State v. Villarreal

• Decision Date: 25 January 1995
• Docket Number: No. 930433,930433
• Citation: 889 P.2d 419
• Parties: STATE of Utah, Plaintiff and Respondent, v. Efrain M. VILLARREAL, Defendant and Petitioner.
• Court: Utah Supreme Court

Page 419

889 P.2d 419

STATE of Utah, Plaintiff and Respondent, v. Efrain M. VILLARREAL, Defendant and Petitioner.

No. 930433.

Supreme Court of Utah.

Jan. 25, 1995.

Jan Graham, Atty. Gen., J. Kevin Murphy, Asst. Atty. Gen., Salt Lake City, for plaintiff.

Ronald J. Yengich, Hakeem Ishola, Salt Lake City, for defendant.

ON CERTIORARI TO THE UTAH COURT OF APPEALS

STEWART, Associate Chief Justice:

The Utah Court of Appeals affirmed the convictions of Efrain M. Villarreal for aggravated kidnapping, rape of a child, and sodomy on a child in violation of Utah Code Ann. §§ 76-5-302 (aggravated kidnapping), 76-5-402.1 (rape of a child), and 76-5-403.1 (sodomy on a child). State v. Villarreal, 857 P.2d 949 (Utah Ct.App.1993). We granted certiorari to review the Court of Appeals' decision in holding (1) that violations of the confrontation clause arising from the presentation of out-of-court statements to the jury were harmless error, (2) that the contemporaneous commemoration of defendant's confession was not required, and (3) that defendant was not denied the effective assistance of counsel. We affirm.

On the night of September 8, 1990, thirteen-year-old E.L. went to a party with friends at Blake Bedient's apartment in Midvale, Utah. She consumed a large quantity of alcohol and became highly intoxicated. After her friends left, an incoherent E.L. was taken in a car to Butterfield Canyon in Salt Lake County, where she was raped, sodomized, and beaten. On September 9, E.L. was taken to Primary Children's Hospital. A medical examination confirmed she had been raped, sexually abused, and sodomized. It also showed she had been beaten and bitten and her throat had been cut. Because she was thirteen, she was too young to legally consent to sexual relations. Utah Code Ann. § 76-5-406(9).

At trial, Villarreal's guilt was established by (1) his confession, (2) the confession of Blake Bedient, a co-perpetrator, and (3) the victim's testimony. Villarreal confessed to holding E.L.'s hands while Bedient raped her and to having her perform fellatio on him. Bedient's confession included statements that Villarreal had held E.L.'s hands while Bedient performed sexual intercourse upon her. E.L. testified that Villarreal and others took her to Butterfield Canyon and that Villarreal (1) held her hands while Bedient performed sexual intercourse upon her, (2) raped her himself, ¹ (3) made her perform fellatio on him, (4) beat her, and (5) cut her throat with a knife to discourage her from reporting him to the police.

Villarreal argues that the Court of Appeals erred in holding that it was harmless error to allow Blake Bedient's confession, which inculpated both himself and Villarreal, to be presented to the jury through (1) the prosecutor's highly assertive, leading questions, which the prosecutor knew Bedient would not answer, and (2) a police officer's testimony relating Bedient's confession.

I. CONFRONTATION CLAUSE

Blake Bedient was called by the prosecution to testify. Bedient previously had been convicted of kidnapping and sexually abusing E.L. At the time of Villarreal's trial, Bedient was serving a sentence at the Utah State Prison. On the stand, Bedient refused to answer questions about the September 8 party at his apartment and subsequent events involving E.L. and Villarreal. The trial court established that Bedient's counsel had informed him that he had no constitutional right to refuse to answer questions concerning those events. Bedient refused to testify on the ground that "there's also a law called self-preservation where I am at. If you don't [observe it], you don't last very long." The court told him that he would be held in contempt if he refused to testify. Bedient responded, "Yes, sir, I understand that. But I still [do not] waive my right to self-preservation." Although the court held him in contempt, he would not testify.

Over defendant's objection, the prosecution propounded a long series of factual propositions in the form of leading questions to Bedient that were based on his confession. For example, the prosecutor put the following questions to him [I]sn't it true, Mr. Bedient that you ... and Mr. Villarreal took [E.L.] up to a cave in Butterfield Canyon? ... And isn't it true that in the canyon in that cave in the canyon, while Mr. Villarreal held [E.L.'s] hands you performed sexual intercourse upon her? ... And don't you recall telling Detective Hodgkinson that in fact you did have sexual intercourse with [E.L.] while Mr. Villarreal held her hands? ... And isn't it true that you stated that [Villarreal] and you both "screwed" her in the cave? ... And isn't it true that you stated that [Villarreal] had a knife and was always going, "Hey, I've got this knife here and if you don't do what I say--" ... And isn't it true that you told Detective Hodgkinson, [Villarreal] was saying, "We are going to cut you. We are going the (sic) kill you?" ... Isn't it true that after you finished with [E.L.] you left the cave, left [Villarreal] there with her?.

