Long v. State

TEAGUE, Judge,

concurring.

Contrary to what many commentators, trial and appellate court judges and justices, legal scholars, law school professors, prosecutors, defense attorneys, defendants, victims, special interest groups, etc., might believe, the issue that is before this Court to resolve is, in principle at least, not one of first impression. I believe that Judge Duncan, the author of the majority opinion, has attempted to point this out in his gargantuan effort for the Court. However, as seen by Judge McCormick’s dissenting opinion, he has probably failed in his herculean effort. The truth of the matter is that the emperor, in urging this Court to adopt what Judge McCormick suggests comes to us wearing only a different form of garb.

To appreciate Judge Duncan’s majority opinion for the Court, I believe that one must focus his attention on the State’s case in chief. Reader: Forget what happened beyond this point.

Judge Duncan points out on pages 304 and 305 of his majority opinion for the Court the trial procedure that was followed in this cause. As reflected thereon, when the State presented its case in chief against appellant, the complaining witness, although then available and willing to testify against appellant, was not called by the prosecutor to testify against him. Rather than call the available and willing complaining witness to testify against appellant during his case in chief, the prosecutor, over objection, but pursuant to the provisions of Art. 38.071, V.A.C.C.P., chose to substitute in her stead the record of the pretrial videotape interview that had been conducted by the assistant director of the Dallas Rape Crisis Center of the complainant, who was not an officer of the court. Neither the appellant nor his attorney were present when the interview took place. Indeed, by the applicable provisions of Art. 38.071, supra, they could not then be present. Thus, appellant was not given the opportunity to cross-examine the complainant during the pretrial interview session, nor was he given the opportunity to cross-examine the complainant during the State’s case in chief. Unquestionably, had the record of the pretrial videotape interview been excluded from evidence during the State’s case in chief, and had the prosecutor not called the complaining witness to testify during that time, it is clear from this record that after the State rested its case appellant would have moved for and the learned trial judge would have granted his motion for an instructed verdict of not guilty. If this had occurred, the issue that Judge McCormick poses would then perhaps be present for this Court to resolve.

Thus, what may have occurred after the State rested its case in chief is irrelevant and immaterial to the issue that is before us to decide, which is rather simple, namely, was appellant denied his right to confront his accuser and cross-examine her when the State presented its case in chief, or, to put it another way, was the State entitled to substitute in the place of the complaining witness the pretrial videotape interview of her, when appellant was never given the opportunity pretrial to cross-examine her. Given the historical right of confrontation and cross-examination, and court decisions, the answers to these questions should be obvious even to a normally intelligent ten year old child.

The only real question that must be answered in this cause is the following: Whether the State, in presenting its case in *325 chief against appellant, was entitled to substitute the above ex parte hearsay pretrial videotape interview of the complaining witness in the place of the complaining witness’ physical presence, when she was then available and willing to testify for the State but was not called to testify at that time, and neither appellant nor his attorney had been given the opportunity to cross-examine the complainant when the pretrial interview took place?

I find that the answer to the posed question is controlled by the principles of law announced in Pointer v. Texas, 380 U.S. 400 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 (1965), and California v. Green, 399 U.S. 149 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970). Judge McCormick’s suggestion that the Supreme Court recently held in Kentucky v. Stincer, — U.S.-, 107 S.Ct. 2658 , 96 L.Ed. 2d 631 (1987), to the contrary is sorely misleading.

In Kentucky v. Stincer, supra, an aggressive and assertive majority of the Supreme Court merely held that the exclusion of the defendant, but not his counsel, from a hearing held to determine the competency of two child witnesses was not violative of the defendant’s federal right of confrontation. However, the two witnesses testified during the prosecution’s case in chief and the defendant not only had the opportunity but did fully and completely cross-examine the witnesses at that time. Of course, whether the above majority of the Supreme Court will in the future hold that a defendant may be excluded from the courtroom while his trial is being conducted, and he is not guilty of such misconduct that warrants his removal, remains to be seen.

I will first address this Court’s decision of Pointer v. State, 375 S.W.2d 293 (Tex.Cr.App.1964), which was decided when this Court was looked upon much like many of us look upon the Supreme Court of the United States today — with pity.

