IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________
No. 91-5086
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MITCHELL LOWERY,
Petitioner-Appellant,
versus
JAMES COLLINS, Director, Texas Department
of Criminal Justice, Institutional Division,
Respondent-Appellee.
_________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________
ON SUGGESTION FOR REHEARING EN BANC
(Opinion April 7, 1993, 5 Cir.,1993, 988 F.2d 1364)
Before WIENER, BARKSDALE, and DeMOSS, Circuit Judges.
WIENER, Circuit Judge:
Treating the Suggestion for Rehearing En Banc as a petition
for panel rehearing, it is ordered that the petition for panel
rehearing is DENIED. No member of the panel nor Judge* in regular
active service of this Court having requested that the Court be
polled on rehearing en banc,1 the Suggestion for Rehearing En Banc
is DENIED.
In conjunction with our denial of the State's Suggestion, we
offer the following additional words of explanation on two points.
*
Judge King did not participate in the consideration of the
suggestion for rehearing en banc.
1
See FED. R. APP. P. 35; 5th Cir. Loc. R. 35.
First, in its Suggestion, the State asserts that this panel's
decision in the instant case is contrary to our prior opinion in
United States v. Stephens.2 Disagreeing, we write today to attempt
once again to explain to counsel for the State why there is an
unwaived Sixth Amendment violation in the instant case. Second, we
write to revisit our opinion in light of the Supreme Court's recent
decision in Brecht v. Abrahamson.3 Issued two weeks after the panel
opinion, Brecht affects the reasoning in parts II.B. and II.C. of
our opinion but not its result.
I
The Sixth Amendment Violation and the State's Waiver Argument
The State continues to argue that Lowery waived his Sixth
Amendment rights by not calling the child-complainant to the stand.
To bolster this argument, the State cites to several places in the
trial record demonstrating that the court explicitly informed
Lowery's attorney that the child-complainant was available to
testify, and that he could be called to the stand. The State notes
that each time Lowery's attorney was thus informed, he chose not to
call the boy as a witness. In continuing its dogged insistence
that such action constitutes waiver, the State is simply refusing
to accept both the ruling of the Texas Court of Criminal Appeals
(TCCA) in Long v. State,4 and this panel's determination that
forcing a defendant to call a child complainant to
2
609 F.2d 230 (5th Cir. 1980).
3
113 S. Ct. 1710 (Apr. 21, 1993).
4
742 S.W.2d 302 (Tex. Ct. Crim. App. 1987).
2
testify in order to cross-examine that individual creates
a risk of inflaming the jury against a criminal defendant
and also unfairly requires a defendant to choose between
his right to cross-examine a complaining witness and his
right to rely on the State's burden of proof in a
criminal case.5
The State cites several cases that it insists stand for the
proposition that, as a defendant can waive his or her Sixth
Amendment rights, a witness's physical presence in the courtroom
assures the defendant of all the opportunity to confront the
witnesses against him that the Sixth Amendment provides. As
counsel for Lowery correctly points out, however, the cases cited
by the State do not support that contention. Rather, they stand
for the proposition that the Sixth Amendment is complied with when
the prosecution calls the witness first, and then the defendant,
for tactical or other reasons, voluntarily limits or chooses to
forego cross-examination.6 The first step))the prosecution's
initial call for the witness to testify))is crucial to the instant
inquiry. Only when that is done does the failure of the defense to
cross-examine the witness constitute a waiver.
The State argues that, given the choice discussed above,
Lowery's decision to not call the boy was a waiver of his Sixth
5
988 F.2d at 1368 (quoting the TCCA's Lowrey decision, 757
S.W.2d at 358-59, which was discussing Long).
6
See United States v. Wright, 904 F.2d 403, 405-06 (8th
Cir. 1990)(holding that no Sixth Amendment violation occurred
when defendants declined (for tactical reasons) to cross-examine
witnesses who were called by the prosecution); United States v.
Howard, 751 F.2d 336, 338 (10th Cir. 1984)(same), cert. denied,
472 U.S. 1030 (1985); United States v. Hines, 696 F.2d 722, 731
(10th Cir. 1982)(same); United States v. Zurosky, 614 F.2d 779,
792-93 (1st Cir. 1979)(same); United States v. Richman, 600 F.2d
286, 299 (1st Cir. 1979).
3
Amendment confrontational rights. The choice put to Lowery,
however, was a constitutionally unacceptable Catch 22. Assuming
that the State is correct in insisting that Lowery's attorney
recognized that the trial court was committing error by forcing the
defendant to choose between his Sixth Amendment rights and Fifth
and Fourteenth Amendment due process right to require the State to
bear its burden of proof, we still cannot accept that Lowery must
be penalized for doing exactly what he should have done))objecting
to the admission of the videotape.7
As noted, the State asserts that our panel decision is
contrary to this court's decision in Stephens, which held that
counsel in a criminal case may waive his client's Sixth
Amendment right of confrontation by stipulating to the
admission of evidence, so long as the defendant does not
dissent from his attorney's decision, and so long as it
can be said that the attorney's decision was a legitimate
trial tactic or part of a prudent trial strategy.8
The State badly misapprehends the materiality of the factual
distinction between Stephens and the instant case. In Stephens the
defendant's attorney "stipulat[ed] to the admission of [the
contested] evidence"; in the instant case, Lowery's attorney
objected to the admission of the contested evidence. The factual
distinction between the two cases eschews any potential application
of the Stephens decision to the instant case.
