Thomas v. Gunter

• Decision Date: 28 April 1992
• Docket Number: No. 91-1044,91-1044
• Citation: 962 F.2d 1477
• Parties: 35 Fed. R. Evid. Serv. 697 Mack Willie THOMAS, Petitioner-Appellant, v. Frank GUNTER, Executive Director, Colorado Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1477

962 F.2d 1477

35 Fed. R. Evid. Serv. 697

Mack Willie THOMAS, Petitioner-Appellant, v. Frank GUNTER, Executive Director, Colorado Department of Corrections, Respondent-Appellee.

No. 91-1044.

United States Court of Appeals Tenth Circuit.

April 28, 1992.

Barbara S. Blackman of Cherner and Blackman, Denver, Colo., for petitioner-appellant.

Clement P. Engle, Asst. Atty. Gen., State of Colo. (Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., with him on the brief), Denver, Colo., for respondent-appellee.

Before LOGAN and SETH, Circuit Judges, and BRATTON, Senior District Judge. ^*

BRATTON, Senior District Judge.

Petitioner-appellant Mack Willie Thomas appeals the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Appellant was convicted of two counts of sexual assault on a child after a jury trial in Colorado District Court, Boulder County. The issue in this appeal is whether the state trial court violated appellant's Sixth Amendment right of confrontation by admitting into evidence videotaped depositions of the child victims taken out of appellant's physical presence.

Appellant was accused of sexually assaulting his three-year-old daughter and a four-year-old neighbor boy. At the time of trial, the girl was four years old, and the boy was five. Before trial, the prosecutor, seeking to avoid bringing the children into court, filed a motion requesting the court to allow the children's statements into evidence pursuant to Colorado's child hearsay statute. ¹ Instead of granting the motion, the trial court suggested the parties proceed under another statute authorizing videotaped depositions of child victims under certain circumstances. ² That statute provides:

(1) When a defendant has been charged with an unlawful sexual offense, as defined in section 18-3-411(1), and when the victim at the time of the commission of the act is a child less than fifteen years of age, the prosecution may apply to the court for an order that a deposition be taken of the victim's testimony and that the deposition be recorded and preserved on video tape.

(2) The prosecution shall apply for the order in writing at least three days prior to the taking of the deposition. The defendant shall receive reasonable notice of the taking of the deposition.

(3) Upon timely receipt of the application, the court shall make a preliminary finding regarding whether, at the time of trial, the victim is likely to be medically unavailable or otherwise unavailable within the meaning of rule 804(a) of the Colorado rules of evidence. Such finding shall be based on, but not be limited to, recommendations from the child's therapist or any other person having direct contact with the child, whose recommendations are based on specific behavioral indicators exhibited by the child. If the court so finds, it shall order that the deposition be taken, pursuant to rule 15(d) of the Colorado rules of criminal procedure, and preserved on video tape. The prosecution shall transmit the video tape to the clerk of the court in which the action is pending.

(4) If at the time of trial the court finds that further testimony would cause the victim emotional trauma so that the victim is medically unavailable or otherwise unavailable within the meaning of rule 804(a) of the Colorado rules of evidence, the court may admit the video tape of the victim's deposition as former testimony under rule 804(b)(1) of the Colorado rules of evidence.

The trial court conducted a hearing pursuant to Part (3) of the statute and admitted the videotaped testimony at trial pursuant to Part (4). Although the court ordered the parties to take videotaped depositions out of the presence of the appellant, he allowed the parties to agree to the specific procedures they would use. The parties stipulated and the depositions proceeded as follows.

The depositions were videotaped at the C. Henry Kempe Center for the Treatment and Prevention of Child Abuse and Neglect in Denver. The parties utilized the same procedures for each deposition. They placed the child in a room with a therapist chosen by the prosecutor and then a private investigator chosen by the petitioner. The therapist conducted direct examination for the state, and the private investigator conducted cross examination for the defense. The judge, court reporter, counsel, and appellant, sitting in a separate room, viewed the deposition through a one-way mirror and on videotape monitors. If they needed to communicate with the examiners they could pass notes under the door.

