.Va. Code § 62-6B-4(a), if the circuit court
determines that a child witness may testify via live closed-circuit television, the
defendant may elect to absent himself from the courtroom during the child witness’
testimony. If the defendant so elects, the child witness is required to testify in the
courtroom.
Finally, pursuant to W.Va. Code § 62-6B-4(c), if a child witness is
permitted to testify via live closed-circuit television, the circuit court must instruct the
jury, unless the defendant waives such an instruction, that “the use of live, closed-circuit
television is being used solely for the child’s convenience, that the use of the medium
cannot as a matter of law and fact be considered as anything other than being for the
convenience of the child witness and that to infer anything else would constitute a
violation of the oath taken by the jurors.”
Applying this holding to the present case, we note that no written motion
was filed requesting that A.R. testify via live closed-circuit television. A.R. met with the
prosecutor a few days before the trial and it took her an hour to articulate what happened
during this private meeting. However, the prosecutor did not file a motion with the
circuit court requesting that A.R. testify by closed-circuit television. Because no motion
was filed, the circuit court did not have the opportunity to hold an evidentiary hearing and
make the required findings set forth in W.Va. Code § 62-6B-3(b). Further, because no
14
motion was filed, the circuit court was unable to appoint a psychiatrist or psychologist to
render a timely expert opinion on whether A.R. should be permitted to testify via live
closed-circuit television. Also, after the circuit court ruled that A.R. could testify via live
closed-circuit television, David K. was not given the option to “absent himself from the
courtroom.” If David K. chose to “absent himself” from the courtroom, A.R. would have
been required to continue testifying in the courtroom pursuant to W.Va. Code § 62-6B­
4(a).
While the numerous procedural safeguards contained in W.Va. Code § 62­
6B-1 et seq. were not followed by the circuit court, counsel for David K. did not object to
the circuit court’s ruling that A.R. testify via live closed-circuit television. Thus, on
appeal, David K. argues that this Court should review these errors under a plain error
analysis. The errors in this case involve David K.’s Sixth Amendment confrontation
rights as set out by the Supreme Court in Maryland v. Craig.
This Court has held: “[t]o trigger application of the ‘plain error’ doctrine,
there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4)
seriously affects the fairness, integrity, or public reputation of the judicial proceedings.”
Syllabus Point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995); see also Syllabus
Point 2, State v. White, 231 W.Va. 270, 744 S.E.2d 668 (2013). Moreover, this Court has
held that “[a]lleged errors of a constitutional magnitude will generally trigger a review by
this Court under the plain error doctrine.” State v. Salmons, 203 W.Va. 561, 571 n. 13,
509 S.E.2d 842, 852 n. 13 (1998). Similarly, in Syllabus Point 4 of State v. Starr, 158
15
W.Va. 905, 216 S.E.2d 242 (1975), this Court explained: “Although it is a well-settled
policy that the Supreme Court of Appeals normally will not rule upon unassigned or
imperfectly assigned errors, this Court will take cognizance of plain error involving a
fundamental right of an accused which is protected by the Constitution.” In State v.
Lightner, 205 W.Va. 657, 659, 520 S.E.2d 654, 662 (1999), this Court stated, “In
criminal cases, plain error is error which is so conspicuous that the trial judge and
prosecutor were derelict in countenancing it, even absent the defendant’s timely
assistance in detecting it.”
We have also stated: “Failure to observe a constitutional right constitutes
reversible error unless it can be shown that the error was harmless beyond a reasonable
doubt.” Syllabus Point 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330
(1975). Indeed, an error involving a deprivation of a constitutional right may be regarded
as harmless only “if there is no reasonable possibility that the violation contributed to the
conviction.” Syllabus Point 20, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).
In Syllabus Point 3 of State v. Frazier, 229 W.Va. 724, 735 S.E.2d 727 (2012), this Court
explained: “In a criminal case, the burden is upon the beneficiary of a constitutional error
to prove beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained.” See also Chapman v. California, 386 U.S. 18, 24 (1967) (the burden is
on “the beneficiary of a constitutional error to prove beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.”). With the foregoing in
mind, we proceed to consider whether it was plain error for the circuit court to permit
16
A.R. to testify via live closed-circuit television without following the procedural
safeguards contained in W.Va. Code § 62-6B-1 et seq.
Under the first principle of the plain error doctrine outlined in Miller, we
must determine if there was error. “Deviation from a legal rule is ‘error’ unless the rule
has been waived.” U.S. v. Olano, 507 U.S. 725, 732-33 (1993). Waiver is different from
forfeiture:
Under the “plain error” doctrine, “waiver” of error
must be distinguished from “forfeiture” of a right. A
deviation from a rule of law is error unless there is a waiver.
When there has been a knowing and intentional
relinquishment or abandonment of a known right, there is no
error and the inquiry as to the effect of a deviation from the
rule of law need not be determined. By contrast, mere
forfeiture of a right—the failure to make timely assertion of
the right—does not extinguish the error. In such a
circumstance, it is necessary to continue the inquiry and to
determine whether the error is “plain.” To be “plain,” the
error must be “clear” or “obvious.”
Syllabus Point 8, Miller, supra. As the circuit court noted in its ruling denying David
K.’s motion for a new trial, “I do not find that the defendant waived. If there is clear
error, there is no waiver. Can’t waive clear error.” We agree. For the reasons set forth
above, we find the circuit court’s failure to follow the numerous procedural safeguards,
set forth in W.Va. Code § 62-6B-1 et seq., before permitting A.R. to testify via live
17
closed-circuit television was error.6 These procedural safeguards are contained not only
in the aforementioned statute, but are also required by Trial Court Rule 14.03(b), and by
the Supreme Court’s holding in Maryland v. Craig.
