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| Confrontation/Cross-Examination |
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Martinez v. State:
State evidentiary rules cannot act to limit the constitutional right of confrontation and cross-examination; and re-affirmed fundamental principle that bias evidence is never collateral and a witness may be cross-examined about any matter tending to show his bias or prejudice.
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Beck v. State:
Unlike the strict restrictions placed on most other forms of impeachment evidence, a witness may be cross-examined about any matter tending to show his bias or prejudice. See, e.g., Dunham v. State, 762 P.2d 969, 973 (Okl.Cr. 1988); Mills v. State, 733 P.2d 880, 882 (Okl.Cr. 1986); Crawford v. State, 688 P.2d 357, 360 (Okl.Cr. 1984). In fact, "the prohibition against extrinsic evidence of specific instances of conduct found in Section 2608(B) is inapplicable to impeachment evidence which tends to show a witness' bias . ." Fisher v. State, 761 P.2d 900, 901 (Okl.Cr. 1988). Nevertheless, we have permitted the use of extrinsic evidence to demonstrate bias despite the prevailing rule against its use. See, Id. at 901; Rhodes v. State, 695 P.2d 861 (Okl.Cr. 1985). Clearly bias evidence is never collateral. Thus, our previous holding in Woods v. State, 657 P.2d 180, 182 (Okl.Cr. 1983), that if a witness denies the bias impeaching conduct, counsel is bound by the answer given and [824 P.2d 389] may not offer extrinsic evidence to contradict the witness is overruled to the extent it is in conflict with this opinion.
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Crawford v. Washington,
No. 02-9410 (U.S., March 8, 2004): Where testimonial evidence is introduced against an accused, the only indicium of reliability sufficient to satisfy the Sixth Amendment is confrontation.
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United States v. Bordeaux,
No. 04-1369 (8th Cir., March 7, 2005): Winner!!! Confrontation Clause winner in sexual abuse case where complaining child witness allowed to testify via closed-circuit television and her statements during police interview were admitted. Good discussion and strong case.
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Howard v. Walker,
No. 01-2471 (2nd Cir., April 26, 2005): Nice win in the Circuit that reverses a habeas denial on the basis of the trial court unfairly restricting defense cross-examination of the State's expert witness and denying the defense the opportunity to call its own expert.
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United States v. Pugh,
No. 03-3241 (6th Cir., May 3, 2005): Winner!!! Armed bank robbery conviction reversed on confrontation/cross-examination grounds when out-of-court statement identifying the defendant was introduced at trial. Good application of Crawford. Note: the Circuit noted carefully that Crawford proscribes only testimonial statements used as hearsay, i.e., for the truth of the matter asserted; it does not bar the general hearsay exceptions.
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United States v. Molina,
No. 03-1625 (1st Cir., May 19, 2005): Nice winner in a multi-defendant case on confrontation/cross-examination grounds, both Bruton admission of co-defendant statements and also plain, old-fashioned unfair restriction on the right to cross-examine a witness on issues relating to bias and motive to lie. Plus, an ex post facto win to boot.
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United States v. Arnold,
No. 04-5384 (6th Cir., June 21, 2005): Instructive cross-examination/confrontation case where Arnold was convicted at jury trial of felon in possession of a handgun. The cops got involved via a 911 call made by a woman who said that Arnold had "pulled a gun" on her. The government subpoenaed her for trial but she did not appear. The trial court admitted the tape of the 911 call over objection. The Circuit held that the call was not an excited utterance and violated the Sixth Amendment.
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United States v. Summers,
No. 04-2121 (10th Cir., July 21, 2005) (Published): Reversal of bank robbery and conspiracy convictions on sufficiency of the evidence grounds; but interesting discussion of confrontation issues and what constitutes testimonial statements under Crawford. The Circuit established the following test: "Thus we hold that a statement is testimonial if a reasonable person in the position of the declarant would objectively foresee that his statement might be used in the investigation or prosecution of a crime." The statement in this case met this test, but was declared harmless.
