No. 91-113 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsSHANNON DAVIS, a/k/a SHAWN DAVIS, 

a/k/a CLEVE LAYTON VICK, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Larry Moran, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Marcelle C. Quist, Quist Law Office, 

Bozeman, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, 

Joseph E. Thaggard, Assistant Attorney General, 

Helena, Montana; Michael Salvagni, Gallatin 

County Attorney, Martin Lambert, Deputy 

County Attorney, Bozeman, Montana 

Submitted on Briefs: December 12, 1991 

APR 17 1992 Decided: April 17, 1992 

22 SLd Filed: 

CLERK OF SUPREWE COURT 

STATE OF MOiWANA 

Clerk 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

On April 19, 1990, the State filed an Information in the 

Eighteenth Judicial District Court in Gallatin County, charging 

Shannon Davis with Sexual Assault. On August 20, 1990, the State 

amended its Information to add one count of Solicitation of 

Tampering with Physical Evidence. The District Court, sitting 

without a jury, tried the case on August 28-31, 1990. The court 

found Davis guilty on both charges. Davis appeals. We affirm. 

The issues are: 

1. Did the District Court err when it permitted the 

placement of an opaque screen between Davis and the witness stand 

during the testimony of two child witnesses? 

2. Did the District Court err when it admitted evidence of 

pending sexual assault charges in another county? 

3. Did the District Court err when it allowed the victim‘s 

counselor to testify about the victim’s statements which were made 

during the investigation of the case? 

4. Did the District Court err when it denied Davis’ motion 

for acquittal which was based on the sufficiency of the proof? 

In the fall of 1989, Kathleen Pollard, a kindergarten teacher 

at Monforton School in Bozeman, contacted the Department of Family 

Services about her pupil J.R. Ms. Pollard had noticed that J.R., 

who was then five years old, was dirty, unhealthy, and emotionally 

underdeveloped. She summoned social worker Gloria Edwards, who 

interviewed J.R. on September 5, 1989. Ms. Edwards then sought 

temporary investigative authority but was unsuccessful. 

2 
Consequently, J.R. remained in the care of her biological mother 

for several more months while Ms. Pollard continued to monitor her 

appearance and behavior. 

On April 4, 1990, Ms. Pollard summoned Ms. Edwards again. Ms. 

Pollard told Ms. Edwards that J.R. was much more dirty and unkempt 

that day than she had been before, and that Ms. Edwards should come 

and observe for herself. Ms. Edwards interviewed J.R., who said, 

'$1 have a babysitter, and his name is Shawn, and he makes [my 

sister] take long naps, and he looks at my peepee for a long, long 

time." J.R. repeated this story the next day, and indicated that 

by "peepee" she meant her vaginal area. When Ms. Pollard asked 

J.R. what happened next, J.R. said Ifhe just bodied his own and 

waited for some stuff to come out of his thing." Subsequent 

interviews by Ms. Edwards and child psychologist Eugenia Bellante 

made it clear that J.R. was describing sexual activity. 

On April 5, 1990, Ms. Edwards made arrangements to place J.R. 

in a foster home. The next day Ms. Edwards took J.R. to the 

Gallatin County Sheriff's Office, where J.R. identified Davis as 

her babysitter in a photographic lineup. On April 19, 1990, the 

State charged Davis with sexually assaulting J.R. The District 

Court issued a bench warrant for his arrest that same day. 

Davis could not provide bond and remained in jail throughout 

the pretrial preparation of the case. During his incarceration he 

placed 37 collect telephone calls to his friend John Kubichek. In 

one of these phone calls in late April 1990, Davis asked Kubichek 

to retrieve a parcel from Davis' trailer and destroy it. Kubichek 

3 
opened the package and found several photographs of a nude female 

juvenile later identified as L.D. 