The only responsive answer Bedient gave was to deny that Villarreal held E.L.'s hands while Bedient raped her and to state that he, Bedient, had not previously stated otherwise.

The prosecution then called Officer Hodgkinson, who testified over objection that Bedient had given an out-of-court statement confessing to kidnapping E.L. and performing other sex acts on her while another person held her hands. According to Officer Hodgkinson, Bedient denied having E.L. perform oral sex on him or biting and beating her. The officer also testified that Villarreal was the only other person present at the time.

Villarreal argues that the prosecutor's improper use of leading questions on the pretext of questioning Bedient and Officer Hodgkinson's testimony of Bedient's confession violated Villarreal's right to confront his accuser under the Utah Constitution article 1, section 12 ² and the Sixth Amendment of the United States Constitution. ³ We agree that the prosecutor's conduct, coupled with the officer's testimony, violated Villarreal's state and federal constitutional rights to confront his accuser, but we hold that admission of this testimony was harmless error.

When Bedient refused to answer the prosecutor's questions, even though the refusal was without legal justification, the prosecutor was not entitled to present to the jury what he thought Bedient should have testified to, especially knowing he would not answer. Douglas v. Alabama, 380 U.S. 415, 416-17, 85 S.Ct. 1074, 1075-76, 13 L.Ed.2d 934 (1965), controls this case. There, a co-perpetrator had been previously convicted. When called to testify, the co-perpetrator, without privilege, refused to answer. The prosecutor asserted a series of factual propositions in the form of leading questions that were highly inculpatory to the defendant and supposedly were based on the co-perpetrator's confession. The prosecutor then called two police officers to testify to the witness's confession. Id. Douglas held that the Sixth Amendment was violated because the defendant had been denied the right to cross-examine his accuser. Id. at 418, 85 S.Ct. at 1076-77.

In like manner, the prosecutor here asserted that Bedient had confessed that he and Villarreal kidnapped E.L., they took her to Butterfield Canyon, and he raped her while Villarreal held her hands. The prosecutor also asserted that Villarreal raped E.L. and threatened to kill her and that Villarreal must have sodomized and beaten her because Bedient had said he did not.

The prosecutor was not a witness, was not sworn, and was not subject to cross-examination as to the truthfulness of his recounting Bedient's statements. Similarly, although Bedient was sworn, it was impossible for Villarreal to cross-examine him as to the truthfulness of the statements. The factual propositions asserted in the prosecution's leading questions may very well have been considered truthful statements, given Bedient's nonresponsiveness. See id.; cf. Slochower v. Board of Higher Educ., 350 U.S. 551, 557-58, 76 S.Ct. 637, 640-41, 100 L.Ed. 692 (1956). Because Villarreal had no way to cross-examine the truthfulness of the statements, he was denied his right of confrontation under our state and federal constitutions.

The prosecutor's misconduct was immediately followed by Officer Hodgkinson's testimony relating Bedient's confession. That evidence tended to affirm the prosecutor's own factual assertions when questioning Bedient. Villarreal argues that the Court of Appeals erred by affirming the trial court's admission of this testimony. The State responds that the testimony was properly admitted under Rule 804(b)(3) of the Utah Rules of Evidence as a statement against penal interest. We hold that it was error to admit Bedient's extrajudicial confession insofar as it was inculpatory to Villarreal.

It is fundamental that to ensure accuracy and reliability, testimony should be given under oath in open court with the opportunity for cross-examination. State v. Sanders, 27 Utah 2d 354, 359, 496 P.2d 270, 273 (1972). Although the confrontation clauses of the state and federal constitutions protect similar values, those clauses are not coterminous with the hearsay rule and its exceptions. See Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 3145-46, 111 L.Ed.2d 638 (1990); California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 1933-34, 26 L.Ed.2d 489 (1970); State v. Lenaburg, 781 P.2d 432, 435 (Utah 1989). As a general proposition, exceptions to the hearsay rule do not violate the confrontation clause. On the other hand, the right of a defendant to confront an accuser may bar evidence that might otherwise be admissible under an exception to the hearsay rule. Wright, 497 U.S. at 814, 110 S.Ct. at 3145-46; see Green, 399 U.S. at 155-56, 90 S.Ct. at 1933-34.

State v. Kendrick, 538 P.2d 313 (Utah 1975), is an example. In Kendrick, the defendant's co-perpetrator was tried first and later gave...