JIMMY RAY SPARKMAN V. COMMONWEALTH OF KENTUCKY
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RENDERED : APRIL 24, 2008
TO BE PUBLISHED
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2006-SC-000303-MR
V.
ON APPEAL FROM PENDLETON CIRCUIT COURT
HONORABLE ROBERT McGINNIS, JUDGE
04-CR-00032
APPELLEE
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
AFFIRMING
Following a one-day trial, a Pendleton Circuit Court jury found Appellant Jimmy
Ray Sparkman guilty of one count of first-degree burglary, fourth-degree assault and
violation of a protective order. Judgment was entered in accordance with the jury
verdict. The conviction arose out of a violent incident at the home of Sparkman's
estranged wife, Cory Bowman . Sparkman was sentenced to twenty years
imprisonment . He appeals to this Court as a matter of right.'
Appellant raises but a single issue on appeal : that the trial court committed
reversible error when it allowed the prosecutor to stand between Appellant and
Bowman's two minor children when they testified at trial such that the children and
Appellant could not see each other. Appellant claims that in so doing, the trial court
violated KRS 421 .350 as well as the Confrontation Clauses found in the federal and
Ky. Const. § 110(2)(b) .
state constitutions . Because the trial court's error was harmless beyond a reasonable
doubt, we affirm Appellant's conviction .
Before Bowman's children, J.W., age twelve, and D .S., age ten, testified at trial,
the prosecution asked the court's permission to stand between the children and
Appellant (their step-father) while he questioned them on direct examination . According
to the prosecutor, his request was made at the behest of the children . The trial court
granted the request over defense counsel's objection . During the questioning, the
prosecutor stood dose to the witness stand, positioning himself between each of the
child witnesses and Appellant . He did not stand between them during crossexamination of J .W . and D .S. Appellant claims this manner of testimony on direct
examination improperly denied him the ability to assess the children's credibility by
observation of their demeanor.
The Sixth Amendment to the United States Constitution provides that a criminal
defendant has the right "to be confronted with the witnesses against him ." Similarly, the
Kentucky Constitution, in section 11, states that the accused has the right "to meet
witnesses face to face ." Although the language of the two constitutional confrontation
clauses is different, this Court has held that the underlying right is "basically the same."2
The United States Supreme Court has held that while face-to-face confrontation
is preferred, the primary right secured by the Confrontation Clause is that of crossexamination .3 Accordingly, the right to confront is not absolute and may be limited to
accommodate legitimate competing interests . 4 One such exception has been approved
2
3
4
COM .
V.
Willis, 716 S .W.2d 224, 227 (Ky. 1986) .
Ohio v . Robert, 448 U.S . 56, 100 &Q . 2531, 65 L.Ed .2d 597 (1980).
Chambers v. Mississippi, 410 U .S. 284, 93 &Q . 1038. 35 L . Ed .2d 297 (1973) .
by the Kentucky General Assembly in the form of KRS 421 .350 concerning children
called to testify in criminal proceedings regarding sexual and physical abuse that they
suffered or witnessed .
KRS 421 .350 provides that upon a showing of compelling need, a trial court may
allow a child twelve years old or younger to testify via closed circuit broadcast or
videotape outside the presence of the accused .
"Compelling need" is defined as "the
substantial probability that the child would be unable to reasonably communicate
because of serious emotional distress produced by the defendant's presence.
,5
The
constitutionality of this statute has been upheld by this Court . We noted that the statute
allows a trial court to strike a proper balance between three competing interests: a) the
criminal accused's right to receive a fair trial ; b) the child's right to testify without undue
distress or intimidation ; and c) the Commonwealth's interest in a truthful fact-finding
process.
In this case, it appears that the trial court did not fully comply with KRS 421 .350.
There was no finding of "compelling need" to justify impairing Appellant's ability to
confront the witnesses against him . In fact, from the record it appears that there was
not even an inquiry made to determine the effect conventional testimony would have
upon J .W . and D .S . Furthermore, the manner in which the trial court permitted J.W. and
D.S . to testify is not among the methods identified in the statute .7 Preservation of the
ability of the accused to "see and hear the witness and assess credibility by observation
5 KRS § 421 .350(5).
6 Willis , 716 S .W.2d at 231 .
"The court shall permit the defendant to observe and hear the testimony of the
child . . ." KRS § 421 .350(2) (emphasis added) .
of the demeanor of the witness" was the key reason this Court upheld KRS 421 .350 .