Kubichek delivered the package and its contents to the 

Gallatin County Sheriff's Office. At that time, several charges 

were pending against Davis in Madison County for engaging in sexual 

activity with L.D. Subsequently, the State amended its Information 

to add a charge of Solicitation of Tampering with Physical 

Evidence. 

The District Court, sitting without a jury, found Davis guilty 

on both counts after a trial on August 28-31, 1990. The court 

sentenced him to 20 years at Montana State Prison for the sexual 

assault and 10 years for solicitation of tampering. The court 

designated Davis as a dangerous offender and ordered that he 

complete the prison's sexual offender treatment program prior to 

any future release on parole. 

I 

Did the District Court err when it permitted the placement of 

an opaque screen between Davis and the witness stand during the 

testimony of two child witnesses? 

On August 22, 1990, the State moved the District Court €or an 

order permitting protective screening during the testimony of J.R. 

and A.C., a second child witness whose testimony would tend to 

corroborate J.R.'s testimony by showing that Davis followed a 

common scheme or plan in his sexual contact with children. The 

court took preliminary evidence on the matter before trial, heard 

4 
argument by counsel, and then decided to permit placement of the 

screen. 

The District Court asked a newspaper photographer to 

photograph the screen after it was in position, and the court then 

appended those photographs to the record. The screen was a 

free-standing, hinged space partition apparently intended for use 

as a temporary room divider. As erected, it stood approximately 

six and one-half feet high and spanned about ten feet across. The 

screen was located directly in the line of sight from the witness 

stand to the counsel table at which Davis was seated and was closer 

to the counsel table than to the witness stand. With the screen in 

place, the judge, prosecuting attorney, and defense counsel could 

view the witnesses, but Davis could not. The screen was removed 

after the second child witness finished testifying. 

Davis now contends that the court erred in permitting the use 

of this screen. He argues that this device violated his right to 

confront the witnesses against him as guaranteed by the United 

States and Montana Constitutions. In the court below, however, 

Davis did not object or argue on the basis of the State 

Constitution. By failing to object at trial on the basis of the 

Montana Constitution, Davis waived his right to have us review that 

issue on appeal. Section 46-20-104(2), MCA. Consequently, we do 

not express an opinion today on whether the screening procedure 

violated the Montana Constitution. We turn instead to the United 

States Constitution and its accompanying case law. 

5 
The United States Constitution provides that "[iln all 

criminal prosecutions, the accused shall enjoy the right . . . to 

be confronted with the witnesses against him." Amend. VI, U.S. 

Const. The United States Supreme Court considered the application 

of this clause to testimony by child witnesses in two recent cases, 

Coyv.Iowa (1988), 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857, 

and Maryland v. Craig (1990), 497 U.S. -1 110 S.Ct. 3157, 111 L.Ed.2d 

666. 

In Coy, the State of Iowa charged the defendant with two 

counts of engaging in lascivious acts with children, a felony under 

5 709.8, Iowa Code. The trial court permitted the state to erect 

a translucent screen in front of the defendant. The state 

legislature had authorized this procedure, § 910A.14, Iowa Code, 

and the trial court did not undertake any independent inquiry into 

the necessity for it. Lights were then thrown on the screen in a 

way that allowed the defendant to see the witnesses without 

allowing the witnesses to see him. Coy, 487 U.S. at 1014-15, 108 

S.Ct. at 2799, 101 L.Ed.2d at 863. 

The Iowa Supreme Court held that the "trial court had no 

obligation to make an independent finding of necessity," thereby 

implying that the legislature's determination of necessity in 

adopting the statute was sufficient. State v. Coy (Iowa 1987), 397 

N.W.2d 730, 733. The United States Supreme Court then reversed. 

