Carroll v. State

• Decision Date: 24 January 1996
• Docket Number: No. 1368-94,1368-94
• Parties: Johnny Eugene CARROLL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 494

916 S.W.2d 494

Johnny Eugene CARROLL, Appellant, v. The STATE of Texas, Appellee.

No. 1368-94.

Court of Criminal Appeals of Texas.

Jan. 24, 1996.

Ken J. McLean, Roy G. Romo, Houston, for appellant.

Ernest Davila, Assist. Dist. Atty., Houston, Robert A. Huttash, State's Atty., Austin, for the State.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted of murder and sentenced to thirty years confinement. The Court of Appeals affirmed. Carroll v. State, No. A14-93-01141-CR, 1994 WL 605870 (Tex.App.--Houston [14th Dist.] delivered November 3, 1994) (Not published). We granted review to determine whether the Court of Appeals erred in holding a State's witness may not be cross-examined concerning pending criminal charges. ¹ We will reverse and remand.

I. THE RIGHT OF CONFRONTATION

A. Historically

The right of confrontation has ancient roots. Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). Over two thousand years ago the Roman Governor Porcius Festus reported to King Agrippa: "It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face to face, and has been given a chance to defend himself against the charges." Coy v. Iowa, 487 U.S. 1012, 1015-1016, 108 S.Ct. 2798, 2800, 101 L.Ed.2d 857 (1988) (quoting Acts 25:16). See also, 5 Wigmore on Evidence (3d ed. 1940) Sec. 1364 (origin of right to confront witnesses).

The right of confrontation was also recognized in English common law. Salinger v. United States, 272 U.S. 542, 548, 47 S.Ct. 173, 175, 71 L.Ed. 398 (1926). See also, Pollitt, The Right of Confrontation: Its History and Modern Dress, 8 J.Pub.L. 381, 384-388 (1959) (describing confrontation of witnesses in England). Initially, the right of the accused to confront witnesses was recognized in trials for treason. Wigmore, at 123. Arguably, the most notorious treason trial in England was that of the Sir Walter Raleigh, accused of conspiring to overthrow the King of England. See, F. Heller, The Sixth Amendment to the Constitution, 104 (1968). See also, Pollitt, at 388. Raleigh was charged with treason after a third party, Cobham, confessed under torture, to conspiring with Raleigh. At trial, Raleigh was denied the opportunity to confront Cobham and Cobham's statement was used to convict and ultimately execute Raleigh. Pollitt, at 388-389. It was common during these times for an accused to be tried upon written "evidence which consisted solely of ex parte affidavits and depositions." California v. Green, 399 U.S. 149, 156, 90 S.Ct. 1930, 1934, 26 L.Ed.2d 489 (1970); Dowdell v. United States, 221 U.S. 325, 330, 31 S.Ct. 590, 592, 55 L.Ed. 753 (1911) (Purpose of confrontation clause was to exclude accusation by written deposition.); Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895) (Confrontation provision enacted to prevent accusation of crime by written deposition at trial.). By the seventeenth century the right to confront witnesses had grown in favor. Coy v. Iowa, 487 U.S. 1012, 1015-16, 108 S.Ct. 2798, 2800, 101 L.Ed.2d 857 (1988). See also, 5 J. Wigmore, Evidence Section 1395, p. 122 (3d ed. 1940). In Duke of Dorset v. Girdler (1720), Finch's Prec. Ch. 531, the right of confrontation was recognized as being fundamental to a fair trial: "The other side ought not be deprived of the opportunity of confronting the witnesses and examining them publicly, which has always been found the most effectual method for discovering the truth." Wigmore, at 123. (Internal quotations omitted.)

Although the right of confrontation had gained wide acceptance in England, it was not originally recognized in the United States Constitution. Ex parte Milligan, 71 U.S. (4 Wall) 2, 120, 18 L.Ed. 281 (1866). See also, Freely, Malcom M., The Oxford Companion to the Supreme Court of the United States, p. 935 (1992). Its recognition did not occur until the ratification of the Sixth Amendment. U.S. Const., Amend. VI. See, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 590, 100 S.Ct. 2814, 2834-2835, 65 L.Ed.2d 973 (1980) (Brennan, J., concurring); California v. Green, 399 U.S. at 175, 90 S.Ct. at 1943 (Harlan, J., concurring); United States v. Barracota, 45 F.Supp. 38, 38 (S.D.N.Y.1942). ² The United States Supreme Court has since held the right to confrontation is "[o]ne of the fundamental guarantees of life and liberty ... long deemed so essential for the due protection of life and liberty that it is guarded against legislative and judicial action by provisions in the Constitution of the United States and in the constitutions of most if not of all the States composing the Union." ³ Kirby v. United States, 174 U.S. 47, 55-56 19 S.Ct. 574, 577, 43 L.Ed. 890 (1899). Indeed, the right of confrontation helps to establish a criminal justice system "in which the perception as well as the reality of fairness prevails." Lee v. Illinois, 476 U.S. 530, 540, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514 (1986). ⁴

B. The Extent of this Right

The right to confront one's accuser necessarily includes the right to cross-examine. As the Supreme Court held in Davis v. Alaska:

The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.