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Wortham v. State,
2008 OK CR 18 (June 19, 2008): 1. Suspended Sentences; 2. Confrontation/Cross-Examination: At a revocation of a suspended sentence hearing in Oklahoma County, the State introduced a preliminary hearing transcript and a DNA report. Wortham objected on the basis that the State had not shown that the witnesses were unavailable to testify live and thus his rights to confront and cross-examine the witnesses against him was violated. Although the State must show "unavailability" at trial under the Sixth Amendment, the Court held that there is no such corresponding right at a revocation hearing as long as the defendant was able to cross-examine the witnesses at the prior court proceeding. AFFIRMED while overruling prior inconsistent cases.
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Giles v. California,
No. 07-6053 (U.S., June 25, 2008): Confrontation/Cross-Examination: Giles was tried for murder in a domestic situation and he asserted self-defense. The prosecution introduced evidence in the form of a hearsay phone call from the victim that occurred three weeks prior to the murder. The California courts held that there was no confrontation problem under the doctrine "forfeiture by wrongdoing" the basic thrust of which is that Giles forfeited his right to contest her statements by killing her. The Supreme Court REVERSED, holding that under Crawford, the forfeiture by wrongdoing exception was not established "at the founding" and thus was not applicable to defeat a confrontation argument.
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Young v. State,
2008 OK CR 25 (August 12, 2008): Confrontation/Cross-Examination: This is a jury trial case out of Osage County in which Young was convicted of Murder in the First Degree and sentenced to LWOP. Young, a drug dealer, murdered an addict because he thought the addict was a snitch. The main issue presented involves compulsory process. The defense requested that the two star witnesses for the State remain on call. However, neither returned to court to testify for the defense. Defense counsel made an offer of proof and the defense rested. The focus of the analysis appears to center around whether trial counsel used the requisite amount of diligence to secure the attendance of the witnesses. Defense counsel "did not seek a continuance, ask for bench warrants to arrest the witnesses, or request that the witnesses be transported to Court by the Sheriff." According to the opinion, "He simply noted their absence, dictated their proposed testimony into the record, and proceeded with his case." HELD: "Appellant has not shown due diligence, nor has he shown that any proper request for compulsory process was denied." Also raised were claims of involuntary statements to the police ("Aggressive police interrogation clearly played a role in Appellant's decision to cooperate with police, but he was not coerced into giving information against his will"), an IAC claim on the failure to secure the testimony of the witnesses (deficient performance but no prejudice) and a claim of prosecutorial misconduct (error but not plain error).
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United States v. Schwartz,
No. 05-11715 (11th Cir., September 5, 2008): Confrontation/Cross-Examination: Lengthy opinion granting relief on a Bruton error (admission of co-conspirator hearsay) that was not harmless beyond a reasonable doubt.
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United States v. Riggi, et al.,
No. 06-1280 (2nd Cir., September 4, 2008): Confrontation/Cross-Examination: "Because it was plain error (in retrospect) to admit eight plea allocutions in violation of Crawford v. Washington, 541 U.S. 36 (2004), we vacate the convictions and remand for further proceedings."
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Taylor v. Cain,
No. 07-30709 (5th Cir., October 13, 2008): Confrontation/Cross-Examination: Taylor was convicted in Louisiana state courts of Murder in the Second Degree and sentenced to Live without parole. In this habeas corpus case, the Fifth Circuit panel AFFIRMED the grant of habeas relief on the basis that the introduction of hearsay evidence violated his Sixth Amendment rights and the error was not harmless.
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Jones v. State,
No. RE-2004-435 (Okl.Cr., July 15, 2005) (Unpublished): Very nice winner reversing a revocation of suspended sentence. The State presented only one witness: the probation officer who testified that Jones had been arrested and charged in another county with new crimes. That's it, just arrested and charged. The Court reversed on insufficient evidence and confrontation grounds. Solid opinion.
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United States v. Brun,
No. 04-4208 (8th Cir., August 1, 2005): Not a winner, but instructive discussion of Crawford/Confrontation issue regarding "excited utterance" via 911 tape when declarent did not testify. Tape admissible and the opinion explains how the Circuit arrived at that conclusion.
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United States v. Kirby,
No. 04-6226 (6th Cir., August 15, 2005): The confrontation clause holding of Crawford does not apply to revocation of supervised release proceedings (basically the equivalent to a state court application to revoke suspended sentence). The Sixth Circuit agreed with the Second and the Eighth Circuits on this issue. Also, the Ninth Circuit chimed in on this issue too and aligned itself with the majority (for once) in United States v. Hall, No. 04-50193 (9th Cir., August 15, 2005).
