State v. Tafoya, 9004

• Decision Date: 07 October 1986
• Docket Number: No. 9004,9004
• Citation: 729 P.2d 1371,105 N.M. 117,1986 NMCA 104
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Robert James TAFOYA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1371

729 P.2d 1371

105 N.M. 117

STATE of New Mexico, Plaintiff-Appellee, v. Robert James TAFOYA, Defendant-Appellant.

No. 9004.

Court of Appeals of New Mexico.

Oct. 7, 1986.

Certiorari Denied Dec. 4, 1986.

See 105 N.M. 94, 728 P.2d 845.

[105 NM 118] Paul G. Bardacke, Atty. Gen., Charles H. Rennick, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

John L. Walker, Albuquerque, for defendant-appellant.

OPINION

GARCIA, Judge.

The convictions in this case arose out of a series of violent incidents in Albuquerque's Northeast Heights area in the fall of 1984. The jury found that defendant broke into the homes of six young girls and one adult woman in the middle of the night, woke them and committed sexual offenses on them. Victims two, five and seven identified defendant at a line-up. Defendant's fingerprints were found at the crime scenes of all victims but victim four. Serology evidence consistent with defendant's characteristics was present in the cases of victims one and four. Defendant's defense was an alibi; he and family members testified that he was home, asleep, on the nights of all of the offenses.

Convicted of various counts of aggravated burglary, kidnapping, criminal sexual penetration with a deadly weapon, criminal sexual penetration of a minor, criminal sexual contact with a minor and aggravated battery, defendant appeals.

Defendant raises seven issues on appeal: (1) a claim of error in allowing five of the child victims to give videotaped testimony under circumstances in which defendant was made to sit in a control booth, thus denying him face-to-face confrontation with these victims; (2) a claim of error in allowing a prior consistent statement of one of the victims into evidence; (3) several claims of error in refusing to excuse certain jurors for cause; (4) a claim of error in the court's failure to strike expert testimony on fingerprints; (5) a claim of error that the line-up identification was unnecessarily suggestive; (6) a claim of error that the evidence was insufficient to support defendant's convictions as they relate to victim four; and (7) a claim of error that the sentence is illegal. Other issues, listed in the docketing statement but not briefed, are abandoned. State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App.1985), cert. denied, 102 N.M. 734, 700 P.2d 197 (1985). We find no error and affirm the convictions and sentences.

1. Face-to-Face Confrontation

Defendant contends that the court's allowance of a videotaped deposition procedure that required defendant to remain in a control booth during the taking of the testimony violated his right to confront the witnesses against him, contrary to U.S. Const. amend. VI. He also contends that the procedure violated the statute and rule permitting videotaped depositions, NMSA 1978, Section 30-9-17 (Repl.1984) and NMSA 1978, Crim.P.R. 29.1 (Repl.Pamp.1985).

The statute and the rule require the deposition to be taken "in the presence of defendant" or require defendant to be "present." In relevant part the statute provides: "The videotaped deposition shall be taken before the judge in chambers in the presence of the district attorney, the defendant and his attorneys."

The statute and rule were enacted pursuant to the strong public policy of sparing child victims of sexual crimes the further trauma of in-court testimony. State v. Vigil, 103 N.M. 583, 711 P.2d 28 (Ct.App.1985). Webster's Third New International Dictionary, p. 1793 (1971), defines "present" or "presence" as "being in one place and not elsewhere," "within reach," and "at hand." According to these definitions, defendant was present at the taking of the videotaped depositions. He was in a control booth and could view all of the proceedings. His attorney had a headset and microphone so that he could be in constant contact with defendant. Defendant was at hand and within reach. While he was not within the sight of the witnesses, in light of our strong public policy, we believe the requirement of presence intended by the legislature and our supreme court was satisfied. Cf. State v. Lujan, 103 N.M. 667, 712 P.2d 13 (Ct.App.1985).

We now turn to whether the procedure used in this case satisfied defendant's constitutional rights. We have already held in Vigil that upon a proper showing of unreasonable and unnecessary mental or emotional harm to the victim, a videotaped deposition, taken prior to trial and then shown to the jury, where the deposition is presided over by the court and where defendant has the opportunity to cross-examine the victim, does not violate the right of confrontation. The issue of face-to-face confrontation was not raised in Vigil. This case requires us to answer the question of whether the absence of actual face-to-face confrontation can be justified under the rationale of Vigil. We hold that it can.

