Gentry v. Deuth
| Decision Date | 18 March 2004 |
| Docket Number | No. 5:03CV-15-J.,5:03CV-15-J. |
| Citation | 381 F.Supp.2d 614 |
| Parties | Carrie GENTRY Petitioner v. Doris DEUTH, Warden Respondent |
| Court | U.S. District Court — Western District of Kentucky |
Timothy G. Arnold, Department of Public Advocacy, Frankfort, KY, for Plaintiff.
William Larue Daniel, II, William Robert Long, Jr., Attorney General-Criminal Appellate Division, Frankfort, KY, for Defendant.
This habeas corpus case raises a constitutional challenge to the admission of expert witness testimony in a state criminal trial by way of two-way, closed circuit television. Petitioner alleges that she was denied her right to adequately confront five prosecution witnesses in violation of the Confrontation Clause of the Sixth Amendment. She now claims that, contrary to Maryland v. Craig, 497 U.S. 836, 848-50, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), no compelling state interest or public policy was offered by the Commonwealth of Kentucky to justify permitting its expert witnesses to testify electronically from a remote location. She also claims that the live, two-way television system was not adequate to ensure the reliability of the expert witness testimony admitted against her at trial.
This matter is now before the Court to consider petitioner's objections (DN 29) to the report and recommendation of the magistrate judge. (DN 28). The magistrate judge recommended that the motion of the respondent for summary judgment be granted, and that the petitioner's application for habeas corpus relief be dismissed. In his report, the magistrate judge rejected the petitioner's Confrontation Clause argument. According to the magistrate judge, the Craig decision, which involved a one-way video system, was distinguishable from the petitioner's case, in which the experts were permitted to testify via a live, two-way video conference system designed to permit the petitioner, counsel, judge and witness to view one another simultaneously. The magistrate judge also found that petitioner's case was "further distinguishable from Craig," because the witnesses involved were expert witnesses less susceptible to the forces of eye-to-eye confrontation than the child fact-witness who testified in Craig.
For these reasons, the magistrate judge concluded that "[t]he respondent has persuasively shown that the concerns expressed in Craig do not apply herein." (DN 28, p. 4). This conclusion led the magistrate judge to ultimately determine that the decision of the Kentucky Court of Appeals that rejected petitioner's Confrontation Clause argument was not clearly contrary to, nor did it involve an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d).
The Court disagrees with this determination and the reasoning that resulted in it. The decision of the Kentucky Court of Appeals, to the extent that it relied upon federal law, if at all, was certainly an unreasonable application of Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), where the State in this case failed to offer any compelling reason at trial, and the trial court made no finding, to justify the use of the two-way video system to present its expert testimony in petitioner's case. The refusal of the Commonwealth's five expert witnesses to personally attend the trial, after the trial court entered orders of personal appearance, based apparently on only their own convenience and nothing more, failed to satisfy the type of compelling, state public policy required to fit within the "narrow exception" created by Craig. Petitioner's right to confrontation under the Sixth Amendment was violated as a result. Because the Sixth Amendment violation had no substantial and injurious effect on the verdict of the jury, however, the Court will grant the motion of the respondent for summary judgment, albeit for reasons other than those offered by the magistrate judge.
The parties do not dispute the procedural history of the state court proceedings. In February of 1999, a grand jury seated in McCracken County, Kentucky, indicted petitioner, Carrie Gentry. (DN 10, Appx. 63). The indictment charged Gentry with one count of second-degree manslaughter, KRS 507.040, and one count of operating a motor vehicle while under the influence of alcohol, KRS 189A.010. Both charges arose from an automobile accident that occurred in McCracken County on January 29, 1999, and resulted in the death of Brian Pettit.
Trial was scheduled to begin in McCracken Circuit Court on April 17, 2000. Prior to trial, the prosecutor issued subpoenas to obtain the personal attendance of Larry Ayres, a DNA analyst employed by the Commonwealth of Kentucky in Frankfort, Kentucky, and Tracey Phillips, a trace analyst, also a state employee in Frankfort, Kentucky. (DN 17, Appx. 1-2). Both subpoenas were filed in McCracken Circuit Court in February, two months prior to the scheduled start of trial.