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United States v. Montelongo,
No. 04-2215 (10th Cir., August 24, 2005) (Published): Solid Winner!!! from the Circuit reversing and remanding large scale drug conspiracy case on the basis of the trial court unfairly restricting the scope of cross-examination in the case. The drugs were found in a semi. One of the government's witnesses was the owner of the semi, who incidentally happened to own a second semi where drugs were found a few months earlier. The defendants thought this might be important to show that maybe it was Mr. Gomez and not them who packed to drugs into the semi for transport. The Circuit agreed.
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Fowler v. Sacramento County Sheriff's Department,
No. 04-15885 (9th Cir., August 31, 2005): Another solid reversal of a habeas denial in a lewd acts case where Fowler attempted to question the prosecutrix about two other prior incidents where she accused another person of inappropriate sexual behavior. The Circuit held the trial court's restriction violated the right to confront and cross-examine.
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Mitchell v. State,
2005 OK CR 15 (Okl.Cr., September 14, 2005): Death Penalty Winner!!! Mitchell was convicted of Murder I by Child Abuse and sentenced to death, along with 1,000 year sentences (!!) for child abuse and child sexual abuse (all AFCF). In a lengthy opinion, the Court reversed all counts based on the introduction of hearsay and the right to confront and cross-examine as well as prosecutorial misconduct. Pay special attention to paragraphs 80 and 81, and footnote no. 6, which illustrate how the prosecutors and judges work in Oklahoma County. The Court stated that it was "extremely offended" by the State's entreaties to the trial court to admit otherwise inadmissible hearsay "because it would only be reviewed for harmless error anyway." (!!) Connie Pope (now Smothermon) and James Siderias are listed as the prosecutors in the case. The opinion does not indicate which one of them said this, but I surmise it to be Mrs. Smothermon. What a brazen statement to actually make on the record. I take it as an articulation of what prosecutors in Oklahoma County have come to expect from the judiciary--"Look, Judge, this guy is guilty anyway, just go ahead and let in our prejudicial evidence; nevermind the actual Constitution or rules of evidence, we can always get by with it by arguing harmless error on appeal." It is shocking that the prosecutor would actually say it on the record in a capital case. COCA has let this kind of thing slide for years with "admonitions" and chastisements in written opinions and it is nice to see them actually address such prosecutorial misconduct in terms of reversal of a conviction (the Court analyzed the prosecutorial misconduct in terms of cumulative error, but it made a strong statement in the opinion). The real audience to which such statements are addressed is, of course, the trial judges of this state to be sensitive to prosecutorial over-reaching because they are the only ones that can stop it. Great job by James H. Lockard and Michael Morehead, OIDS, on the appellate victory in this case.
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Madrigal v. Bagley
No. 03-4118 (6th Cir., June 27, 2005): Habeas granted and AEDPA standards met on Confrontation Clause grounds.
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People v. Goldstein,
No. 155 (N.Y. Ct. App., December 20, 2005): Terrific case and a winner on confrontation grounds when the State presented the testimony of a psychiatrist who recounted statements made to her by persons not subject to cross-examination.
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United States v. Yates,
No. 02-13654 (11th Cir., February 13, 2006) (en banc): Federal mail fraud and money laundering convictions reversed on Confrontation Clause grounds when witnesses were allowed to testify via two-way closed circuit television from Australia. Very lengthy opinion and in-depth treatment of this issue and the requirements for such a procedure to ensure a defendant's Confrontation rights.
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United States v. Faulkner,
No. 05-3061 (10th Cir., March 6, 2006) (Published): Intriguing conspiracy-to-commit murder case in order to prevent a witness from testifying in a federal trial. The issue in the case involved the admissibility of tape-recorded conversations between co-conspirators at Leavenworth Prison. The Court affirmed the admission of the recordings against a challenge under the federal wiretap statutes and the Sixth Amendment. Regarding the wiretap statute, the Circuit held that the prison taping of phone calls was "consensual" because the parties knew they were being taped. The Circuit brushed aside dicta from the Seventh Circuit noting a difference between taking a risk that the phone would be tapped and consenting. Regarding the Sixth Amendment claim, the Circuit noted a key distinction in Sixth Amendment law regarding co-conspirator statements: they are often not introduced as hearsay, i.e., not for the truth of the matter asserted, but merely to show that the conversation took place. Thus, such statements are not hearsay and Crawford does not apply. This is an aspect of Sixth Amendment law that often goes overlooked (but not by you now!)