The Court held in a 6-2 decision that the use of the screen at 

trial violated the defendant's rights under the Confrontation 

6 
Clause. Justice Scalia, writing for the majority, said that "the 

irreducible literal meaning" of the Confrontation Clause is a right 

to meet the state's witnesses "face to face" at trial. coy, 487 

U.S. at 1021, 108 S.Ct. at 2803, 101 L.Ed.2d at 867. Justice 

Scalia declined to consider any exception to this "irreducible 

literal meaning," but he suggested that if such exceptions did 

exist they would require a greater showing than Iowa's general 

legislative finding of necessity. Coy, 487 U.S. at 1021, 108 S.Ct. 

at 2803, 101 L.Ed.2d at 867. 

Justices O'Connor and Stevens concurred separately in order to 

emphasize their 

view that those [Confrontation Clause] rights are not 

absolute but rather may give way in an appropriate case 

to other competing interests so as to permit the use of 

certain procedural devices designed to shield a child 

witness from the trauma of courtroom testimony. 

Coy, 487 U.S. at 1022, 108 s.ct. at 2803, 101 ~.Ed.2d at a68 

(O'Connor, J., concurring). Justice O'Connor noted that "other 

competing interests" might outweigh the "preference1I for 

face-to-face confrontation in an appropriate case if the state 

demonstrated that it "was necessary to further an important public 

policy, I' but that Iowa's "generalized legislative finding of 

necessity" was insufficient. Coy, 487 U.S. at 1024-25, 108 s.ct. 

at 2804-05, 101 L.Ed.2d at 869 (O'Connor, J., concurring.) Justice 

0' Connor subsequently elaborated on this position in Maryland v. Craig. 

In Craig, the State of Maryland charged the defendant with a 

number of sexual offenses. The trial court found that in-court 

7 
testimony by the child victims would result "in each child 

suffering serious emotional distress . . . such that each of these 

children cannot reasonably communicate. It Craig, 497 U. S. at _, 

110 S.Ct. at 3162, 497 L.Ed.2d at 676. The Court then permitted 

the children to testify by closed circuit television, a procedure 

authorized by statute in Maryland. Section 9-102, Maryland Code. 

This closed circuit television arrangement allowed the defendant to 

view the witnesses without allowing the witnesses to view the 

defendant. 

The Maryland Court of Special Appeals ruled that this finding 

was sufficient, but the Maryland Court of Appeals reversed. The 

Court of Appeals held that the trial court's finding lacked the 

specificity required by coy. Craig v. state (Md. 1989), 560 A.2d at 

1128-29. The case therefore squarely presented the Supreme Court 

with an opportunity to decide just how specific such findings of 

necessity must be. 

The Supreme Court reversed, holding that the trial court's 

findings were not necessarily inadequate. Justice O'Connor, 

writing for a 5-4 majority, elaborated on her opinion in Coy and 

explained that the state's interest in protecting victims of child 

sex crimes from physical and psychological injury "may be 

sufficiently important to outweigh, at least in some cases, a 

defendant's right to face his or her accusers in court." Craig, 497 

U.S. at -, 110 S.Ct. at 3167, 111 L.Ed.2d at 683. The Court 

reiterated that the key to this analysis is an "individualized" 
finding of necessity. Craig, 497 U.S. at -, 110 S.Ct. at 3169, 

111 L.Ed.2d at 685. 

The Court then set forth the following three-part test for 

measuring the adequacy of these case-specific findings of 

necessity: 

[l] The trial court must hear evidence and determine 

whether use of [a procedure other than face to face 

confrontation] is necessary to protect the welfare of the 

particular child witness who seeks to testify. 

[Z] The trial court must also find that the child 

witness would be traumatized, not by the courtroom 

generally, but by the presence of the defendant. 

[3] Finally, the trial court must find that the 

emotional distress suffered by the child witness in the 

presence of the defendant is more than de minimus, i.e, 

more than Itmere nervousness or excitement or some 

reluctance to testify." 

Craig, 497 U.S. at -, 110 S.Ct. at 3169, 111 L.Ed.2d at 685 

(citations omitted and elements numbered for convenient reference) . 