The judge and court reporter stayed at the Kempe Center for only a portion of the daughter's direct examination. Later the parties viewed the depositions with the judge, who ruled on objections so the tapes could be edited if necessary. The jury viewed the videotapes at trial and found appellant guilty as charged.

After his conviction, appellant appealed to the Colorado Court of Appeals, arguing that the videotaping procedure was unconstitutional because he was deprived of face-to-face confrontation with the victims and of effective cross examination. Specifically, he brought three claims relevant to this appeal. First, he objected to the questioning by a non-attorney. Second, he objected to the fact that he and his attorney could only communicate with the questioner by passing notes under the door. Third, he objected to the fact that the judge was not present to terminate an overly long direct examination of the daughter after which the daughter was tired and unresponsive on cross examination.

The court of appeals remanded, under Coy v. Iowa, ³ for "further specific and particularized findings as to each individual child-witness," People v. Thomas, 770 P.2d 1324, 1328 (Colo.App.1988), but otherwise affirmed. With regard to the procedures used at the depositions, the court held that (1) because the petitioner had agreed to the non-attorney questioning, Colorado's doctrine of invited error precluded him from arguing he was prejudiced; (2) because no more sophisticated procedure was available the fact the parties had to communicate with notes was not error; and (3) because counsel had a later opportunity to object, the fact the judge left the deposition was also not error. Id. at 1328-29.

The Supreme Court of Colorado granted certiorari, reversed the remand to the trial court, and affirmed on all other issues. Thomas v. People, 803 P.2d 144 (Colo.1990). The court held that under the standards the United States Supreme Court elaborated in Maryland v. Craig, ⁴ the findings of the trial court were adequate and the procedures were constitutional in all other respects.

Appellant then petitioned the United States District Court for the District of Colorado for a writ of habeas corpus, arguing that the use of the videotapes violated his right to confrontation under Maryland v. Craig. The district court disagreed and denied his petition. Thomas v. Guenther, 754 F.Supp. 833 (D.Colo.1991). We affirm.

Maryland v. Craig set the standards by which a child witness can constitutionally testify against a defendant at trial in the absence of face-to-face confrontation with the defendant. 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). Craig held that defendant's right to confrontation is satisfied when (1) the denial of confrontation is necessary to further an important public policy and (2) where the reliability of the testimony is assured. ⁵ Id. at 3166. Appellant contends that at his trial, neither prong was satisfied.

Public Policy

Craig held that a child-witness may testify out of the presence of the defendant when necessary to further the state's interest in protecting the physical and psychological well-being of its children. Id. at 3167. To insure that the state denies face-to-face confrontation only to further this purpose, the state must show on a case-by-case basis that the procedure is necessary to protect the particular child involved. Id. at 3169. The trial court must hear expert testimony regarding the particular child and must make specific findings that the child would be traumatized, not by the courtroom generally, but by the presence of the defendant, in more than a de minimus amount. Id.

The Colorado videotaping statute requires the trial judge find the child "medically unavailable" before allowing the tape into evidence. Unavailability for confrontation clause purposes is a mixed question of law and fact we review de novo. Martinez v. Sullivan, 881 F.2d 921, 926 (10th Cir.1989), cert. denied, 493 U.S. 1029, 110 S.Ct. 740, 107 L.Ed.2d 758 (1990). Because the trial court's findings on unavailability were the same findings required for the "public policy-necessity" prong under Craig, we will review this question de novo as well. See Thomas, 803 P.2d at 150.

In making its finding of unavailability, the court heard expert testimony from each child's therapist. The daughter's therapist testified the daughter "had a real close bonding with her father," and was quite upset she could no longer see him. The therapist stated that, as a result of this bonding, if the daughter testified in front of her father she would feel issues of "disloyalty" and "responsibility for somehow finding a way to see him again." The therapist implied the child might refuse to testify or might change her story if she saw her father in order to renew her relationship with him. She further stated that a "videotaped session with some neutral person would be ... much less damaging to her than making any kind of testimony in front of her father."

The little boy's therapist told the court the boy was "terrified" the petitioner would hear him telling other people what had happened. She stated he might have lingering nightmares if forced to testify in court with the petitioner present and would have "extraordinar...