In Pointer v. State, supra, an examining trial was held in that cause. The opinion reflects that the defendant was not represented by counsel at the examining trial. The opinion by the Supreme Court reflects that although the defendant did not personally cross-examine the complaining witness he apparently tried to cross-examine some of the other State’s witnesses. The case was bound over to the Grand Jury and the defendant was later indicted for robbing the complainant. In presenting its case in chief against the defendant, the State did not seek to have the complainant, who had moved from Texas to California after the offense had occurred, testify but, instead, relied upon the witness’ examining trial testimony. Art. 750 of the 1925 Code of Criminal Procedure, which then controlled, see now Art. 39.12, V.A.C.C.P., provided: “The deposition of a witness taken before an examining court or a jury of inquest, and reduced to writing, and certified according to law, in cases where the defendant was present when such testimony was taken, and had the privilege afforded him of cross-examining the witness, may be read in evidence as is provided in [Art. 749, C.C.P., which provided in part that same was admissible if the witness had removed himself beyond the limits of the State] for the reading in evidence of depositions.” The defendant was convicted. This Court affirmed. In affirming the conviction, this Court held that the proper predicate had been established for the admissibility of the “deposition”, as all of the prerequisites had been met. Through the testimony of the complainant’s sister, the State established that the witness not only had permanently moved to California, he was at the time of trial physically present in California and thus unavailable to testify at trial. The State apparently made no effort to obtain the witness’ physical presence for the trial, opting instead to rely entirely upon the above statute. This Court rejected the defendant’s contention that because he was not represented by counsel at the examining trial, the “deposition” was inadmissible evidence. In rejecting this contention, the Court simply held that a defendant was not entitled to the appointment of counsel at an examining trial and further held that an examining trial was not a critical stage of the proceeding. Interestingly, there is *326 not a single word in the unanimous opinion by this Court about the right of the defendant to confront or cross-examine the complaining witness during the examining trial.

The Supreme Court of the United States, in Pointer v. Texas, supra, granted certio-rari in order to decide whether the Fourteenth Amendment’s guarantee of a defendant’s right “to be confronted with the witness against him” was applicable to the States by virtue of the Fourteenth Amendment, and answered the question in the affirmative. Previously, the Supreme Court had ruled that for purposes of the Sixth Amendment that right was guaranteed to federal defendants. The Supreme Court also held that under the circumstances of the case, the use of the complaining witness’ examining trial transcript to convict the defendant denied him rights guaranteed by the Sixth and Fourteenth Amendments to the Federal Constitution: “We hold today that the Sixth Amend.ment’s right of an accused to confront the witnesses against him is like [the right to counsel, which is] a fundamental right and is made obligatory on the States by the' Fourteenth Amendment^] ... and the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him ... and to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of due process of law ...” 380 U.S. at 403 , 85 S.Ct. at 1068 . In passing, the Supreme Court observed: “The case before us would be quite a different one had [the complainant’s] statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine [the witness].” 380 U.S. at 407 , 85 S.Ct. 1069 -1070. In a relatively short period of time, a little over 5 years later, the Supreme Court was presented with just such a case.

In California v. Green, 399 U.S. 719 , 88 S.Ct. 1318 , 20 L.Ed.2d 255 (1968), in the presentation of its case in chief, due to the fact that the State’s “star” witness had become “markedly evasive and uncooperative on the stand”, the prosecution was permitted to rely upon the transcript from the preliminary hearing that had been held in that cause, as substantive evidence during its case in chief to establish the defendant’s guilt. The transcript was admissible pursuant to a California statute which provided that “evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with § 770”, which merely required that the witness be given an opportunity to explain or deny the prior statement at some point during the trial. At the preliminary hearing, the defendant was represented by counsel and the witness was subject to full and complete cross-examination by counsel. The California Supreme Court reversed the conviction, holding that § 770 was unconstitutional insofar as it permitted the substantive use of prior inconsistent statements of a witness to convict the defendant, even though the statements were subject to cross-examination at the prior hearing. The Supreme Court of the United States reversed.