In this case, the District Court relied upon Craig's three-part 

test in entering the required individualized finding of necessity. 

The court found as follows: 

There has been testimony in this case that there is the 

potential for these two young children that they will 

sustain some trauma. I think the word "trauma" was 

utilized by an expert witness in this case with respect 

to [J.R.]. The word "trauma" was not used with [A.C.] in 

his position as a witness, but the testimony indicates 

that he will be extremely frightened, extremely scared 

and, in the mind of the Court, with a 5 and a 6 year old, 

there is little difference between the technical meanings 

of words like "trauma" and scared. They're one in the 

same. That's essentially what we're here to do in our 

capacity as acting in the interests of the child 

witnesses and protecting their welfare when they do 

testify. So there is the potential that the children 

could be traumatized by the mere presence of the 

defendant. 

9 
Likewise I think there is potential in this situation to 

be, as I questioned Ms. Bellante very specifically, that 

at least regarding [J.R.] the emotional distress suffered 

is more than the minimum amount of nervousness that 

ordinarily descends on any person that comes into a court 

of law on a case of importance. I think the same kind of 

circumstance can almost be presumed with respect to 

witness [A.C.], so the Court is going to grant the motion 

to screen the witnesses from the defendant. 

Although the court did not track Justice O'Connor's language 

exactly, we believe this "individualized" finding complies with all 

three elements of the Craig test. The District Court found that the 

potential for trauma existed, that it would result from the mere 

presence of Davis in the courtroom, and that it would be more than 

ordinary courtroom nervousness. 

Although the defendant in this case could not personally 

observe the witnesses, we do not find that fact dispositive. 

In analyzing the essential elements required by the 

Confrontation Clause, the Supreme Court, in Craig, included the 

following elements: 

The combined effect of these elements of confron- tation--physical presence, oath, cross-examination, and 

observation of demeanor by the trier of fact--serves the 

purposes of the Confrontation Clause by ensuring that 

evidence admitted against an accused is reliable and 

subject to the rigorous adversarial testing that is the 

norm of Anglo-American criminal proceedings. 

Craig, 497 U.S. at -I 110 S.Ct. at 3163, 111 L.Ed.2d at 678-79. 

The Supreme Court cited hearsay evidence as an example that 

historically there have been many exceptions to the literal 

requirement of face-to-face confrontation under the Confrontation 

Clause. The Court stated: 

10 
We have accordingly stated that a literal reading of the 

Confrontation Clause would "abrogate virtually every 

hearsay exception, a result long rejected as unintended 

and too extreme. [Ohio v.] Roberts, 448 US [56] at 63, 

65 L Ed 2d 597, 100 S Ct 2531. Thus, in certain 

circumstances, "competing interests, if 'closely 

examined,' may warrant dispensing with confrontation at 

trial." Id., at 64, 65 L Ed 2d 597, 100 S. Ct 2531 

(quoting Chambers v. Mississippi, 410 US 284, 295, 35 

L Ed 2d 297, 93 S Ct 1038 (1973), and citing Mattox, 

supra). . . . Given our hearsay cases, the word "confront," as used in the Confrontation Clause, cannot 

simply mean face-to-face confrontation, for the Clause 

would then, contrary to our cases, 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-, 110 S.Ct. at 3165, 111 L.Ed.2d at 680-81. 

The Supreme Court went on to conclude that the well-being of 

children was such a competing interest that would excuse literal 

compliance with face-to-face confrontation at trial. It held: 

We likewise conclude today that a State's interest 

in the physical and psychological well-being of child 

abuse victims may be sufficiently important to outweigh, 

at least in some cases, a defendant's right to face his 

or her accusers in court. 

Craig, 497 U.S. at-, 110 S.Ct. at 3167, 111 L.Ed.2d at 683. 

In this case, even though the defendant could not personally 

observe the child witnesses who testified against him, the basic 

elements relied upon by the Supreme Court in Craig were satisfied. 

