STATE V. TAFOYA, 1988-NMCA-082, 108 N.M.
1, 765 P.2d 1183 (Ct. App. 1988)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
ROBERT JAMES TAFOYA, Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
1988-NMCA-082, 108 N.M. 1, 765 P.2d 1183
APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY, Joseph F. Baca, Judge
Petition for Writ of Certiorari Denied
November 18, 1988
Hal Stratton, Attorney General, Charles
H. Rennick, Assistant Attorney General, Santa Fe, New Mexico, Attorneys for
Plaintiff-Appellee
John L. Walker, Albuquerque, New Mexico,
Attorney for Defendant-Appellant
{1} This case is before us on
remand from the Supreme Court of the United States. In
State v. Tafoya,
105 N.M. 117,
729 P.2d 1371 (Ct. App.1986), we held that defendant was not
denied his right of confrontation by the trial court's admission into evidence
of videotaped depositions of victims of sex crimes taken under circumstances in
which defendant was required to remain in a control room instead of the room in
which the testimony was given. In
Tafoya v. New Mexico, ... U.S., 108 S.
Ct. 2890, 101 L. Ed. 2d 924 (1988), the Supreme Court vacated our judgment and
remanded "for further consideration in light of
Coy v. Iowa, 487
U.S. 1012 [108 S. Ct. 2798, 101 L. Ed. 2d 857] (1988)". We have considered
this case further in accordance with the mandate and determine that the
rationale of our prior opinion must be revised. However, we do not believe that
Coy v. Iowa requires a different result. for the reasons stated below,
we reaffirm defendant's convictions.
{2} Defendant was accused and
convicted of various counts of aggravated burglary, kidnapping, criminal sexual
penetration, criminal sexual contact, and aggravated burglary arising out of
seven incidents. In each incident, a stranger invaded the victim's home after
she was asleep. In six incidents, the victims were young girls, ranging in age
from four to eleven. The seventh victim was an adult woman.
{3} Prior to trial, the state
moved for an order permitting it to offer, in lieu of trial testimony by the
six children, videotaped depositions taken pursuant to statute and court rule.
See
NMSA 1978, §
30-9-17 (Repl. Pamp.1984); SCRA 1986, 5-504 (Cum. Supp.1988).
Under the statute and court rule, the trial court had discretion to grant the
state's motion upon a showing that "the child is unable to testify before
the court without suffering unreasonable and unnecessary mental or emotional harm."
See R. 5-504(B)(1);
cf. § 30-9-17 (the district court, for good
cause shown, may order the taking of a videotaped deposition).
{4} Under statute and court
rule, the videotaped deposition is to be taken in defendant's presence.
However, in this case, the state asked the trial court to require defendant to
observe the deposition on a television monitor from a control booth. Defendant
objected and also requested an independent psychological evaluation of the
children. The trial court granted defendant's motion for an independent
evaluation and scheduled a hearing on the state's motion.
{5} At the hearing, the court
heard testimony from three different experts. One had treated the
nine-year-old, one had treated the four-year-old, and a third had interviewed
the other four children. The court also heard testimony from some of the
parents.
{6} At the close of the
hearing, the trial court ruled that the state had made the statutory showing of
unreasonable and unnecessary harm as to four children, aged four, eight, nine,
and twelve. The court also ruled that one child, age eleven, was able to
testify in court and reserved ruling on another, also age eleven.
{7} Ultimately, five of the
six children were deposed on videotape. During each deposition, defendant was
seated in a separate room from which he could view the proceedings on a
television monitor. The witnesses could not see him, but they were aware that
he could see them. Defendant's attorney was present in the room in which the
deposition was taken, as was the trial court judge and counsel for the state.
Defendant and his attorney were equipped with headsets and microphones for
two-way communication. We assume that each child was accompanied by a
supportive adult, as requested by the state in its motion. It is clear that
each child was subject to cross-examination.
{8} The depositions were
presented at trial, at which the adult victim and one of the children testified
in person. The state also presented a variety of real and circumstantial
evidence, including fingerprints, serology tests, and statistical evidence that
implicated defendant. Defendant's defense was an alibi.
