State v. Hon kemp/davis

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY, Maricopa
County Attorney, Petitioner,

v.

THE HONORABLE MICHAEL W. KEMP, Judge of the SUPERIOR
COURT OF THE STATE OF ARIZONA, in and for the County of
MARICOPA, Respondent Judge,

DARREN CORTIZ DAVIS, Real Party in Interest.

No. 1 CA-SA 16-0031
FILED 4-7-2016

Petition for Special Action from the Superior Court in Maricopa County
No. CR2014-001685-001 DT
The Honorable Michael W. Kemp, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Petitioner

Law Office of David L. Lockhart, Phoenix
By David L. Lockhart
Counsel for Real Party in Interest
 STATE v. HON KEMP/DAVIS
Opinion of the Court

OPINION

Judge Lawrence F. Winthrop delivered the opinion of the Court, in which
Presiding Judge Peter B. Swann and Judge Donn Kessler joined.

W I N T H R O P, Judge:

¶1 In this special action, the State of Arizona challenges an order
denying the State’s request for an alleged sexual assault victim (“E.P.”) to
testify via two-way video conferencing during the trial of her alleged
assailant, Real Party in Interest Darren Cortiz Davis.

¶2 E.P. is an adult who currently lives in Montana and suffers
from numerous mental and physical difficulties, including post-traumatic
stress disorder (“PTSD”) and non-epileptic seizures. These difficulties are
well-documented—so much so that a Montana trial court refused to compel
E.P. to testify in Arizona, finding she would suffer psychological harm if
required to be in the same room with Davis. E.P. has, however, indicated a
willingness to testify before the jury and Davis from Montana, utilizing
two-way video conferencing technology. Under the State’s requested trial
accommodation, E.P. and Davis would hear each other and see each other,
face-to-face, via two-way video, but would not be in the same room during
E.P.’s testimony. Relying on the principles set forth in Maryland v. Craig,
497 U.S. 836 (1990), and its progeny, we accept jurisdiction and grant the
relief sought by the State.

FACTS AND PROCEDURAL HISTORY

¶3 A grand jury indicted Davis on two counts of sexual assault
involving E.P., each a class 2 felony, in violation of Arizona Revised Statutes
(“A.R.S.”) section 13-1406 (2010). The State alleges that, on January 2, 2003,
Davis kidnapped then-twenty-year-old E.P., threatened to harm her and
her family if she did not cooperate, physically assaulted her, and forced her
to engage in two nonconsensual sexual acts.

¶4 Sometime after the alleged assault, E.P. moved to Montana,
where she is currently under the care of a psychiatrist and another medical
doctor. E.P. suffers extreme mental and physical distress, and at some point
in time, the prosecutor in Arizona became aware that, due to the trauma

2
 STATE v. HON KEMP/DAVIS
Opinion of the Court

and resultant illnesses, stress, and anxiety, E.P. likely would not voluntarily
testify against Davis in Arizona.

¶5 According to E.P.’s psychiatrist—who has treated E.P. since
she was in high school—E.P. was in a fragile mental state before the alleged
assaults, receiving psychiatric treatment for Major Depressive Disorder
with psychotic features. In a letter to the prosecutor, the psychiatrist opined
that,

subsequent to her rape in Arizona, [E.P. suffers from] a Post-
Traumatic Stress Disorder that exacerbated the primary
diagnosis. In addition, [E.P.] has a diagnosis of non-epileptic
seizures and several other medical problems that are more
likely than not related to her psychiatric disorders.

Since her sexual assault, [E.P.] has been in and out of hospitals
several times. She has made several attempts on her life.
What could have been a reasonably promising prognosis
from her depression has been altered by the assault. For years
she was barely able to function. In the past year or two,
fortunately, she has started going back to school, is making
healthy friendships and living somewhat independently. In
my professional opinion, returning to Arizona to testify
against her assailant would almost certainly set her back
several years in her recovery. My recommendation is that she
not travel and not testify in front of her perpetrator.