The child witnesses were physically present in the court, an oath 

was administered, the children were cross-examined, and the jury 

was able to observe the demeanor of the child witnesses. 

Furthermore, as pointed out by the court in Craig, under the 

circumstances present in this case, "these assurances of 
reliability and adversariness are far greater than those required 

for admission of hearsay testimony under the Confrontation Clause.t1 

Craig, 497 U.S. at _, 110 S.Ct. at 3165, 111 L.Ed.2d at 682. 

We hold that the District Court's case-specific finding 

complies with federal law and that, therefore, it did not err in 

permitting the placement of the screen between the witness stand 

and the defendant during the testimony of the child witnesses. 

I1 

Did the District Court err when it admitted evidence of 

pending sexual assault charges in another county? 

Davis argues that the District Court erred in admitting 

evidence of unproven sexual assault charges that were still pending 

against him in Madison County at the time of trial. This argument 

occupies just one page of his opening brief and does not 

specifically attack any particular exhibit or witness. In his 

reply brief, however, he makes it clear that this argument concerns 

the charges against him for engaging in sexual activity with L.D. 

He challenges the timeliness and specificity of the State's notice 

as required by State v. Just (1979), 184 Mont. 262, 602 P.2d 957. 

We find no merit in this argument because evidence about the 

charges against Davis for engaging in sexual activity with L.D. was 

part of the corpils delicti of the evidence tampering charge. In State v. 

Riley (1982), 199 Mont. 413, 426, 649 P.2d 1273, 1279, we said "the 

State is entitled to present the entire corpusdelicti of the charged 

offense including matters closely related to it, even when such 

12 
evidence discloses crimes other than those charsed. " (Emphasis 

added.) We elaborated on Riley in state V. Romero (1986), 224 Mont. 

431, 438, 730 P.2d 1157, 1162, when we said "[elvidence of acts 

which are inextricably or inseparably linked with the crime charged 

is admissible without resard to the rules qovernins 'other crimes' 

evidence." (Emphasis added.) 

The statute governing evidence tampering provides that: 

A person commits the offense of tampering with or 

fabricating physical evidence if, believing that an 

official proceeding or investigation is pending or about 

to be instituted, he: 

(a) alters, destroys, conceals, or removes any 

record, document, or thing with purpose to impair its 

verity or availability in such proceeding or 

investigation . . . . 

Section 45-7-207, MCA. Thus, the State had to prove that Davis was 

aware of the charges pending against him regarding L.D. and that he 

ordered Kubichek to destroy potential evidence in order to impair 

its availability in that investigation. We believe it was 

necessary and appropriate for the State to explore these charges in 

detail in order to prove Davis' awareness of the Madison County 

charges and the evidentiary value in the Madison County 

investigation of the items Davis ordered Kubichek to destroy. 

We hold that the District Court did not err in admitting 

evidence of the pending charges in Madison County. 

I11 

Did the District Court err when it allowed the victim's 

counselor to testify about the victim's statements which were made 

during the investigation of the case? 

13 
Davis argues that the District Court admitted inadmissible 

hearsay by permitting Eugenia Bellante to testify about 

conversations she had with J.R. during the course of J.R. Is 

therapy. Our review of the record reveals only one objection 

during Bellante's testimony. This was a foundational objection 

directed at the State's hypothetical question to Bellante about the 

psychological impact on very young children of face-to-face 

testimony against the person they have accused of sex crimes. The 

court overruled this objection, and Davis does not predicate error 

on this ruling by the trial court. We are unable to construe this 

foundational objection as an objection to inadmissible hearsay. 

Thus, the defense neither objected to any questions calling for 

hearsay, nor moved to strike the answers that were given. 

As we pointed out in Part I of this opinion, an objection at 

trial is essential to preserve alleged errors for our review. 