{9} On appeal defendant
argued, among other things, that the procedures authorized by the trial court
were not consistent with the statute and court rule, and also violated his
right to confrontation guaranteed by the sixth amendment. In our prior opinion,
we held that the deposition was taken in the "presence" of defendant
within the meaning of the legislature and our supreme court. We also held that,
on these facts, defendant was not denied his sixth amendment right of
confrontation. We reexamine each of these holdings.
{10} The statute and the rule
require the deposition to be taken in defendant's presence. Both were drafted
and enacted with the purpose of sparing child victims of sexual crimes the
further trauma of in-court testimony.
State v. Vigil, 103 N.M. 583,
711
P.2d 28 (Ct. App.1985). The rule states that the trial judge shall provide such
protection of the child during the deposition as the judge deems necessary. In
{*3} view of the purpose behind the statute
and rule, we believe that the procedures permitted in this case were consistent
with the statute and rule, provided they were also consistent with defendant's
sixth amendment right of confrontation.
{11} The confrontation clause
provides a criminal defendant with two types of protection: "'the right
physically to face those who testify against him, and the right to conduct
cross-examination."'
Coy v. Iowa at ... U.S. at ..., 108 S. Ct. at
2801 (quoting
Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S. Ct. 989,
998, 94 L. Ed. 2d 40 (1987)). In essence, the clause confers at least "a
right to meet face to face all those who appear and give evidence at
trial."
California v. Green, 399 U.S. 149, 175, 90 S. Ct. 1930,
1944, 26 L. Ed. 2d 489 (1970). Only the right to a face-to-face meeting is at
issue in this case.
{12} In our prior decision,
we recognized that the intangible effects of face-to-face confrontation formed
some part of the constitutional right to confrontation. However, we questioned
the need for face-to-face confrontation on the facts of this case. We noted
that defendant had not contended any child was fabricating the events and thus
it was unlikely that the moral suasion of facing the accused might influence
the child to tell the truth.
{13} The facts in
Coy v.
Iowa are similar to the facts in our case. In both cases, defendant did not
contend the children were fabricating. Under the view taken in our previous
opinion, the utility of face-to-face confrontation was remote. However, the
Supreme Court in
Coy v. Iowa did not view the right as affected by these
facts. Rather, the majority opinion clearly holds that the sixth amendment
guarantees the defendant a face-to-face meeting with witnesses appearing before
the trier of fact and that the right to a face-to-face meeting promotes values
other than the right to conduct cross-examination. Further, the guarantee
serves the general perception that confrontation is essential to fairness and
helps to ensure the integrity of the fact-finding process by making it more
difficult to lie. Given the purposes advanced by the guarantee, we consider it
unlikely that the Supreme Court intended to permit, as a preliminary matter, a
case-by-case evaluation of the value of the face-to-face meeting. Thus, we
begin with the premise that the confrontation clause guaranteed defendant a
face-to-face meeting with his accusers. Even so, there are critical
distinctions between the facts of the
Coy case and the facts of this
case. These distinctions mandate a different result in this case than in
Coy.
{14} First,
Coy v. Iowa
involved a statute which was viewed as creating a legislatively-imposed
presumption of trauma, whereas this case involves a rule and statute which
require a specific showing of unreasonable and unnecessary mental or emotional
harm to the victim. Neither the rule nor the statute contemplate defendant's
being in a different room. This latter innovation was allowed by the trial
court under the peculiar circumstances of this case.
{15} Second, in
Coy v.
Iowa there were no individualized findings that the particular witnesses
needed special protection. The Court noted that "[s]ince there have been
no individualized findings that these particular witnesses needed special
protection, the judgment... could not be sustained by any conceivable
exception."
Id. ... U.S. at ..., 108 S. Ct. at 2803.
{16} In this case, there was
a full day of testimony during which several experts and the parents of the
children testified about the harm the children would suffer by being made to
testify in open court and in the physical presence of defendant. Defendant was
given time to seek his own experts and present his own testimony rebutting the
state's showing of unreasonable and unnecessary mental or emotional harm.