Having determined that error existed in the proceedings below, we move on
to the second requirement of Miller and determine if the circuit court’s error was plain,
which simply means clear or obvious. Miller, Id. at 18, 459 S.E.2d at 129. The numerous
errors regarding the failure to provide David K. with the procedural safeguards contained
in W.Va. Code § 62-6B-1 et seq., constitute clear error. As stated, no written motion,
which is required by W.Va. Code 62-6B-3(a), was filed requesting that A.R. testify via
live closed-circuit television. Thus, the circuit court was not able to conduct the
mandatory evidentiary hearing and make the findings required by W.Va. Code § 62-6B­
3(b). Similarly, the circuit court was unable to appoint a psychologist or psychiatrist as
required by W.Va. Code § 62-6B-3(d). Finally, the circuit court did not give David K.
the option of leaving the courtroom once it determined that A.R. should testify via live
closed-circuit television. David K. should have been given the option of leaving the
courtroom under W.Va. Code § 62-6B-4(a). For these reasons, the error in this case is
clear.
6
We emphasize again that the circuit court’s error was largely due to the failure of
a written motion being filed pursuant to W.Va. Code § 62-6B-3(a). Because such a
motion was not filed, the circuit court did not have the opportunity to comply with the
requirements contained in W.Va. Code § 62-6B-1 et al.
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We now turn to the third and fourth Miller requirements. Justice Cleckley
addressed the third prong of Miller in Syllabus Point 3 of State v. Marple, 197 W.Va. 47,
475 S.E.2d 47 (1996):
In determining whether the assigned plain error
affected the “substantial rights” of a defendant, the defendant
need not establish that in a trial without the error a reasonable
jury would have acquitted; rather, the defendant need only
demonstrate the jury verdict in his or her case was actually
affected by the assigned but unobjected to error.
The fourth Miller principle, regarding the fairness, integrity, and reputation
of judicial proceedings, “requires a case-by-case exercise of discretion.” State v. LaRock,
196 W.Va. 294, 317, 470 S.E.2d 613, 636 (1996). In State v. Marple, 197 W.Va. at 52,
475 S.E.2d at 52, we found that:
Once a defendant has established the first three requirements
of Miller, we have the authority to correct the error, but we
are not required to do so unless a fundamental miscarriage of
justice has occurred. Otherwise, we will not reverse unless, in
our discretion, we find the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.
(Citations omitted).
In the present case, the State presented four different instances in which
David K. confessed to sexually abusing A.R.: (1) in an oral statement provided to
Sergeant Collins, which was reduced to writing and signed by David K.; (2) in an oral
statement made to Sergeant Kush; (3) in an oral statement made in the police cruiser that
was recorded on video and played for the jury; and (4) in a statement made to his wife.
While David K. testified at trial that he did not sexually abuse A.R., his only explanation
19
for the written confession he provided to the police was that he gave a “false confession”
because he “wanted to go home.” We note that David K. was not under arrest when he
made this statement to the police. Further, David K. did not dispute that he made
incriminating statements while in the police cruiser that were recorded on video. Also, he
did not dispute that he told his wife he sexually abused A.R., instead, when asked if he
had made this statement, he testified, “I don’t know.”
Next, we note that the circuit court’s deviations from W.Va. Code § 62-6B­
1 et seq. did not prevent counsel for David K. from confronting his accuser, A.R.
Counsel for David K. did not object to the circuit court’s suggestion that A.R. testify by
closed-circuit television. Importantly, counsel for David K. conducted a full cross-
examination of A.R., and the jury had the opportunity to assess A.R.’s testimony and
demeanor during this cross-examination.
In sum, the State presented evidence of four different instances in which
David K. confessed to sexually abusing A.R., including incriminating statements he made
that were recorded on video and in a written confession that he signed. Further, the
complained of error occurred without an objection from defense counsel, and did not
prevent David K. from confronting and cross-examining his accuser, A.R. We therefore
find that David K. has failed to demonstrate that “the jury verdict in his case was actually
affected by the assigned but unobjected to error.” We conclude that under the
circumstances of this case—in which the State presented four different instances of David
K. confessing to the crime, and in which counsel for David K. cross-examined A.R.—the
20
circuit court’s failure to follow the procedural safeguards contained in W.Va. Code § 62­
6B-1 et seq. was harmless error. For these reasons, we find that David K. cannot satisfy
the third Miller requirement.
Assuming arguendo that David K. could satisfy the third requirement of
Miller, we find that because of the overwhelming evidence of David K.’s guilt, including
the four instances in which he confessed to sexually abusing A.R., this is not a case
where a “fundamental miscarriage of justice has occurred.” This conclusion is bolstered
by the fact that the error in this case occurred without an objection from defense counsel.
Further, the error did not prevent counsel for David K. from cross-examining A.R.
Because counsel for David K. cross-examined A.R., the jury was able to fully assess her
credibility and demeanor. Similarly, we find that the error in this case is not one that
“seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
The State has proven beyond a reasonable doubt that the “constitutional error complained
of did not contribute to the verdict obtained.”
IV.
CONCLUSION
Based on the foregoing, we affirm David K.’s convictions.
Affirmed.
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