¶6 According to E.P.’s medical doctor for the past six years, E.P.
presently experiences non-epileptic seizures and severe abdominal/pelvic
pains as a result of her anxiety associated with testifying in court. The
doctor has confirmed that E.P. ”has a history of complex partial seizures
related to an assault in her past where she was beat about her head.” E.P.
therefore experiences both real and pseudoseizures. E.P. also experiences
severe migraines and has intractable emesis (repeated bouts of vomiting
resistant to medical treatment) when her anxiety level is too high, and in
the doctor’s opinion, E.P.’s severe anxiety issues and chronic pelvic pain are
“a direct result of this past assault.” Moreover, E.P.’s chronic pelvic pain
has resulted in other serious medical complications. In the doctor’s
opinion, E.P. will likely experience severe stress, anxiety, and resultant
pseudoseizures if she testifies in court in Davis’s presence.

¶7 The State filed a petition to secure E.P.’s appearance at trial by
moving for the trial court to issue a certificate asking the State of Montana

3
 STATE v. HON KEMP/DAVIS
Opinion of the Court

to issue a subpoena to compel E.P.’s attendance under the Uniform Act to
Secure the Attendance of Witnesses from Without a State in Criminal
Proceedings. See A.R.S. §§ 13-4091 to –4096 (2010); MCA 46-15-112 to 46-
15-120 (2015). A certificate to secure the attendance of E.P. was filed in the
Montana trial court, which ordered E.P. to show cause why an order should
not be issued compelling her to attend the criminal prosecution of Davis.

¶8 After a three-day evidentiary hearing—at which E.P. and her
mother testified, and the court received the medical doctor’s most-recent
written opinion—the Montana court ultimately found E.P. is a material and
necessary witness in the State’s case against Davis, but that E.P. would
experience undue hardship in the form of physical and psychological harm
by being forced to testify in the same room with Davis. As a result, the
court quashed the out-of-state subpoena and declined to order E.P. to
attend any proceedings in Arizona.

¶9 In Arizona, the State moved to take E.P.’s deposition in
Montana (with counsel physically present or with defense counsel and
Davis participating electronically) and asked the court to find E.P.
unavailable and allow her video deposition to be admitted at trial in lieu of
her live testimony. Davis objected to the taking of E.P.’s deposition and
argued that if the court should allow E.P. to be deposed, he had the right
under the Confrontation Clause of the Sixth Amendment to be physically
present at the deposition.

¶10 The trial court ruled that E.P. was an unavailable witness
under Arizona Rule of Evidence 804(a)(5). The court further found that the
State had made a good faith effort to produce E.P.; however, because Davis
refused to waive his right to be present at the deposition, see Ariz. R. Crim.
P. 15.3(e), the court ruled that the State could introduce E.P.’s testimony via
video deposition only if the deposition was recorded in Davis’s physical
presence. The State claims the trial court’s order requiring the State to
transport Davis to Montana if the State deposed E.P. was unworkable
because it ran counter to the Montana court’s conclusion that E.P.’s
unavailability was based on the harm she would experience if forced to be
in the same room as Davis.

¶11 The State then filed a request for E.P. to testify via two-way
video conferencing during trial, a means of testifying the State avows E.P.
is amenable to accepting. The trial court denied the request. The State then
filed this petition for special action.

4
 STATE v. HON KEMP/DAVIS
Opinion of the Court

JURISDICTION

¶12 Special action jurisdiction is proper when an issue is one of
first impression, involves a purely legal question, is of statewide
importance, or is likely to arise again. State v. Bernini, 230 Ariz. 223, 225,
¶ 5, 282 P.3d 424, 426 (App. 2012); State ex rel. Romley v. Martin, 203 Ariz. 46,
47, ¶ 4, 49 P.3d 1142, 1143 (App. 2002); Vo v. Superior Court, 172 Ariz. 195,
198, 836 P.2d 408, 411 (App. 1992). The State asks us to resolve an issue of
first impression in Arizona—the constitutionality of utilizing two-way
video testimony at trial under the Confrontation Clause—that is a legal
issue of statewide importance and likely to recur. Moreover, the State has
no equally plain, speedy, or adequate remedy by appeal. See Ariz. R.P.
Spec. Act. 1(a); Lindsay R. v. Cohen, 236 Ariz. 565, 566-67, ¶ 5, 343 P.3d 435,
436-37 (App. 2015). Accordingly, we accept special action jurisdiction.

