State v. Lynch

FLAHERTY, Justice,

dissenting.

I respectfully dissent from the holding in this case on two grounds. First, with respect to the testimony of Mary-Ellen Tillotson, I agree with the majority- that her testimony regarding the matters related to her by Mary was hearsay evidence not subject to the exception set forth in Rule 803(4) of the Rhode Island Rules of Evidence, entitled “Statements for Purposes of Medical Diagnosis or Treatment.” As hearsay, evidence not subject to the exception, I agree with the majority that this testimony should not have been admitted. However, where I depart from the majority is in its conclusion that the admission of Tillotson’s testimony was harmless error.

This Court previously has set forth the factors to be utilized in determining whether error is harmless. Those factors include the “relative degree of importance of the witness testimony to the prosecution’s case, ‘whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and * * * the overall strength of the prosecution’s case.’ ” State v. Bustamante, 756 A.2d 758, 766 (R.I.2000) (quoting State v. Texter, 594 A.2d 376, 378 (R.I.1991)). After viewing Tillot-son’s testimony through the prism of the Bustamante factors, it is clear that Tillot-son was an important witness, especially in the context of this case, where the competency of the complaining witness was subject to a judicial determination and where both sides conceded that Mary, the complaining witness, was developmentally disabled. It seems no surprise that the prosecution offered Tillotson as a witness in advance of Mary’s testimony. This alone undercuts the description of her testimony as “cumulative.” 12

A fair reading of the record in this case also reveals that Tillotson’s testimony contributed substantially to the strength of the prosecution’s case. I therefore cannot agree that the admission of Tillotson’s testimony was harmless error beyond a reasonable doubt. See State v. Gomes, 764 A.2d 125, 135 (R.I.2001). Consequently, I *1055 believe that the admission of her testimony was reversible error.

Similarly, I would also hold that allowing Sergeant Holsten to testify about the oral statement that John gave to her concerning the nature of his sexual contact with Mary was reversible error. I agree with the majority that Sgt. Holsten’s recollection of John’s oral statement was hearsay and not subject to the exception set forth in Rule 804(b)(3) of the Rhode Island Rules of Evidence as a statement against interest. However, to then conclude that the officer’s testimony was harmless flies directly in the face of the recent holding of the United States Supreme Court in the case of Crawford v. Washington, — U.S. —, 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004).

The Crawford case involved a stabbing in Washington State, in which the defendant and his wife were given Miranda warnings and questioned about their involvement, if any, in the crime. Crawford , — U.S. at —, 124 S.Ct. at 1357 . During the interrogation, defendant’s wife gave a statement impheating her husband. Thereafter, he was charged with assault and attempted murder. At trial, the wife was called to testify, but she invoked her marital privilege and declined to testify. At that point, the prosecution offered her statement into evidence as a statement against her penal interest, pursuant to Rule 804(b)(3) of the Washington Rules of Evidence. Crawford , — U.S. at — - —, 124 S.Ct. at 1357-58 . Crawford objected on Sixth Amendment grounds. 13 The trial court admitted the statement after finding it trustworthy. Id. at 1358 . On appeal, Crawford contended that its admission deprived him of his Sixth Amendment right to confront and cross-examine the witnesses against him.

In vacating the conviction, the United States Supreme Court noted that the wife’s statement met all of the requirements for reliability set forth in the rules of evidence. However, the Court held that when there is a clash between those rules and the Sixth Amendment right to confrontation, the constitutional safeguards must prevail.

In the instant case, the argument for the admission of John’s statement is far weaker than in Crawford . In Crawford , the United States Supreme Court concluded that the wife’s statement met the requirements of the rules of evidence. Here, on the other hand, the majority specifically concludes that the challenged statement does not pass muster under Rule 804(b)(3). Nevertheless, the Court holds that the statement should be admitted.

The majority points out that:

“John, however, was neither at the time that he made the statements nor at the time of the trial a witness against defendant. His statements concerned an incident totally unrelated to the allegations against defendant and were never intended to be used as evidence against the accused herein.”

*1056 However, it does not seem to me that this is particularly relevant. What is relevant is that the statements did come into evidence over the defendant’s objection and that the defendant had no ability to cross-examine John. The right to confront and cross-examine witnesses against criminal defendants is so fundamental that it is troublesome to determine its absence to be harmless error.

In other Sixth Amendment challenges, this Court has declared that a harmless error analysis is inappropriate. See, e.g., State v. Torres, 844 A.2d 155, 162 (R.I.2004) (stating that “violations of the Sixth Amendment’s public-trial provision are not subject to a ‘harmless error’ analysis”); State v. Thornton, 800 A.2d 1016, 1057 (R.I.2002) (observing that “harmless-error analysis does not apply to Sixth Amendment right-to-counsel-clause violations”). In light of Crawford , it is questionable whether a harmless error analysis is appropriate in the first instance. Even if appropriate, this Court has determined that such an analysis is implicated only after a defendant has been “afforded the opportunity to conduct sufficient cross-examination under the applicable rules of evidence to satisfy the [Sixth Amendment] constitutional guarantees” to confront and cross-examine adverse witnesses. State v. Dorsey, 783 A.2d 947, 950 (R.I.2001). Here, defendant was given no opportunity whatsoever to cross-examine John on the statements attributed to him by Sgt. Hol-sten.

While I agree with the majority that the defendant interjected the incident with John into the trial, it is not the incident that is in question here but the hearsay testimony offered by Sgt. Holsten. I cannot accept this as harmless error and would reverse on that ground as well.

. Cumulative evidence is defined as: "Additional evidence of the same character as existing evidence and that supports a fact established by the existing evidence (esp. that which does not need further support).” Black's Law Dictionary 577 (7th ed.1999).

. Although, as noted by the majority, defense counsel did not challenge the admission of Sgt. Holsten’s testimony on Sixth Amendment grounds until the submission of his "post-oral argument citation to supplemental authorities[,]” I believe that this constitutional rights issue falls squarely within the exception to the raise or waive rule because it satisfies the three-part test reiterated in State v. Portes, 840 A.2d 1131, 1141 (R.I.2004). The challenged error was more than harmless, it was sufficiently addressed in the record and it was not raised because it constituted "a novel rule of law that counsel could not reasonably have known at the time of trial.” Id. The requisite novel rule of law was provided by Crawford v. Washington, — U.S. —, 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), a decision that was issued after conclusion of the trial in the instant matter.