The manner of testimony allowed by the trial court in this case did not permit Appellant
to make such observations . Accordingly, because there was no finding of compelling
need and because the method of testimony was not within the parameters of KRS
421 .350, we conclude that the trial court committed error when it allowed the prosecutor
to stand between Appellant and the minor witnesses when they were giving testimony
on direct examination .
Having acknowledged a Confrontation Clause violation, we must now review to
determine whether the error was harmless beyond a reasonable doubt.9 The record
reflects that Appellant admitted at trial that he went to Cory Bowman's residence in
knowing violation of the EPO against him . Furthermore, Appellant admitted striking
Bowman and causing physical injury to her. Appellant's counsel acknowledged in his
opening statement that the jury would find Appellant guilty of violating an EPO and of
assault. Essentially, the only differences between the testimony of Appellant and the
victim are the manner in which Appellant was alleged to have entered the victim's house
and the number of times he struck the victim . Appellant testified that he entered using
his key and struck the victim only one time . Bowman testified that she had changed the
'Willis, 716 S .W .2d at 228 .
9 Greene v. Com. , 197 S .W .3d 76, 82 (Ky. 2006); Chapman v. California , 386
U .S . 18, 24, 87 S .Ct . 824, 828, 17 L .Ed .2d 705 (1967); see also Coy v. Iowa, 487 U .S .
1012, 101 L .Ed.2d 857, 108 S .Ct. 2798 (1988) ("The State also briefly suggests that any
Confrontation Clause error was harmless beyond a reasonable doubt under the
standard of Chapman v. California , 386 U .S . 18, 24, 87 S .Ct. 824, 828, 17 L.Ed.2d 705
(1967). We have recognized that other types of violations of the Confrontation Clause
are subject to that harmless-error analysis, see e.g_, Delaware v. Van Arsdall , 475 U .S.,
at 679, 684, 106 S .Ct ., at 1436, 1438, and see no reason why denial of face-to-face
confrontation should not be treated the same .") .
locks, and Appellant entered by breaking a window, whereupon he punched her
repeatedly and choked her. J.W. and D .S .'s testimony tended to support their mother's
version of events .
Appellant claims that but for the improper corroborative testimony of J .W . and
D.S ., the trial would have been a "swearing contest" between Appellant and Bowman,
thus creating a substantial possibility that the result of the trial would have been
different. However, a review of the record shows that argument to be untenable. First,
even without the testimony of J.W. and D .S., there was overwhelming evidence to
support the version of events described by the victim. Deputy Greg Peoples of the
Pendleton County Sheriff's Department testified that when he arrived at Bowman's
house, he saw bloody glass on the inside of the kitchen near a broken window
indicating that force had been used to break into the house. Furthermore, through the
testimony of the 911 operator and the 911 dispatcher, a copy of Bowman's emergency
call was admitted into evidence . On the tape a frantic Bowman is heard to say that "he
broke the glass" followed by sounds of a struggle . Bowman's neighbor Randy Hubbard
also testified regarding the broken window . Furthermore, Hubbard said that he could
hear a child screaming inside the house, "get off her" and "get off my mommy." Finally,
Appellant seems to suggest that but for the error, the testimony of the child witnesses
would not have existed, a conclusion with no reasonable basis.
Unlike the unpublished case cited by Appellant ° , neither of the child witnesses
was the "key witness" against Appellant . Furthermore, beyond speculating that
Appellant's sentence might have been shorter had he been able to see J.W, and D.S .
10 Wardia v. Com , 2006 WL 734010 (Ky. 2006).
during their testimony, Appelhnt does not identify @DVinformation that he might have
been able to obtain from observing them that would have assisted in his defense . /\
determination of prejudicial error by this Court would require some showing that
Appellant's unobstructed observation would have affected the substance and credibility
of the child witnesses . "There has been no such showing. Accordingly, the error was
harmless. For the foregoing reasons, the judgment is affirmed .
All sitting . All concur.
COUNSEL FOR APPELLANT :
Randall L. Wheeler
Assistant Public Advocate
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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