Defendant urges us to follow the cases of United States v. Benfield, 593 F.2d 815 (8th Cir.1979), and Herbert v. Superior Court, 117 Cal.App.3d 661, 172 Cal.Rptr. 850 (1981). See generally Annot., 19 A.L.R.4th 1286 (1983). In their requirement of face-to-face confrontation, these cases were concerned with the intangible effect that requiring the witness to testify in the face of his accuser has on the truth-seeking process:

Most believe that in some undefined but real way recollection, veracity, and communication are influenced by face-to-face challenge.

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The historical concept of the right of confrontation has included the right to see one's accusers face-to-face, thereby giving the fact-finder the opportunity of weighing the demeanor of the accused [sic] when forced to make his or her accusation before the one person who knows if the witness is truthful. A witness' reluctance to face the accused may be the product of fabrication rather than fear or embarrassment.

Herbert, 117 Cal.App.3d at 670, 671, 172 Cal.Rptr. at 855.

Defendant also relies on United States Supreme Court cases such as Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895), and Dowdell v. United States, 221 U.S. 325, 31 S.Ct. 590, 55 L.Ed. 753 (1911). These cases contain language indicating that face-to-face confrontation is part of the sixth amendment. However, these cases also make clear that the general rule favoring confrontation sometimes must give way to considerations of policy and necessity. Thus, for example, dying declarations have always been an exception to the general rule regarding confrontation, lest the courts be put in the untenable position of saying that criminals should go free because their victims die. Mattox. See also Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). In cases of necessity, such as where the witness is unavailable, State v. Martinez, 99 N.M. 48, 653 P.2d 879 (Ct.App.1982), cert. denied, 99 N.M. 47, 653 P.2d 878 (1982), or where a child witness would suffer unreasonable and unnecessary mental or emotional harm, a specific species of unavailability, see Vigil, and where the out-of-court statements bear adequate indicia of reliability, the sixth amendment does not preclude their admission.

The state, on the other hand, urges us to follow Wigmore's approach, 5 Wigmore, Evidence Secs. 1365, 1395 (Chadbourne rev. 1974); see also State ex rel. Human Services Dept. v. Gomez, 99 N.M. 261, 657 P.2d 117 (1982), and hold that demeanor and other such intangibles form no part of the right of confrontation. Rather, they are simply incidental benefits of cross-examination, the major benefit of the right of confrontation. Indeed, Wigmore has gone so far as to say that cases requiring a face-to-face meeting between the accused and the accuser are "amusing legal pedantry," whose reasoning is "absurd." 5 Wigmore, Evidence, Sec. 1399, n. 1 (Chadbourne rev. 1974).

We accept neither extreme position, but consider the rights of defendant together with those of the victims in light of the particular facts of this case. The cases on which defendant relies are not necessarily to the contrary. In neither Herbert nor Benfield was there a strong showing of necessity for dispensing with the requirement of face-to-face confrontation before the factfinder. By contrast, the testimony in this case was abundant that each child subject to the videotape procedure would suffer unreasonable and unnecessary mental or emotional harm from testifying face-to-face with defendant.

The primary reason for seeking the videotaped depositions in this case was that the child victims did not want to see defendant and did not want defendant seeing them. The child victims ranged in age from four to eleven. All were suffering ill effects from the trauma of the crimes. A nine year old was refusing to sleep in her own room. She insisted on sleeping with two sets of undergarments and two sets of nightclothes on, in a sleeping bag on the floor of the family room in which her grandfather was staying. A four year old would not walk from room to room alone in her own house. An eleven year old regressed to insisting on sleeping with a nightlight on and with a teddy bear.

The expert testimony was that all the children were abnormally anxious and expressed their anxiety in particular when talking about the prospect of testifying in court in front of defendant. If required to testify in court in front of defendant, each child would have to undergo therapeutic intervention to repair the damage brought by simply testifying in that setting. Each professional who saw these children testified that the children would suffer unreasonable and unnecessary mental or emotional harm from having to testify in front of defendant. Some testified that the children ran the risk of becoming incoherent or "freezing" were they to see defendant. Both the statute and the court rule seek to protect victims from this kind of harm.

In addition, we question the need for face-to-face confrontation in this case. This is not a case in which the defense is that the child...