Carmona v. State

DISSENTING OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

The ultimate issue the Supreme Court granted certiorari to consider in Davis v. *106 Alaska, 415 U.S. 308 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974), was as follows:

“[Wjhether the Confrontation Clause requires that a defendant in a criminal case be allowed to impeach the credibility of a prosecuting witness by cross-examination directed at possible bias deriving from the witness’ probationary status as a juvenile delinquent when such impeachment would conflict with a State’s asserted interest in preserving the confidentiality of juvenile adjudications of delinquency.”

Id., U.S. at 309, 1 94 S.Ct. at 1107 . Through a misreading of Davis v. Alaska, hereafter Davis , the majority opinion would have this Court find that “the rationale employed by the Supreme Court is that no criminal defendant be denied an effective cross-examination,” 2 and thereby fall into practically the same constitutional error the Supreme Court found Alaska had committed in Davis .

Counsel for Joshaway Davis had made clear to the trial court that “he would not introduce Green’s juvenile record as a general impeachment of Green’s character as a truthful person but rather, to show specifically that at the same time Green was assisting the police in identifying petitioner he was on probation for burglary. From this petitioner would seek to show — or at least argue — that Green acted out of fear or concern of possible jeopardy to his probation. * * * Green’s record would be revealed only as necessary to probe Green for bias and prejudice and not generally to call Green’s good character into question.” Id., U.S. at 311, 94 S.Ct. at 1108 . The Supreme Court then notes that, prevented by an adverse ruling of the trial court from revealing that juvenile record, counsel for Davis “did his best to expose Green’s state of mind” at the relevant time, excerpts part of his cross-examination of Green, and concludes, “It would be difficult to conceive of a situation more clearly illustrating the need for cross-examination.” Id., U.S. at 312-314, 94 S.Ct. at 1108-09 .

On appeal, however, the Alaska Supreme Court concluded it need not resolve the potential conflict between “right to a meaningful confrontation with adverse witnesses and the State’s interest in protecting the anonymity of a juvenile offender” because, much as the majority wants this Court to say, “our reading of the trial transcript convinces us that counsel for the defendant was able adequately to question the youth in considerable detail concerning the possibility of bias or motive.” Id., U.S. at 314-315, 94 S.Ct. at 1109-1110 .

Therefore, the Supreme Court perceived that “the essential question turns on the correctness of the Alaska court’s evaluation of the ‘adequacy’ of the scope of cross-examination permitted,” and immediately announced, “We disagree with that court’s interpretation of the Confrontation Clause and we reverse.” Id., U.S. at 315, 94 S.Ct. at 1110 . 3

“The accuracy and truthfulness of Green’s testimony were key elements in the State’s case against petitioner. The claim of bias which the defense sough‡ to develop was admissible to afford a basis for an inference of undue pressure because of Green’s vulnerable status as a probationer ...” The “adequacy” conclusion of the Alaska Supreme Court is constitutionally unacceptable: “While counsel was permitted to ask Green whether he was biased, counsel was unable to make a record from which to argue why Green might have been biased or otherwise lacked that degree of impartiality expected of a wit *107 ness at trial.” 4 “[I]t seems clear ... that to make any such inquiry effective, defense counsel should have been permitted to expose to the jurors the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness.” Since he was not Davis “was thus denied the right to effective cross-examination ...” — “constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” Id., U.S. at 318-319, 94 S.Ct. at 1111 .

Turning to address the State’s interest “in protecting the anonymity of juvenile offenders,” and acknowledging without challenge that interest “as a matter of its own policy,” the Supreme Court again pointed out that “petitioner sought to introduce evidence of Green’s probation for the purpose of suggesting that Green was biased and, therefore, that his testimony was either not to be believed ... or at least very carefully considered in that light.” Given the potential damage to the strength of the State’s case, the Supreme Court concluded that “the right of confrontation is paramount to the State’s policy of protecting a juvenile offender.” Id., at 319 , 94 S.Ct. at 1112 .

After discussing a part of Alford v. United States, 282 U.S. 687 , 51 S.Ct. 218 , 75 L.Ed. 624 (1931), to bolster its conclusion in that regard, the Supreme Court summed up, viz:

“The State’s policy interest in protecting the confidentiality of a juvenile offender’s record cannot require yielding of so vital a right as the effective cross-examination for bias of an adverse witness. The State could have protected Green from exposure of his juvenile adjudication in these circumstances by refraining from using him to make out its case; the State cannot, consistent with the right of confrontation, require the petitioner to bear the full burden of vindicating the State’s interest in the secrecy of juvenile records.”

Id., 415 U.S. at 319-320 , 94 S.Ct. at 1112 . Accordingly, the judgments were reversed and the cause remanded for further proceedings “not inconsistent with this opinion.”

When Davis is read carefully in its entirety, merely substituting “effective” for “adequate” will not conform to its teaching. Purported distinctions made by the majority cannot withstand rational scrutiny. The lesson of Davis is for crossexami-nation of a juvenile witness with some character of a juvenile record to be “effective” an accused is constitutionally entitled to expose to the jury that fact and others related to it so that jurors, “as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Id., 415 U.S. at 319 , 94 S.Ct. at 1112 . See, e.g., Parker v. State, 657 S.W.2d 137 (Tex.Cr.App.1983); Harris v. State, 642 S.W.2d 471 (Tex.Cr.App.1982).

I respectfully dissent.

. All emphasis is mine throughout unless otherwise indicated.

. Emphasis added in majority opinion.

. Thus belied is the theme of the majority that Davis is "limited by its facts.” Given that at issue was an adverse ruling by the trial court preventing counsel for Davis from introducing Green's juvenile record, the "adequacy” determination by the Alaska Supreme Court elevated that issue to constitutional heights. Manifestly, the Supreme Court did not grant certiorari to decide a constitutional question with an answer that is limited to the facts of that case.

. Original emphasis by Supreme Court.