dissenting in part, concurring in part.
Under our nation’s constitution, the plumb line used to measure the civil liberties of our leading citizens must be the same one used to gauge the rights of those who might be considered the least deserving of them. Although protecting the rights of such people may at times give discomfort, we who have been set apart as judges have a sworn duty to support this constitution without respect or disrespect of persons. In my opinion we have failed our performance of the duty in this instance.
The Sixth Amendment to the United States Constitution contains what is called the Confrontation Clause, which states: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.... ” This right of confrontation 17provides two types of protection for a criminal defendant: the right physically to face those who testify against him and the opportunity to conduct effective cross-examination. See Smith v. State, 340 Ark. 116, 8 S.W.3d 534 (2000); Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990). The prong of the confrontational right involved here is the right of the accused to physically face the witness who testifies against him.
The United States Supreme Court held in Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact. Two years later, in Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the Supreme Court qualified this guarantee by holding that the right to a face-to-face meeting with witnesses against the defendant at trial may be satisfied if the trial court makes a case-specific finding that the denial of such confrontation is necessary to further an important public policy, such as protecting a child witness from trauma, and only where the reliability of the testimony is otherwise assured.
During the testimony of K.T., one of the alleged victims, the following exchange occurred during a sidebar conference:
Appellant’s counsel: And one other thing, your honor. I was wondering if counsel [for the State] could stand a little bit closer or a little bit to the side. It’s hard for me—
Trial Court: I think there is a legitimate reason for counsel to position herself in the position she is in as long as you are not blocking [appellant’s counsel’s] view of the witness.
Prosecutor Judge, and he can get up.
Trial Court: But I — the positioning of counsel is helping to facilitate the proceeding, but at the same time, I | .^understand that you have the right to reposition or to make sure that you’re observing the witness during the testimony.
Appellant’s Counsel Yes, sir. But I would suggest that intentionally blocking or standing between K.T. and Nicholas is abrogating my client’s Sixth Amendment right to confrontation. He has to — she has to be able to say it in front of him, that’s what the Sixth Amendment says. It’s a lot easier to he or to make stuff up when you’re not looking right at the person.
Trial Court: Your objection to his violation of his Sixth Amendment right is overruled. There are cases when he would not even be in the same room with the alleged victim during the testimony or to be able to observe and to hear and it’s not a violation of the Sixth Amendment right so in this particular situation your objection is overruled.
Appellant’s Counsel: Thank you sir.
The majority opinion asserts that “although Tarkington may not have made eye contact with K.T., he nevertheless was situated in the courtroom where he could have viewed her.” These were the facts in Smith v. State, supra. They are not the facts here and the trial court made no such finding. The above colloquy permits no other reasonable inference but that the prosecutor was positioning herself so as to stand between appellant and the witness and effectively block each one’s view of the other. When appellant’s counsel voiced an objection to this conduct on constitutional grounds,2 neither the prosecutor nor the court suggested that this was not indeed occurring. The trial court explained its ruling by stating that, because there are cases where a criminal defendant and the alleged victim would not even be in the same room while | nthe victim testified, the present positioning of the prosecutor to block appellant’s and witness’s view of the other was not a violation of the Sixth Amendment’s Confrontation Clause. Clearly, the trial court was applying the limitation on appellant’s confrontation right permitted by Maryland, supra, without the prosecutor having established the facts prerequisite for this limitation’s application.
Because it is apparent that appellant was denied the right to face his accuser, we should address the merits of his argument. In Maryland, supra, the issue was whether the victim’s testimony through one-way closed circuit television was constitutionally permissible. The Supreme Court set forth the following guidelines:
The requisite finding of necessity must of course be a case-specific one: The trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify. Denial of face-to-face confrontation is not needed to further the state interest in protecting the child witness from trauma unless it is the presence of the defendant that causes the trauma. In other words, if the state interest were merely the interest in protecting child witnesses from courtroom trauma generally, denial of face-to-face confrontation would be unnecessary because the child could be permitted to testify in less intimidating surroundings, albeit with the defendant present. Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more that mere nervousness or excitement or some reluctance to testify.
497 U.S. at 855-56, 110 S.Ct. 3157 (citations omitted).
In the case at bar, the trial court heard no evidence as to the effect of the appellant’s presence on K.T., and made no case-specific finding that K.T. would likely be traumatized were she to testify in his presence. The trial court merely stated that there was a legitimate reason for the prosecutor’s positioning and that it facilitated the proceeding. Because the trial | incourt failed to make a case-specific finding that the denial of confrontation was necessary to protect K.T. from trauma or to further some other important public policy, the first part of the test set forth in Maryland, supra, was not satisfied. Therefore, there was a violation of the Confrontation Clause and appellant’s rape conviction against K.T. should be reversed and remanded for a new trial.
As for appellant’s rape conviction pertaining to L.T., the record is devoid of any information regarding the positioning of the prosecutor relative to L.T. and the appellant during L.T.’s testimony. Moreover, appellant did not raise any objection about such issue during direct examination of L.T. Consequently, I concur with the majority that appellant’s conviction as to L.T. should be affirmed.
. Although appellant’s brief mentions the confrontation right guaranteed by the federal and Arkansas constitutions, only the confrontation right of the federal constitution's Sixth Amendment was raised before the trial court.