Opposition Brief — Schneider v. Virginia (No. 06-600)

3n The

Supreme Court of the Ani

®

CHRISTOPHER PAUL SCHNEIDER,

Petitioner,

v.

COMMONWEALTH OF VIRGINIA,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The Supreme Court Of Virginia

+

BRIEF IN OPPOSITION TO THE

PETITION FOR A WRIT OF CERTIORARI

7

ROBERT F. MCDONNELL WILLIAM C. MIMS

Attorney General of Virginia Chief Deputy Attorney

WILLIAM E. THRO General

State Solicitor General MARLA GRAFF DECKER

Counsel of Record Deputy Attorney Genearl

STEPHEN R. MCCULLOUGH ALICE T. ARMSTRONG

Deputy State Solicitor Assistant Attorney General

General OFFICE OF THE ATTORNEY

GENERAL

900 East Main Street

Richmond, Virginia 23219

Telephone: (804) 786-2436

Facsimile: (804) 786-1991

Counsel for the

Commonwealth of Virginia

February 12, 2007

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_—————

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2851

QUESTION PRESENTED

When a criminal defendant repeatedly cross-examines

a rape victim during a preliminary hearing and when the

trial court finds that the rape victim is unavailable for

trial, does the Sixth Amendment preclude the admission of

the rape victim’s preliminary hearing testimony?

il

TABLE OF CONTENTS

Page

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iio. sccncsnaseesiedeosmeneserosnoneneonti 1

ii ann sadecgnsesedountentoneneestenoesoees 3

REASONS FOR DENYING THE PETITION............ 12

I. SCHNEIDER NEVER RAISED HIS CURRENT

ATTACK ON THE ADMISSIBILITY OF

PRELIMINARY HEARING TESTIMONY IN

ii TIET sscessscusseoroctsevereatecosesesooseonrecteit 12

Il. THERE IS NO CONFLICT AMONG THE

LOWER COURTS REGARDING THE

ADMISSIBILITY OF PRELIMINARY HEARING

TESTIMONY UNDER CRAWFORD ...............+. 16

A. Crawford Is Clear Regarding the Use of

Preliminary Hearing Testimony .............. 16

B. The States Have Been Consistent in Their

Application of Crawford’s Principles to

Preliminary Hearing Testimony................... 17

III. SCHNEIDER OFFERS NO REASON FOR

THIS COURT TO GRANT HIS PETITION

ON THE LIMITED ISSUE THAT HE

ACTUALLY RAISED BELOW. ...cccccoccccsccccsovese 22

A. There Is No Demonstrated Need For a

CD PUDUORMLIIUE™ ... . cs ccnevededecoouveseseresees 23

B. There Was No Error in This Case............ 24

iin iu debevetesiodevsecntevecascessesereseoseeressessonssens 27

ii

TABLE OF AUTHORITIES

Page

CASES

Adams v. Robertson,

Ge te GD CIT Piccissacscccommnniiibithtlentabeniniinetemintineaniidiignas 12

Barber v. Page,

Re See Far Ga eieincaesteckbinietideitedeciiaaticdeinaincidianiddessibatibeidicine 24

Board of Dirs. of Rotary Int'l v. Rotary Club,

I Rett Ee CNET deinen ehibnnstctitacnteiacinitsicedininaiedaiaatinhiasecetinictiats 14

Calderon v. Thompson,

ee ry ee I icinisiancictcasichietinnraidgpeditatitiehaniiadiiitinabscans 24

California v. Green,

399 U.S. 149 (1970)......cccccccccssrcscccees 16, 17, 19, 20, 21, 23

Cardinale v. Louisiana,

Se re SUE Ie rice cennssinliciecaniaiediniandsdaiiciniesnisbiealasaiaetcaboaades 13

Chambers v. Mississippi,

Se Vk ee Cea tinactnincicieesnntreiiilcicinienidenigaiaibiodennas 21

Colorado v. Fry,

Be a Oe Cee Oe cersatncetbnteecrenteicctciniianvicientiiesietin 18

Crawford v. Washington,

GS RAs Se CE cenndcesncerntvcnsccsasteniess 1, 11, 16, 17, 18, 19

Hathorn v. Lovorn,

Be FFs Be Ce crsecteciniccmbicbenesininiecntoniiiiaamiasinedenss 14

Hill v. California,

Ge Shs PPE TD tictisdcinecintinrteccdianaidenneinadgienae 13

Kansas v. Young,

7 Fe Se CRE, BODE) cccvcceccerssnvevescncestonees siaatebuteedenie 17

Mattox v. United States,

BE CP e EE Cee ccvcinccitainsblinnsibdasialinteiiiaedanamnaatl 19, 21

iv

TABLE OF AUTHORITIES -— Continued

Moore v. Illinois,

ie Se aE I seiscdstisiitinbenestenscninniestctineniineiideisunescnbinisvetite 13

New Mexico v. Henderson,

136 P.3d 1005 (N.M. App.),

cert. denied,

I il teen 17,18

Ohio v. Roberts,

i I ciiisc te icecesinanicincitiidesnsachdeicda dteDditidsiacabiciestnbion 16

Overton v. Ohio,

SI en SO a eimancunna 24

Primeaux v. Oklahoma,

88 P.3d 893 (Okla. App.),

cert. denied,

RE E.G AER Nn RCT eC ee 18

Sapp v. Virginia,

Se OPED © WEL, GUIIIIED idmaciniccvechausvasnepnnecssvdeecoueseasonces 26

Stanley v. Illinois,

BR, EOE OAR EL Reet a 13

Tacon v. Arizona,

I a a calseialigeanibai 13

Tory v. Cochran,

Se a a edmiceansiaicbioded 24

University of California Regents v. Bakke,

icra 13

Washington v. Mohamed,

130 P.3d 401 (Wash. App. 2006).............cccececceeeeeeeees 18, 19

Weatherford v. Bursey,

ee A NE UE iiiedislashccnaubncdinnssicehinidtnecenpiiniahianneiucela 19

TABLE OF AUTHORITIES — Continued

Page

Webb v. Webb,

Be Sy Se Ch EB itacttertexctniccemuisiaiieamoamedtiiten 13

Wisconsin v. Stuart,

SS Bec Fete Oe CUI, BIOS vs cvsenscesissvevesdarersaneerentcnvenns 18

Yee v. Escondido,

rie EN Gh ID vnitseenscisscéccenvansencdpensseaketenianinennnieteens 12

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VI

(Confrontation Clause)............. 2, 11, 12, 18, 16, 21, 23

STATUTES

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Ny CEES RGB vein insenceccreivevencscincseosishesesncedstusieions 5

RULES

FS Fas A eiticasccsinnssecvinvccivnsstccaianieasienvenions 26

SPW Eels Was Be noxbniccnersatseaiedeercassivesenissiotipn ainniaastakion 24

SF: Pes ROOD is tntttartsiccremeeiaerestencemeetaiaaion 13

EEA: UP. GF, Th, GHB cc esssnssssecevivecicsentneciceesnenvviionsin 14

eR I, E70. Bis PED es sissvicensnnscatinnerierniersianesiainens 14

BRIEF IN OPPOSITION TO THE PETITION

FOR A WRIT OF CERTIORARI

Virginia Attorney General Robert F. McDonnell, on

behalf of the Commonwealth of Virginia, responds to the

Petition for Writ of Certiorari.' For the reasons detailed in

this Brief in Opposition, the Petition should be denied.

¢

INTRODUCTION

By “leav[ing] for another day any effort to spell out a

comprehensive definition of ‘testimonial,’” Crawford uv.

Washington, 541 U.S. 36, 68 (2004), this Court left certain

questions unresolved. However, in the area of preliminary

hearing testimony, Crawford was clear: testimony from a

preliminary hearing is inadmissible unless: (1) the witness

was unavailable; and (2) the defendant had a prior

opportunity to cross-examine the witness. Jd. at 53-54, 68.

In this instance, both conditions are met. First, the trial

court reasonably concluded that the rape victim was an

unavailable witness. Second, because the rape victim

previously testified under oath, because Schneider was

present and represented by counsel during the

preliminary hearing, and because Schneider had actually

cross-examined the rape victim, the trial court concluded

that Schneider had a prior opportunity to cross-examine

the witness.

Nevertheless, Schneider asks this Court to review the

Virginia court’s straightforward application of Crawford.

' On December 12, 2006, this Court directed that a response be

filed. On December 22, 2006, this Court extended the time for filing the

response to February 12, 2007.

2

Certiorari should be denied for several reasons. First,

Schneider’s principal argument to this Court, that

admitting preliminary hearing testimony violates, the

Confrontation Clause, U.S. Const. amend. VI, was never

raised in the state courts. Instead, he expressly conceded

in the state courts that his sole issue was whether the

witness was properly deemed “unavailable.” To ensure a

fully developed record and out of comity to state courts,

this Court has declined to grant certiorari when a party

engages in such “bait and switch” tactics. Thus, certiorari

is not available to a petitioner seeking review pursuant to

28 U.S.C. § 1257 if he fails to properly present his federal

claim.

Second, there is no conflict among the lower courts. A few

States have precluded the use of preliminary hearing testimony

at trial because, as a matter of state law, those courts have

concluded that the limited scope of cross-examination at

preliminary hearings precludes the use of such testimony at

trial. The majority, including Virginia, have held that such

testimony is admissible where the defendant had a prior

opportunity to cross-examine the witness.

Finally, contrary to Schneider’s assertions, there is no

need for this Court to review so as to adopt a “uniform

standard” for determining when a witness should be

deemed unavailable. Schneider does not point to any

conflict among the lower courts or offer any reason for this

Court to grant certiorari — except his clear desire to escape

punishment for his horrendous pattern of the rape of a

child. In fact, the wide range of situations that present

themselves to the courts, such as the death of a witness,

illness, flight, memory loss or feigned memory loss, refusal

to cooperate, witness intimidation and other situations

militate against any such “uniform standard.” With

3

respect to this issue, Schneider seeks nothing more than

an opportunity for error correction. Certiorari should be

denied.

STATEMENT

l.a. Schneider began sexually abusing his step-daughter,

Christi, when she was thirteen years old. Tr. 10/03/02 at

11, 14. Christi told her therapist that Schneider raped her

weekly, except when she was menstruating — when he

forced her to perform fellatio on him. Tr. 12/03/02 at 37-38.

Over this three year period, Christi tried to physically

resist, but was unable to do so. Tr. 10/03/02 at 18. Christi

told her mother that she was being abused by Schneider,

but her mother did not believe her. Tr. 12/03/02 at 37-38.

Christi reported Schneider’s rapes on three different

occasions. Tr. 10/03/02 at 14-16; Tr. 12/03/02 at 47-48.

However, Schneider was never charged because Christi

recanted each time. Tr. 10/03/02 at 14-15; Tr. 12/03/02 at

47-48. Christi explained she had recanted because of

pressure from Schneider, her mother’s refusal to believe

her, and the fact that her mother and her brother loved

Schneider and did not want to lose him. Tr. 10/03/02 at

14-16; Tr. 12/03/02 at 47-48.

b. On April 25, 2002, when Christi was sixteen years old,

she confided in her therapist, Joyce Costigan, that

Schneider had been raping her over a period of years. Tr.

12/03/02 at 33-34, 37, 45. Costigan, who was required by

law to do so, told Christi she would have to report the

abuse right away. Tr. 12/03/02 at 38, 50. Christi asked

Costigan to wait until she had evidence to support her

allegation. Tr. 12/03/02 at 50 Christi told Costigan that

4

her mom would be going away that evening and that

Schneider would rape her again that night. Tr. 12/03/02 at

38. Christi had decided to obtain physical evidence to

prove the rapes and to persuade her mother of what was

occurring. Tr. 10/03/02 at 14, 16; Tr. 12/03/02 at 49-50.

Costigan agreed to wait because of Christi’s prior

recantations, but told Christi she would call that evening

to report the abuse. Tr. 12/03/02 at 38, 50.

That evening, when Christi’s mother left the house,

Schneider told her to come upstairs and sit on the bed. Tr.

10/03/02 at 7. Schneider grabbed her breasts, began

kissing and fondling Christi, and then told her to take off

her clothes. Tr. 10/03/02 at 7. Christi complied with

Schneider’s order. Tr. 10/03/02 at 7. Thereafter, he proceeded

to have sexual intercourse with her. Tr. 10/03/02 at 7-8.

When he was done, he ejaculated on Christi’s stomach. Tr.

10/03/02 at 7-9.

Schneider got a washcloth and told her to wipe off her

stomach. Tr. 10/03/02 at 9. As she had planned, Christi

pretended to wipe the ejaculate off her stomach, tossed the

washcloth back to Schneider and put her clothes on. Tr.

10/03/02 at 9. Christi told Schneider she was going to bed,

but instead she ran to a neighbor’s house where she called

Costigan and told her, “He did it. He raped me.” Tr.

10/03/02 at 9; Tr. 12/03/02 at 39. Costigan told Christi to

stay where she was while Costigan called the police. Tr.

10/03/02 at 9-10; Tr. 12/03/02 at 39.

When the police arrived, the officer noticed “a wet spot

with a whitish-type color on her” stomach. Tr. 12/03/02 at

57. Christi had kept Schneider’s semen as evidence on her

stomach. Tr. 12/03/02 at 57-58, 69-70. The police took

Christi to have a rape kit test done and the semen on her

5

stomach was obtained for DNA analysis. Tr. 10/03/02 at 10;

Tr. 12/03/02 55-56, 62, 69-71. The sexual assault nurse

examiner also conducted a physical exam. Tr. 12/03/02 at

63. The nurse reported that although the exam was

“inconclusive,” the tissue on Christi’s cervix was irritated

and “friable” at the time of the exam. Tr. 12/03/02 at 65.

The DNA sample was a conclusive match to Schneider. Tr.

10/03/02 at 19; Tr. 12/03/02 at 32, 72-75; Commonwealth’s

Exhibit 1. Schneider stipulated to the DNA report at trial.

Tr. 12/03/02 at 32.

ec. Christi has been diagnosed with bipolar disorder,

manic depression and attention deficit hyperactivity

disorder. Tr. 12/03/02 at 20. She had been seeing the

therapist, Costigan, for approximately two years at the

time of the incident. Tr. 12/03/02 at 33, 40. When Christi

was nine years old, she was hospitalized for over a year for

mental health issues. Tr. 12/03/02 at 20-21. In addition,

Christi had been removed from her home in the past

because of physical abuse. Tr. 12/03/02 at 98. By the time

of trial, Christi had been sent to live with a woman whom

she had not met previously and was forced to change

schools. Tr. 12/03/02 at 18-20, 96. Meanwhile, Schneider

was living in the family home. Tr. 12/03/02 at 95-96.

2. Schneider was charged with rape in violation of

Virginia Code § 18.2-61. App. 9. At the October 3, 2002

preliminary hearing in the Virginia Beach Juvenile and

Domestic Relations Court, Christi testified against

Schneider. Tr. 10/03/02 at 4-21. Christi testified under oath

and was subjected to direct examination, cross-examination,

redirect, re-cross, and, after a second redirect, further

recross-examination. Tr. 10/03/02 at 4-21.

a. During Schneider’s counsel’s cross-examination of

Christi, he attempted to show that she had initiated the

encounter in order to “set up” Schneider.’ Specifically,

counsel asked Christi if she, a sixteen-year-old girl, had

“come on” to Schneider that night. Tr. 10/03/02 at 11.

Christi denied this allegation. Tr. 10/03/02 at 11.

Nevertheless, Christi admitted she had “planned” the

April 25, 2002 encounter in advance and told her therapist

she was going to do it to gather evidence. Tr. 10/03/02 at

12, 14. Christi explained that her plan was to preserve

evidence of Schneider’s abuse, “so that it wouldn’t happen

again.” Tr. 10/03/02 at 14, 16. Christi conceded she took off

her own clothes and that Schneider did not force, threaten

or hurt her. Tr. 10/03/02 at 13. During the preliminary

hearing, Christi also admitted she had made similar

allegations against Schneider on three prior occasions but

had subsequently recanted. Thus, no criminal charges had

been brought against Schneider on those occasions. Tr.

10/03/02 at 14-15. On further cross-examination, Christi

agreed this particular occasion was “voluntary” and she

did not have to go to Schneider’s bedroom when he called

her. Tr. 10/03/02 at 17-18. Finally, Christi admitted

Schneider had never threatened her. Tr. 10/03/02 at 19.

b. At the conclusion of the preliminary hearing, the trial

court certified the case to the grand jury. Tr. 10/03/02 at

19.

3. Schneider was tried in a bench trial in the Circuit

Court of the City of Virginia Beach. App. 9.

* No motivation for such a “set up” was ever suggested either at the

preliminary hearing or at trial.

a. At trial, the prosecution produced Christi, who was

sworn and answered background questions. Tr. 12/03/02 at

15-16. When asked why she did not have a good

relationship with Schneider, Clristi stated, “I don’t feel

comfortable testifying.” Tr. 12/03/02 at 16. The prosecutor

asked, “Christi, are you saying that you are not going to

testify about what has taken place between — or what your

stepfather has done with you?” Tr. 12/03/02 at 17. Christi

responded, “Yes.” Tr. 12/03/02 at 17. The prosecutor stated,

“Christi, do you understand that you are under a subpoena

which is a court order to testify?” Christi responded,

“Yeah.” When asked why she would not testify, she stated,

“TI cannot handle it mentally. I don’t think I’m capable of

handling it... . It’s stressful, and I just — it’s just hard and

I’m not going to do it.” Tr. 12/03/02 at 17.

Thereafter, the prosecutor asked Christi, “do you

understand that the court can order you directly to

testify?” and Christi responded, “Yes, ma’am.” Tr. 12/03/02

at 22. Christi affirmed she understood that there were

consequences for refusal to testify and that she understood

the consequences. Tr. 12/03/02 at 22. When asked what she

understood those consequences to be she stated, “Possible

fines. Possible [Detention in a Home for Juveniles].” Tr.

12/03/02 at 22. Based upon that response, the prosecutor

inquired, “Christi, with that in mind, will you testify today

about what took place — what your stepfather has done to

you over the past few years?” Tr. 12/03/02 at 21-22. Christi

stated, “No, ma’am.” Tr. 12/03/02 at 22.

b. At that point, the prosecution asked the court to order

Christi to testify. Tr. 12/03/02 at 22. The court said,

“Christi, do you understand that the charges here are very

serious felony charges?” and Christi acknowledged she

understood. Tr. 12/03/02 at 22. The judge told Christi,

8

“either the allegations you made are true, in which case

the court needs to hear what happened; or they’re not

true, in which case you're in trouble. Do you understand

that?” Tr. 12/03/02 at 22. Christi responded, “Yes, ma’am.”

Tr. 12/02/02 at 22. The trial court continued by asking her,

“[Djo you understand that if these things happened, you

are not the bad person here?” and Christi stated again,

“Yes, ma’am.” Tr. 12/03/02 at 22. Ultimately, the trial court

demanded, “You need to testify, and I’m ordering you to

testify about what happened.” Tr. 12/03/02 at 22. In the

face of the trial court’s order, Christi responded, “I won’t do

it.” Tr. 12/03/02 at 22.

c. In response, the prosecution requested that Christi be

declared an unavailable witness, as it was clear that

“despite the court’s order, she refuses to testify.” Tr.

12/03/02 at 22-23. The prosecutor argued:

[t]he Commonwealth has done _ everything

possible. We have gotten her here. I have met

with her in advance. I have explained, as the

court could see from her testimony, what the

consequences of not testifying would be — or from

her statements, I should say — what the

consequences of not testifying about her

stepfather’s actions would be; and yet she still

continues to refuse.

Tr. 12/03/02 at 23.

The prosecution moved the trial court to admit the

transcript of her prior testimony from the preliminary

hearing into the record. Tr. 12/03/02 at 23. In support of

the request, the prosecutor noted that the preliminary

hearing was under oath, Schneider was present, and “fhe

was represented not only by counsel, but by Mr. Cardon,”

9

the very same attorney representing him at trial. Tr.

12/03/02 at 23. The prosecutor further argued that:

[A]ls thle] record will reveal, [defense counsel]

had ample opportunity to cross-examine not only

about the events of April 25th, but defense

counsel opened the door to prior events; and so

those matters were discussed. And when I say

ample opportunity, I would note that the defense

was able to cross-examine, recross, and then

recross a second time; so three opportunities to

examine.

Tr. 12/03/02 at 23.

Thereafter, the trial court asked defense counsel

whether he had any questions for the victim, and defense

counsel answered, “I have no questions for her.” Tr.

12/03/02 at 24. The court then reviewed the preliminary

hearing transcript, specifically to ascertain the extent of

the cross-examination conducted. Tr. 12/03/02 at 25, 29-30.

d. Before ruling on the prosecution’s motion, however,

the trial court attempted to persuade Christi to testify. To

that end, the trial court instructed the deputy to take her

to the lockup. Tr. 12/03/02 at 25. Once Christi was locked

in a cell, the court noted, “maybe a half hour sitting back

in a cell will change her mind ... that will give her a

chance to reflect on what she’s done.” Tr. 12/03/02 at 25.

The trial court left Christi in the lockup for thirty-five

minutes. Tr. 12/03/02 at 26. The trial court brought her out

and told her, “Christi it’s been about ... thirty five

minutes since you’ve been in the back. Have you changed

your mind?” The witness responded “No, ma’am.” Tr.

12/03/02 at 26. The trial court went on to ask “So you still

refuse to testify?” She replied “Yes ma’am.” Tr. 12/03/02 at

26.

10

The trial court once again asked the prosecution and

defense counsel whether either of them had any questions

for the witness. Tr. 12/03/02 at 26-27. Neither the

prosecutor nor defense counsel had any questions for

Christi. Tr. 12/03/02 at 27. Nonetheless, the trial court

sent Christi back to the lockup once more — where she

remained until the conclusion of the trial. Tr. 12/03/02 at

27, 115-16.

e. While Christi was in the lockup, the trial court,

defense counsel and the prosecutor reviewed relevant case

law and after doing so, defense counsel admitted that, “in

reviewing these cases, it looks like it comes down to the

discretion of the court - what the court decides it should

do.” Tr. 12/03/02 at 27. Although defense counsel said it

was important that he be permitted to cross-examine

Christi, he never attempted to do so and did not proffer to

the trial court the alleged inconsistencies with her

preliminary hearing testimony or the substance of the

allegedly new information. Tr. 12/03/02 at 27-28. Indeed,

counsel specifically stated he did not have any questions

for Christi when offered the opportunity by the trial court.

Tr. 12/03/02 at 24, 27. After further argument of counsel,

the trial court determined Christi was, in fact, unavailable.

Tr. 12/03/02 at 29. The trial court found that Christi’s

testimony at the preliminary hearing was given under

oath; that it was accurately recorded by transcript; that

Schneider was present at the preliminary hearing and

represented by counsel; and that he was afforded the

opportunity of cross-examination when Christi testified at

the preliminary hearing. Tr. 12/03/02 at 28. Thus, the trial

court found that Christi was unavailable for trial and

received into evidence the transcript of her preliminary

hearing testimony. Tr. 12/03/02 at 27-31.

11

f. At the conclusion of the bench trial, the trial court

convicted Schneider, App. 10, and subsequently sentenced

him to serve twenty-five years in prison, with thirteen

years suspended. App. 12.

4. Schneider appealed to Virginia’s intermediate

appellate court. The focal point of his appeal was his

argument that the trial court erred in concluding that

Christi was unavailable to testify and, therefore, his rights

under the Confrontation Clause were violated. By

published opinion, the Court of Appeals of Virginia

affirmed his convictions. App. 1-8. The intermediate

appellate court noted that even prior to this Court’s

decision in Crawford, Virginia required the prosecution to show

“unavailability and an opportunity for cross-examination”

before testimony from a preliminary hearing could be

admitted at trial. App. 5. The tribunal also observed that

Schneider conceded he had had a prior opportunity to

cross-examine the witness. App. 5. Ultimately, the

appellate court held that Christi’s repeated refusals to

testify despite the trial court’s order that she testify,

combined with her being placed for a time in the lockup,

rendered her unavailable. Therefore, under the Virginia

state law precedent, the trial court properly deemed her

unavailable and permitted the prosecution to adduce the

preliminary hearing testimony. App. 5-8.

5. Schneider then sought discretionary review by the

Supreme Court of Virginia. On August 1, 2006, by

unpublished order without explanation, that court refused

the petition for appeal. App. 14. The Petition for Certiorari

followed.

12

REASONS FOR DENYING THE PETITION

The Petition should be denied for three reasons. First,

Schneider did not present his current federal claim — that

the Confrontation Clause precludes the prosecution from

employing preliminary hearing testimony at trial - in

the lower courts. Second, there is no conflict among the

lower courts regarding Crawford’s application to the use

of preliminary hearing testimony. Third, Schneider

presents this Court no reason to review the state courts’

determination regarding the unavailability of the witness.

For all these reasons, certiorari should be denied.

I. SCHNEIDER NEVER RAISED HIS CURRENT

ATTACK ON THE ADMISSIBILITY OF

PRELIMINARY HEARING TESTIMONY IN

STATE COURT.

In his Petition for Certiorari, Schneider devotes the

majority of his argument to a general attack on the

admissibility of preliminary hearing testimony in a trial.

Pet. at 6-11. However, he never raised those contentions in

state court. Instead, he focused exclusively on whether the

trial court correctly found the victim to be an unavailable

witness. He conceded he had the opportunity to

cross-examine the victim at the preliminary hearing.

With “very rare exceptions,” when reviewing state-court

judgments under 28 U.S.C. § 1257, this Court will not

consider a petitioner’s federal claim unless it was either

addressed by or properly presented to the state court that

rendered the decision a petitioner asks this Court to

review. Adams v. Robertson, 520 U.S. 83, 86 (1997) (per

curiam); Yee v. Escondido, 503 U.S. 519, 533 (1992).

Moreover, this Court’s Rules require the petitioner

13

to specify “the stage in the proceedings, both in the court

of first instance and in the appellate courts, when the

federal questions sought to be reviewed were raised; the

method or manner of raising them and the way in which

they were passed upon by those courts.” Sup. CT. R.

14.1(g)(i). Applying these principles, this Court “has

consistently refused to decide federal constitutional issues

raised here for the first time on review of state court

decisions.” Cardinale v. Louisiana, 394 U.S. 4387, 438

(1969). See also University of California Regents v. Bakke,

438 U.S. 265, 283 (1978) (Powell, J., announcing the

judgment of the Court); Tacon v. Arizona, 410 U.S. 351,

352 (1973); Moore v. Illinois, 408 U.S. 786, 799 (1972);

Stanley v. Illinois, 405 U.S. 645, 658, n.10 (1972); Hill v.

California, 401 U.S. 797 (1971). Requiring a party to

present the argument to the state courts before seeking

certiorari not only respects the comity that the States and

National Government owe each other, it also ensures that

the record is adequately developed to enable this Court to

address the issues presented. See Webb v. Webb, 451 U.S.

493, 500-01 (1981).

While Schneider did raise a Confrontation Clause

issue on appeal — whether the victim was unavailable — he

never contended in state court that the preliminary

hearing testimony should not be admitted in a criminal

trial. App. 1-8. In fact, Schneider expressly and repeatedly

limited the scope of his Confrontation Clause challenge to

whether the trial court properly determined that the

victim was an unavailable witness. See Def.’s Br. Supp.

Mot. to Set Aside Finding of Guilty at 5, Commonwealth v.

Schneider, No. CR02-3390; Tr. 5/28/03 at 9; App. 1, 5;

Petition for Appeal at 6, Schneider v. Commonwealth, No.

060470 (Va. Aug. 1, 2006). Indeed, the first sentence of the

14

lower court’s opinion makes plain the manner in which

Schneider framed the issue for the state court: “The sole

issue here for determination is whether the trial court

erred in finding a witness was ‘unavailable’ and in

consequently admitting into evidence a transcript of her

preliminary hearing testimony at trial.” App. 1 (emphasis

added). In its analysis of the case, the court below

reiterated that “appellant challenges only the finding of

unavailability” and the court limited its ruling to that

issue. App. 5. “When the highest state court has failed to

pass upon a federal question, it will be assumed that the

omission was due to want of proper presentation in the

state courts, unless the aggrieved party in this Court can

affirmatively show the contrary.” Board of Dirs. of Rotary

Int'l v. Rotary Club, 481 U.S. 537, 550 (1987) (internal

quotations and citations omitted). Because Schneider

expressly limited his Confrontation challenge in state

court, he cannot raise a different challenge in this Court.’

Moreover, the record belies Schneider’s suggestion that

he did not have a meaningful opportunity to cross-examine

Christi at the preliminary hearing. Schneider’s counsel

engaged in no less than three rounds of questioning. Tr.

10/03/02 at 11-13, 16-19. Notwithstanding Schneider’s

assertions to the contrary, Pet. at 8, Christi’s prior

* Furthermore, given Schneider’s express concession in the trial

court that he was contesting only the determination of “unavailability,”

Virginia’s appellate courts would not have considered the issues he now

seeks to raise in this Court. See VIRGINIA SuP. CT. R. 5:25; 5A:18. Thus,

the State’s procedural] rules provide an independent and adequate state

law ground for not considering the question presented. See Hathorn v.

Lovorn, 457 U.S. 255, 262 (1982) (noting failure to comply with a state

procedural rule may constitute an independent and adequate state

ground barring review of a federal question).

15

recantations of similar allegations were revealed and the

reasons for those recantations explored at the preliminary

hearing. Christi admitted she had recanted three times

prior to the report giving rise to the instant conviction. Tr.

10/03/02 at 14-15. Indeed, the trial court expressly noted

these recantations in pronouncing sentence. Tr. 5/28/03 at

76. In addition, his suggestion that he did not discover (or

could not have discovered in the exercise of reasonable

diligence) that Sheila Richards had impeachment information

prior to the preliminary hearing strains credulity. Pet. at 8.

The record discloses that Christi allegedly “bragged” to

Richards that she had “set him up” nearly six months prior to

the preliminary hearing. Tr. 12/03/02 at 86-87. Richards,

Christi’s mother’s self-described “best friend,” was surely

someone known to Schneider. Tr. 12/03/02 at 84. It is unlikely

that defense counsel's use of the phrase “set up” during his

cross-examination of Christi was coincidental. Tr. 10/03/02 at

12.

Finally, the trial court asked Schneider’s counsel not

once, but twice, whether he had any questions for Christi

before declaring her unavailable. Tr. 12/03/02 at 24, 26-27.

Each time, counsel responded that he had no questions. Tr.

12/03/02 at 24, 27. Having expressly declined the

opportunity to put any questions to Christi, Schneider

should not now be heard to complain that he was unable to

do so.

Given Schneider’s failure to present his general attack

on the admissibility of preliminary hearing testimony in

the state courts, this case represents a poor vehicle to

address Schneider’s argument. Moreover, the record does

not support his factual contentions. Therefore, certiorari

should be denied.

16

II. THERE IS NO CONFLICT AMONG THE LOWER

COURTS REGARDING THE ADMISSIBILITY

OF PRELIMINARY HEARING TESTIMONY

UNDER CRAWFORD.

A. Crawford Is Clear Regarding the Use of

Preliminary Hearing Testimony.

In Crawford, this Court revisited its framework for

analyzing Confrontation Clause issues. The Court held

that to admit into evidence the “testimonial” prior

statements of a witness, there must be “unavailability and

a prior opportunity for cross-examination.” 541 U.S. at 68.

Although the Court declined to fashion a definition of the

term testimonial, it unequivocally included preliminary

hearing testimony as falling within the definition of

testimonial statements. Jd. Thus, in the area of

preliminary hearing testimony, no new rule was

announced, While disavowing the reasoning of Ohio v.

Roberts, 448 U.S. 56 (1980), this Court embraced the

outcome of its prior cases. Id. at 59.

California v. Green, 399 U.S. 149 (1970), is dispositive

of the case at bar. In Green, the Court held that the

preliminary hearing testimony of a witness who suffered a

“memory lapse” at trial was admissible. Jd. at 165. The

Court found that the witness’s statement was

given under circumstances closely approximating

those that surround the typical trial. [The witness]

was under oath; respondent was represented by

counsel — the same counsel in fact who later

represented him at the trial; respondent had every

opportunity to cross-examine [the witness] as to his

statement; and the proceedings were conducted

before a judicial tribunal, equipped to provide a

judicial record of the hearings.

17

Id. at 165. The Court acknowledged the difference between

a preliminary hearing and a trial, but concluded that “in

the present case, respondent’s counsel does not appear to

have been significantly limited in any way in the scope or

nature of his cross-examination of the witness ... at the

preliminary hearing.” Jd. at 166.

Under longstanding precedent, the witness in the case

at bar was correctly deemed “unavailable” to testify at

trial and Schneider had an extensive opportunity to cross,

re-cross and re-re-cross the witness at the preliminary

hearing. Therefore, Schneider’s Confrontation rights were

not violated when the trial court considered the

preliminary hearing testimony.

B. The States Have Been Consistent in Their

Application of Crawford’s Principles to

Preliminary Hearing Testimony.

Schneider contends that there is a split among the

States regarding the admissibility of preliminary hearing

testimony. Pet. at 9. In fact, there is no conflict. The States

admit or exclude preliminary hearing testimony

depending on the scope afforded for cross-examination at

such hearings under state law. Where, as here, defense

counsel is afforded a full opportunity to cross-examine,

States have permitted the admission of preliminary

hearing testimony for a witness who has become

unavailable. See New Mexico v. Henderson, 136 P.3d 1005,

1010 (N.M. App.), cert. denied, 127 S.Ct. 503 (2006)

(preliminary hearing testimony properly admitted because

defendant “was given an unrestricted right to cross-examine

the statements [the witness] gave at the preliminary

hearing which were later admitted at trial. This satisfied

Crawford.”); Kansas v. Young, 87 P.3d 308, 316-17 (Kan.

18

2004) (preliminary hearing testimony admissible because

defendant had the opportunity to cross-examine);

Primeaux v. Oklahoma, 88 P.3d 893, 905 (Okla. App.), cert.

denied, 543 U.S. 944 (2004) (preliminary hearing testimony

is admissible where such “‘testimony was given under

circumstances which closely approximated those of a

typical trial’”) (citation omitted).

In contrast, where state law limits a criminal

defendant’s ability or opportunity to cross-examine, courts

have adhered to the strictures of Crawford and declined to

admit such testimony. See Wisconsin v. Stuart, 695 N.W.2d

259, 266 (Wis. 2005) (holding that because state law

limited cross-examination to issues of plausibility, not

credibility, use of preliminary hearing testimony at a later

trial creates a Confrontation Clause problem); Colorado v.

Fry, 92 P.3d 970, 977 (Colo. 2004) (holding that because

“the opportunity for cross-examination at a preliminary

hearing is very limited” under Colorado law, the admission

of preliminary hearing testimony was impermissible).

New Mexico’s intermediate appellate court recognized

that the decisions in Fry and Stuart hinged on the state

law restrictions for preliminary hearings in Colorado and

Wisconsin. That court noted that Fry and Stuart “are not

contrary to our holding here [admitting the preliminary

hearing testimony of an unavailable witness] because both

relied on the fact that the applicable procedural rules

governing preliminary hearings barred the defendant from

fully cross-examining the witness, particularly on matters

of credibility.” Henderson, 136 P.3d at 1010. Most recently,

in Washington v. Mohamed, 130 P.3d 401, 403 (Wash. App.

2006), Washington’s intermediate appellate court held that

the pretrial hearing at issue was not limited like the one

in Fry, because the defendant had ample opportunity at

19

the preliminary hearing to examine the witness who was

unavailable at trial. Mohamed, 130 P.3d at 404.

Stated differently, courts look at the latitude afforded

by state law during the preliminary hearing

cross-examination and determine whether the prior

testimony of an unavailable witness can be admitted. The

trial judge in the case at bar actually took this precaution

to evaluate the scope of the cross-examination at the

preliminary hearing before the prosecution was permitted

to introduce Christi’s prior testimony into evidence. Tr.

12/03/02 at 25, 29-30. Careful examination of the cases

shows that the “split” imagined by Schneider is in reality a

function of differences in state law, rather than a

divergence of opinion concerning this Court’s holding in

Crawford. With respect to preliminary hearing testimony,

Crawford is clear and States have adhered to its

strictures. Schneider offers a solution in search of a

problem. No further amplification or clarification is

required.

Schneider offers a number of policy arguments in

support of his contention that preliminary hearing testimony

should never be admitted. His arguments, however,

contradict settled — and recently reaffirmed — precedent.

Indeed, Schneider’s arguments would result in nothing

less than overruling Crawford, Green, and Mattox uv.

United States, 156 U.S. 237 (1895). Schneider notes that

witness examinations at preliminary hearings are often

less searching than at trial.’ Pet. at 6. The Court

* Schneider also complains that the timing of discovery may

preclude inquiry on a particular topic. However, a defendant has no

constitutional right to discovery. Weatherford v. Bursey, 429 U.S. 545,

559 (1977). Discovery was unknown at the time of the Framing. It is the

(Continued on following page)

20

acknowledged this obvious fact in Green, but concluded

that if a defendant is afforded broad opportunity to

cross-examine, there is no reason why the preliminary

hearing testimony should be excluded if the witness later

becomes unavailable. Green, 399 U.S. at 166. Where, as

here, a criminal defendant is given extensive opportunity

for cross-examination at the preliminary hearing, “nothing

in the Confrontation Clause prohibit[s] the State” from

relying on the prior testimony to prove its case against the

defendant. Jd. at 168.

Schneider also contends that use of the preliminary

hearing testimony deprives the fact finder at trial of the

opportunity to observe the witness’s demeanor and

precludes a defendant from questioning a witness if new

facts are developed either in discovery or through

independent investigation. Pet. at 6-8. Of course, that is

true in every instance where prior testimony is employed.

Taking this argument to its logical conclusion, prior

testimony, even from a prior trial, could never be adduced

once a witness becomes unavailable. In addition, the fact

finder in this case plainly had the opportunity to observe

Christi. What is more, the trial judge was so concerned

with Christi’s emotional state, that she had Christi’s

therapist meet with her at the conclusion of the trial. Tr.

12/03/02 at 29, 52, 67, 100-01. Therefore, this case simply

does not provide an opportunity to determine the

parameters of this potential shortcoming.

opportunity to cross-examine that matters for constitutional purposes,

not the timing of discovery disclosures. Essentially, Schneider seeks to

constitutionalize an enhanced opportunity for cross-examination based

on non-constitutional discovery rules.

21

More importantly, this Court has long recognized that

“the right to confront and to cross-examine is not absolute

and may, in appropriate cases, bow to accommodate other

legitimate interests in the criminal trial process.”

Chambers v. Mississippi, 410 U.S. 284, 295 (1973). Thus,

more than a century ago the Court was mindful that

[Gleneral rules of law of this kind, however

beneficent in their operation and valuable to the

accused, must occasionally give way to

considerations of public policy and the necessities

of the case. To say that a criminal, after having

once been convicted by the testimony of a certain

witness, should go scot free simply because death

has closed the mouth of that witness, would be

carrying his constitutional protection to an

unwarrantable extent. The law, in its wisdom,

declares that the rights of the public shall not be

wholly sacrificed in order that an incidental

benefit may be preserved to the accused.

Mattox, 156 U.S. at 243 (emphasis added). “The substance

of the constitutional protection is preserved to the prisoner

in the advantage he has once had of seeing the witness

face to face, and of subjecting him to the ordeal of a

cross-examination.” Jd. at 244.

Schneider also claims that “allowing preliminary

hearing testimony to be admitted in lieu of actual

testimony at trial sets a dangerous precedent ripe for

abuse.” Pet. at 9. This Court has explicitly endorsed the

use of preliminary hearing testimony, provided the

defendant has been afforded the opportunity to

cross-examine, since 1970. Green, 399 U.S. at 149.

Schneider does not show, and the respondent is not aware

of, any such cases, let alone an epidemic of unscrupulous

prosecutors who are circumventing the Confrontation

22

Clause through the inappropriate use of preliminary

hearing testimony. More fundamentally, a defendant who

was able to fully cross-examine the victim, as in the case

at bar, has received his constitutional due.’

This Court’s jurisprudence provides proper safeguards

for a defendant’s right to confront witnesses in preliminary

hearings. That standard has been correctly and

consistently applied by the States. The Petition for

Certiorari should be denied.

Ill. SCHNEIDER OFFERS NO REASON FOR

THIS COURT TO GRANT HIS PETITION ON

THE LIMITED ISSUE THAT HE ACTUALLY

RAISED BELOW.

The final portion of the Petition invites the Court to

“adopt a uniform standard for determining when a witness

is ‘unavailable.’” Pet. at 14. Schneider contends that the

trial court erred in concluding that the victim in his case

was “unavailable.” He suggests that “death or some other

meritorious reason” should constitute the standard for

“unavailability.” Pet. at 9. Unlike his other arguments,

Schneider did raise this issue in state court. However, his

contentions are without merit.

* Schneider’s petition also ignores the natural consequences that

would flow from the adoption of his proposed rule. If the prosecution

could never present preliminary hearing testimony, it would create an

incentive to ensure the silence of prosecution witnesses through

intimidation or worse.

23

A. There Is No Demonstrated Need For a

“Uniform Standard.”

At the threshold, Schneider does not demonstrate any

reason for this Court to address this issue. He has not

articulated any conflict among the lower courts on this

issue or shown that this is an area in which guidance from

this Court is needed. Furthermore, Schneider’s suggested

approach contravenes the holding in Green. In Green, this

Court held that the Confrontation Clause does not bar the

use of preliminary hearing testimony in the face of a

witness’s claimed loss of memory, claim of privilege or

simple refusal to answer, provided the preliminary hearing

afforded the defendant an opportunity to cross-examine

the witness. Id. at 167-68 (emphasis added).

Finally, as a conceptual matter, Schneider’s suggested

(but unarticulated) “uniform standard” is unsuitable for

an area of the law that requires flexibility. When a reliable

source testifies that a particular witness has died or left

the country, such testimony should ordinarily suffice for a

finding of unavailability. Other situations may require a

more searching inquiry of the facts to ensure a witness is

truly unavailable. For example, a hardened criminal may

need significant pressure from a court to determine that

he truly refuses to testify and thus be declared

unavailable. In contrast, a young girl, such as the rape

victim in this case, may require less pressure before the

trial court is assured the witness truly refuses to testify.

Each case must turn on its own facts and circumstances.

The trial courts, which have the opportunity to see the

witness, are the appropriate fora to determine whether a

witness is unavailable and should be vested with the

discretion to make that determination.

24

B. There Was No Error in This Case.

Schneider further argues that the trial court should

have exercised its contempt power or should have placed

Christi in custody for a more “meaningful” period. Pet. at

12-13. Schneider’s arguments on this point expose his

Petition for what it is: a request that this Court intervene

to engage in routine error-correction.

Reviewing routine cases for error-correction is not the

function of this Court. A writ of certiorari will be granted

only for “compelling reasons.” Sup. CT. R. 10. Although

Virginia maintains no error occurred, at most, Schneider’s

claim is nothing more than “the misapplication of a

properly stated rule of law.” Jd. Such petitions are “rarely

granted,” id., because this Court simply cannot devote

itself to case-specific error correction. See Tory v. Cochran,

544 U.S..734, 739 (2005) (Thomas, J., joined by Scalia, J.,

dissenting) (noting that the Court does not grant review

for “case-specific error correction”); Overton v. Ohio, 534

U.S. 982, 985 (2001) (Breyer, J.) (statement respecting

denial of certiorari) (noting that it is “axiomatic that this

Court cannot devote itself to error correction ....”);

Calderon v. Thompson, 523 U.S. 538, 569 (1998) (Souter,

J., joined by Stevens, Ginsburg, & Breyer, JJ., dissenting)

(same).

Even if this Court were tempted to engage in such

routine appellate review, no abuse of discretion occurred in

the case at bar. The prosecution produced the witness and

she was sworn. Therefore, the case at bar is unlike the

situation in Barber v. Page, 390 U.S. 719, 724-25 (1968)

(holding witness cannot be declared unavailable where the

25

prosecution has made 79 effort to secure the presence of

the witness).

Christi, a seventeen-year-old girl, refused to testify.

She explained her refusal, stating “I cannot handle it

mentally. I don’t think I’m capable of handling it.” Tr.

12/03/02 at 17. She noted “[iJt’s stressful, and I just — it’s

just hard; and I’m not going to do it.” Tr. 12/03/02 at 17.

The prosecutor asked her a number of questions about her

situation and asked her if she understood there could be

consequences for not testifying. Tr. 12/03/02 at 17-22. The

court also questioned the witness and ordered her to testify.

Tr. 12/03/02 at 22. The prosecutor asked the court to declare

that the witness was unavailable. Tr. 12/03/02 at 22-23. The

court refused, and sent the witness to the lockup. Tr.

12/03/02 at 25. After allowing seventeen-year-old Christi to

sit in a cell for over half-an-hour, the court again inquired

of Christi whether she would testify and again she refused.

Tr. 12/03/02 at 26. At that point, the court declared the

witness was unavailable but, in fact, held her in lockup

for the duration of the trial. Tr. 12/03/02 at 27-29, 100-01,

115-16.

Schneider’s suggestion that the trial covrt should

have treated this seventeen-year-old victim more harshly

before declaring her unavailable is unsupported by the

record. Pet. at ic. The record reveals Curisti was visibly

upset and tearful at both the preliminary hearing and

trial. Tr. 10/03/02 at 15; Tr. 12/03/02 at 29. At the hearing

on Schneider’s motion to set aside the finding of guilt, the

trial court noted “[t]his is someone who’s having problems,

who’s not living at home, who’s living with another family.”

Tr. 5/28/03 at 29. The court also reiterated:

26

She refused to testify. She was aware of the

penalties for refusing to testify. She was ordered

by the court to testify. She was taken in the back

to lockup, given a chance to think about it,

brought back out in the courtroom again and

asked if she would testify; 2nd she refused to

testify again. That is sufficient, pressure to ...

find her unavailable.

Tr. 5/28/03 at 33-34. The trial court’s conclusion that the

witness was unavailable under these circumstances

constituted a reasonable exercise of the court’s discretion.

Under the decision in Sapp v. Virginia, 559 S.E.2d

645, 649 (Va. 2002), a trial court must exert judicial

pressure upon a witness who refuses to testify. This

holding is consistent with FED. R. Evip. 804(a)(2), which

allows a court to find a witness unavailable where the

witness refuses to testify despite a court order. The plain

text of the federal rule does not require a court to hold the

witness in contempt. There is no reason state courts

should be required to reflexively deploy the sledgehammer

of contempt before declaring a witness unavailable. Nor is

there any reason to grant certiorari to review a routine

case based upon settled principles of law.

¢

27

CONCLUSION

For the reasons stated above, the Petition for a Writ of

Certiorari should be DENIED.

Respectfully submitted,

ROBERT F. MCDONNELL WILLIAM C, MIMS

Attorney General of Chief Deputy Attorney

Virginia General

WILLIAM E. THRO MARLA GRAFF DECKER

State Solicitor General Deputy Attorney General

Counsel of Record

STEPHEN R. MCCULLOUGH

Deputy State Solicitor

General

February 12, 2007

ALICE T. ARMSTRONG

Assistant Attorney General

OFFICE OF THE ATTORNEY

GENERAL

900 East Main Street

Richmond, Virginia 23219

Telephone: (804) 786-2436

Facsimile: (804) 786-1991

Counsel jor the

Commonwealth of Virginia