# Opposition Brief — Tafoya v. New Mexico

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 487 U.S. 1229

## Text

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(™ FILED
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~~ |) MAR 19. 86T
No. 86 — 1343 ~
NIOL, JR,
IN THE
Supreme Court of the United States
October Term, 1986
ROBERT JAMES TAFOYA,
Petitioner,
v.
NEW MEXICO,
Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF NEW MEXICO

RESPONDENT’S BRIEF IN OPPOSITION

HAL STRATTON
Attorney General of New Mexico

ELIZABETH MAJOR
Assistant Attorney General
Counsel of Record

P.O. Drawer 1508

Santa Fe, NM 87504-1508
(505) 827-6000

CHARLES H. RENNICK
Assistant Attorney General

Counsel for Respondent

March 18, 1987

es es
VERGARA PRINTING CO. + SANTA FE, NEW MEXICO

QUESTIONS PRESENTED

Whether the introduction of videotaped testimony of child
victims of sex offenses satisfies the Confrontation Clause of
the Sixth Amendment to the United States Constitution.

1. Did the videotaped depositions in this case, in which
the witnesses were sworn, Petitioner’s counsel cross-examined,
the jury observed demeanor, and Petitioner had full audio
and visual contact with his attorney and the testimony, satisfy
the purposes of the Confrontation Clause?

2. Did the New Mexico Court of Appeals correctly balance
the rights of Petitioner with policy considerations involved in
presenting the testimony of child victims of sex offenses?

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED..........-- +--+ eee sees i
TABLE OF AUTIRORRIT ES «cw nsec ce cccncncnnndass:s ili
STATEMENT OF THE CAGE. .. oo ccc ccc cncccccseusss> l
p<": ) |) rere rere: ene Serr 3
1. The Videotaped Depositions Satisfied the
Purposes of the Confrontation Clause of
the Sixth Amendment to the United States
Cometiqatiam ..... . ..cccccn tse teekeen eee ee ews ssa 3
2. The New Mexico Court of Appeals Correctly
Balanced the Rights of Petitioner with Policy
Considerations Involved in Presenting the
Testimony of Child Victims of Sex Offenses.......... +
REASONS FOR DENYING THE WRIT.............---- 10
COPE RIBIONG . ww. we ccc awn ces eee eueeeeee ne ee en ees 11

TABLE OF AUTHORITIES

Page

CASES:
Barber v. Page,

a ae 4
Bruton v. United States,

ee 4
California v. Green,

Se 3,4, 5
Chambers v. Mississippi,

a 5
Commonwealth v. Stincer,

712 S.W.2d 939 (Ky. 1986),

SS ee 10
Commonwealth v. Willis,

aware 2a 1. 1986)... cc cece 6
Davis v. Alaska,

ee 4
Douglas v. Alabama,

CO

Herbert v. Superior Court,
172 Cal. Rptr. 850,
pee ume, eo) (1981)... .... 2. ww ee cee 9

Hortonville Joint School Dist. No. ]
v. Hortonville Education Ass’n..

a 6
Kansas City v. McCoy,
525 S.W.2d 336 (Mo. 1975) (En Banc)............... 8

Lee v. Illinois,
476 U.S.___, 90 L.Ed.2d 514,

ee 3
Mancussi v. Stubbs,

es 5
Mattox v. United States,

SD, ce eck beach nendes 4,5
Ohio v. Roberts,

suns sce hel lbeweetvcoes 4,5

People v Moran,
114 Cal. Rptr. 413,
ee | a 8

ill

Pointer v. Texas,

Se NS ons kk wc. eee hee eee 4
State v. Mannion,

oe de Gl ere rare ere ree 9
State v. Messier,

101 N.M. 582, 686 P.2d 272 (Ct. App. 1984).......... 5
State v. Sheppard,

484 A.2d 1330(N.J. Law Div. 1984) ...........6...:. 8
State v. Vigil,

103 N.M. 583, 711 P.2d 28 (Ct. App. 1985)........ A
United States v. Benfield,

Se ee CL, CFSE bs ba cae ectseeeses 9

STATUTES AND RULES:

ee ee es oe. ee er ere 7
N.M. Stat. Ann. § 30-9-17 (Repl. Pamph. 1984) ........ 2.3.8
N.M.R. Crim. P. 29.1 (Repl. 1985); (current version at

N.M.R. Crim. P. 5-504 (Recomp. 1986))......... Ss

OTHER AUTHORITIES:

Libai, The Protection of the Child Victim of a Sexual
Offense in the Criminal Justice System, 15 Wayne
le OR, ea. GRRE oy oars Si ine ge eae area 5

