FILED
October 11, 2016
No. 15-0543 - State of West Virginia v. David K. released at 3:00 p.m.
RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
LOUGHRY, Justice, joined by WORKMAN, Justice, concurring, in part, and dissenting,
in part:
I join Justice Workman’s separate opinion in full. I write separately to
emphasize the authority of our circuit courts to control matters that arise during trial and with
particular regard to a child who is a victim of a sex crime and who is testifying against his
or her perpetrator. The majority finds the trial court erred when it allowed the child victim
to testify via closed-circuit television without first following the procedure set forth in West
Virginia Code §§ 62-6B-1 to -4 (2014). Concluding that such error does not survive a plain
error analysis, the majority affirms the petitioner’s conviction. While I concur in the
majority’s decision to affirm the conviction, I disagree with its conclusion that the trial court
erred in this matter, which arises from its faulty analysis concerning West Virginia Code §§
62-6B-1 to -4 and the precepts set forth in Maryland v. Craig, 497 U.S. 836 (1990).
Here, the child victim was called to the witness stand and answered preliminary
questions, such as her name and address. Once the prosecutor began to question the victim
regarding her step-father’s sexual assault of her, the victim would not testify. A sidebar was
held during which the trial judge questioned the victim concerning matters unrelated to the
criminal allegations. While able to respond to those questions, the victim also said she was
nervous and that there was nothing that would calm her down. Thereafter, the prosecutor
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resumed his direct examination with specific regard to the criminal allegations and, again,
the victim was silent. After several more unsuccessful attempts to elicit answers from the
child victim, the trial judge initiated a second sidebar during which he expressed concern that
the child was becoming traumatized. The trial judge suggested that the child be taken to the
local magistrate court to complete her testimony via live closed-circuit television. Although
the trial judge expressly sought alternative suggestions and/or objections to proceeding in
that manner, counsel offered none. The petitioner’s only request was that a deputy be present
in the room during the child’s testimony to guard against coaching.1 Thereafter, the victim’s
testimony was completed via live closed-circuit television, including the petitioner’s cross-
examination of the victim. This procedure clearly met the requirements of Maryland v. Craig
and preserved the petitioner’s constitutional right to confront the witness against him.
Although the majority finds the procedure set forth in West Virginia Code §§
62-6B-1 to -4 is mandatory, such conclusion impinges upon this Court’s constitutional
mandate to determine evidentiary and substantive procedural issues. Such mandate may not
be usurped through a legislative enactment. Further, even if the majority were correct in its
conclusion that this statutory procedure is mandatory, here, the prosecutor had no reason to
believe that the child victim would be unable to testify at trial. Consequently, he had no
1
The request appears to have been made because the child’s aunt was accompanying
her to the magistrate court. In the end, the victim did not answer questions regarding the
sexual assault and abuse until her aunt and the deputy left the room and she was alone.
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cause to invoke this statutory, pre-trial procedure to obtain the child’s testimony via closed-
circuit television. Importantly, this statutory procedure is silent regarding the child victim
who becomes traumatized while on the witness stand, calling into question its applicability
under these facts and circumstances.
Once the child victim became so traumatized that she could not respond to
questioning, it was incumbent upon the trial court to act, not only to protect the child’s well-
being, but also to protect and ensure the petitioner’s right to confront the witnesses against
him.2 Indeed, “[t]o safeguard the integrity of its proceedings and to insure the proper
administration of justice, a circuit court has inherent authority to conduct and control matters
before it in a fair and orderly fashion.” Syl. Pt. 2, State v. Fields, 225 W.Va. 753, 696 S.E.2d
269 (2010).
As indicated above, the trial judge sought suggestions and objections from
counsel—none were given. Critically, the petitioner never mentioned West Virginia Code
§ 62-6B-3 during trial. Instead, he was silent on the issue until convicted, after which he
2
See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the
right to . . . be confronted with the witnesses against him[.]”); see also W.Va. Const. art. III,
§ 14 (“[T]he accused shall be fully and plainly informed of the character and cause of the
accusation, and be confronted with the witnesses against him. . . .”).
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moved for a new trial on the basis that West Virginia Code § 62-6B-1 to -4 had not been
followed.3
In short, I firmly believe the trial court properly acted within its authority to
protect the “integrity of its proceedings” while “insur[ing] the proper administration of
justice.” Fields, 225 W.Va. at 753, 696 S.E.2d at 269, syl. pt. 2, in part. For these reasons,
as well as those set forth in Justice Workman’s separate opinion, I respectfully concur, in
part, and dissent, in part, to the majority’s decision in this case.
3
Even if the petitioner were correct in his assignment of error, it may well have been
invited error. See State v. Crabtree, 198 W.Va. 620, 627, 482 S.E.2d 605, 612 (1996)
(“‘Invited error’ is a cardinal rule of appellate review applied to a wide range of conduct. .
. . Having induced an error, a party in a normal case may not at a later stage of the trial use
the error to set aside its immediate and adverse consequences.” ).
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