ANALYSIS

¶13 The State argues the trial court erred as a matter of law by not
applying the Maryland v. Craig standard to the State’s requested
accommodation for E.P. to testify via two-way video during trial. See 497
U.S. at 849 (recognizing that the Confrontation Clause’s preference for face-
to-face confrontation at trial “must occasionally give way to considerations
of public policy and the necessities of the case” (quoting Mattox v. United
States, 156 U.S. 237, 243 (1895))).

¶14 In general, we review a trial court’s orders in managing
proceedings for an abuse of discretion. Gamboa v. Metzler, 223 Ariz. 399,
402, ¶ 13, 224 P.3d 215, 218 (App. 2010). We review de novo, however, issues
involving the Confrontation Clause. See State v. Bronson, 204 Ariz. 321, 324,
¶ 14, 63 P.3d 1058, 1061 (App. 2003).

¶15 The Sixth Amendment to the United States Constitution
guarantees that, in all criminal prosecutions, the accused has the right “to
be confronted with the witnesses against him.” U.S. Const. amend. VI. The
Confrontation Clause has been construed as “guarantee[ing] the defendant
a face-to-face meeting with witnesses appearing before the trier of fact.”
Coy v. Iowa, 487 U.S. 1012, 1016 (1988). Its central concern “is to ensure the
reliability of the evidence against a criminal defendant by subjecting it to
rigorous testing in the context of an adversary proceeding.” Craig, 497 U.S.
at 845. Face-to-face in-court testimony serves several purposes: (1) it
“ensures the reliability of the evidence by allowing the trier of fact to
observe the demeanor, nervousness, expressions, and other body language
of the witness”; (2) it “impresses upon the witness the seriousness of the

5
 STATE v. HON KEMP/DAVIS
Opinion of the Court

matter and ensures that statements are given under oath”; and (3) it “helps
assure the identity of the witness, that the witness is not being coached or
influenced during testimony, and that the witness is not improperly
referring to documents.” United States v. Hamilton, 107 F.3d 499, 503 (7th
Cir. 1997). The United States Supreme Court has emphasized the
fundamental role face-to-face confrontation plays in judicial proceedings,
noting “there is something deep in human nature that regards face-to-face
confrontation between accused and accuser as ‘essential to a fair trial in a
criminal prosecution.’” Coy, 487 U.S. at 1017 (quoting Pointer v. Texas, 380
U.S. 400, 404 (1965)).

¶16 While recognizing the Constitution’s preference for face-to-
face confrontation, however, the Supreme Court has clarified that the right
to face-to-face confrontation is not absolute. Craig set forth a test for
abridging the preference for face-to-face confrontation with video
testimony: the State must show that (1) the denial of face-to-face
confrontation is necessary to further an important public policy; (2) the
reliability of the testimony is otherwise assured; and (3) there is a case-
specific showing of necessity for the accommodation. Id. at 850. Although
Davis notes that Craig involved one-way closed circuit television and child
witnesses, including the alleged victim, who could not see or hear the
defendant, nothing in its holding suggests its application is limited to such
cases. See People v. Wrotten, 923 N.E.2d 1099, 1103 (N.Y. 2009) (“Nowhere
does Craig suggest that it is limited to child witnesses or that a ‘public
policy’ basis for finding necessity must be codified. Indeed, federal courts
have permitted live video testimony in a variety of circumstances,
including instances where public policy is implicated by a key witness too
ill to appear in court . . . .” (citing Horn v. Quarterman, 508 F.3d 306, 317-18
(5th Cir. 2007); United States v. Benson, 79 Fed. Appx. 813, 820-21 (6th Cir.
2003); United States v. Gigante, 166 F.3d 75, 79 (2d Cir. 1999))).

¶17 Since deciding Craig, the Supreme Court has not further
examined the constitutionality of remote video testimony or considered
new types of technology available to facilitate remote testimony, such as the
two-way video conferencing the State seeks to use in this case that would
allow E.P. and Davis to hear and see one another simultaneously. See State
v. Rogerson, 855 N.W.2d 495, 499-500 (Iowa 2014); see also Wrotten v. New
York, 560 U.S. 959, 959 (2010) (Sotomayor, J., respecting denial of petition
for writ of certiorari) (noting that the question of and standards for the use
of two-way video testimony in a petitioner’s trial “is not obviously
answered by Maryland v. Craig”). Moreover, no Arizona opinion has
addressed the question of allowing adult witnesses to testify using two-way
video technology.