Note, The Testimony of Child Victims in Sex Abuse
Prosecutions: Two Legislative Innovations,

ee ee. ee, CEs bees oak ee eee dees 5
Ordway, Proving Parent-Child Incest, 15 U. Mich.

ee SE aw oda > 6a ke ote 08 Re 8 a Os 5
The Supreme Court, 1969 Term,

ee a See. 6 Ne atk ea ae ee alee es etree 8
5 Wigmore, Evidence 8 1395 (Chadbourne Rev. 1974) ....... 8

No. 86 — 1343

IN THE

Supreme Court of the United States

October Term, 1986

ROBERT JAMES TAFOYA,

Petitioner,
V

NEW MEXICO,
Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF NEW MEXICO

RESPONDENT’S BRIEF IN OPPOSITION

The State of New Mexico, Respondent, respectfully requests
that this Court deny the petition for writ of certiorari seeking
review of the denial of a petition for writ of certiorari in the
New Mexico Supreme Court and of the Opinion of the New
Mexico Court of Appeals in this case.

STATEMENT OF THE CASE

Petitioner was convicted on twenty-three felony counts
stemming from a series of sexual assaults in Albuquerque’s
Northeast Heights area in the fall of 1984. He was sentenced
to 201 years in prison, of which 100 years were suspended. On
appeal, the New Mexico Court of Appeals affirmed and the

to

New Mexico Supreme Court denied a petition for writ of
certiorari.

The victims in this case consisted of six female children
ranging in age from four to eleven years and one female adult.
Pursuant to N.M. Stat. Ann. § 30-9-17 (Repl. Pamph. 1984)
and N.M.R. Crim. P. 29.1 (Repl. 1985) (current version at
N.M.R. Crim. P. 5-504 (Recomp. 1986), the State moved prior
to trial to present the testimony of the child victims by video-
taped deposition. A hearing was held at which experts in child
psychology and the childrens’ parents testified. The evidence
developed at this hearing established that the children would
suffer unreasonable and unnecessary mental or emotional harm
by testifying either in the same room as the alleged offender,
or in open court. The court granted the motion with respect
to five of the six children. The sixth child and the adult victim
testified in open court in the same room as Petitioner.

The depositions were obtained in the courtroom at the Uni-
versity of New Mexico School of Law. Present at these deposi-
tions were the prosecuting attorneys, Defense Counsel, the trial
judge, who presided, and, in each case, a non-related adult who
served as a supporting person and who sat in the spectator
section of the room. Defendant was seated in a control booth
adjacent to the courtroom which contained a one-way mirror
into the courtroom, but the mirror was partially blocked by
electronic equipment. The courtroom was designed specifically
for videotaping and provided sufficient audio-visual equipment.
Television monitors in the control booth provided Petitioner
with complete observation, both audio and visual, of the pro-
ceedings. In addition, both he and Defense Counsel were equip-
ped with headsets and microphones for two-way communica-
tion, and the trial judge was in communication with the control
room. The entire setup was disclosed to each of the child wit-
nesses, and, as a practical matter, they could see Defense Coun-
sel communicating by headset with Petitioner. Defense Counsel
conducted extensive cross-examination of each of the witnesses.

ARGUMENT

1. The Videotaped Depositions Satisfied the Purposes
of the Confrontation Clause ef the Sixth Amend-
ment to the United States Constitution.

Petitioner challenges only the restriction on actual, physical,
face-to-face confrontation with the witnesses. He does not
otherwise contest the procedure of videotaping the witnesses’
testimony. That procedure was upheld by the New Mexico
Court of Appeals in the case of State v. Vigil, 103 N.M. 583,
711 P.2d 28 (Ct. App. 1985). The State contends that the
physical separation of Petitioner and the witnesses did not
violate the Confrontation Clause of the Sixth Amendment.
The purposes of that clause, as developed by decisions of this
Court, were completely satisfied by the procedure adopted
in this case.

This Court identified the purposes behind the Confrontation
Clause in California v. Green, 399 U.S. 149 (1970). it was said
that confrontation

(1) insures that the witness will give his statements
under oath — thus impressing him with the serious-
ness of the matter and guarding against the lie by
the possibility of a penalty for perjury; (2) forces
the witness to submit to cross-examination, the
“greatest legal engine ever invented for the discov-
ery of truth”; (3) permits the jury that is to decide
the defendant’s fate to observe the demeanor of
the witness in making his statement, thus aiding
the jury in assessing his credibility.