Section 46-20-104 (2), MCA. We therefore decline to review this 

alleged error of the District Court in allowing Bellante to testify 

about her conversations with J.R. 

IV 

Did the District Court err when it denied Davis' motion for 

acquittal which was based on the sufficiency of the proof? 

In the Amended Information, the State alleged that the assault 

on J.R. occurred between October 1989 and April 1990. No witness 

at trial provided direct testimony that the assault occurred on a 

particular date falling within that time span. From this, Davis 

asserts that the State did not prove beyond a reasonable doubt that 

14 
the offense occurred within the times alleged in the Amended 

Information. 

We conclude that the State did prove that the offense occurred 

at least once between October 1989 and April 1990. In this regard, 

the District Court found as follows: 

The effect of this testimony is to present the court with 

significant utzrebiitted circumstantial evidence reflecting 

that as of September 5, 1989, [J.R.] did not know the 

Defendant, but on April 4, 1990, she did know the 

Defendant--thus the time period alleged in the 

Information is covered by the evidence when we consider 

that the Defendant had no access to [J.R.] from 

September 5, 1989 until October 2, 1989. During that 

period he was incarcerated in the Gallatin County 

Detention Center. He was released on bail on October 2, 

1989, and remained free on bail until April 10, 1990, 

when Defendant was again arrested and confined in the 

Gallatin County Detention Center where he has since 

remained. 

When [J.R.] told Ms. Edwards, on April 4, 1990, that she 

then did know Shawn, her baby sitter, and thereafter told 

of the significant sexual contact with the Defenaant, and 

picked Defendant out of a photo lineup--after denying 

that she knew any Shawn or Shannon or September 5, 1989 

in conversation with Ms. Edwards--[J.R.] 1s acquisition of ktaowledge 

of Defendant, and her testimony as to his sexual contact with her lznd to take 

place dLiritag the precise period of time alleged in the Information. 

[Emphasis in original.] 

We will not overturn judge-made findings of fact unless they are 

clearly erroneous. Stale v. Cope (Mont. 1991), 819 P.2d 1280, 48 

St.Rep. 949. We conclude that the circumstantial inferences the 

District Court drew from the evidence are not clearly erroneous. 

We hold that the because the District Court did not err in 

finding that the offense occurred within the time alleged in the 

15 
amended information, it did not err in denying Davis' motion for 

acquittal. 

Affirmed. 

We concur: 

Justices 

16 
Justice Terry N. Trieweiler specially concurring. 

I concur in the above opinion because the procedures taken by 

the District Court were only objected to on the basis of the United 

States Constitution. In applying the Confrontation Clause of the 

Sixth Amendment to the United States Constitution, I defer to those 

decisions of the United States Supreme Court, and specifically 

Matyland v. Craig. 

However, if the procedure taken to screen the defendant from 

the child victim had been challenged on the basis of Article 11, 

Section 24, of the Montana Constitution, it is clear to me that the 

same result could not occur. I would, therefore, encourage 

prosecutors who encounter a similar problem in the future to try to 

find some way to protect child victims which does not preclude the 

defendant from observing their demeanor and testimony while it is 

being given. 

17 
Justice R. C. McDonough dissents. 

I dissent as to the result of the majority opinion, I believe 

there is a distinction between this case and the Coy and Marvland 

cases which is dispositive. Coy v. Iowa (1988), 487 U.S 1012, 108 

S.Ct. 2798, 101 L.Ed.2d 857; and Maryland v. Craig (1990 , 497 U.S. 

_, 110 S.Ct. 3157, 111 L.Ed.2d 666. The defendant in this case, 

because of the opaque screening and its placement, could not 

personally observe the witness while in the cited cases the 

defendant was able to observe the witness during testimony. 

The Sixth Amendment to the United States Constitution provides 

two elements of protection for a criminal defendant. First, it 

provides "the right physically to face those who testify against 

him. Second, it provides the right to cross-examination. 