In reversing the California Supreme Court’s decision, the Supreme Court held that the issue before it was whether a defendant’s constitutional right “to be confronted with the witnesses against him” is necessarily inconsistent with a State’s decision to change its hearsay rules of evidence to permit the substantive use of prior inconsistent statements to convict the defendant on the theory that the usual dangers of hearsay are largely nonexistent where the witness testifies at trial, and answered the question in the negative. In so holding, the Supreme Court pointed out that “there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.” (My emphasis.) 399 U.S. at 159 , 90 S.Ct. at 1935 .

Thus, the Supreme Court merely held in Green, supra, that the California statute, § 770, supra, was not unconstitutional on its face. It also held that the Confronta *327 tion Clause of the Sixth Amendment to the Federal Constitution did not preclude the introduction of the witness’ out-of-court declaration, which came from the preliminary hearing, which had been taken under oath at which the witness had been subjected to full and complete cross-examination, to prove the truth of the matters asserted therein. The Supreme Court in passim referred to the fact that the declarant was not only available as a witness at the defendant’s trial, he was actually called to testify and did testify for the prosecution in its case in chief, even though when testifying he was “markedly evasive and uncooperative on the stand.” The prosecutor used the transcript from the preliminary hearing to “refresh” the witness’ memory, and apparently not for impeachment purposes. Thus, there was no inability or unavailability of the witness exception present in that case.

The State in this cause, in urging that under the circumstances of this case, the applicable provisions of Article 38.071, supra, are facially constitutionally valid, has obviously chosen to selectively pluck certain language out of context from California v. Green, supra, to support its position. The State would do well to read and re-read what Justice Harlan stated in the initial paragraph of the concurring opinion that he filed in that case, in order that it might understand what the Supreme Court actually decided in Green, supra: “The precise holding of the Court today is that the Confrontation Clause of the Sixth Amendment does not preclude the introduction of an out-of-court declaration, taken under oath and subject to cross-examination, to prove the truth of the matters asserted therein, when the declarant is available as a witness at trial.” 399 U.S. at 172 , 90 S.Ct. at 1942 . (My emphasis.)

The case at Bar does not encompass or implicate the situation where the accused and his counsel were given the opportunity to be present and cross-examine the complaining witness pretrial, which occurred in California v. Green, supra. The issue here concerns whether the applicable provisions of Art. 38.071, supra, should be upheld in order to permit the State to introduce into evidence during its case in chief an ex parte out-of-court hearsay statement of a witness, that was recorded pretrial on a videotape, at which appellant was not given the opportunity to be present and cross-examine the witness, and the witness was available and willing to testify against the defendant during the State’s case in chief.

I find that too much attention is focused upon the fact that the complaining witness testified as a rebuttal witness at trial, and too little attention is given to what was admitted into evidence during the State’s case in chief. See Judge McCormick’s dissenting opinion.

It is now axiomatic that proof beyond a reasonable doubt is among the essentials of due process and due course of law. “The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation ... [and] unless there remains any doubt about the constitutional stature of the reasonable-doubt standard, we [the Supreme Court] explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 362, 366 , 90 S.Ct. 1068, 1071, 1073 , 25 L.Ed.2d 368 (1970). Thus, it should be clear to all that the prosecution in this instance had the burden of proof to establish, if it could during its case in chief, all of the essential elements of the charging instrument beyond a reasonable doubt.

In this instance, in order to prove the guilt of appellant, the State during its case in chief introduced into evidence over objection the ex parte hearsay out-of-court videotape interview that had occurred between the complaining witness and another lay person. During the State’s case in chief, although available and willing to testify against appellant, the complainant was not called to testify against appellant.

May the Legislature enact legislation or may this Court enact a rule of evidence that actually eliminates a complaining wit *328 ness from physically testifying during the State’s case in chief, when that witness is available and willing to testify, and substitute in her place an out-of-court ex parte hearsay television production made on magnetic tape of the witness and another person at which the defendant is not given the opportunity to be present and cross-examine the witness? Only if one chooses to adopt the way that criminal trials are conducted in some parts of this world can the question be answered in the affirmative.

