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In re E. T.

Court of Appeals of Georgia, Fifth Division

September 8, 2017

IN THE INTEREST OF E. T., a child.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          BRANCH, JUDGE.

         Following his adjudication of delinquency for aggravated assault, aggravated battery, and criminal attempt to commit a felony, E. T. appeals, contending the trial court improperly allowed the victim to testify via two-way video conference during the adjudicatory hearing. He also contends the trial court improperly amended the order of disposition and improperly merged certain charges. For the reasons that follow, we hold that the trial court erred by allowing the victim to testify via video conference and that a new trial is required.

         "On appeal of an adjudication of delinquency, the appellate court determines whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the acts charged beyond a reasonable doubt." In Interest of L. J., 337 Ga.App. 653, 653 (788 S.E.2d 531) (2016) (citations omitted).

         E. T. does not challenge the sufficiency of the evidence, but we find it sufficient to support the adjudication. The record shows that on June 30, 2015, R. R., a long-time friend of E. T.'s, persuaded another friend, the victim, to come along with R. R. on a walk to a subdivision where supposedly, there were girls to meet. At that subdivision, and shortly after R. R. had been engaged in texting someone else, a person wearing a mask and holding a gun appeared from behind a truck and attempted to rob the victim using the gun. Because the mask had large holes for the eyes, nose, and mouth, the victim immediately recognized E. T., who he had met previously through R. R., as the robber. The victim later identified E. T. during a pre-trial photo lineup and at trial as the robber. When a struggle for the gun ensued, the victim was shot and suffered severe injuries, including loss of all or part of several internal organs. Meanwhile, E. T., age 15 at the time, fled the scene but moments later sent R. R. a text "to delete everything." R. R. made several inconsistent statements to the police: in one, he admitted that E. T. had been present before and during the robbery but that he had run away; in a separate statement, R. R. said that it was possible that E. T. had been the shooter. R. R. also gave the investigating officer a description of the shooter that was different from E. T.'s general description. But R. R. did not testify at the adjudicatory hearing.

         The victim, who was age 18 at the time of the incident, testified that he was in a hospital in Miami awaiting a transplant of his entire digestive system. He explained that he received liquid nutrition via an intravenous tube. But he told the court that he was "feeling perfectly fine" at the end of his testimony, and he remained connected to the video conference after his testimony concluded. The victim's initial treating physician in Savannah testified to the severity of the victim's injuries (he lost all of his small intestine and one kidney and half of his stomach, large intestine, and pancreas); the doctor also testified about the effort to save the victim's life and to the fact that he was awaiting a transplant in a Miami hospital. The doctor added that the victim could receive his IV therapy outside of the hospital.

         On August 6, 2015, the State filed a delinquency petition in which E. T. was charged with aggravated assault with a deadly weapon, aggravated battery by maliciously causing bodily harm by rendering the victim's intestines useless, and criminal attempt to commit a felony (armed robbery); the indictment asserted that each charge was a class A designated felony.[1] Following the adjudicatory hearing, at which the victim testified via video conference from a hospital in Miami, the juvenile court adjudicated E. T. delinquent on all three counts; the court also found that the aggravated battery conviction merged into the conviction of aggravated assault. Two days later, however, the juvenile court amended the adjudication sua sponte and without notice to either party, to show that E. T. had committed aggravated assault with intent to rob rather than with a deadly weapon as alleged in the indictment; the court reentered the remainder of the original adjudication, including merging aggravated battery into aggravated assault. The court also ordered that the child remain in a youth detention center pending the disposition hearing, which was set for October 15, 2015, but later continued to November 10, 2015. Following the disposition hearing, at which the victim and his mother made statements via video conference from the Miami hospital where the victim was still awaiting a transplant, the court entered an order of disposition requiring E. T. to serve 48 months in restrictive custody, with credit for time spent in secure detention, followed by 12 months of intensive supervision. E. T. appealed to this Court.[2] In addition to asserting that the trial court erred by allowing the video-conference testimony, E. T. contends the court erred by amending the order of disposition to reflect the commission of aggravated assault with intent to rob rather than with a deadly weapon as charged. The State agrees and urges this Court to remand for resentencing on the correct charge. E. T. also contends the trial court erred by not merging criminal attempt at armed robbery with aggravated assault with intent to rob. The State finds issue with a different aspect of the trial court's decision on what charges to merge.

         1. In three enumerations of error, E. T. contends that the trial court's decision to allow the victim to testify via video conference violated Rule 2.7 of the Uniform Rules for the Juvenile Court (URJC)[3] and his right to confrontation as found in the Constitution of Georgia and the United States Constitution.

