Stores v. State

• Decision Date: 19 December 1980
• Docket Number: No. 3595,3595
• Citation: 625 P.2d 820
• Parties: Edward Leslie STORES, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 820

625 P.2d 820

Edward Leslie STORES, Appellant, v. STATE of Alaska, Appellee.

No. 3595.

Supreme Court of Alaska.

Dec. 19, 1980.

Christine Schleuss, Asst. Public Defender, John M. Murtagh, Asst. Public Defender and Brian Shortell, Public Defender, Anchorage, for appellant.

John Scukanec, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before RABINOWITZ, C. J., CONNOR and MATTHEWS, JJ., and DIMOND, Senior Justice.

OPINION

CONNOR, Justice.

This appeal requires us to decide whether it was proper to admit into evidence the videotaped deposition of a key prosecution witness who was out of the state at the time of trial.

In March, 1977, Edward Stores was charged with one count of rape. ¹ The state's case consisted primarily of the testimony of three witnesses. The prosecutrix, a high school student, testified that the defendant, a stranger, approached her in the school parking lot and asked for a lift to his home because he had been injured in a fight. He claimed that his lip had been split. When they arrived at his residence, she agreed to accompany him inside to explain to his mother the circumstances of his return home in the early afternoon. Stores asked her to wait in the living room, and when he returned he put his arm around her neck and forced her into the back bedroom. He ordered her, at knifepoint, to undress, and then raped her. The act of sexual intercourse was very brief. The two got dressed, left the house together, and she gave the defendant a ride to another location. The defendant asked her for a date but she declined. The victim then returned to school, knocked on a classroom door, and told the teacher she needed to see her friend who was in the class. Since the victim was crying, the teacher excused the friend from class. The victim then related the foregoing story. The friend informed the victim's mother, who arranged for an immediate gynecological examination for her daughter. The victim's parents also telephoned the police.

This version of events was disputed by another prosecution witness, Mrs. Hughes, the defendant's cousin and legal guardian. Mrs. Hughes testified on direct examination that the defendant informed her that the alleged victim had consented to the sexual act, but that afterwards she became angry with the defendant when he refused her demand for oral sex because of his lip injury. Stores and the young woman argued, and Stores had to force her to leave by brandishing a knife. She threatened that she would "get even with him" for his failure to accommodate her.

On the critical issue of consent, a key prosecution witness was Dr. Sydnam, a family practitioner, whose testimony was presented to the jury on videotape, over the objection of the defense. On the videotape, Dr. Sydnam testified on direct examination that she performed a pelvic examination of the victim shortly after the alleged rape and observed redness and contusion of the vulva, which was tender, and a copious amount of sperm within the vagina, signifying that intercourse had occurred within several hours of the examination. The bruises on the outer walls of the vagina were not, she testified, customarily associated with intercourse between willing partners, but were consistent with forcible intercourse. In addition, she related that the alleged victim "is ordinarily ... very self-assured, calm," but that on the day of this examination, "she was very, very different.... She was not composed and she was not calm, and and she was visibly upset, and as I described before, crying and and distraught."

On cross-examination, Dr. Sydnam testified that consensual intercourse could produce the same symptoms "(o)nly if there's something the matter with the (indiscernible) of the people involved, I think." On re-direct, she repeated that "it's extremely unlikely (that a consenting female could sustain these injuries during intercourse) unless it's extremely prolonged and brutal intercourse, and by extremely prolonged, I mean over a matter of, you know, hours."

The defense rested after the conclusion of the state's case. Stores was convicted by the jury and he was sentenced to seven years' imprisonment. ²

On appeal, the defendant contends that it was reversible error to admit Dr. Sydnam's videotaped deposition at trial. We must examine this claim of error in the context of the particular factors in this case.

