After Michael Gay
was convicted of “receiving stolen property, misuse of
credit cards, and petty theft”, he appealed. State v. Gay, 2015 WL 628390 (Court of Appeals of Ohio 2015). He raised two issues in his appeal, but this
post only examines one of them.
The Court of Appeals begins its
opinion by describing the charges and explaining how the prosecution arose:
On October 23,
2013, Gay was indicted on nine counts: three counts of receiving stolen
property in violation of [Ohio Revised Code] 2913.51(A), three counts of
misuse of credit cards in violation of [Ohio Revised Code] 2913.21(B)(2),
and three counts of petty theft in violation of [Ohio Revised Code]
2913.02(A)(3).
The charges against
Gay arose after three separate out-of-state victims discovered fraudulent
charges on their credit cards, charges made in stores located in Ohio. One of
the victims, Ms. Cynthia Ann Robles (`Robles’), filed a police report in Texas.
The report was forwarded to detectives of the Beachwood Police Department,
since several transactions occurred in the surrounding area.
An investigation by
the detectives linked the fraudulent charges to reward and loyalty cards. The
reward and loyalty cards were used simultaneously with the victims' credit
cards. Detectives were able to track through the reward and loyalty cards that
they were registered in Gay's name. Gay was then identified on security video
making purchases at the stores in question, on the dates and times matching the
fraudulent charges.
State v. Gay, supra.
The court also explains that
[p]rior to trial,
the trial court granted the state's unopposed motion to allow the three
out-of-state victims to testify via teleconference. The case proceeded to a
jury trial, where all three victims testified via teleconference, using the
computer program Skype. The jury found Gay guilty of all nine counts. Gay was
later sentenced to an aggregate three-year prison term.
State v. Gay, supra. We will come back
to the Skype testimony.
As you may know, and as Wikipedia
explains,
[t]he Confrontation Clause of the 6th
Amendment to the United States Constitution provides that `in all criminal
prosecutions, the accused shall enjoy the right…to be confronted with
the witnesses against him.’
Generally, the
right is to have a face-to-face confrontation with witnesses who are offering
testimonial evidence against the accused in the form of cross-examination
during a trial. The `4th Amendment makes the right to confrontation applicable
to the states and not just the federal government. The right only applies to criminal prosecutions,
not civil cases or other proceedings.
The Court of Appeals then took up
Gay’s Confrontation Clause argument:
[i]n determining
whether the admission of testimony via teleconference at trial violated the
defendant's right of confrontation, this court, in State v. Marcinick,
2008–Ohio–3553 (Ohio Court of Appeals 2008) utilized the two-part analysis
from Craig and held:
To qualify as an
exception, the procedure must (1) be justified, on a case-specific finding,
based on important state interests, public policies, or necessities of the case
and (2) must satisfy the other three elements of confrontation—oath,
cross-examination, and observation of the witness's demeanor.
State v. Gay, supra.
As the Court of Appeals went on to
explain, the
charges against Gay
arose after three separate out-of-state victims discovered fraudulent charges
on their credit cards, charges made in stores located in Ohio.
One of the victims,
Ms. Cynthia Ann Robles (`Robles’), filed a police report in Texas. The report
was forwarded to detectives of the Beachwood Police Department, since several
transactions occurred in the surrounding area. An investigation by the
detectives linked the fraudulent charges to reward and loyalty cards. The
reward and loyalty cards were used simultaneously with the victims' credit
cards.
Detectives were
able to track through the reward and loyalty cards that they were registered in
Gay's name. Gay was then identified on security video making purchases at the
stores in question, on the dates and times matching the fraudulent charges.
State v. Gay, supra.
The first issue Gay raised in his
appeal was his contention that “the use of teleconferencing to present witness
testimony violated his right to confrontation and his right to due process.” State v. Gay, supra.
The Court of Appeals began its
analysis of Gay’s argument buy explaining that
[t]he 6th Amendment
to the United States Constitution provides, `[i]n all criminal prosecutions the
accused shall enjoy the right * * * to be confronted with the witnesses against
him.’ The Ohio Constitution, Article I, Section 10 provides that:
`[T]he party
accused shall be allowed * * * to meet the witnesses face to face * * *; but
provision may be made by law for the taking of the deposition by the accused or
by the state, to be used for or against the accused, of any witness whose
attendance cannot be had at the trial, always securing to the accused means and
the opportunity to be present in person and with counsel at the taking of such
deposition, and to examine the witness face to face as fully and in the same
manner as if in court.’