         The record shows that initially, the adjudicatory hearing was scheduled for August 28, 2015. But on that day, the State requested that it be allowed to present the victim's testimony via Skype from a hospital in Miami, and E. T. objected. The court therefore ordered that the hearing be continued until September 2, 2015, so that the State and E. T. could determine whether they could depose the victim. On September 1, 2015, however, the State filed a notice of intent to present the victim's testimony by video conference or, in the alternative, that the victim's testimony be taken by deposition in advance of trial. In support, the State asserted that the victim was hospitalized, awaiting a multi-organ transplant in Miami; that his injuries "left him so infirm as to afford reasonable grounds to believe that he will be unable to testify in person as a witness at a criminal trial or proceeding"; and that his "long-term prognosis" was "speculative." The State added that the victim was a material witness and that his testimony and identification of the defendant "are crucial to the State's case." The State indicated that it preferred the video conference option "to avoid the unnecessary expense, delay, and inconvenience of traveling to Miami, Florida, " but that it was willing to consent to testimony by deposition "if said deposition can be transacted by video-conferencing." The State explained that even with a deposition, it was concerned for the victim's safety in the presence of the defendant:

[U]nless the defendant waives in writing his right to be present, the State has safety concerns about transporting the defendant to and from Miami, Florida, and [safety concerns about the defendant's] physical presence in the victim's hospital room where the victim is lying helpless in bed, connected to medical equipment necessary to keep him alive, and is physically unable to run or defend himself.

         E. T. responded by objecting to the video conference option on the same grounds raised on appeal; E. T. did not object to the deposition option.

         Based on the representations of the State and without conducting an evidentiary hearing on the motion, the trial court held that it had the discretion under URJC Rule 2.7-2 to allow video conference testimony upon a showing of good cause, that good cause had been shown, that the child's right to confrontation could be protected if the procedure used preserved the essence of effective confrontation, and that the same rule provided such a procedure. The court therefore granted the State's motion to present the victim's testimony via video conference and held that the request for testimony via deposition was therefore moot. At the beginning of trial, E. T. reiterated his objections. At trial, the prosecutor, the defense, and the victim each had a computer monitor in front of them that allowed each to see, hear, and communicate with each other simultaneously, and all participants could observe each other's demeanor and non-verbal communications. But it is unclear whether anyone was in the hospital room with the victim during his testimony. The technology being employed was named WebEx, which is a program for transmitting two-way live video; the picture on at least one of the screens would change based on who was speaking, and the live video was recorded for the record.

         (a) E. T. first contends that the court's decision to allow the victim to testify via video conference was prohibited by the Uniform Juvenile Court Rules. Both parties contend there is an inconsistency between in Rule 2.7-2 (A) and (C). We disagree.

         Like the construction of statutes, the construction of court rules is a question of law for the courts. See, e.g., Jones v. State, 276 Ga. 171, 172 (575 S.E.2d 456) (2003) (construing the Uniform State Court Rules). The plain language of subsection (A) allows a Juvenile Court to conduct "any Juvenile Court matters" by video conference with two exceptions, including formal adjudicatory delinquency hearings:

At the discretion of the court, any Juvenile Court matters may be conducted by video-conference with the following exceptions: 1. Formal adjudicatory hearings on Petitions alleging the delinquency or unruliness of a child; and 2. Hearings alleging the violation of a juvenile court protective order which may result in the loss of liberty of the person alleging to have violated the protective order.

         Thus, under these exceptions, the court may not conduct the actual hearing itself by video conference but instead must hold the hearing in court.

         On the other hand, Rule 2.7-2 (C) provides that "In any pending matter, a witness may testify via video-conference." (Emphasis supplied). Thus, subsection (C), which pertains to witnesses rather than matters or hearings, gives a court conducting "any pending [juvenile court] matter" - without stating any exceptions - the discretion to allow individual witnesses to testify via video conference. Although subsection (C) (2) provides that parties may object to a notice of video conference testimony and that "[i]n a delinquency or unruliness matter, such objection by the child shall be sustained, " (emphasis supplied), subsection (C) (2) goes on to provide that "such objection shall act as a motion for continuance and shall toll the applicable time limits, " and subsection (C) (3) provides that the juvenile court "may modify these requirements upon a showing of good cause." Further, "[t]he discretion to allow testimony via video-conference shall rest with the judge." Id. Thus, the continuance gives the State time to determine whether good cause for a modification exists, to make arrangements to bring the witness to court, or to preserve the witness's testimony by deposition. See OCGA § 15-11-17 (b) (providing that juvenile court hearings be conducted in accordance with Title 24, except as otherwise provided); OCGA § 24-13-130 (providing for taking of a material witness's testimony by deposition).

         As shown above, the plain language of Rule 2.7-2 gave the juvenile court in the present case the discretion to allow the victim to testify via video conference upon a showing of good cause. Because E. T. does not challenge the finding of good cause, we conclude that the trial court acted within its discretion under that ...

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