Id., 415 U.S. 308, 315-316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974) (quoting 5 J. Wigmore, Evidence Section 1395, p. 123 (3d ed. 1940). (Emphasis in original.) See also, Douglas v. Alabama, 380 U.S. 415, 419, 85 S.Ct. 1074, 1077, 13 L.Ed.2d 934 (1965) (Jurors were entitled to make informed judgment as to the weight to assign to witness' testimony.); and, Smith v. Illinois, 390 U.S. 129, 132, 88 S.Ct. 748, 750, 19 L.Ed.2d 956 (1968) (citing Alford v. United States, 282 U.S. 687, 692-694, 51 S.Ct. 218, 219-220, 75 L.Ed. 624 (1931) ("Prejudice ensues from a denial of the opportunity to ... put the weight of [the witness'] testimony and his credibility to the test, without which the jury cannot fairly appraise them.") In short, confrontation is the check and balance that ensures fairness in our adversary system of justice, and cross-examination is the essential means by which opponents test evidence proffered against them. Davis, 415 U.S. at 316, 94 S.Ct. at 1110.

Cross-examination serves three general purposes: cross-examination may serve to identify the witness with his community so that independent testimony may be sought and offered concerning the witness' reputation for veracity in that community; cross-examination allows the jury to assess the credibility of the witness; and, cross-examination allows facts to be brought out tending to discredit the witness by showing that his testimony in chief was untrue or biased. Alford v. United States, 282 U.S. 687, 691-92, 51 S.Ct. 218, 219, 75 L.Ed. 624 (1931) (citing Tla-Koo-Yel-Lee v. United States, 167 U.S. 274, 17 S.Ct. 855, 42 L.Ed. 166 (1897)). Cross-examination is by nature exploratory and there is no general requirement that the defendant indicate the purpose of his inquiry. Ibid. Indeed, the defendant should be granted a wide latitude even though he is unable to state what facts he expects to prove through his cross-examination. Ibid.

C. Limitation of Cross-examination

The Constitutional right of confrontation is violated when appropriate cross-examination is limited. Hurd v. State, 725 S.W.2d 249, 252 (Tex.Cr.App.1987). The scope of appropriate cross-examination is necessarily broad. A defendant is entitled to pursue all avenues of cross-examination reasonably calculated to expose a motive, bias or interest for the witness to testify. Lewis v. State, 815 S.W.2d 560, 565 (Tex.Cr.App.1991). When discussing the breadth of that scope we have held,

... Evidence to show bias or interest of a witness in a cause covers a wide range and the field of external circumstances from which probable bias or interest may be inferred is infinite. The rule encompasses all facts and circumstances, which when tested by human experience, tend to show that a witness may shade his testimony for the purpose of helping to establish one side of the cause only.

Jackson v. State, 482 S.W.2d 864, 868 (Tex.Cr.App.1972) (quoting Aetna Insurance Company v. Paddock, 301 F.2d 807, 812 (5th Cir.1962). This broad scope necessarily includes cross-examination concerning criminal charges pending against a witness and over which those in need of the witness' testimony might be empowered to exercise control. Lewis, 815 S.W.2d at 565 (Defendant entitled to question witness about pending indictment and any benefit expected or promised in return for testifying.); and, Miller v. State, 741 S.W.2d 382, 389 (Tex.Cr.App.1987) (Defendant may question whether witness is testifying to receive lighter sentence.). ⁵ A witness' pecuniary interest in the outcome of the trial is also an appropriate area of cross-examination. Shelby v. State, 819 S.W.2d 544, 550-551 (Tex.Cr.App.1991) (Defendant entitled to question child victim's mother concerning her pecuniary interest in a lawsuit filed against the apartment complex where child was sexually assaulted.).

Nevertheless, there are several areas where cross-examination may be inappropriate and, in those situations the trial judge has the discretion to limit cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 682, 106 S.Ct. 1431, 1436-1437, 89 L.Ed.2d 674 (1986). Specifically, a trial judge may limit cross-examination when a subject is exhausted, or when the cross-examination is designed to annoy, harass, or humiliate, or when the cross-examination might endanger the personal safety of the witness. See generally, Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435 (Trial judge may exercise...