FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17CR-16-26]
HONORABLE MICHAEL MEDLOCK, JUDGE
Lisa-Marie Norris, for appellant.
Rutledge, Att'y Gen., by: Vada Berger, Ass't
Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, JUDGE.
Crawford County jury convicted appellant, Richard Louis
Bertrand, of raping his then seven-year-old
step-granddaughter, and he was sentenced to 25 years in the
Arkansas Department of Correction. On appeal, Bertrand
asserts that his Sixth Amendment right to confront his
accuser was violated when the trial court erected a screen
and that the trial court abused its discretion by admitting
the victim's bloodstained underwear into evidence. For
the following reasons, we affirm.
trial, the court allowed the then eight-year-old victim to
testify behind a screen. The screen was placed in front of
Bertrand and prevented the victim from being able to see him
while she testified but allowed him to see an outline of her
form while sitting in the witness chair. Bertrand argues that
his Sixth Amendment right to confront the witnesses against
him was violated when the trial court, without making the
findings required by Maryland v. Craig, 497 U.S. 836
(1990), allowed the testimony to occur. In Craig,
the Supreme Court of the United States held that the right to
confront accusatory witnesses may be satisfied absent a
physical, face-to-face confrontation at trial only where the
trial court makes a case-specific finding that the denial of
such confrontation is necessary to further an important
public policy, such as protecting a child witness from
trauma, and only where the reliability of the testimony is
otherwise assured. Id.
two-part test established in Craig applies only when
a criminal defendant has been deprived of the constitutional
right to a face-to-face confrontation with the witnesses
against him or her. Id. Bertrand argues that he has
been deprived of his constitutional right to a face-to-face
confrontation with his accuser. The record shows that
considerable discussion occurred between counsel and the
trial court regarding the screen at issue. The screen was
described as one that would be placed in front of the
defendant, on the desktop of counsel table. It was three feet
tall and four feet wide. It was a translucent screen through
which shadows could be seen, but a direct view between the
victim and the defendant was prohibited. The form of the
individual sitting in the witness chair could be seen, but
details or a clear line of sight were obstructed.
circuit court made no finding that the denial of the right of
confrontation was necessary to further an important public
policy. The court simply stated that there was a "young
victim here that is seven or eight years of age. I think
it's probably appropriate under those
circumstances." There was no finding that the child
witness needed to be protected from a trauma or findings of
other public-policy protections. While we agree with Bertrand
that this was error, we hold under the facts of this case
that the error was harmless and therefore affirm.
Clause errors are subject to harmless-error analysis, and the
analysis of whether a limitation on face-to-face
confrontation is harmless must "be determined on the
basis of the remaining evidence[ ]" in the case. Coy
v. Iowa, 487 U.S. 1012, 1022 (1988). In the instant
case, the evidence overwhelmingly established Bertrand's
guilt, and thus, any error was harmless.
wife, who is the victim's grandmother, testified that on
the night of December 26, 2015, the victim and her younger
sister were spending the night with Bertrand and her. Late in
the evening, as the victim was sitting in Bertrand's lap
on the couch watching a movie, the grandmother heard from
another room the victim "scream" in pain. The next
day, when the victim was riding home with her mother, she
told her mother that she had something "disgusting"
in her "panties[, ]" which she had worn the entire
time she stayed with Bertrand and her grandmother. When they
arrived home, her mother discovered blood in the victim's
underwear, prompting her to contact law enforcement.
result of that contact, the victim's mother took her to
Hamilton House Child and Family Safety Center on December 27,
2015. A sexual-assault nurse examiner, Malea McCormick,
conducted a physical examination of the victim. In her
report, she noted that the victim had informed her mother
that "A.O. touched her girl parts." In the report,
Bertrand was identified as the "A.O., " or the
"Alleged Offender." McCormick testified that the
victim had a recent bruise of her hymen from the 8 to the 10
o'clock position caused by a penetrating trauma.
McCormick specifically stated that the penetration was beyond
the labia majora and labia minora and that touching the hymen
of prepubertal girls is "pretty painful" and could
cause them to scream out in pain.
of her examination, McCormick collected the victim's
underwear and took swabs from her labia majora. The Chief
Forensic DNA Analyst from the Arkansas State Crime Laboratory
explained that standard DNA testing, which can link a sample
to a specific individual, revealed only female DNA from the
swabs and tape lifts from the underwear. This result can
happen, she noted, because the female DNA in samples from
female genital areas and female underwear tends to mask male
DNA. In such circumstances, Y STR testing can be done, which
ignores the female DNA, but can help potentially identify any
foreign male DNA. The only limitation in Y STR testing is
that it can only go to a paternal line (i.e., fathers and
sons; grandfathers, fathers, and sons all have the potential
of having the same Y STR profile).
STR testing revealed a match between Bertrand's DNA and
the male DNA found in the victim's swabs and tape lifts
from her underwear, meaning that neither Bertrand nor any of
his paternal male relatives could be excluded as the source
of the DNA in the swabs and the tape lifts. Evidence adduced
at trial indicated that none of Bertrand's male relatives
were present in the house either the day of the incident or
the next day.
at Hamilton House, the victim also was interviewed by Marilyn
Sanders, a forensic interviewer. Among other things, the
victim told Sanders that, while Bertrand put his hands in her
underwear and outside of her "girl parts, " he did
not put the skin of his hand on them or his fingers inside of
them. The victim also told Sanders that, when she got off the
couch, she saw Bertrand's "boy parts" and that
he was naked. She said that he told her not to tell anyone
and that she was scared that she would be in trouble if she
did. According to Sanders, the victim was very nervous ...