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Fulcher v. Motley,
No. 03-6216 (6th Cir., April 18, 2006): Confrontation winner! AEDPA winner on Confrontation Clause grounds when the State introduced the hearsay statements of Fulcher's then-girlfriend after he married her and she invoked the spousal privilege to avoid testifying at trial. Interesting case analyzing pre-Crawford law and still finding such accomplice hearsay inadmissible. In a concurring opinion, Judge Clay would hold that Crawford should be retroactive to cases on collateral review because it is a watershed case of criminal procedure.
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Davis v. Washington,
No. 05-5224 (U.S., June 19, 2006): Confrontation/Cross-Examination: The Court actually decided two cases in Davis, one out of the state of Washington and the other out of Indiana, dealing with the same issue: what constitutes "testimonial" statements for Sixth Amendment purposes? Under the Court's prior decision in Crawford, the Court held that the State is prohibited by the Sixth Amendment from introducing "testimonial" statements from witnesses who do not appear at trial and whom the accused has not had a prior opportunity to confront and cross-examine. Both cases at issue in Davis dealt with domestic abuse. At trial, neither of the complaining witnesses showed up to testify at trial. In the first case, Davis, the Court held that a tape recording of a 911 phone call was not "testimonial" and therefore could be admitted even though the woman who made the call did not appear for trial to be cross-examined. The Court held that such statements were given to law enforcement to assess aid options in an emergency situation, rather than to acquire information into the investigation of past acts that may be crimes. However, the second case, Hammon v. Indiana, the police responded to a domestic and found the husband and wife at the house. The police separated the two and took a statement from the wife in the form of an affidavit describing the abuse. At trial, the wife did not show and the State introduced the affidavit taken by the police on the night of the crimes. The Court held that the statements in the affidavit were "testimonial" in nature, similar to Crawford, because the police were gathering information about a crime that had already occurred rather than asking questions to deal with an emergency; thus it was a Sixth Amendment violation to admit the statements in the affidavit without providing the accused the right to confront and cross-examine the witness. These decisions make intuitive sense and were supported by a strong voting bloc with all Justices in agreement except Justice Thomas who would have not granted relief to Hammon.
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Tony Neal Duncan v. State,
No. F-2005-320 (Okl.Cr., July 11, 2006) (unpublished): Confrontation/Cross-Examination: Duncan was convicted of First Degree Manslaughter in a DUI car crash. The case was reversed and remanded for new trial because the trial court allowed the State to introduce the preliminary hearing transcript of the attending physician's assistant (who claimed to have smelled the odor of alcohol on Duncan's breath when he was admitted to the hospital) but failed to show that he was "unavailable" (the State in fact simply released him from the trial subpoena because he had to attend college classes out of state). The trial judge here deserves some exposure for the degree to which he tried to assist the State in introducing the transcript. First, he ruled that the preliminary hearing transcript was a "deposition of a witness" (under the civil procedure code that does not apply to criminal cases) and then alternatively ruled that the statements were "present sense impressions" and then, for good measure, "excited utterances" which would allow admission regardless of the availability of the witness. The Court of Criminal Appeals reminded the judge that preliminary hearing testimony is neither a "present sense impression" nor an "excited utterance." The prejudice was clear because the three first-responder EMTs at the scene of the collision testified that they did not detect the odor of alcohol on Duncan at the scene. Trial Judge: Lowell R. Burgess (Pushmataha County).
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State v. Deangelo Favors,
No. S-2005-1067 (Okl.Cr., August 18, 2006) (unpublished): Confrontation/Cross-Examination: Favors was charged in Tulsa County with several counts, among them Shooting w/Intent to Kill and Kidnapping. At the PH, the complaining witness, Roberta Verner, testified that Favors committed the crimes. The defense wanted to call another witness, Iesha Huggins, to testify that Verner had lied and that the crimes never occurred. The PH magistrate refused to allow the testimony of Huggins and Favors was bound over. When the time for trial arrived, neither Verner nor Huggins were available. The State sought to use the PH transcript of Verner's testimony and the defense sought a material witness warrant for Huggins. Presented with this problem, Judge P. Thomas Thornbrugh held that Verner was unavailable to testify, but the fact that the magistrate had not allowed the defense to call Huggins at the PH, and Huggins could not be secured as a defense witness at trial, rendered the use by the State of Verner's testimony at the PH inadmissible as a violation of the defendant's right to confront his accusers(!) The State appealed and COCA affirmed Judge Thornbrugh.