/d. at 158. These interests were recently reaffirmed in Lee vy.
lllinois, 476 U.S.___, 90 L.Ed.2d 514, 526, 106 S.Ct. 2056
(1986). This Court further indicated in Douglas vy. Alabama,
380 U.S. 415 (1965) that ‘tan adequate opportunity for cross-
examination may satisfy the [confrontation] clause even in

4

the absence of physical confrontation.” /d. at 418. The Court
has consistently reaffirmed this principle. Ohio v. Roberts,
448 U.S. 56, 63 (1980); Davis v. Alaska, 415 U.S. 308, 315-16
(1974); California v. Green, 399 U.S. 149, 156-58 (1970);
Bruton v. United States, 391 U.S. 123, 126 (1968); Pointer v.
Texas, 380 U.S. 400, 406-07 (1965).

The mandate of Green was clearly satisfied in the present
case. Each witness was placed under oath. Each witness was
subjected to extensive cross-examination. Since Counsel was
aware that the depositions would constitute actual trial testi-
mony, the inquiry was far more searching than in the pre-
liminary hearing stage about which the Court has expressed
some concern. See California v. Green, 399 U.S. at 165; Barber
v. Page, 390 U.S. 719, 725 (1968). Petitioner was in a control
booth only a few feet away, and monitored both auditorily
and visually everything that transpired. He was in constant
communication with Counsel, thereby securing his right of
participation. The witnesses were aware of his presence, and
of his ability to see and hear them. Due to the high degree of
audio and video clarity, both Petitioner and the jury were
able to evaluate the demeanor of the witnesses.

Each of the purposes of confrontation was satisfied by the
procedure used in this case, and the New Mexico Court of
Appeals correctly held that Petitioner’s confrontation rights
were not abridged. ‘a

2. The New Mexico Court of Appeals Correctly Bal-
anced the Rights of Petitioner with Policy Consid-
erations Involved in Presenting the Testimony of
Child Victims of Sex Offenses.

The Court has recognized that the right of confrontation is
not absolute, and that countervailing considerations will some-
times prevail. In Mattox v. United States, 156 U.S. 237 (1895),
the Court noted that

general rules of law of this kind, however benefi-
cent in their operation and valuable to the accused,
must occasionally give way to considerations of
public policy and the necessities of the case.

Id. at 243; see Chambers v. Mississippi, 410 U.S. 284, 295
(1973) (right to confront not absolute; may bow to accommo-
date other legitimate interests). Based on this principle, the
Court has approved the use of prior testimony at a subsequent
trial. E.g., Ohio v. Roberts, 448 U.S. 56, 64 (1980) (testi-
mony from preliminary hearing); California v.Green, 399 U.S.
149, 165 (1970) (same); Mancussi v. Stubbs, 408 U.S. 204,
213-16 (1972) (testimony from prior trial); Mattox v. United
States, 156 U.S. 237, 243 (1895) (same).

In the present case, the court of appeals recognized that the
State has a strong interest in protecting child victims of sexual
abuse from the further trauma of testifying in court. See State
v. Vigil, 103 N.M. 583, 586, 711 P.2d 28 (Ct. App. 1985);
State v. Messier, 101 N.M. 582, 586, 686 P.2d 272 (Ct. App.
1984). This policy is reflected by statute, N.M. Stat. Ann.
§ 30-9-17 (Repl. ?Pamph. 1984), and by court rule, N.M.R.
Crim. P. 29.1 (Repl. 1985) (current version at N.M.R. Crim P.
5-504 (Recomp. 1986)). It is a policy whose legitimacy has
been widely recognized. £.g., Libai, The Protection of the
Child Victim of a Sexual Offense in the Criminal Justice Sys-
tem, 15 Wayne L. Rev. 977 (1969); Ordway, Proving Parent-
Child Incest, 15 U. Mich. J.L. Ref. 131 (1981); Note, The
Testimony of Child Victims in Sex Abuse Prosecutions: Two
Legislative Innovations, 98 Harv. L. Rev. 806 (1985).

The New Mexico statute provides that the deposition shall
be taken in the presence of the defendant. N.M. Stat. Ann.
§ 30-9-17 (Repl. Pamph. 1984). The rule provides that the
defendant must be present. N.M.R. Crim. P. 29.1(B) (2) (Repl.
1985) (current version at N.M.R. Crim. P. 5-504 (Recomp.
1986)). The court of appeals determined that Petitioner’s

6

presence in the control booth satisfied the terms “presence”
and “present.” (App. to Pet. for Writ of Cert. at 3). This inter-
pretation of state law should not be disturbed by this Court.
Hortonville Joint School Dist. No. 1 v. Hortonville Education
Ass'n., 426 U.S. 482, 488 (1976). The court of appeals has
previously upheld the constitutionality of the statute and rule -
to the extent that they provide for use of videotaped deposi-
tions of child victims of sex offenses. State v. Vigil, 103 N.M.
583,711 P. 2d 28 (Ct. App. 1985). Petitioner does not challenge
the constitutionality of the statute or the rule, and contests
only the procedure whereby the defendant is placed in a sep-
arate room during testimony.

