Edwаrd Leslie STORES, Appellant, v. STATE of Alaska, Appellee.
No. 3595.
Supreme Court of Alaska.
Dec. 19, 1980.
625 P.2d 820
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 hоme 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 thе 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 tо 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
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 аppeal, 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 corroboratе 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
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 оf 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
We note that the United States Supreme Court has never expressly authorized the
“[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. 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 (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
“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 оmitted).
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 where the interests embodied in the Confrontation Clause give way to a competing interest, namely, the state‘s “strong interest in effective law enforcement ....” Ohio v. Roberts, 448 U.S. 56, 607 (1980). Thus, under the federal standard, out-of-court statements may be used at trial if a two-tier test is met. First, the Confrontation Clause requires a showing that the declarant is unavailable. Second, the statements are admissible only if they bear adequate “indicia of reliability.” Roberts, 448 U.S. at 608. Often, where the evidence falls within an established hearsay exception, reliability can be inferred. Id. In other cases, the evidence must be excluded, “absent a showing of particular guarantees of trustworthiness.” Id.
We need not reach, however, the constitutional issue presented, since
“(1) Exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of his statement; or
(2) Persistent in refusing to testify despite an order of the judge to do so; or
(3) Unable to be present or to testify at the hearing becausе of death or then existing physical or mental illness or infirmity; or
(4) Absent from the hearing and beyond the jurisdiction of the court to compel appearance and the proponent of his statement has exercised reasonable diligence but has been unable to procure his attendance.”10
The question is thus narrowed to an inquiry of unavailability, that is, whether the state, the proponent of the witness in this case, “exercised reasonable diligence but [was] unable to procure [her] attendance” at trial.11
In Fresneda v. State, 483 P.2d 1011 (Alaska 1971), we addressed ourselves to the standard of “due diligence” which must be exercised by the proponent of a witness’ statement to secure the presence of a witness at trial before it seeks to introduce former testimony of that witness. In Fresneda, one of the state‘s witnesses who tеstified at the first trial12 was absent at the retrial. The state made no sincere effort to locate this witness until seven days prior to the retrial when a check of police records in Juneau and Anchorage, where the witness was believed to reside, revealed no trace of him.
Two days prior to trial, the court attache was assigned to the search. His inquiries disclosed the possibility that the witness had enlisted in the Army, but he did not follow up on his request for verification of this fact. On the day of trial, the prosecutor‘s secretary learned that the witness had in fact enlisted in the Army approximately seven months earlier, and had been sent to Fort Lewis, Washington, for eight weeks of basic training. Her source of information, a major in the Army National Guard, had no actual knowledge of the witness’ location, but suggested that he might be in Vietnam. The trial court apparently assumed that the witness was in fact in Vietnam and admitted the former testimony.
We held this ruling to be error on the part of the trial court, id. at 1018;13 we found that the prosecution‘s efforts to locate the witness14 did not measure up to the standards of due diligence recently announced by the United States Supreme Court in Barber v. Page, 390 U.S. 719 (1968).15 We now
In light of the constitutional basis of the decision in Roberts and Barber, the determination of whether the witness was unavailable must be made independently by the reviewing court. Green v. State, 579 P.2d 14, 16-17 (Alaska 1978). In Green, a witness subpoenaed by the district attorney failed to appear at trial. Even though the district attorney had advance knowledge that the witness might not show up at trial,16 he took no action to secure her presence until the initial trial date.17 A bench warrant was issued and state troopers, who had learned of the witness’ move to California, checked with authorities in two cities there. They never located the witness, and the trial court admitted into evidence her preliminary hearing testimony. We reversed on the ground that the trial court had erroneously concluded that the state‘s efforts to locate the missing witness were adequate. We concluded that the state‘s failure to check with the witness’ last known employer or the post office for a forwarding address demonstrated lack of due diligence,18 which precluded the use at trial of the witness’ preliminary hearing testimony.
The requirement of good-faith, diligent efforts to secure the presence of the witness before preliminary hearing testimony may be introduced against an аccused in a criminal trial applies with equal force to
“While we recognize that there is a difference between testimony elicited at preliminary hearings and testimony introduced at trial in terms of completeness and depth of cross-examination, we find that this difference should not be the basis for the requirement of a different standard of due diligence in each case.”