Pennsylvania v. Ritchie (1987), 480 U.S. 39, 51, 94 L.Ed.2d 40, 107 

S.Ct. 989. These two elements are interwoven. See Davis v. Alaska 

(1974), 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347. It is 

clear that the confrontation clause does not provide an "absolute" 

right to face to face encounter, i.e. hearsay exceptions. See 

Mancusi v. Stubbs (1972), 408 U.S. 204, 92 S.Ct. 2398, 33 L.Ed.2d 

293, and the majority opinion. The hearsay exceptions are based on 

the unavailability of witnesses and a requisite 'indicia' of 

inherent reliability of such testimony. The exception of Coy and 

Marvland is essentially an extension of the unavailable witness 

exception. 

The right of cross-examination is not solely a function of 

defense counsel, it is accorded to the defense. By observing the 

demeanor, etc., of the witness, the defendant can assist in the 

18 
cross-examination of the witness. The defendant usually is 

acquainted with the witness, knows his or her traits, propensities, 

etc., which through observation by the defendant would assist 

counsel in cross-examination as to recollection, veracity and 

communication skills of the witness. The defendant's ability to 

assist counsel enhances the central concerns of the clause to 

ensure reliability of the evidence by subjecting it to testing in 

an adverse setting. Providing the defendant a right to face and 

observe his accuser, even though the accuser does not have to face 

the defendant, does not interfere with the findings of necessity of 

Coy and Maryland that outweigh the requirement of literal face to 

face meeting of the defendant and the accused. 

In Kirby v. United States (1899), 174 U.S. 47, 55, 43 L.Ed. 

890, 19 S.Ct. 574, the Supreme Court held that a defendant may be 

convicted only by: 

witnesses who confront him at the trial, upon whom he can 

look while beins tried, whom he is entitled to cross- examine, and whose testimony he may impeach in every mode 

authorized by the established rules . . . (Emphasis 

added. ) 

Kirby is cited with approval in both Coy and Maryland. In both Coy 

and Maryland the defendant was able to view the witness and thereby 

had an opportunity to assist counsel in cross-examintion. 

The defendant's right to view the witness' demeanor is an 

essential part of cross-examination. Justice O'Connor writing for 

the majority in Craiq states: 

We find it significant, however, that Maryland's 

procedure preserves all of the other elements of the 

confrontation right: . . . the defendant retains full 

opportunity for contemporaneous cross-examination; and 

the judge, jury, and defendant are able to view (albeit 

by video moniter) the demeanor (and body) of the witness 

19 
as he or she testified. (Emphasis added.) 

at 110 S.Ct. at 3166. Justice O'Connor also refers to crossexamination in a quote as the "greatest legal engine ever invented 

for the discovery of truth." craiq, 110 S.Ct. at 3163, citing 

California v. Green (1970), 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 

489. Certainly denial of this right, by not allowing defendant to 

view the witness either directly, by video (w), by use of 

lighting skills (Marvland), by one-way glass screens, or by other 

means, would hamper the right and opportunity for effective crossexamination. Not allowing the accused to view the witness 

unnecessarily broadens the exception carved out in &y and 

Marvland, and thereby violates the Sixth Amendment of the United 

States Constitution. 

Justice Karla M. Gray concurs in the foregoing dissent. 

Justice William E. Hunt, Sr., concurs in the foregoing dissent. 

20 
April 17, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Marcelle C. Quist 

QUIST LAW OFFICE 

1805 West Dickerson 

Landmark Center, Bldg. 2, Suite 1A 

Bozeman, MT 59715 

Hon. Marc Racicot, Attorney General 

Joe Thaggard, Assistant 

Justice Building 

Helena, MT 59620 

Michael Salvagni, Gallatin County Attorney 

Martin Lambert, Deputy County Attorney 

615 s. 16TH 

Bozeman, MT 59715 

ED SMITH 

CLERK OF THE SUPREME COURT 

BY: