Lowery v. Collins

• Decision Date: 07 April 1993
• Docket Number: No. 91-5086,91-5086
• Citation: 988 F.2d 1364
• Parties: 38 Fed. R. Evid. Serv. 331 Mitchell LOWERY, Petitioner-Appellant, v. James COLLINS, Director Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1364

988 F.2d 1364

38 Fed. R. Evid. Serv. 331

Mitchell LOWERY, Petitioner-Appellant, v. James COLLINS, Director Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 91-5086.

United States Court of Appeals, Fifth Circuit.

April 7, 1993.

Jennifer M. Smith (Court-appointed), Baker & Botts, Houston, TX, for petitioner-appellant.

S. Michael Bozarth, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, TX, for respondent-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before WIENER, BARKSDALE, and DEMOSS, Circuit Judges.

WIENER, Circuit Judge:

In this appeal from the federal district court's adverse habeas corpus ruling, Petitioner-Appellant Mitchell Lowery asserts that the court erred in denying him relief. Lowery insists that--in a state criminal case in which he was convicted of sexual assault of a minor--the State's introduction of a videotape of an interview of the child-complainant conducted by a social worker violated the defendant's Sixth Amendment right to confront the witnesses against him, ¹ and that the error was harmful beyond a reasonable doubt under Chapman v. California. ² Concluding that the district court improperly denied Lowery habeas relief, we reverse and grant the writ of habeas corpus pursuant to 28 U.S.C. § 2254, vacating the state conviction.

I FACTS AND PROCEDURAL HISTORY

Mitchell Lowery was indicted in Wood County, Texas, for aggravated sexual assault of a child, on the strength of the complaint of the alleged victim, Lowery's six-year-old stepson, Randall. Lowery pleaded not guilty. At his 1985 trial, the State's evidence consisted of 1) the testimony of Randall's mother, from whom Lowery is divorced (and from whom he was separated at the time of the alleged assault and the time of her testimony), 2) the testimony of three additional witnesses, ³ and 3) the playing of the videotaped interview, in which six-year-old Randall explained in detail (with the use of anatomically correct dolls) the alleged molestation. Lowery was convicted by the jury, and was sentenced to imprisonment for a term of fifty years.

Lowery's conviction was affirmed by the Court of Appeals in Texarkana (hereafter, the intermediate court), which issued an unpublished opinion. But three years and three months after Lowery's jury trial, the Texas Court of Criminal Appeals (hereafter, the TCCA) vacated his conviction. In so doing, the TCCA held that, in light of its decision in Long v. State ⁴ and the U.S. Supreme Court's opinion in Coy v. Iowa, ⁵ both discussed infra, the State's introduction of the videotape of the interview of Randall violated Lowery's Sixth Amendment Right to Confrontation of the witness. ⁶ It remanded the case to the intermediate court "to determine the harmfulness After exhausting his state habeas remedies, Lowery initiated this habeas corpus proceeding pursuant to 28 U.S.C. § 2254 (1988). He asserted that his constitutional rights had been violated in the state proceedings. Specifically, he alleged that 1) he had been denied his confrontation rights under the Sixth Amendment; 2) the jury had been improperly instructed on the effects of parole and good conduct; 3) the trial court had improperly admitted evidence of extraneous offenses he had committed; 4) he had received ineffective assistance of counsel; and 5) he had been improperly denied use of the trial records.

                of the introduction of the videotape in light of the entire record of the trial." 7  On remand, the intermediate court held that the erroneous admission of the videotaped testimony was harmless constitutional error under the Supreme Court's established standard. 8  This holding was made, however, in the face of the Supreme Court's holding in Chapman, that a defendant convicted on the basis of constitutionally inadmissible evidence is entitled to a new trial unless the error "was harmless beyond a reasonable doubt" 9--i.e., that " 'there [wa]s [no] reasonable possibility that the evidence complained of might have contributed to the conviction.' " 10
                

The case was referred to a magistrate judge who, in September 1991, recommended denial of habeas relief. The magistrate judge's memorandum addressed the claims seriatim, finding them either not cognizable in a habeas petition, wholly lacking in merit, or frivolous. In November 1991, the district court, after "a de novo determination of the objections raised by the prisoner" to the magistrate judge's report, adopted the findings and recommendation of that report and denied habeas relief. After Lowery timely appealed and filed his pro se brief, counsel was appointed for him. Appointed counsel then filed a supplemental brief on the Sixth Amendment issue.

II ANALYSIS

To obtain review of a state court judgment under § 2254, a prisoner must assert a violation of a federal constitutional right. In the instant case, Lowery asserts that, as held by the TCCA on direct appeal, his Sixth Amendment Confrontation right was violated by the trial court's admission of the videotaped interview in lieu of having the child testify. Lowery's petition further asserts that, in light of Chapman, the intermediate court erred on remand in its consideration of the effect of the constitutional error. On habeas review, however, the federal district court found that Lowery's constitutional rights were not violated by the introduction of the videotape despite the failure of the state to call the child-complainant to testify at trial. The district court reasoned that because the child-complainant was available to testify (i.e., Lowery could have called him), Lowery was not denied his right to confront the witness.

In simplest form, Lowery complains that, even though the violation was correctly recognized by the TCCA--the court of last resort for criminal appeals in Texas--on remand the effect of that violation was erroneously analyzed by the intermediate court. As a result, insists Lowery, that violation of his Sixth Amendment right was erroneously found to have been harmless under Chapman.

In order to consider this matter properly, we must determine 1) whether Lowery's constitutional rights were violated; 2) if so, what is the applicable standard of review of a state court's harmless error determination (under Chapman) in a federal habeas proceeding; and 3) when the constitutional violation that is found to have occurred is reviewed under the proper standard of review, was that violation nonetheless harmless beyond a reasonable doubt? In the

context of the instant case, then, we must determine whether (as found by the TCCA) admission of the videotape was constitutional error; and if it was, whether we agree with the intermediate court's determination on remand that such error was harmless beyond a reasonable doubt.

A. The Introduction of the Videotape Violated Lowery's Sixth Amendment Rights

As we have noted, when the TCCA vacated Lowery's conviction in the instant case, that court reviewed its own Confrontation Clause precedent, as well as the precedent of the United States Supreme Court. In Long v. State, ¹¹ the TCCA had held that a conviction could not stand when the child complainant had not testified in the State's case in chief but had testified for the State as a rebuttal witness. ¹² Subsequently, that court stated in Lowrey that

in Long, this Court held that forcing a defendant to call a child complainant to testify in order to cross-examine that individual creates a risk of inflaming the jury against a criminal defendant and also unfairly requires a defendant to choose between his right to cross-examine a complaining witness and his right to rely on the State's burden of proof in a criminal case. ¹³

The TCCA in Lowrey also discussed Coy v. Iowa, ¹⁴ in which the United States Supreme Court held that the defendant's Confrontation Clause rights were violated by the placing of a screen between the child-complainant and the defendant. The Lowrey court implied that the violation in the instant case was more prejudicial than were either the Long or the Coy violations because in Lowrey the State did not call the child-complainant to testify at all. ¹⁵

Since it decided Coy, the Supreme Court has rendered three opinions that address the aspect of the defendants' Sixth Amendment rights we here consider. Of those three, the case that is the most important to our review of the instant case is Maryland v. Craig. ¹⁶

In Craig, the Court held that admission of testimony of the child-complainant through the use of a one-way video monitor--which made possible the questioning and cross-examination of the child, and which questioning in turn was viewed by We find it significant ... that Maryland's procedure preserves all of the other elements of the confrontation right: the child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies. ¹⁸

                the jury--did not violate the defendant's confrontation rights.   In so holding, however, the Court recognized that "a defendant's right to confront accusatory witnesses may be satisfied absent face-to-face confrontation at trial only whe[n] denial of such confrontation is necessary to further an important public policy and only whe[n] the reliability of the testimony is otherwise assured." 17  Reviewing Maryland's procedures for admitting the testimony of the child under such circumstances, the Court stated
                

The confrontational safeguards approbated by the Supreme Court in Craig were conspicuously absent during Lowery's trial; clearly, the procedure did not "preserve[ ] all other elements of the confrontational right." For example, the state does not here assert record does not reflect that, before the interview, the competency of the witness to testify was determined;...