On May 3, 1977, six days before the commencement of trial, the state informed the court that Dr. Sydnam, its key witness, would be out of the state and unavailable to testify at the trial. The prosecutor moved for an order to take her deposition. He gave the following grounds as "good cause" for ordering the deposition:

"I have reviewed the police report in connection with Dr. Sydnam's examination of the alleged victim, ... and feel that her testimony would be highly corroborative of the victim's complaint. Dr. Sydnam basically would testify that the victim did sustain some injury to the vaginal area of her body....

The State feels that Dr. Sydnam's testimony would be absolutely necessary to corroborate the victim's statement that she was forcibly raped, and to counter the anticipated defense of consent." (emphasis added).

Since it was evident to the defendant that the purpose of the deposition was to preserve Dr. Sydnam's testimony, he objected, not to the taking of the deposition, but to its anticipated use at trial, as a violation of the defendant's right of confrontation and Alaska Rule of Criminal Procedure 15. The defense suggestion of a continuance was opposed by the state and denied by the court. The court granted the state's motion and on May 5, 1977, Dr. Sydnam's deposition was recorded on videotape.

Defendant and his counsel were present. In response to preliminary questioning by the prosecutor, the witness testified that she had long-standing vacation plans to spend in excess of two weeks in Hawaii, that she would leave the state of Alaska "next Tuesday evening or Wednesday morning," that she had made arrangements to share a condominium with three other persons, who, if she cancelled her trip, would be financially obligated to pay her pro-rata share of the rental fee. The witness was asked and she answered:

"Q. Okay. All right. Assuming that you were to be subpoenaed to remain here in Anchorage say, next Tuesday or next Wednesday, I take it that you would abide by that subpoena and remain here and frustrate your plans, is that correct?

A. I suppose so."

At trial, the defendant renewed his objections to the use of the videotape. The objections were overruled and the tape was played for the jury. ³

On appeal, the defendant maintains that the admission of the pre-trial deposition under these circumstances violated both his confrontation rights guaranteed by the sixth amendment and Alaska Rule of Criminal Procedure 15. The state, on the other hand, argues that since the witness was not present at the trial and "presumably" beyond the jurisdiction of the court, it was proper to admit her pre-recorded testimony as substantive evidence. The state also maintains that the defendant's cross-examination of the witness at the time of the deposition satisfies his sixth amendment rights.

We note that the United States Supreme Court has never expressly authorized the use of an absent witness' deposition in lieu of viva voce testimony in a criminal trial, although it has allowed the use, in narrow circumstances, of testimony from a prior trial, e. g., Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895); or testimony from a preliminary hearing, e. g., Ohio v. Roberts, --- U.S. ----, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). From the very first, the Court has recognized that

"(t)he primary object of the (Confrontation Clause) ... was to prevent depositions or ex parte affidavits ... being used against the prisoner in lieu of personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look upon him, and judge by his demeanor on the stand and the manner in which he gives his testimony whether he is worthy of belief."

Mattox, 156 U.S. at 242-43, 15 S.Ct. at 339, 39 L.Ed. at 411. While a definitive history of the sixth amendment remains to be written, ⁴ we adopt the observation of Justice Harlan that "(f)rom the scant information available it may tentatively be concluded that the Confrontation Clause was meant to constitutionalize a barrier against flagrant abuses, trials by anonymous accusers and absentee witnesses." California v. Green, 399 U.S. 149, 179, 90 S.Ct. 1930, 1946, 26 L.Ed.2d 489, 509 (1970) (Harlan, J., concurring). ⁵

We think that one of the purposes which the Confrontation Clause serves is to relieve prosecutors of the temptation to use pre-recorded testimony instead of live witnesses. ⁶ Thus, we are in agreement with Professor Westen's conclusion that

"the confrontation clause is not merely a constitutional rule governing the attendance of witnesses; it also embodies constitutional controls on the manner by which the state presents its case against the accused.

This broader notion of confrontation not only is consistent with the Court's language, but serves an important procedural purpose. It requires the state, wherever possible, to present its evidence against the accused in what is traditionally considered the most reliable form, that of direct testimony in open court." (footnote omitted).

Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv.L.Rev. 567, 578 (1978). ⁷

There are, however, certain instances...