State of West Virginia v. David K.

Summary

This document is a separate opinion addressing whether the use of closed-circuit television to present testimony from a child sexual-assault victim violated the defendant's Confrontation Clause rights. The opinion discusses Maryland v. Craig, West Virginia Code §§ 62-6B-1 to -4, the West Virginia Rules of Evidence, and the separation of powers between the Legislature and the judiciary. Justice Workman concurred in affirming the convictions but dissented from the majority's reasoning and treatment of the statutory requirements.

Holdings

1. Under West Virginia Code section 62-6B-3(a), a circuit court may order a child witness to testify by live closed-circuit television only upon a written motion by the prosecuting attorney, the child's attorney, or the child's guardian ad litem, followed by the required statutory findings. Before permitting the testimony, the court must conduct an evidentiary hearing, consider the factors in section 62-6B-3(c), and make the clear-and-convincing-evidence findings required by section 62-6B-3(b), with the expert-opinion and other safeguards prescribed by sections 62-6B-3(d) and 62-6B-4.
2. The circuit court's failure to comply with the statutory procedural safeguards was error and clear or obvious error under the plain-error doctrine, but the defendant failed to establish that the error affected his substantial rights or seriously affected the fairness, integrity, or public reputation of the proceedings.
3. Any error in allowing the child witness to testify by live closed-circuit television without the required safeguards was harmless beyond a reasonable doubt and did not warrant reversal.

Questions Presented

1. Whether the circuit court erred by allowing the child witness to testify by live closed-circuit television without a written motion, evidentiary hearing, statutory findings, expert opinion, and the defendant's statutory election regarding courtroom presence.
2. Whether the circuit court's failure to follow the procedural safeguards in West Virginia Code sections 62-6B-1 to -4 constituted plain error affecting the defendant's substantial rights and the fairness, integrity, or public reputation of the proceedings.
3. Whether any Confrontation Clause or statutory-procedure error was harmless beyond a reasonable doubt in light of the defendant's opportunity to cross-examine the witness and the four instances of incriminating statements.

Disposition

affirmed