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State v. Michael Ray Roley,
No. S-2005-702 (Okl.Cr., August 23, 2006) (unpublished): Confrontation/Cross-Examination: Roley was charged in Creek County with Child Abuse. The State did not present either of the child complaining witnesses at the PH, choosing instead to present testimony from a cop and a social worker relaying statements by the children evidencing abuse (over objection). The PH magistrate made no finding that the children were unavailable to testify. Judge April Sellers White sustained the defense Motion to Quash(!) COCA affirmed, holding that the constitutional right to confront accusers does apply at the PH and that the probable cause determination at PH must be based upon competent evidence, i.e., evidence that is admissible properly under the Constitution and the rules of evidence. The State sought a rule in child abuse cases that would allow the child to not testify at PH and the Court rejected this idea.
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United States v. Jimenez,
No. 04-51225 (5th Cir., September 12, 2006): Confrontation/Cross Examination: Federal conviction of Conspiracy to Possess w/Intent to Distribute (Cocaine) where the District Court would not allow the accused to question the narc about his exact location when he allegedly saw her dealing drugs from her front porch. The error was not harmless and the conviction is reversed. This is one of my favorite confrontation cases in recent months. The narc testified first that he was parked in the street and saw the drug transactions with binoculars. When the defense tried to pin him down he refused to say where he was exactly. This naturally lead to a heated bench conference at which it was finally determined that the narc was actually inside the home of a confidential informant and did not want to reveal the location. The Circuit said tough!
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Leroy Mitchell, Jr., v. State,
No. F-2005-874 (Okl.Cr., September 19, 2006) (Unpublished): Confrontation/Cross-Examination: Pithy opinion that reverses a conviction (at a bench trial before the Hon. Doug Gabbard in Atoka County) for Rape in the First Degree and a 5 year sentence on the basis of a violation of the Confrontation Clause and also on the basis that the trial court failed to make a reliability determination regarding the hearsay statements of the minor complaining witness. As is sometimes the case with these Summary Opinions, the facts are sketchy, but it appears that the State did not present the testimony of the child, but rather the testimony of investigating police officers who conveyed statements of the child.
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Jesse Allen Cheshire v. State,
No. F-2004-1229 (Okl.Cr., October 11, 2006) (unpublished): Confrontation/Cross-Examination: Cheshire was convicted by a jury of two counts of Child Sexual Abuse and sentenced to eight years on each count. Judge Willard Driesel of Bryan County ordered the sentences to be served consecutively. This is another case REVERSED and REMANDED for a new trial on the basis that two social workers were allowed to testify to hearsay by the minor complaining witnesses where neither of the minor complaining witnesses testified at trial. The Court found a violation of the right to confront and cross-examine and also found that the error was not harmless because the minor complaining witnesses named initially someone other than Cheshire as the perpetrator and subsequently recanted the allegations against Cheshire(?!) Although there is presumably more to the story than what is contained in the short, summary opinion, it makes me wonder what is going on in Judge Driesel's courtroom that he could allow a conviction under those circumstances.
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Stevens v. Ortiz, et al.,
No. 05-1250 (10th Cir., October 18, 2006) (Published): Confrontation/Cross-Examination: Habeas case where co-defendant confessed to the cops that he committed murder on the orders of Stevens. This confession was admitted over objection at Stevens' trial but co-defendant did not testify. The panel determined that the holding of the Colorado Supreme Court was contrary to clearly established federal law (pre-Crawford) and that the error was not harmless.
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United States v. Chavez,
No. 05-2209 (10th Cir., April 4, 2007) (Published): Confrontation/Cross-Examination: In a drug conspiracy case, an FBI agent testified that Chavez's truck was present at the scene of two alleged drug exchanges. However, the agent knew this, not from personal observation, but by hearing radio surveillance reports. The District Court initially allowed the testimony, but then reversed itself and held that the testimony violated Chavez's Sixth Amendment right of Confrontation. The District Court issued a curative instruction directing the jury to disregard the testimony. Chavez objected and moved for a mis-trial which was denied. In this appeal, Chavez challenged the ruling of the District Court denying his motion for a mis-trial. HELD: AFFIRMED because the error was harmless.