Following a continuance of the proceedings, defendant announced he would
present no evidence. The court made detailed oral findings on why each child
would or would not suffer the requisite mental or emotional harm. It is
noteworthy that the trial court would not allow the state's suggested procedure
with regard to one child and deferred its ruling with regard to another child
until it heard from a
{*4} further
expert. Thus, in contrast to the automatic procedure condemned in
Coy,
we have a careful, informed weighing and balancing based on particularized
evidence.
{17} Our previous opinion was
based on the notion that a sufficient showing of particularized harm to the
victims could outweigh the defendant's right to a face-to-face meeting with the
witnesses. The United States Supreme Court cases on which we relied,
Ohio v.
Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980);
Dowdell
v. United States, 221 U.S. 325, 31 S. Ct. 590, 55 L. Ed. 753 (1911); and
Mattox
v. United States, 156 U.S. 237, 15 S. Ct. 337, 39 L. Ed. 409 (1895),
indicate that considerations of policy and necessity sometimes take precedence
over the right of confrontation. In fact, the Court left "for another
day,... the question whether any exceptions exist."
Coy v. Iowa ...
U.S. at ..., 108 S. Ct. at 2803.
{18} Although the majority
opinion in
Coy does not expressly state that a strong showing of
necessity could, in another case, overcome a defendant's confrontation rights,
"nothing in the Court's opinion conflicts with this approach."
Coy
v. Iowa at ..., 108 S. Ct. at 2805 (O'Connor, J., concurring). Moreover,
nothing in the Court's opinion conflicts with the conclusion that the
strictures of the Confrontation Clause may give way to the compelling state
interest of protecting child witnesses upon a case-specific showing and
case-specific finding of necessity.
See id.
{19} Our prior opinion was
based on just such a showing and finding. It will be recalled that one victim
in this case refused to sleep in her own room after the incident, instead
sleeping in a sleeping bag, protected further by two sets of undergarments and
two sets of nightclothes, on the floor of the family room in which her
grandfather was staying. Another victim would not walk from room to room alone
in her own house. An eleven-year-old victim regressed to sleeping with a
nightlight and a teddy bear. The experts stood uncontradicted in their
assessment that the victims were abnormally anxious in particular about the
prospect of having to testify in front of defendant and that "each child
would have to undergo therapeutic intervention to repair the damage brought by
simply testifying in that setting."
State v. Tafoya, 105 N.M. at
121, 729 P.2d at 1375.
{20} In addition, there was
evidence that each of the five children would have difficulty testifying if
defendant were present. The expert who had treated the nine-year-old testified
that she would not be able to tell her full story accurately. The expert who
had treated the four-year-old thought that it might be an issue as to whether
she would say anything at all, much less the truth. The expert who interviewed
the other four children testified as to the three who were deposed that
defendant's presence might interfere with their ability to testify.
{21} The right to a
face-to-face meeting rests in part on the theory that such a right helps
guarantee the accuracy of the truth-telling process. In this case, defendant
was a stranger to the victims. There is no reason to believe that the evidence
taken by deposition but outside defendant's physical presence was not as
credible as the trial testimony would have been. In fact, the evidence suggests
that the children were able to give more accurate testimony outside defendant's
immediate presence than they could have given at trial.
{22} In
Coy v. Iowa,
the Court said, "It is a truism that constitutional protections have
costs."
Id. at ... U.S. at ..., 108 S. Ct. at 2802. However, it is
important not to underestimate or overlook the price that must be paid by those
who are neither judges nor legislators. In this case, the showing and finding of
necessity by the trial court support a conclusion that the harm to the victims
outweighs defendant's right to a face-to-face meeting.
See Craig v.
Maryland, 76 Md. App. 250, 544 A.2d 784 (1988). Under these circumstances,
the procedures permitted were consistent with the statute and rule.
{23} We conclude that, on the
basis of the trial court's particularized findings and on the facts of this
case, no violation of defendant's right to confrontation occurred.
{*5} Thus, the procedures allowed were
consistent with the statute and rule. Defendant's convictions are reaffirmed.
ALARID, Judge, and FRUMAN, Judge, CONCUR.