Both the statute and the rule further provide that the de-
fendant must be represented by counsel or waive counsel,
and that he must be afforded an adequate opportunity for
cross-examination. N.M. Stat. Ann. § 30-9-17(A) & (B) (Repl.
Pamph. 1984); N.M.R. Crim. P. 29.1(B)(2) & (3) (Repl. 1985)
(current version at N.M.R. Crim. P. 5-504 (Recomp. 1986)).
The court of appeals reviewed the opportunity for cross-
examination provided by this procedure, and reviewed the
extensive testimony as to the mental or emotional harm that
the children would suffer by testifying in the same room with
Petitioner in a face-to-face setting. It held that the statute and
rule, as applied, satisfied Petioner’s confrontation rights, while
also providing a reasonable manner in which the childrens’
testimony could be presented. (App. to Pet. for Writ of Cert.
at 6-7).

Based on the policy of balancing the need to protect the
child victim of sex offenses with the need to ensure the right
of confrontation, at least two jurisdictions have upheld pro-
cedures for videotaping testimony similar to those used in the
present case. In Commonwealth y. Willis, 716 S.W.2d 224
(Ky. 1986), the Kentucky Court of Appeals upheld a statute
pertaining to child sex abuse cases which permits the court to

obtain a videotaped deposition of the child where the defend-
ant may see and hear the witness, but not be seen by the child.
/d. at 228. The Kentucky statute specifically provides that the
child shall be in a separate room, but that the defendant must
be permitted to observe and hear the testimony of the child in
person. Ky. Rev. Stat. Ann. 8 421.350 (3) & (4). (1986 Cum.
Supp.). Recognizing the necessity of the procedure and that it
applies only to the narrow class of child victims of sex offenses,
the court examined the confrontation provided to the defend-
ant, and upheld the procedure:

The videotaped or televised testimony under
88 3 or 4 of the statute is not hearsay. It is the
functional equivalent of testimony in court. The
testimony is taken with the court, counsel and
the defendant present in person. Full cross-exami-
nation is authorized. The defendant and the jury
can see and hear the witness and assess credibility
by observation of the demeanor of the witness.

The motion to take the victim’s testimony
pursuant to KRS 421.350 does not limit the
defendant’s right to cross-examination in any
way. He is not precluded from bringing out any
evidence of hostility, bias or other motive for
testifying or from otherwise attacking the credi-
bility of the witness. The right of confrontation
is fully protected as required by the constitution
and RCr 7.12.

Commonwealth vy. Willis, 716 S.W.2d at 228-29 (citations
omitted). With the exception of the Kentucky statute’s specific
provision for separating the defendant and the witness, the
statute is essentially the same as New Mexico’s. The procedures
followed are identical, and the interests of the defendant and
the witnesses which the Kentucky court found to be fully
served and protected were similarly served and protected in
the present case.

8

In State vy. Sheppard, 484 A.2d 1330 (N.J. Super. Ct. Law
Div. 1984), the court approved a closed-circuit television pro-
cedure. Under this procedure, the child would testify in one
room in the presence of the attorneys, and the testimony would
be received via monitors in the courtroom by the judge, the
defendant, and the jury. Private communication would be
provided between the defendant and his attorney, and an audio
system would be provided for communication between the
judge and the testimonial room. /d. at 1349. After an extensive
review of decisions from this Court, the court determined that
it must balance the potential trauma to the child with the right
of confrontation:

Great harm befalls the victims of child abuse.
It destroys lives and damages our society. Known
abusers are not being prosecuted because evidence
against them cannot be presented. Children who
are prevailed upon to testify may be more damaged
by their traumatic role in the court proceedings
than they were by their abuse. These considera-
tions must be weighed and balanced against the
right of confrontation in child abuse cases.

Id at 1342. The court declined to require “‘eyeball-to-eyeball”
contact, and found that the proposed procedure would enhance
the quest for truth, without unduly infringing the right of
confrontation. /d. at 1343-44; cf. People v. Moran, 114 Cal.
Rptr. 413, 417, 39 Cal. App. 3d 398 (Dist. Ct. App. 1974) use
of videotaped testimony from preliminary hearing); Aansas City
vy, McCoy, 525 $.W.3d 336, 339 (Mo. 1975) (En Banc) (closed-
circuit testimony of expert witness in case involving violation of
municipal ordinance). See so 5 Wigmore, Evidence § 1395 at
153-54 (Chadbourne Rev. 1974) (demeanor arises from witness’
presence before tribunal, not from confrontation between
defendant and witness); The Supreme Court, 1969 Term, 84
Harv. L. Rev. 1, 115 (1970) (factfinder’s observation of witness’
confrontation with defendant not constitutionally required).