Applying the standards of due diligence developed in Fresneda and Green to the instant case, we find that the state failed to make any effort to secure the presence of Dr. Sydnam at trial even though it had advance knowledge not only of her plans to depart, but also of her willingness to appear at trial if subpoenaed. The sole purpose of taking the deposition was to create former testimony to be used in lieu of live testimony. We will not sanction such аn evasion of the constitutionally based preference for live testimony in open court which is embodied in
The state asks us to relax the specific requirements of
While relaxation of the rules is not tantamount to rewriting a rule, even if we felt free to rewrite
The erroneous admission of the videotaped deposition must compel reversal unless harmless. Although evidentiary error may bе harmless in some circumstances, Fresneda v. State, 483 P.2d 1011, 1018 (Alaska 1971), it is not so here. Reversal based upon non-constitutional, evidentiary error revolves around “what the error might have meant to the jury.” Love v. State, 457 P.2d 622, 630 (Alaska 1969). Under the Love test, we must examine the error to determine whether the jury was substantially influenced or swayed in its verdict by the introduction of the evidence in the context of the entire trial record. If improperly admitted evidence is merely cumulative, and the state‘s case is otherwise very strong, the error may be deemed harmless, even if of constitutional dimension, e. g., Burford v. State, 515 P.2d 382, 384 (Alaska 1973); but where the disputed evidence “appreciably affect[s] the jury‘s verdict,” the error requires reversal. Stevens v. State, 582 P.2d 621, 626 (Alaska 1978).
Significant differences exist between testimony by videotape and testimony face-to-face with the jury. Videotape may affect the jurors’ impressions of the witness’ demeanor and credibility.25 Such
Moreover, there is a further distinction between trial testimony and videotaped testimony taken prior to trial which may have significance here. With videotape, the witness cannot be cross-examined in the context of other evidence and testimony which has been presented at trial. Store‘s counsel may have taken a different approach to the cross-examination of Dr. Sydnam had her testimony been taken as part of the prosecution‘s entire case. If the doctor had been available at trial, the defense would have had the opportunity to explore any discrepancies between the testimony of various witnesses and to recall the doctor to clarify any medical questions that might have arisen during the course of the trial.
The use of videotape, in the trial process is relatively new. Its real impact remains undetermined. This is not to say that a videotaped deposition should never be used at trial; in fact, it may provide the most reliable and accurate means of preserving testimony when the witness is truly unavailable for trial. It is quite a different matter, however, to conclude that the erroneous admission of a videotaped deposition of a crucial witness, who was avаilable to testify at trial, had no effect on the outcome of the trial.
We have not hesitated to reverse where an error flows from prosecutorial violation of the Rules of Criminal Procedure. Stevens v. State, 582 P.2d 621 (Alaska 1978). In view of the requirements of Love and the concomitant substantial effect that the deposition must have had on the jury‘s verdict, reversal is required.
We find the other contentions advanced by the defendant on appeal to be without merit.
REVERSED.
BOOCHEVER and BURKE, JJ., not participating.
MATTHEWS, Justice, dissenting.
I disagree with the majority‘s opinion that the admission of Dr. Sydnam‘s videotaped deposition was not harmless error beyond a reasonable doubt.
The question is not simply whether the state might have obtained a conviction without Dr. Sydnam‘s testimony. It appears plain that had the state or the trial
The videotaped testimony was prepared within less than a week of trial. It was clear to the defendant and his lawyer that the purpose of the taping session was to preserve the doctor‘s testimony for use at trial. Thus, this is not a case where the defendant‘s lawyer did not have adequate time to prepare, or where the issue to be proved or the quantum of proof needed was different from that at trial. Such might be the case if testimony from a preliminary examinаtion or a deposition believed to be for discovery purposes were used.1
The defendant had the assistance of the same lawyer at both the taping session and at trial. A trial judge was present and ruled on objections raised by both parties. Defendant‘s lawyer freely cross-examined the witness.
A videotape records the demeanor of a witness with even more faithfulness than a sound recording. With regard to the latter, we said in McBride v. State, 368 P.2d 925, 928-29 (Alaska 1962), cert. denied, 374 U.S. 811 (1963):
The entire direct and cross-examination were played back through a high fidelity loudspeaker mounted on the courtroom wall. The jury was able to hear the inflections of voice which are so often important. They were able to note the readiness and promptness of the witness‘s answers or the reverse; the distinctness of what he related оr lack of it; the directness or evasiveness of his answers; the frankness or equivocation; the responsiveness or reluctance to answer questions; the silences; the explanations; the contradictions; and the apparent intelligence or lack of it. These are vital elements touching upon the witness‘s veracity which are available in this jurisdiction to be noted and weighed by a jury even when the witness is not present in person. To a large extent, then, demeanor evidence is available for a subsequent jury; it is no longer wholly “elusive and incommunicable” as in the case of manual reporting of former testimony.
