State v. Billsie

State v. Billsie

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Ricky Billsie,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030066-CA
 

F I L E D
(May 13, 2004)
 

2004 UT App 158

 

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Fifth District, St. George Department

The Honorable James L. Shumate

Attorneys: Margaret P. Lindsay and Patrick V. Lindsay, Provo, for Appellant

Mark L. Shurtleff and Christine Soltis, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Orme.

ORME, Judge:

    The United States Supreme Court has indicated that "face-to-face confrontation . . . is not the sine qua non of the confrontation right." Maryland v. Craig, 497 U.S. 836, 847, 110 S. Ct. 3157, 3164 (1990). The "preference for face-to-face confrontation at trial . . . must occasionally give way to considerations of public policy and the necessities of the case." Id. at 849, 110 S. Ct. at 3165 (emphasis in original) (quotations and citations omitted). "[A] State's interest in 'the protection of minor victims of sex crimes from further trauma and embarrassment' is a 'compelling' one," id. at 852, 110 S. Ct. at 3167 (citation omitted), and "a State's interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court." Id. at 853, 110 S. Ct. at 3167. That having been said, face-to-face confrontation "may be abridged only where there is a '"case-specific finding of necessity."'" Id. at 857-58, 110 S. Ct. at 3170 (citations omitted).

    Upon being advised of the problem in this case, the trial court did not conduct a hearing to enable it to make the requisite finding of necessity. Rather, it had a lectern placed on counsel table to block the line of sight between Defendant and the witness to "see if there is any great difference between" the witness's responses with a direct line of sight and her responses with a blocked line of sight. This ad hoc evidentiary experimentation, absent a "case-specific finding of necessity," cannot be validated.

    Although we are troubled by the trial court's decision to block the line of sight between Defendant and the witness without first holding a hearing to determine whether such action was truly necessary, we conclude that any error was harmless beyond a reasonable doubt. We readily reach this conclusion because the only new testimony elicited from the witness after the lectern was placed on counsel table pertained to charges on which Defendant was acquitted anyway. The evidence that resulted in Defendant's conviction on the other counts was elicited, in its entirety, before the lectern was placed on the table. See Coy v. Iowa, 487 U.S. 1012, 1022, 108 S. Ct. 2798, 2803 (1988) (stating that "harmlessness must . . . be determined on the basis of the remaining evidence").

    With respect to Defendant's second claim, although rule 615 states that "[a]t the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses," Utah R. Evid. 615(1), this is only "to prevent witnesses from being influenced or tainted by the testimony of other witnesses." Astill v. Clark, 956 P.2d 1081, 1087 (Utah Ct. App. 1998). Further, the "rule does not authorize exclusion of . . . a person whose presence is shown by a party to be essential to the presentation of the party's cause." Utah R. Evid. 615 (1)(c). "It is established law in Utah that a witness of tender years may be accompanied by an adult to ease the emotional turmoil of testifying in court." State v. Harrison, 2001 UT 33,¶7, 24 P.3d 936. At the same time, that adult need not be the child witness's parent. Against the background of Defendant's allegation that the victim's mother coerced her into accusing him, the decision to permit the victim's mother to remain in the courtroom is indeed problematic.

    However, we conclude that any error was harmless because the only testimony regarding the details of the abuse came from the victim, and the victim's mother's testimony was limited to her independent knowledge and observations of her daughter. Thus, neither witness's in-court testimony could have been tainted by the other's testimony, and Defendant cannot show that he has been prejudiced to the extent that he did not receive a fair trial. See, e.g., State v. Beltran-Felix, 922 P.2d 30, 33-34 (Utah Ct. App. 1996). Moreover, with the mother apparently sitting behind the child when the child testified, and given the opportunity the trial court had to observe the child as she testified, there was simply no way the mother could direct the child's testimony by gesture, facial expression, or the like, even if she had been inclined to do so.

    Regarding Defendant's final claim, "[a] prosecutor's remarks will be considered improper if the remarks 'called to the [jurors'] attention matters which they would not be justified in considering in reaching a verdict.'" State v. Calliham, 2002 UT 86,¶61, 55 P.3d 573 (citation omitted). "[V]iewed in light of the totality of the evidence," State v. Wright, 893 P.2d 1113, 1118 (Utah Ct. App. 1995), the prosecutor's comment was merely responsive to an inference reasonably drawn from Defendant's counsel's conspiracy argument. It was reasonable for the prosecution to "draw permissible deductions from the evidence and make assertions about what the jury may reasonably conclude," State v. Bakalov, 1999 UT 45,¶57, 979 P.2d 799, and we therefore affirm the trial court's denial of the mistrial motion. See State v. Pritchett, 2003 UT 24,¶10, 69 P.3d 1278.

Affirmed.

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Gregory K. Orme, Judge

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I CONCUR IN THE RESULT:

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Judith M. Billings,

Presiding Judge

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I DISSENT:

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James Z. Davis, Judge