Mark Edward Lomholt, Sr. v. State of Iowa

HEANEY, Circuit Judge,

dissenting.

By finding B.G. would be traumatized by Lomholt’s presence at trial, the state trial court unreasonably determined the facts in light of the evidence presented. Similarly, allowing closed circuit television testimony without evidence that it was necessary to protect B.G. from trauma associated with Lomholt’s presence is an unreasonable application of Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the governing Supreme Court precedent on this matter. As habeas relief is appropriate both where there has been an unreasonable determination of the facts and where there has been an unreasonable application of the law, see 28 U.S.C. § 2254(d), I 'would grant the petition in part in this matter. I therefore dissent from that portion of the majority’s opinion that affirms the district court’s denial of habeas relief with regard to Lomholt’s conviction involving B.G.

*756Subject to a limited number of exceptions, a criminal defendant enjoys the well-established constitutional right to face his accusers. One of those exceptions exists for child witnesses who would be severely traumatized by testifying in front of their vietimizers. Craig makes clear that to satisfy the Confrontation Clause when a witness testifies via closed circuit television, the government must establish that testifying in this manner is necessary to protect the welfare of the child. 497 U.S. at 855, 110 S.Ct. 3157 (1990). This inquiry is case-specific; the government cannot rely on general evidence that children as a group are traumatized by testifying. Id. Moreover, it does not suffice to show that the child may be traumatized by the court process. The touchstone is whether the defendant’s physical presence causes the child harm. Id. at 856, 110 S.Ct. 3157 (“[I]f the state interest were merely the interest in protecting the 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.”) In other words, to deny a defendant face-to-face confrontation of his accuser, the evidence must establish that “the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant.” Id.

Consistent with the above standard, in order to allow B.G. to testify by closed circuit television, the state was required to show that B.G. would have be traumatized by Lomholt’s presence at trial. The trial court concluded that “the State produced credible testimony that testifying in the physical presence of the defendant would be traumatic to each of the alleged victims.” The record simply does not support such a finding as to B.G.

The state produced a single witness, Patricia Tomson, at the hearing on this matter. Tomson testified that, in her expert opinion, it would be traumatic for all four- or five-year-old children to testify in iront of their abuser. She also testified that, based on part of a study she had read, she thought it was less likely that children would tell the truth in front of their accusers. She also concluded that based on the children’s “anxiousness,” testifying in front of the defendant would be “very traumatic and I’m not sure either child would talk.” (Evidentiary Hr’g Tr. at 16.)

With regard to N.P., Tomson’s specificity supports her conclusion that it would be traumatic for N.P. to talk in front of Lom-holt. N.P. had been treated by Tomson for some time, and she specifically told Tomson that she “is frightened of Mark [Lomholt] .... She has said that she is. She doesn’t want to see him. Her words are, I want him to stand in a corner for a long, long time.” (Id. at 15.) Tomson also observed that N.P. would divert attention from talking about the abuse, and would draw pictures that Tomson interpreted to show a feeling of powerlessness and lack of family support.

The evidence did not support such a conclusion for B.G. Tomson testified that she only saw B.G. for a total of three or four weeks, and had not seen B.G. for nearly six weeks before the hearing. She stated that when she first saw B.G., B.G. would become anxious when talking about the abuse and would wet her pants. Tom-son went on to testify that Lomholt was B.G.’s uncle, and that B.G. may not be truthful in front of him for fear of getting him in trouble. B.G. had told Tomson that thinking about Lomholt made her feel “sad and tired.” (Id. at 7.) Notably, when asked specifically if B.G. was frightened of Lomholt, Tomson stated B.G. “had a relationship with [Lomholt]. He was her care giver. So I’m not certain she’s frightened *757of him.” (Id. at 15.) She reiterated on cross-examination that she did not believe B.G. was scared of Lomholt, but that “[i]t’s very hard for people to testify in front of anyone they have a relationship with.” (Id. at 23.) On re-direct, when asked if B.G. had indicated indirectly that she was afraid of Lomholt, Tomson stated that she interpreted B.G.’s drawings to be “more indication ... of shame about talking about the abuse than of [Lomholt] himself.” (Id. at 24.) Because B.G. had discontinued treatment with Tomson six weeks prior to the hearing, Tomson conceded that she did not know B.G.’s current mental state.

Tomson’s testimony that any four- or five-year-old would be traumatized by testifying in front of their abuser does not satisfy the Supreme Court’s requirements for permitting child witnesses to testify via closed circuit television. Craig mandates that the inquiry must be case-specific: The government must show that this particular child, B.G., would be traumatized because of the defendant’s presence. Craig, 497 U.S. at 855, 858, 110 S.Ct. 3157.

As to the rest of the government’s evidence, Tomson testified that B.G. was ashamed of her abuse, and was anxious when talking about it. This is different from being harmed by the defendant’s presence in court. Despite several attempts to elicit such testimony, the government could not adduce evidence that B.G. was scared of Lomholt. Other than Tomson’s general statements regarding all children, the government also failed to elicit specific evidence that B.G. would be traumatized by Lomholt’s presence at trial. Under the governing law of Craig, I believe that allowing B.G. to testify by closed circuit television violated Lomholt’s Confrontation Clause rights.4

After finding a violation of Lomholt’s constitutional right to confront his accuser, the next question is if any relief is warranted. See Delaware v. Van Arsdall, 475 U.S. 673, 681-82, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (holding Confrontation Clause violations are subject to a harmless error inquiry). The proper analysis on remand would be to completely exclude the child witness’s testimony, and consider the strength of the remaining evidence against the defendant. Coy v. Iowa, 487 U.S. 1012, 1021-22, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988).

Without B.G.’s testimony, I do not believe there is sufficient evidence to sustain a conviction with regard to her. Lomholt confessed, but he then recanted. Under Iowa law, “[t]he confession of the defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the defendant committed the offense.” Iowa Code § 813.2, Rule 20(4). The majority of the remaining evidence appears to be the testimony B.G., or hearsay testimony of the children’s mothers, recounting what the children had told them. Excluding all of this testimony, as we are required to do, it does not appear there is enough remaining evidence to convict Lomholt with respect to B.G. Accordingly, I would grant Lomholt’s petition as to that conviction.

. Although the majority notes that Lomholt failed to rebut Tomson's testimony, he is not required to do so. As the Craig court made clear, the state bears the burden of proof in these matters. Craig, 497 U.S. at 855, 110 S.Ct. 3157. Generalized and conclusory statements from a person who had known the victim for only three or four weeks and had not spoken to the victim for six weeks prior to the hearing is not sufficient to carry the day. Therefore, Lomholt was under no obligation to produce contrary evidence, as the majority suggests.