Matter of Stradford

Judge GREENE

concurring

Although I join the majority opinion, I write separately because I believe there are two issues that deserve some elaboration. Those issues are: (I) whether, in the absence of a statute, a trial court has the authority to permit a child witness to testify via closed circuit television; and if so, (II) whether the use of such procedure violates the defendant’s state constitutional right to confront his accusers.

*660 I

In North Carolina, contrary to the situation that existed in Maryland at the time of Maryland v. Craig, 497 U.S. 836 , 111 L. Ed. 2d 666 (1990), there does not exist a specific statute that authorizes the trial judge to permit the use of closed circuit television to present the testimony of a child witness. North Carolina is in the minority in this respect as at least thirty-four states have, like Maryland, adopted statutes permitting the use of closed circuit television in this instance. National Center for Prosecution of Child Abuse, Legislation Regarding the Use of Closed Circuit Television Testimony in Criminal Child Abuse Proceedings (1994). The defendant therefore argues that the trial court exceeded its authority in permitting the state to present the testimony of the child witness via closed circuit television. I disagree.

Although there is no specific statute on point, the legislature has provided that the trial court is to “exercise reasonable control over the mode ... of interrogating witnesses and presenting evidence so as to . . . protect witnesses from harassment or undue embarrassment.” N.C.G.S. § 8C-1, Rule 611(a) (1992). This statutory language is sufficiently broad to vest the trial court with the discretion to permit a party to utilize closed circuit television for the presentation of the testimony of a child witness. In any event, it would appear that the use of this procedure is within the inherent power of the trial court and indeed, courts in other states have so held. See In re Mental Health Center, 42 N.C. App. 292, 296 , 256 S.E. 2d 818, 821 (court has inherent power to take action necessary to “fulfill their assigned mission of administering justice efficiently and promptly”), disc. rev. denied, 298 N.C. 297 , 259 S.E.2d 298 (1979); see also In Re Will of Hester, 320 N.C. 738, 741 , 360 S.E.2d 801, 804 (defining inherent power to include “board discretionary power sufficient to meet the circumstances of each case”), reh’g denied, 321 N.C. 300 , 362 S.E.2d 780 (1987); HicksBey v. United States, 649 A.2d 569, 574-75 (D.C. App. 1994) (trial court had inherent authority to permit a child sex abuse victim to testify via closed circuit television).

II

The North Carolina Constitution provides that a person charged in a criminal prosecution has the right “to confront the accusers and witnesses with other testimony.” N.C. Const, art. I, § 23. The defendant argues that this language grants him greater rights than the Court *661 in Maryland v. Craig granted under the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. I disagree.

The Sixth Amendment provides that the accused in a criminal prosecution has the “right to be confronted with the witnesses against him.” The language in both instruments is similar. Nonetheless, “we have the authority to construe our own constitution differently from the construction by the United States Supreme Court of the Federal Constitution, as long as our citizens are thereby accorded no lesser rights than they are guaranteed by the parallel federal provision.” State v. Carter, 322 N.C. 709, 713 , 370 S.E.2d 553, 555 (1988). Therefore, it does not necessarily follow that Article I, § 23 must be construed to mean that “a defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial.” Craig, 497 U.S. at 850 , 111 L. Ed. 2d at 682 . That construction, however, is proper and indeed consistent with previous opinions from this Court and our Supreme Court permitting the use of hearsay testimony in criminal trials where the defendant was denied the right to a face-to-face confrontation with the person making the out-of-court statement. E.g., State v. Deanes, 323 N.C. 508, 525 , 374 S.E.2d 249, 260 (1988), cert. denied, 490 U.S. 1101 , 104 L. Ed. 2d 1009 (1989); State v. Rogers, 109 N.C. App. 491, 499 , 428 S.E.2d 220, 225 , disc. rev. denied, 334 N.C. 625 , 435 S.E.2d 348 (1993), cert. denied, — U.S. -, 128 L. Ed. 2d 54 , reh’g denied, - U.S. -, 128 L. Ed. 2d 495 (1994). To construe Article I, § 23 otherwise would “prohibit the admission of any accusatory hearsay statement made by an absent declarant — a declarant who is undoubtedly as much a ‘witness against’ a defendant as one who actually testifies at trial.” Craig, 497 U.S. at 849 , 111 L. Ed. 2d at 680-81 . Accordingly, the construction placed on the Sixth Amendment Confrontation Clause in the Craig decision is equally applicable to the Confrontation Clause of Article I, § 23 of the North Carolina Constitution. See State v. Moore, 275 N.C. 198, 208 , 166 S.E.2d 652, 659 (1969) (provisions are similar and grant “accused [the] same protection”).