dissenting.
I respectfully dissent. Although the majority holds that the issue of whether appellant’s constitutional rights were violated by his exclusion from the in-chambers hearing to determine his daughter’s competence to testify in court, was resolved by the United States Supreme Court in Kentucky v. Stincer, 482 U.S.-, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987), I strongly disagree. The resolution of this case requires an analysis of appellant’s rights under the Kentucky constitution, particularly section eleven. The eleventh section of the Bill of Rights of the Kentucky Constitution guarantees the accused in a criminal prosecution the right to be heard by himself and counsel and the right to confront witnesses face to face. “In all criminal prosecutions the accused has the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.” Ky. Const. § 11. This ensures the defendant's right to cross-examine witnesses at trial.
It is clear that the competency hearing was crucial to the prosecution, and that appellant had the absolute right to be present and represented by counsel. Powell v. Commonwealth, Ky., 346 S.W.2d 731 (1961). Appellant voiced his objection to his exclusion from the competency hearing wherein he could have aided his counsel with cross-examination of the prosecuting witnesses. Appellant clearly asserted and was denied his Kentucky Constitutional right to meet the witness face to face.
Section eleven of the Kentucky Constitution differs in one crucial respect from the sixth amendment, its counterpart in the United States Constitution. By state law, a criminal defendant is granted the right, not merely to confront his or her accusers, but to confront them face to face. The drafters of our state constitution did not add the phrase “face to face” to its protections afforded an accused merely to have its meaning erased in an attempt to reconcile an irreconcilable difference.
I recognize the problems and pressures encountered when dealing with child witnesses, and understand a child’s reluctance to speak when his or her alleged abuser is nearby. Nevertheless, when a defendant is on trial for a serious criminal offense, and faces a lengthy jail term as a possible penalty, as in all criminal prosecutions, he or she has the right to be present and to assist his counsel at hearings to determine the competence of witnesses against him.
Furthermore, the competency hearings should be held in open court before the jury. It is “the duty of the trial court to carefully examine the witness to ascertain whether she (or he) is sufficiently intelligent to observe, recollect and narrate the facts and has a moral sense of obligation to speak the truth”. Moore v. Commonwealth, Ky., 384 S.W.2d 498, 500 (1964). This inquiry, however, is important to the jury in evaluating the child’s testimony.
If the hearing to determine whether the child is a competent witness is held in open court in the presence of the jury, it will (1) assist the jury in evaluating the child’s truthfulness and (2) avoid the potential for intimidation that results from the intimacy inherent in an in-chambers procedure.
Therefore, I would reverse the convictions for second-degree rape and second-degree sodomy of Charlotte See, and remand.
LEIBSON, J., joins in dissent.