Finally, Dr. Sydnam testified as an expert witness concerning the results of her medical examination of the victim. This was not a case involving the testimony of a crucial eyewitness to the events of the crime, where it might be important at trial to test the witness‘s powers of observation, memory, or possible bias.2
WARREN MATTHEWS
JUSTICE
Notes
We find no error in allowing Dr. Hirsch to testify by videotape under the appropriate safeguards contained herein. In deciding as we do, we wish to emphasize that our decision might be different were he аn eyewitness to the events of the crime. Such a crucial witness should not be lightly excused from attendance at the trial itself. When considering when to allow a witness to testify by videotape in a criminal trial, the trial court must balance the right of the defendant to the right of confrontation and the need of the trier of fact to the additional benefit of having a particular witness testify in person at the trial with the extent of the need for the witness to be away at the time of trial. The treatment by the courts of witnesses has not always resulted in willing and cooperative testimony once witnesses have been compelled to attend court. Because of his professional speciality, Dr. Hirsch, a pathologist, might not be able to go on a vacation without disrupting or postponing trial dates. The right of the defendant to confront the witness against him can also accommodate the convenience of the witness without doing an injustice.
“The proof of the Common Law is by witness and jury; let Cobham be here, let him speak it. Call my accuser before my face, and I have done.”
Raleigh‘s demand for confrontation was answered by Justice Warburton:
“I marvel, Sir Walter, that you being of such experience and wit should stand on this point; for so many horse-stealers may escape, if they may not be condemned without witnesses.” 2 Howell‘s State Trials 15-16, 18 (1816).
“We start with the fact that the State made absolutely no effort to obtain the presence of Woods аt trial other than to ascertain that he was in a federal prison outside Oklahoma. It must be acknowledged that various courts and commentators have heretofore assumed that the mere absence of a witness from the jurisdiction was sufficient ground for dispensing with confrontation on the theory that ‘it is impossible to compel his attendance, because the process of the trial Court is of no force without the jurisdiction, and the party desiring his testimony is therefore helpless.’ 5 Wigmore, Evidence § 1404 (3d ed. 1940). Whatever may have been the accuracy of that theory at one time, it is clear that at the present time increased cooperation between the States themselves and between the States and the Federal Government has largely deprived it of any continuing validity in the criminal law....
In this case the state authorities made no effort to avail themselves of either of the above alternative means of seeking to secure Woods’ presence at petitioner‘s trial.... In short, a witness is not ‘unavailable’ for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial. The State made no such effort here, and, so far as this record reveals, the sole reason why Woods was not present to testify in person was because the State did not attempt to seek his presence. The right of confrontation may not be dispensed with so lightly.” (footnotes omitted).
“The word ‘diligence’ connotes persevering application, untiring efforts in good earnest. There must be evidence of a substantial character to support the conclusion of due diligence. [What is required is] a thorough, painstaking and systematic attempt to locate the witnesses.”
Quoting People v. Redston, 139 Cal.App.2d 485, 293 P.2d 880, 886 (1956).
“First, at the time a deposition of a prosecution witness is taken the defense may not be prepared adequately to cross-examine, while prior trial testimony is used only аt a time when the defendant is presumably ready for trial. The second difference is that the testimony of a witness at a prior trial has been subjected at least once to the crucible of in-court scrutiny by judge and jury. This is, perhaps, another way of saying that testimony in the solemn, impressive atmosphere of a courtroom, before the eyes of a keen judge and an observant jury, may be given with a little more care, deliberation and accuracy on the part of the witness than it might be given [otherwise].” (footnotes omitted).
United States v. Singleton, 460 F.2d 1148, 1155 (2d Cir. 1972) (Oakes, J., dissenting), cert. denied, 410 U.S. 984 (1973).
“Although Dr. Hirsch did testify concerning the angle of the bullets, leading to the inference that the victim was shot in the back, his testimony herein was concerned primarily with the cause and time of death which testimony was not seriously questioned but which was a necessary foundation to the establishment of the crime.” Id. at 148.
The Arizona court took pains to note that a different result might be warranted if the testimony sought to be had by deposition were “crucial.” Id. at 149. Dr. Sydnam‘s testimony goes far beyond merely foundational matters. Nor does Ohio v. Roberts, 448 U.S. 56 (1980) compel a different result. Unlike the facts in Roberts, here, Dr. Sydnam‘s whereabouts were fully known. The only “unavailability,” if any, was temporary. The state had the ability to compel her attendance, but chose not to exercise that power. Such conduct hardly constitutes due diligence.
“Some courts and legal commentators have assumed that evidence recorded on videotape can simply be transрorted from courtroom to television monitor with little or no effect upon it. In reality, however, the camera unintentionally becomes the juror‘s eyes, necessarily selecting and commenting upon what is seen....
Evidence distortion is most serious when videotaping a witness because the picture conveyed may influence a juror‘s feelings about guilt or believability.... Variations in lens or angle, may result in failure to convey subtle nuances, including changes in witness demeanor such as a nervous twitch or paling and blushing in response to an important question, all of which are potentially important to jury decision making. Whether testimony is taped in black and white or in more expensive color may also be of critical importance.
Furthermore, the camera itself is selective of what it rеlates to the viewer. Transmission of valuable first impressions may be impossible, and off-camera evidence is necessarily excluded while the focus is on another part of the body or another witness.” (footnote omitted).
Note, supra note 24, at 574-76.