The only conceivably valid argument I find that can be made to support the enactment of Art. 38.071, supra, also see Tex. Crim.R.Evid., Rule 801(e)(1)(D), and in turn the admissibility of the out-of-court hearsay video tape interview, an ex parte video tape deposition if you please, as substantive evidence in the State’s case in chief is where “exceptional circumstances” exist and in the interest of justice it is necessary to take and preserve testimony away from the courtroom without the presence of either the accused and his attorney. In this instance, however, the State has not presented any “exceptional circumstances” that” might have authorized the admission into evidence of the video tape under the above rule of law.

I find that not even the Federal Rules of Evidence would permit the introduction into evidence during the Government’s case in chief of the videotape recording that was admitted into evidence, over objection, at appellant’s trial. See 18 U.S.C. § 3503 (a), which permits the admission into evidence during the Government’s case in chief of video taped depositions, provided that “exceptional circumstances” exist. Also see and compare Rule 804(b), Texas Rules of Criminal Evidence. Under the federal statute, however, before such an out-of-court videotaped recorded statement is admissible, the deponent must be placed under oath and subject to rigorous cross-examination on all issues. The accused has the right to be present during the deposition and has the right to be represented by counsel. The scope of the examination is as would be allowed at full trial, i.e., the deponent may be subject to rigorous cross-examination on all issues. The entire procedure is under the authority and general supervision of the trial court.

Article 38.071, supra, as applicable here, expressly provides, however, that neither the accused nor his attorney have the right to be present when the recording of the oral statement of the child-witness is made, and thus has no right to cross-examine the child witness at that time. Nor must the child be sworn before the interview. Thus, the child-witness need not even fear potential punishment for lying. Under the applicable provisions of the statute, the trial court may not even be implicated in the tape recorded interview session. The trial court certainly was not implicated in this cause when the videotape recording was made. The person interviewing the child-witness may not even be an officer of the court, and may not even be qualified to conduct such an interview of a potential child witness. In this instance, I do not find that the person who conducted the interview with the child witness, who at that time was not an officer of the trial court, was qualified to conduct such an interview with a child witness. In short, the Texas statute mandates no practical concern for the accuracy of the truth-determining process by assuring that the trier of fact will have a satisfactory basis for evaluating the truth of the prior statement consistent with both accurate truth determination and practical considerations for the administration of justice. Furthermore, it is difficult for me to understand how, in an ex parte surrounding, such statement can ever be a fair substitute for live testimony on the witness stand. In short, the kind of “ex parte deposition” taken here was sorely lacking in the ambiance of solemnity closely approximating a trial. See Dutton v. Evans, 400 U.S. 74, 89 , 91 S.Ct. 210, 220 , 27 L.Ed.2d 213 (1970); Cf. California v. Green, supra. Also see Binder, Hearsay Handbook: Second Edition (1983).

Judge McCormick opines in the dissenting opinion that he filed in this cause: “[I]t is apparent [to me] that no future statute" will be allowed to survive absent a procedure which follows contemporaneous cross- *329 examination to be made at the time the child is interviewed on tape.” Of course Judge McCormick is premature in his thought because this Court cannot, and must not, write advisory opinions.

It is obvious to me that what Judge McCormick overlooks in his dissenting opinion is the fact that the choice that appellant was given in this cause is constitutionally indefensible. See and compare Simmons v. United States, 390 U.S. 377 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968) (Held, defendant’s testimony in support of motion to suppress evidence under the Fourth Amendment may not, under the Fifth Amendment, be admitted over objection at trial as evidence of defendant’s guilt.) Furthermore, as I have attempted to point out, the issue of choice is secondary to the real issue that is before this Court to decide, which is whether the State may use an ex parte out-of-court hearsay statement of an available and willing to testify witness during its case in chief to establish the defendant’s guilt beyond a reasonable doubt, and the defendant was never given the opportunity to cross-examine the witness when the statement was taken. The essential rudiments of due process and due course of law forbid the admission of such a statement, and Judge Duncan’s majority opinion correctly so holds, which holding is extremely limited in my view, which is contrary to what Judge McCormick and others might believe. Those persons simply see too many “bugey bears” when no “bugey bears” actually exist.

With these few comments, I wholeheartedly join Judge Duncan’s majority opinion for the Court.