9

Petitioner cites United States v. Benfield, 593 F.2d 815 (8th
Cir. 1979) and Herbert v. Superior Court, 172 Cal. Rptr. 850,
117 Cal. App. 3d 661 (Dist. Ct. App. 1981). Both cases are
distinguishable. As noted by the New Mexico Court of Appeals
in this case, neither Benfield nor Herbert presented a strong
showing of necessity for dispensing with the requirement of
face-to-face confrontation. In Benfield the victim was an adult,
and the charge did not involve sexual abuse. Furthermore, the
defendant did not have audio contact with his attorney, and the
witness was deceived as to his presence. /d. at 817. In Herbert
no videotaping was involved. Rather, the court arranged for the
child witness to testify out of sight of the defendant. Signifi-
cantly, the record failed to demonstrate the need for the pro-
cedure employed. /d. at 855. The New Jersey court in Sheppard
distinguished both Benfield and Herbert. State v. Sheppard,
484 A.ld at 1337-38. The Kentucky court in Willis distin-
guished Herbert, without mentioning Benfield. Commonwealth
vy. Willis, 716 S.W.2d at 230. The early case of State v. Mannion,
57 P. 542 (Utah 1899), is likewise distinguishable. The seating
arrangement struck down by the Utah Supreme Court in that
case had prevented the defendant from both seeing and hearing
the child witness, from seeing all of the jury, and from com-
municating with his attorney during the witness’ testimony.
Id. at 542-43. Moreover, there was not a strong showing of
necessity for protection of the child witness. /d. at 544.

By contrast, the record in the present case abundantly
supports a finding of necessity for the procedure utilized. The
court carefully balanced the need for protecting the children
with Petitioner’s right of confrontation. The degree of care is
illustrated by the fact that one of the children was required to
testify in open court, the court not finding that she would
suffer unreasonable and unnecessary harm. The procedure
employed completely satisfied Petitioner’s right to confront
the witnesses, and should be upheld.

10

Finally, Petitioner asks that this case be joined with Stincer
vy. Commonwealth, 712 S.W.2d 939 (Ky. 1986), cert. granted,
No. 86-572. The State opposes this request on the basis that
the issues are dissimilar. Stincer involves the exclusion of the
defendant from a competency hearing. It does not involve
actual trial testimony, or, as here, deposition testimony to
be used at trial, and does not involve closed-circuit television or
videotaped testimony in which the defendant can see and
hear the testimony, as well as communicate with his attorney.
As such, joinder is inappropriate, and will not serve to enhance
consideration of either case.

REASONS FOR DENYING THE WRIT

The New Mexico Court of Appeals, by unanimous decision of
the panel, correctly decided this case. The deposition procedure
used to obtain the testimony of the child victims complied with
the confrontation clause and satisfied its requirements as out-
lined by this Court in California v. Green. Each of the witnesses
was placed under oath. Each was subjected to extensive cross-
examination, and Defense Counsel was aware that the testi-
mony would comprise actual trial testimony. The means of
recording and reproducing the testimony provided both Peti-
tioner and the jury with excellent opportunities to observe the
demeanor of the witnesses. All of the elements of confrontation
were thereby satisfied.

The New Mexico Court of Appeals also reached a fair result.
By striking a proper balance between Petitioner’s right of con-
frontation and the strong state interest in protecting child
victims of sex offenses from the trauma of in-court testimony,
the court fairly accommodated all interests.

Finally, the procedure used in this case is narrowly limited to
a single class of cases. It applies only to children under the age
of thirteen years who are victims of sex offenses. Based on

1]

similarly narrow statutes, the courts of Kentucky and New
Jersey have approved this type of procedure.

CONCLUSION

Petitioner has not stated any issues which warrant considera-
tion by this Court. This Court should deny the petition for
writ of certiorari.

Respectfully submitted,

HAL STRATTON
Attorney General of New Mexico

ELIZABETH MAJOR
Assistant Attorney General
Counsel of Record

P.O. Drawer 1508

Santa Fe, NM 87504-1508
(505) 827-6000

CHARLES H. RENNICK
Assistant Attorney General

Counsel for Respondent
March 18, 1987

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0515%3A2. Public record. Not legal advice.