Topping v. People

• Decision Date: 25 June 1990
• Docket Number: No. 88SC392,88SC392
• Citation: 793 P.2d 1168
• Parties: Stanley Charles TOPPING, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 1168

793 P.2d 1168

59 USLW 2047

Stanley Charles TOPPING, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 88SC392.

Supreme Court of Colorado,

En Banc.

June 25, 1990.

Castelar Garcia, Manassa, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Milton Hutchins, First Asst. Atty. Gen., Denver, for respondent.

Justice KIRSHBAUM delivered the Opinion of the Court.

In People v. Topping, 764 P.2d 369 (Colo.App.1988), the Colorado Court of Appeals affirmed the trial court's order permitting a prosecution witness to testify at trial by telephone against the petitioner, Stanley Charles Topping, and affirmed Topping's convictions of first degree sexual assault, first degree burglary and felony menacing. We granted Topping's petition for certiorari review to consider whether the trial court's order permitting telephonic testimony violated Topping's rights of confrontation under the sixth and fourteenth amendments to the United States Constitution and article II, section 16, of the Colorado Constitution. We conclude that the trial court erred in permitting such testimony, but that the error was harmless in this case. We therefore affirm the judgment of the Court of Appeals.

I

On January 22, 1982, in Alamosa, Colorado, a person wearing a ski mask entered a woman's apartment through an unlocked door while she was asleep. The assailant awakened the woman, covered her mouth with his hand, threatened her with a knife and sexually assaulted her. As he left, the assailant warned the victim not to report the assault. The victim immediately ran to her sister's house, contacted the police, and was transported to the Alamosa County Hospital where she was examined and treated by Dr. Vicki Hawes. Local police officers obtained hair samples of the assailant at the victim's home.

Two years later, Topping was arrested in Longmont, Colorado, in connection with two alleged sexual assaults. After undergoing an initial interrogation, Topping was transported to the Boulder County Jail. Eric Ackerman, a former police officer and a childhood friend of Topping, learned of the arrest and visited the jail. During their conversation, Topping told Ackerman that he had committed a sexual assault in Alamosa, Colorado, in 1982. ¹ Topping was subsequently charged in this case with first degree sexual assault, ² first degree burglary, ³ and felony menacing. ⁴

During trial the People filed a motion requesting the trial court to permit Dr. Hawes, then a Kentucky resident, to testify by telephone concerning her examination of the victim and her opinion that the victim had been sexually assaulted. The People informed the trial court that Dr. Hawes was under subpoena and would appear if required to do so, but that, in view of an illness in her family and a planned visit to Colorado three or four days after the date of the trial, a trip to Colorado to testify would be highly inconvenient. Topping opposed the motion on the ground that any telephonic testimony would violate his federal and state constitutional rights to confront witnesses face-to-face at his trial.

The trial court granted the People's motion. In so doing, the trial court expressed interest in effective utilization of communication technology. The trial court also noted that it had previously authorized use of telephonic testimony in civil cases.

At trial Dr. Hawes testified by telephone that in 1982 she had examined the victim, observed signs of forced penetration, and performed a vaginal smear test. She also testified that results of the test revealed the presence of sperm and that in her medical opinion the victim had been sexually assaulted. Topping's attorney then cross-examined Dr. Hawes. ⁵

The jury returned guilty verdicts on all counts. The trial court subsequently sentenced Topping to concurrent sentences of twenty-four years on the sexual assault conviction, eight years on the first degree burglary conviction and two years on the felony menacing conviction.

II

The sixth amendment to the United States Constitution states in pertinent part as follows:

In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.... ⁶

U.S. Const. amend. VI. The Supreme Court has observed that "the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal." Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). The Court has repeatedly emphasized that this right has occupied a central role in our universe of criminal justice since its early incorporation into the constitutional framework of this nation. Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988); Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987); Kentucky v. Stincer, 482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987); Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986); Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985); Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934); Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895).

In Coy v. Iowa, the Supreme Court concluded that this fundamental right "guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact." 487 U.S. at 1016, 108 S.Ct. at 2800. At Coy's trial, a screen was placed between the defendant and two child witnesses that prevented the witnesses from seeing Coy during their testimony. In holding that this statutorily authorized procedure violated Coy's sixth amendment right to confront adverse witnesses at trial, the Court noted that the preservation of the right was essential both to ensure the appearance of trial fairness and the reality of a fair trial. Id. at 1018-19, 108 S.Ct. at 2801-02 (quoting Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986)). The Court noted that the right of confrontation consisted of at least two primary elements, the right to require physical presence and the right of cross-examination. Id. 487 U.S. at 1017, 108 S.Ct. at 2801; Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40 (1987).

Conceding that Topping was denied the right to confront Dr. Hawes face-to-face, the People argue that the sixth amendment right of confrontation is not absolute and that the trial court's order may be sustained under the circumstances of this case. It is true, as the Supreme Court pointed out in Coy, that the right of confrontation is not necessarily absolute. 487 U.S. at 1020, 108 S.Ct. at 2802. For example, the scope of a defendant's cross-examination of an adverse witness who testifies at trial may be limited by trial courts. Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973); People v. Loscutoff, 661 P.2d 274 (Colo.1983). See People v. McKenna, 196 Colo. 367, 585 P.2d 275 (1978) (statute restricting scope of cross-examination of sexual assault victim not unconstitutional). Admission of hearsay testimony against defendants in criminal proceedings may also be viewed as an exception to the full protection of the confrontation clause. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); People v. Dement, 661 P.2d 675 (Colo.1983). However, in the cases addressing those two classes of exceptions to the rule requiring strict enforcement of confrontation clause rights the fundamental issue of the scope of the right to face-to-face confrontation of adverse witnesses at trial was not the primary focus of judicial scrutiny. See Coy v. Iowa, 487 U.S. at 1020-21, 108 S.Ct. at 2802-03. The Supreme Court did address that issue in Coy, and concluded that the policies embodied in those exceptions must yield to the principles of fundamental fairness in judicial proceedings embodied in the confrontation clause.

The People suggest that the decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, should be applied here, and that the circumstances of this case satisfy the test therein enunciated. In Ohio v. Roberts, the Supreme Court held that introduction into evidence at the defendant's trial of the transcript of prior preliminary hearing testimony of an adverse witness did not violate the defendant's sixth amendment right of confrontation. In reaching this conclusion, the Court applied a two-part test: whether the prosecution had established that the hearsay declarant was unavailable and whether the proffered testimony bore substantial indicia of reliability. Id. at 65, 100 S.Ct. at 2538.

In our view, Ohio v. Roberts is not applicable to the facts of this case. ⁷ The issue in that case was whether application of an evidentiary rule authorizing limited use of hearsay evidence was constitutionally permissible. The question in this case is whether a defendant may be denied the right to confront an adverse witness who would be inconvenienced by enforcement of a subpoena to testify at trial. Furthermore, the defendant in Ohio v. Roberts had been afforded an opportunity to...