6
 STATE v. HON KEMP/DAVIS
Opinion of the Court

¶18 Numerous federal and state courts have extended Craig to the
use of two-way video testimony for adult witnesses. See, e.g., United States
v. Yates, 438 F.3d 1307, 1313 (11th Cir. 2006) (acknowledging Craig as the
proper test for the admissibility of two-way video conference testimony
and noting agreement with the Sixth, Eighth, Ninth, and Tenth Circuits);
Rogerson, 855 N.W.2d at 506-07 (Iowa Supreme Court approving the use of
two-way video testimony for adult witnesses, provided the Craig factors are
met); White v. State, 116 A.3d 520, 540-49 (Md. Ct. Spec. App. 2015)
(applying Craig to allow a witness in a cold case to testify by two-way video
because it would be “cruel and unnecessary to require her to fly” given her
health concerns); People v. Buie, 775 N.W. 817, 825 (Mich. Ct. App. 2009)
(applying Craig to two-way video testimony, “[l]ike the majority of federal
courts that have examined this issue”); City of Missoula v. Duane, 355 P.3d
729, 734 (Mont. 2015) (applying Craig to allow the two-way video testimony
of a doctor whose testimony in three trials would cause a prohibitive
expense to the city and place a significant burden on the doctor);
Commonwealth v. Atkinson, 987 A.2d 743, 750-51, ¶¶ 16-17 (Pa. Super. Ct.
2009) (applying Craig and concluding that the defendant’s right to
confrontation had been violated because expediting disposition of the case
was an insufficient reason for allowing the use of two-way video
testimony); Bush v. State, 193 P.3d 203, 215-16, ¶¶ 52-53 (Wyo. 2008)
(applying Craig to allow a witness’s testimony via two-way video “to
further the important public policy of preventing further harm to his
already serious medical condition”).

¶19 Assuming that two-way video testimony is not the equivalent
of face-to-face confrontation,1 we adopt the Craig standard for the use of
two-way video testimony and apply the Craig factors to the State’s
requested accommodation. The use of two-way video conferencing can
satisfy a defendant’s right to face-to-face confrontation in certain limited
circumstances like those present here.

1 See State v. Smith, 308 P.3d 135, 137 (N.M. Ct. App. 2013) (citing
Harrell v. State, 709 So. 2d 1364, 1368–69 (Fla. 1998) (declining to find live
satellite testimony to be equivalent to live, face-to-face testimony)). But see
Gigante, 166 F.3d at 81 (holding that when a trial court used a two-way video
system, face-to-face confrontation was preserved and it was therefore
unnecessary to enforce the Craig standard); United States v. Gigante, 971 F.
Supp. 755, 759 (E.D.N.Y. 1997) (“[T]he [two-way closed circuit television
procedure] proposed by the government in this case satisf[ies] fully the
requirements of the Constitution . . . .”).

7
 STATE v. HON KEMP/DAVIS
Opinion of the Court

¶20 Applying Craig, we conclude that the strong preference for
face-to-face confrontation must give way in the special circumstances of this
case to considerations of public policy and the necessities of the case. The
State’s requested accommodation is necessary to further two important
public policies: protecting the rights of a vulnerable alleged sexual assault
victim who has been ruled to be outside Arizona’s subpoena power and
preserving society’s interest in prosecuting accused sexual offenders. See
Michigan v. Lucas, 500 U.S. 145, 149-50 (1991) (recognizing Michigan’s rape
shield law furthers the legitimate state interests of protecting a sexual
assault victim from surprise, harassment, and unnecessary invasions of
privacy); United States v. Knights, 534 U.S. 112, 121 (2001) (recognizing the
government has a demonstrated interest in apprehending criminal law
violators, thereby protecting potential victims). Moreover, consistent with
Craig, protecting a victim-witness’s physical and mental health is a
legitimate public policy. See, e.g., Kramer v. State, 277 P.3d 88, 93-94, ¶ 19
(Wyo. 2012); see also Ariz. Const. art. 2, § 2.1(A)(1) (providing that crime
victims have the constitutional right “to be free from intimidation,
harassment, or abuse, throughout the criminal justice process”).