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United States v. Nash,
No. 04-6288 (10th Cir., April 9, 2007) (Published): Confrontation/Cross-Examination: Nash was convicted by jury of two drug trafficking offenses and related firearms offense. AFFIRMED over claims of denial of motion for continuance to investigate and a Bruton error in admitting statements by a non-testifying co-defendant, but remanded for re-sentencing on a preserved Booker error. NOTE: the panel found a Bruton violation in this case but the panel split 2-1 on whether it was harmless, with Judge McKay penning a spirited dissent on this issue. This case was briefed and argued by Vicki Mandell-King of the Federal Public Defender's Office in Denver. I am working with her on a federal capital appeal and she mentioned that she is planning to seek rehearing en banc on this issue which may have a decent chance. Stay tuned.
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Vasquez v. Jones,
No. 04-2274 (6th Cir., July 24, 2007): Confrontation/Cross-Examination; Habeas Corpus; AEDPA Deference Met: The State's key witness was questioned by the defense at preliminary hearing, but failed to show up for trial. The transcript of the preliminary hearing was introduced, but the trial court disallowed any impeachment of the witness with his criminal record. In this federal habeas case, the Sixth Circuit granted relief based on Confrontation Clause grounds.
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State v. Lopez,
No. SC05-88 (Fla., January 10, 2008): Confrontation/Cross-Examination: This is a very nice case applying Crawford and concluding that a prior discovery deposition of a declarant by the defendant's counsel did not qualify as a "prior opportunity for cross-examination" and thus admission of this testimonial statement at trial violated the defendant's confrontation rights (when the declarant did not testify at trial).
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United States v. Alvarado-Valdez
No. 99-40370 (5th Cir., March 12, 2008): Confrontation/Cross-Examination: Straightforward confrontation winner based on Crawford when a Government witness fled to Mexico and the Government was allowed to introduce his statements through a law enforcement official who conducted an interrogation of the witness before he fled.
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United States v. Hudspeth
No. 05-3316 (8th Cir., March 11, 2008) (en banc): Confrontation/Cross-Examination: This is a horrible decision from the en banc Eighth Circuit applying Georgia v. Randolph. When the police found child porn on Hudspeth's computer at his business, they Mirandized him and sought permission to search his home. He refused. Despite this refusal, police went to his home anyway and eventually obtained consent from his wife (not telling her that her husband had refused). The en banc court held that the wife's consent was valid, distinguishing Randolph because that case involved an objecting co-tenant who was physically present, whereas Hudspeth was not physically present at his home. Ugh. An absolutely atrocious decision with specious reasoning. I hope the Supreme Court takes this one to clarify Randolph.
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Barbe v. McBride, Warden
No. 06-7550 (9th Cir., April 7, 2008): Confrontation/Cross-Examination: Habeas case brought by a state prisoner in federal court, alleging that the state trial court restricted improperly his rights to confront and cross-examine the State's expert in a child sex-abuse case. The trial court blocked inquiry by the defense whether the child had been abused by someone other than the accused. HELD: This was error that was prejudicial under the AEDPA.
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United States v. Hardwick,
No. 04-1369 (2nd Cir., April 11, 2008): Confrontation/Cross-Examination: In a conspiracy case, Hardwick's Sixth Amendment right of confrontation was violated when the trial court admitted hearsay statements from his co-conspirator's plea allocution. However, since the evidence below was sufficient, the conviction is vacated and remanded for new trial rather than for dismissal.
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State v. Belvin,
No. SC06-593 (Fla., May 1, 2008): 1. DUI; 2. Confrontation/Cross-Examination: Admission of breath test affidavit violated the Sixth Amendment under Crawford. This case was a non-jury trial for DUI. The State introduced the affidavit of the breath test technician who did not testify.
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State v. Johnson,
No. SC06-86 (Fla., May 1, 2008): Confrontation/Cross-Examination: Admission of law enforcement lab report establishing the illegal nature of substances possessed by a defendant violate Crawford when the person who performed the lab test does not testify
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