However, in Maryland
v. Craig, 497 U.S. 836 (1990), the United States Supreme Court held
that while `the Confrontation Clause reflects a preference for face-to-face confrontation
at trial,’ that `preference must occasionally give way to considerations
of public policy and the necessities of the case.’ Maryland
v. Craig, supra.
In holding that the
right to confrontation is not absolute, the court detailed a number of important
reasons for that right, including (1) the giving of testimony under oath, (2)
the opportunity for cross-examination, (3) the ability of the factfinder to
observe demeanor evidence, and (4) the reduced risk that a witness will
wrongfully implicate an innocent defendant. Maryland v. Craig, supra.
The court found,
`the central concern of the Confrontation Clause is to ensure the reliability
of the evidence against a criminal defendant by subjecting it to rigorous
testing in the context of an adversary proceeding before the trier of fact.’ Maryland v. Craig, supra.
State v. Gay, supra.
The Court of Appeals went on to
explain that
[i]n
determining whether the admission of testimony via teleconference at trial
violated the defendant's right of confrontation, this court, in State
v. Marcinick, 2008–Ohio–3553 (Ohio Court of Appeals 2008), utilized
the two-part analysis from Craig and held:
`To
qualify as an exception, the procedure must (1) be justified, on a
case-specific finding, based on important state interests, public policies, or
necessities of the case and (2) must satisfy the other three elements of
confrontation—oath, cross-examination, and observation of the witness's
demeanor.’
State v. Marcinick, supra. . . .
In State
v. Marcinick, this court found that the teleconferencing testimony of
an out-of-country witness did not violate the defendant's right to
confrontation when, in that case, these two elements were satisfied.
State v. Gay, supra.
The court went on
to find that
under the specific
facts of this case, allowing the three out-of-state victims to testify at trial
via teleconferencing did not violate Gay's right of confrontation. The state
demonstrated the unavailability of the witnesses and the admissibility of the
testimony itself.
The state's motion
to allow witness testimony via teleconference, filed January 1, 2014, was
unopposed. Moreover, Gay did not object at trial to the out-of-state witnesses
testifying via teleconference.
State v. Gay, supra.
As Wikipedia notes, the Confrontation Clause of the 6th Amendment to the U.S. Constitution is intended to
ensure that the defendant in a criminal case has the “opportunity
to challenge the credibility of and cross-examine the person making the
statements” which implicate the defendant in criminal activity.
And as a law review article explains,
the constitutionality of allowing remote video testimony is an issue courts
have only recently begun to grapple with:
Concerns over face-to-face
communications have now spread to the courtroom. Legal theorists worry about
the deterioration of face-to-face interaction between courtroom participants.
In criminal cases, a key safeguard to requiring face-to-face interaction
between the defendant and a witness is the Confrontation Clause. Generally, this right of confrontation
requires that a prosecution witness giving testimony must comply with the
following conditions: 1) the testimony should be under oath, 2) the witness
should be subject to cross-examination, 3) the witness should be in the
presence of the accused, and 4) if reasonable, the witness should be in the
presence of the fact-finder.
A literal reading of the `presence’
requirement suggests that the witness and the accused be physically
face-to-face in the same room. The use
of videoconference technology, however, puts a major wrench in this assumption.
It is questionable whether the virtual `face-to-face’ interaction through
videoconference technology sufficiently places the witness in the presence of
the accused. Courts have promulgated different tolerances in allowing
videoconference technology in the courtroom.
The Court of
Appeals went on to note that
[w]hereas
two of the victims testified under oath, Gay points out that Robles was not
sworn in prior to her testimony, as required by Ohio Rule of Evidence 603:
`Before
testifying, every witness shall be required to declare that the witness will
testify truthfully, by oath or affirmation administered in a form calculated to
awaken the witness' conscience and impress the witness' mind with the duty to
do so.’
State v. Gay, supra (quoting Rule 603).
The court went on to explain,
however, that
defense counsel
waived the oath requirement in open court and on the record with Gay's
approval. . . . Furthermore, all three victims that testified via
teleconference were subject to cross-examination and were observed by both the
defendant and the jury throughout their testimony. Gay argues his rights were
violated because one of the victims admitted during his testimony that his wife
was sitting beside him. However, Gay does not provide any case law to support
his contention.
State v. Gay, supra.
The Court of
Appeals concluded its consideration of this issue by noting that
[f]inally,
Gay's reference to the instances of `Skypebombing’ in a recent criminal case in Florida, is inapplicable here, where no evidence of `Skypebombing’
exists in the record.
State v. Gay, supra. For these and other reasons, the Court of
Appeals affirmed Gay’s conviction. State v. Gay, supra.
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