¶21 In this case, Arizona and Montana trial courts have already
found E.P. is a material and necessary witness, and realistically, without
E.P.’s testimony, there will be no trial. The Montana court has already
found after hearing evidence that requiring E.P. to testify with Davis
present in the same room will cause E.P. to suffer severe emotional and
mental trauma with resultant seizures, and it appears that, at this point, no
one questions that E.P. will suffer grave harm if required to testify in
person. Thus, without the accommodation for E.P. to testify via two-way
video during trial, the State will be forced to choose between protecting
E.P.’s mental and physical health and constitutional rights, and preserving
Arizona’s interest in prosecuting and punishing persons who have
allegedly committed sexual offenses.2 Because an alternative reliable
means of protecting Davis’s confrontation rights exists in this case, the State
should not be forced to choose. The State’s requested accommodation
clearly furthers important public policy concerns.

¶22 The requested two-way video conferencing at issue here
should also ensure reliable testimony. Under the State’s requested

2 Moreover, as the State notes, automatic denial of such a requested
trial accommodation may send the message that if a perpetrator of sexual
assault causes extreme emotional, mental, and physical harm to his or her
victim, the perpetrator is less likely to be prosecuted and convicted.

8
 STATE v. HON KEMP/DAVIS
Opinion of the Court

accommodation, the video will present a “real time” image of E.P. to Davis
and the jury, giving an impression of E.P.’s physical presence and
demeanor at trial. The two-way video will also allow the trial court to rule
on objections as they arise during E.P.’s testimony, allow E.P. to answer any
jury questions,3 and allow Davis to communicate with defense counsel
during the cross-examination of E.P., just as he would be able to do if E.P.
were physically present. The State can arrange for E.P. to be placed under
oath in Montana and ensure E.P.’s testimony is broadcast in a way that
would make it impossible for her to improperly refer to documents during
her testimony. Most importantly, E.P. will be able to see Davis when she
testifies, and Davis will be able to see her. We conclude in these limited
circumstances that allowing E.P. to testify via simultaneous two-way video
conferencing will not alter the reliability of her testimony or offend Davis’s
right to confrontation.

¶23 Finally, the State has adequately demonstrated case-specific
necessity for the requested accommodation. See Smith, 308 P.3d at 138-39
(requiring an adequate showing of necessity and stating that mere
inconvenience to a witness is insufficient under Craig to supplant face-to-
face testimony); see also State ex rel. Montgomery v. Padilla, 1 CA-SA 16-0017,
1 CA-SA 16-0027, 2016 WL 1063284, at *3, ¶¶ 9-11 (Ariz. App. Mar. 17, 2016)
(concluding the heightened standard of clear and convincing evidence of
an individualized and case-specific need for an accommodation applied to
minor victim witnesses under A.R.S. § 13-4253 (2010)); cf. Rogerson, 855
N.W.2d at 506-07 (recognizing that most courts “seem to require some
impediment to testifying beyond mere unwillingness to travel,” and noting
that a general consensus exists “that mere convenience, efficiency, and cost-
saving are not sufficiently important”). In this case, E.P. is beyond the
State’s subpoena power, and forcing her to testify in Davis’s physical
presence—whether in a deposition in Montana or at trial in Arizona—
would result in severe mental and physical trauma to E.P. Two medical
professionals have opined that E.P. will suffer a myriad of physical ailments
related to her PTSD—including seizures, severe abdominal/pelvic pains,
severe migraines, and intractable emesis—if she is required to testify in
Davis’s physical presence, and the Montana trial court has found that
forcing E.P. to testify in Davis’s presence will cause her to suffer undue
hardship due to the gravity of the ailments related to the PTSD and the
associated stress, anxiety, and severe psychological harm. This case

3 Arizona Rule of Criminal Procedure 18.6(e) provides for the
submission of juror questions to the court or witnesses during trials.

9
 STATE v. HON KEMP/DAVIS
Opinion of the Court

presents extraordinary circumstances, and a compelling case-specific
necessity that justifies the State’s requested accommodation.

CONCLUSION

¶24 We adopt the Craig test, and applying it to this case, conclude
that Davis’s confrontation rights can be satisfied through the use of two-
way video testimony. Accordingly, we accept jurisdiction of the petition
for special action and grant relief. The trial court’s order is reversed and
the matter is remanded with directions to allow the State’s requested trial
accommodation.

:ama

10