Allen D. Labayre v. State of IA

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No. 96-1399NI
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Allen D. LaBayre, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
State of Iowa, *
*
Appellee. *
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Submitted: September 12, 1996
Filed: October 7, 1996
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Before FAGG, BEAM, and MURPHY, Circuit Judges.
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FAGG, Circuit Judge.
The State of Iowa charged Allen D. LaBayre with two counts of second-
degree sexual abuse for the oral and anal rapes of his girlfriend's two
young sons over a two-year period. Before LaBayre's 1988 trial, the State
filed a motion to present the boys' testimony on closed circuit television
under Iowa Code § 910A.14(1) (1987). After an evidentiary hearing, the
trial court granted the motion. Although the younger boy did not testify
at LaBayre's trial, the older boy, then eight, testified under oath and was
cross-examined in a courtroom in the presence of the judge, the attorneys,
the guardian ad litem, and the equipment operators. LaBayre was in
chambers, and the jury was in another courtroom. LaBayre and the jury
watched the boy's testimony on television monitors. The jury could see
only the boy on the television monitor and did not know LaBayre was not in
the courtroom with the boy. The judge told the boy that LaBayre could see
and hear his testimony, and told the jury the procedure was being used to
minimize the emotional effect of having the boy testify in front of a full
courtroom. LaBayre was able to confer with his attorney during the
frequent breaks in testimony. At the trial's conclusion, the jury
convicted LaBayre on both counts. The Iowa Supreme Court affirmed
LaBayre's conviction in an unpublished opinion, and LaBayre's application
for state postconviction relief was denied. LaBayre later filed this
federal habeas petition challenging his convictions, contending his rights
under the Sixth Amendment's Confrontation Clause were violated by the boy's
testimony on closed circuit television. The district court denied
LaBayre's petition, and we affirm.
Although "``the Confrontation Clause reflects a preference for face-
to-face confrontation at trial,'" this preference "``must occasionally give
way to considerations of public policy and the necessities of the case.'"
Maryland v. Craig, 497 U.S. 836, 849 (1990) (quoted cases omitted). The
Supreme Court has specifically held that a state's interest in protecting
a child witness from the trauma of testifying in a child sexual abuse case
justifies use of special procedures, like closed circuit television,
allowing the child to testify without confronting the defendant face-to-
face. Id. at 855. Before using a special procedure, the trial court must
hear evidence and make a case-specific finding that use of a special
procedure "is necessary to protect the welfare of the particular child
witness who seeks to testify." Id. The trial court must also find the
child would be traumatized by testifying in the defendant's presence, and
this emotional distress is more than mere nervousness, excitement, or some
reluctance to testify. Id. at 856.
LaBayre contends the trial court's findings and the record made at
the evidentiary hearing are insufficient to satisfy Craig. In LaBayre's
view, the trial court did not find, and the evidence does not show, the
closed circuit television procedure was necessary or the boy would likely
suffer sufficient emotional
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distress if required to confront LaBayre face-to-face. We disagree.
Three witnesses testified at the hearing on the State's motion for
testimony by closed circuit television. The boy's guardian ad litem said
the boy expressed fear of being in the same room as LaBayre during the
trial. The boy's counselor testified the boy had said that if LaBayre was
in the courtroom when the boy went there to testify, the boy would run out
of the room. The counselor gave her opinion that the boy would probably
not be able to tell a jury and full courtroom about the sexual abuse, and
would probably not say anything. The counselor also testified the boy had
asked whether LaBayre would be handcuffed to his chair, and was afraid
LaBayre would be able to touch him. Although the counselor told the boy
that LaBayre would not be able to touch him and there would be people to
protect him in the courtroom, the boy's behavior was regressing as the
trial was approaching. The boy's foster mother testified the boy began to
wet and soil his pants, would not sleep without a light, and would check
all the windows and doors to make sure they were locked. As the trial drew
closer, the boy slept on the couch rather than in his bedroom. The boy
said LaBayre was going to get him, and reasoned that when LaBayre came to
the house, he would go to the boy's bed and the boy wouldn't be there. The
boy also told his foster mother he was afraid of testifying and of being
in the same room with LaBayre. When asked whether the boy was afraid of
the courtroom in general, the foster mother stated the boy connects LaBayre
with a courtroom. After hearing the testimony, the trial court decided the
boy's trial testimony should be televised by closed circuit equipment.
Because Craig was decided two years after LaBayre's trial, the trial
court's decision does not parrot Craig's language. Nevertheless, the trial
court's decision and the record made at the evidentiary hearing satisfy
Craig. The court heard evidence and made a case-specific finding that the
procedure was necessary to
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protect the boy's welfare. Thus, this case is unlike Hoversten v. Iowa,
998 F.2d 614, 616 (8th Cir. 1993), where we granted a habeas petition
because the trial court had presumed trauma without conducting a hearing.
As for the other Craig requirements, the record makes clear the boy would
be traumatized by LaBayre's presence, rather than the courtroom generally,
and this trauma rose to a level greater than mere nervousness or
excitement. The evidence overwhelmingly shows that the boy was terrified
of being in LaBayre's physical presence. See United States v. Carrier, 9
F.3d 867, 870-71 (10th Cir. 1993) (use of child victim's closed circuit
testimony did not violate Confrontation Clause on similar record), cert.
denied, 114 S. Ct. 1571 (1994). The boy feared the courtroom, but only
because he associated the courtroom with LaBayre. Indeed, the thought of
seeing LaBayre in court made the eight-year-old boy unable to control his
bodily functions and unable to sleep without a light or in his own bed.
The evidence easily establishes that a face-to-face confrontation with
LaBayre would cause the boy great trauma.
The closed circuit procedure used in this case preserved the essence
of effective confrontation by ensuring the reliability of the boy's
testimony. Craig, 497 U.S. at 857. We thus affirm the district court's
denial of LaBayre's habeas petition.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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