The prosecutor also filed the motions for the personal attendance of Dr. Tracy Corey Handy, the Chief Medical Examiner for the Commonwealth of Kentucky, located in Frankfort, and Dr. William Smock, a medical consultant to the Kentucky Medical Examiner's office specializing in automobile collision occupant rolls. (Id., pp. 3, 7). Each motion for personal appearance was accompanied by an affidavit of the prosecutor which provided, in effect, that the testimony of the expert witness requested to personally attend was important to the trial and could not be obtained to a reasonable degree "without an oral examination of the doctor in the McCracken Circuit courtroom." (Id., pp. 4, 8). The trial court granted both motions for personal attendance. (Id., pp. 5, 9).
None of the expert witnesses whose presence was requested by the prosecution, and ordered by the trial court, personally appeared at trial. Instead, the prosecution expressed its intention at trial to present the live testimony of these four witnesses, along with a serologist, Phil Wilson, of the Kentucky State Crime Laboratory in Madisonville, Kentucky, by way of a two-way, live video conferencing system installed in the McCracken Circuit courtroom as part of a model courtroom telecommunications program.
The video conferencing system in the courtroom consists of a closed circuit television connection that permits witnesses in other counties in Kentucky to testify remotely. At the remote site is a camera that permits persons in the courtroom to view the head and shoulders of the testifying witness. Cameras located in the courtroom at counsel table and the bench permit the witness to view individuals in those areas. A television screen in the courtroom displays the image from each of the four cameras simultaneously, dividing the television screen into four equal squares. A special camera, referred to as an ELMO, permits the witness and all persons in the courtroom to simultaneously view close-ups of courtroom exhibits. When the ELMO is in operation, however, only the exhibit may be seen on the television screen at either location.1
Before the first of these expert witnesses began to testify, counsel for the petitioner objected to the use of the video conference system on the ground that it violated her Sixth Amendment right to confrontation. (Tape No. 2, 4/17/00, 13:59:30). The prosecutor, in response to her objection, stated as follows, "Judge, you know, truthfully, if I could get these witnesses down here, but they've now been told that they don't have to come, so they immediately tell me, `we're not coming.'" (Id.). Following this comment, the trial court overruled the petitioner's Confrontation Clause objection, while noting simply that the question of the legality of the two-way video conference system was presently being adjudicated in the Kentucky courts.2
At trial, the prosecution established that petitioner had joined friends at a local bar in McCracken County on the evening of the accident. While at the bar, she had met the deceased, Brian Pettit. Petitioner and Pettit were drinking alcohol. Petitioner maintains, however, that she only consumed two drinks after determining that she might have to be a designated driver later. At trial, petitioner offered several witnesses who testified that she did not appear to be intoxicated.
After the bar closed, petitioner offered to let Pettit spend the night at her apartment after he determined that he had too much to drink. Petitioner then set out driving on U.S. 62 west in Paducah. At some point, her car crossed over the center line and hit a bridge embankment. Both petitioner and Pettit were ejected, with Pettit being killed at the scene of the accident. After petitioner regained consciousness, she obtained help and was taken to a local hospital where her blood serum alcohol level was measured at 0.14. Petitioner was arrested soon thereafter and charged with wanton murder. During the evening, she made a series of conflicting statements as to whether or not she was the driver or passenger in the automobile. At trial, she initially maintained that she was the passenger, but alternatively argued that if driving, she was not intoxicated.
To support her defense, petitioner attempted to offer the testimony of a serologist, Anne Rummel Manly. The prosecution objected to the admission of Manly's testimony on the ground that the petitioner had failed to comply with the reciprocal discovery order of the trial court. In accordance with RCr 7.24, the order required the petitioner to provide the state, not later than five days prior to trial, with any results or reports of physical or mental examinations or scientific tests or experiments performed by Manly that the petitioner intended to introduce at trial as evidence (Tape No. 4, 4/19/00, 9:38:45).
Petitioner argued that Manly had not written a report and had not performed any physical examinations or scientific tests. Accordingly, petitioner...
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Johnson v. Warden
...could "be made and ruled on as if the witness were testifying in the courtroom." Id. at 841-42. 7. See also Gentry v. Deuth, 381 F. Supp.2d 614, 623-24 (W.D. Ky.) (holding that "the constitutional preference for direct confrontation" was violated by the use of a two-way video-conferencing s......