Coronado v. State

• Decision Date: 14 September 2011
• Docket Number: No. PD–0644–10.,PD–0644–10.
• Citation: 351 S.W.3d 315
• Parties: Tommy CORONADO, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

351 S.W.3d 315

Tommy CORONADO, Appellant,

v.The STATE of Texas.

No. PD–0644–10.

Court of Criminal Appeals of Texas.

Sept. 14, 2011.

Held Unconstitutional

Vernon's Ann.Texas C.C.P. art. 38.071, § 2Recognized as Unconstitutional

Iowa Code § 910A.14

John Bennett, Amarillo, for Appellant.

Jim English, Crim. D.A., Hereford, Lisa C. McMinn, State's Attorney, Austin, for the State of Texas.

OPINION

COCHRAN, J., delivered the opinion of the Court in which PRICE, WOMACK, JOHNSON and ALCALA, JJ., joined.

We granted review of this case to determine whether the videotape procedures set out in Article 38.071, § 2,¹ including the use of written interrogatories in lieu of live testimony and cross-examination, satisfy the Sixth Amendment rights of confrontation and cross-examination under the Supreme Court's Crawford² line of cases.³ In this aggravated-sexual-assault-of-a-child prosecution, the court of appeals found “no error in the trial court's decision to allow cross-examination through written questions only” and to admit the child complainant's two videotaped interviews with a child-abuse forensic examiner instead of requiring live testimony.⁴

Although we agree that there must be balance between a defendant's right to confrontation and a societal need to protect fragile and traumatized child victims, that balance cannot constitutionally be struck by the method set out in Section 2 of Article 38.071. On federal constitutional matters, we are obliged to follow the dictates of the United States Supreme Court regardless of our own notions.⁵ We therefore reverse the judgment of the court of appeals because it erroneously held that constitutionally adequate cross-examination can be done through the use of written interrogatories posed by a “neutral” forensic interviewer more than a year after the initial interview.⁶

I.

Three-year-old R.D. stayed with her great-grandmother for childcare. Appellant is R.D.'s great-uncle who, with his wife, moved into the great-grandmother's home in the spring of 2007. In August of that year, R.D. started acting “strange” and “walking around like a zombie.” Her father asked her if anyone had touched her “cookie”-R.D.'s word for her vagina-and he named off various people that she had been around. When he named appellant, R.D. said, “Yes.” ⁷ R.D.'s parents called the police.

A week later, R.D.'s family took her to The Bridge Advocacy Center, where a forensic interviewer videotaped an interview with R.D. Throughout most of the interview, R.D. was looking down at the pictures that she was vigorously coloring. She correctly answered some of the interviewer's questions concerning her body parts and the identification of animals and colors, but she answered others incorrectly. She seemed uninterested in many of the interviewer's questions and several times said that she wanted to go watch Spiderman on TV. When she couldn't leave, she folded her arms and, at first, would not cooperate.

Eventually, she said that her aunt saw appellant touch her “cookie” and that her grandmother saw him do it and “spanked” him for it. In fact, neither the aunt nor the grandmother had seen appellant touch the victim. R.D. was also examined by a sexual-assault nurse who found that her hymen was irregular and that this healed injury had been caused by penetration.

Before trial, the State filed a motion to request the trial court to find R.D.—now five years old—unavailable to testify and to admit the videotaped interview instead. R.D.'s therapist testified and said that she believed that testifying in front of the appellant or testifying via closed circuit television would be harmful.⁸ She thought that submitting written interrogatories through a female interviewer was the “best option.” Over the appellant's objection,⁹ the trial court ruled that R.D. was unavailable to testify and that defense counsel could submit written interrogatories to the forensic interviewer, who would ask those questions and any “follow up” ones in a second recorded interview.

At this second interview—conducted fifteen months after the first one—the forensic interviewer began by discussing the difference between the truth and a lie, and R.D. appeared to understand the difference. Nonetheless, she said more than once that truthful statements were lies. During this interview, R.D. said that appellant put his finger in her “cookie” (as opposed to touching it as she had said fifteen months earlier). This time she said that neither her aunt nor her grandmother saw any sexual contact between her and appellant.

R.D. did not testify at trial, but the two videotaped interviews were admitted over appellant's confrontation objection. The jury convicted appellant of both touching R.D.'s genitals and penetrating her genitals and sentenced him to life in prison on both counts.

On appeal, appellant argued that the denial of rigorous cross-examination denied him his right to confront the witness. The court of appeals agreed that R.D.'s out-of-court statements were testimonial, but concluded that the trial court did not err in allowing “cross-examination through written questions only.” ¹⁰

II.

A. Pre- Crawford Law on the Right to Confrontation.

The Confrontation Clause gives a criminal defendant the right “to be confronted with the witnesses against him.” ¹¹ In Coy v. Iowa, ¹² Justice Scalia explained that “[w]e have never doubted, therefore, that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” ¹³ In Maryland v. Craig,¹⁴ decided just two years later, the Supreme Court pulled back from that absolute position. It held that in some special cases, when the specific facts showed that there was a “compelling” state interest, the witness need not actually confront the defendant face-to-face as she testified, although the defendant must be able to see her as she testified and must be able to contemporaneously cross-examine her.¹⁵

Both Coy and Craig involved prosecutions for sexually assaulting a child. Coy was accused of molesting two thirteen-year-old girls who were having an outdoor sleepover in a neighboring yard.¹⁶ An Iowa statute allowed prosecutors to use a screen to shield child witnesses from seeing the defendant as they testified.¹⁷ Most of the elements of the right of confrontation were preserved through this procedure, but the witnesses could not see the defendant and the defendant could not see the witnesses as they testified.¹⁸ And, perhaps most importantly, the jury could not see how the witnesses and the defendant interacted when each confronted the other. ¹⁹ In a 6–2 decision, the Supreme Court held that this procedure violated the right to confrontation.²⁰ Justice Scalia noted the compelling state interest of protecting fragile children and other witnesses:

That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs.²¹

In Craig, however, the Supreme Court, in a 5–4 decision, upheld the use of a one-way closed-circuit television for questioning a six-year-old child in lieu of face-to-face confrontation in the courtroom itself.²² A Maryland statute authorized this procedure if the trial judge determined that “testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate.” ²³ Under this procedure, the defendant could see the child as she testified, but she could not see the defendant.

According to Justice O'Connor, this procedure did not violate the Confrontation Clause because that provision can be reduced to its “central concern,” which is “to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” ²⁴ Rigorous and contemporaneous cross-examination could, under some special circumstances, alleviate the need for face-to-face confrontation. The Court stressed that only the witness's ability to confront the defendant face-to-face was affected—no other portion of the Sixth Amendment right of confrontation was compromised:

[The one-way closed-circuit television procedure] “(1) insures that the witness will give his statements under oath-thus impressing him with the seriousness 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 discovery of truth’; [and] (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.” ²⁵

Thus, the “combined effect of these elements of confrontation-physical presence, oath, cross-examination, and observation of demeanor by the trier of fact-serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo–American criminal proceedings.” ²⁶

Justice Scalia, the author of Coy just two years earlier, wrote a scathing dissent that began, “Seldom has this Court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion.” ²⁷ He stated,

The Sixth Amendment provides, with unmistakable clarity, that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” The purpose of enshrining this protection in the Constitution was to assure that none of the many policy interests from time to time pursued by statutory law could overcome a defendant's right to face his or her accusers in court.²⁸

This language, that even compelling social policies...