7
Also eschewing the State's claim of waiver are the several
general objections, reflected in the record, made by counsel for
Lowery, clearly preserving rather than waiving his right to
assert the constitutional error of admitting the videotape, and
without succumbing to the State's attempt to induce Lowery to
call the youth for direct examination.
8
609 F.2d at 232-33.
4
II
The Effect of Brecht v. Abrahamson
In our panel decision, we applied the harmless beyond a
reasonable doubt analysis set forth in Chapman v. California,9
finding that the admission of the videotaped interview was harmful
error under that standard. Since 1967, Chapman has supplied the
appellate test))both on direct appeal and habeas corpus review))for
harmlessness of constitutional errors in state criminal trials. In
Brecht, which as noted above was handed down two weeks after our
panel opinion was issued, the Supreme Court retracted its Chapman
analysis for purposes of habeas review in favor of the harmless
error standard originally espoused forty-six years ago in Kotteakos
v. United States,10 leaving Chapman in place for direct appeals.
The venerable Kotteakos test requires reversal if the error "'had
substantial and injurious effect or influence in determining the
jury's verdict.'"11
When we test the facts of the instant case under Kotteakos, we
invariably reach the same conclusion that we did when we applied
the Chapman standard. Admission of the videotape was harmful error
under both standards.
Justice Stevens, in his concurring opinion in Brecht, wrote to
explicate the Kotteakos standard and to "emphasize that the
9
386 U.S. 18, 24 (1967).
10
328 U.S. 750 (1946).
11
Id. at 776.
5
standard is appropriately demanding."12 Under Kotteakos, "the
burden of sustaining a verdict by demonstrating that the error was
harmless rests on the prosecution" unless that "error is merely
'technical'"))which a constitutional violation could never be.13
As applied by the Court in Brecht, Kotteakos commands that, in
determining whether a constitutional error is harmless, a de novo
review of the entire trial record must be performed by the
reviewing court. In performing that review,
[t]he habeas court cannot ask only whether it thinks the
petitioner would have been convicted even if the
constitutional error had not taken place. Kotteakos is
full of warnings to avoid that result. It requires a
reviewing court to decide that "the error did not
influence the jury," and that "the judgment was not
substantially swayed by the error."14
For purposes of the State's Suggestion for Rehearing En Banc,
we have followed the Brecht cum Kotteakos mandate and reviewed
again the evidence presented at Lowery's trial. As a result of
12
Id. at 1723-24 (Stevens, J., concurring).
13
Id.
14
Id. at 1724 (Stevens, J., concurring). Justice Stevens
included a long quote from the Kotteakos opinion to remind the
lower courts that, under Kotteakos, the question is not
were they [the jurors] right in their judgment, regardless
of the error or its effect upon the verdict. It is rather
what effect the error had or reasonably may be taken to have
had upon the jury's decision. The crucial thing is the
impact of the thing done wrong on the minds of other men,
not on one's own, in the total setting.
This must take account of what error meant to them, not
singled out and standing alone, but in relation to all else
that happened. And one must judge others' reactions not by
his own, but with allowance for how others might react and
not be regarded generally as acting without reason. This is
the important difference, but one easy to ignore when the
sense of guilt comes strongly from the record.
Id. (quoting Kotteakos, 328 U.S. at 764).
6
this painstaking re-review, we are convinced beyond peradventure
that the erroneous admission of the videotaped interview "had
substantial and injurious effect in determining the jury's
verdict."15 We noted in our panel opinion and we reiterate here
that the State failed to introduce any non-hearsay, direct evidence
of Lowery's guilt other than the videotaped interview))one that
reveals a little boy describing in innocent yet prurient detail
those acts of molestation that he indicates were perpetrated upon
him by Lowery. Our post-Brecht review of the entire record only
reinforces our firm conclusion that the playing of the videotape to
the jury was substantially injurious to Lowery, mandating reversal
under Kotteakos just as it did under Chapman. This conclusion is
buttressed now as it was prior to Brecht by a comparison of the
videotaped interview and "the only other basis for the conviction:
physical evidence not tied to the defendant except by hearsay
testimony."16
III
Conclusion
We find that Lowery did not waive his Sixth Amendment rights
by declining to call the child-complainant as a witness after the
State played a videotaped interview of that child describing the
acts of sexual molestation but did not call him as a witness.
Also, from our review of the trial record, we have determined that
the constitutional error which occurred in the trial of this case
15
Kotteakos, 328 U.S. at 776.
16
988 F.2d at 1373.
7
had a "substantial and injurious effect or influence in determining
the jury's verdict." Thus, the result we originally reached on
appeal of this case stands, for it continues to meet muster under
the Supreme Court's new application of Kotteakos for cases such as
this, just as it did, pre-Brecht, under the test of Chapman.
8