Thursday, October 12, 2006

Court of Appeals affirms finding that a defendant police officer violated the due process rights of victims that he sexually assaulted

United States v. Guidry
2006 WL 1991258
U.S. Court of Appeals, Fifth Circuit

After being convicted of (1) deprivation of civil rights by kidnapping, (2) violation of constitutional rights to bodily integrity by sexual assault, (3) carrying a firearm during and in relation to the sexual assault, and (4) conspiring to deprive five women of their due process right to bodily integrity, the defendant police officer argued on appeal that the evidence was insufficient to prove that he conspired to deprive the victims of their due process rights.

The Fifth Circuit Court of Appeals disagreed, reasoning as follows:

“Government officers violate another’s substantive due process rights when their actions can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.”

This Court determined that the evidence was sufficient after viewing the evidence in a light most favorable to the prosecution and found that a jury could have found beyond a reasonable doubt that the defendant officer committed the following elements of the crime in that he: (1) conspired to injure, oppress, threaten or intimidate one or more of the victims, (2) with the intent to interfere with the victim’s due process rights, (3) under the color of state law.

This Court concluded that a jury could reasonably conclude that the defendant’s behavior was “conscience-shocking” and that he deprived the victims of their due process rights when he, along with a fellow officer, conspired to intimidate the five women that they arrested and took into custody when they led the group of women into a room that was not equipped with video surveillance and began bartering for the women’s release by suggesting that they engage in sexual acts with the officers and that the officers did engage in non-consensual sexual activity. The Court further reasoned that a jury could find beyond a reasonable doubt that the defendant officer and his fellow officer were intimidating to the women and that they used their position of authority because they were in uniform, wearing badges, carrying weapons, and were the only officers on duty.

Court affirms trial court's discretion in closing the courtroom during a child witness's testimony

Purvis v. Crosby
2006 WL 1525931 (C.A. 11 (Fla.))
United States Court of Appeals, Eleventh Circuit

After being convicted of capital sexual battery on a child under twelve in violation of Florida Statute §794.011 (2)(a); sexual activity with a child twelve years or older by a person in familial or custodial authority using digital penetration in violation of §794.011 (8)(b); and sexual activity with a child twelve years or older using penile union with her vagina, in violation of §794.011 (8)(b); the defendant argued on appeal that his due process rights were violated when the trial judge closed the courtroom to the public during part of the child victim’s testimony and that he was prejudiced by his attorney’s failure to object to the closure.

The Eleventh Circuit Court of Appeals disagreed reasoning as follows:

Closing of the courtroom is appropriate because “although a public trial is a fundamental, constitutional right, the State, in the instant case, was seeking to close the trial in a constitutionally valid manner pursuant to [Fla. Stat] § 987.16,” and “to the extent that there was any error in the trial process itself rather than a structural defect.” This court finds that the trial court ordered a partial closure due to the young age of the victim and the nature of the testimony. The victim’s aunt and uncle were permitted to stay in the courtroom although the record is silent on how many persons stayed in the courtroom or how many persons left the courtroom during the child’s testimony. The defendant’s rights were not violated as his attorney could have objected to the partial closure. However, the attorney’s failure to do so more than likely would not have changed the victim’s testimony in such a way as to create reasonable doubt within the minds of the jurors nor the outcome of the trial. The defendant likewise failed to establish how he was prejudiced by the partial closure or his attorney’s failure to object to the closure.

Child molestation conviction turns on child testimony - if child is determined available by the court, their deposition testimony will not be admitted

Howard v. State
2006 Ind. LEXIS 792
Supreme Court of Indiana

After being convicted of child molesting, the defendant argued on appeal that the trial court erroneously admitted the pre-trial deposition testimony of a child witness who refused to testify further at the trial because (1) the child was not unavailable to testify at trial within the meaning of Crawford and (2) he was denied the right of cross-examination as required by Crawford.

The Supreme Court of Indiana agreed, setting aside the conviction and remanding the cause for further proceedings.

Because Crawford did not define “Unavailability” as to a witness, the Supreme Court of Indiana referred to its Fowler decision in which it held that “a witness who takes the stand but refuses to answer questions, with no claim of privilege, is “available” until she refuses to answer questions after being ordered to do so.” The Court also deferred to Indiana's Protected Person Statute which provides that a “determination that a child witness is unavailable may be predicated only upon a trial court finding (1) from testimony of a psychiatrist, physician, or psychologist and other evidence, if any, that the child will suffer emotional distress such that she cannot reasonably communicate if testifying in the physical presence of the defendant, (2) the child cannot participate at trial for medical reasons, or (3) the child is legally incompetent to testify.” If any of the foregoing circumstances are met, the trial court can admit the child’s deposition.

Here, the Supreme Court of Indiana found that the trial court admitted the child’s deposition in error as the child witness was not unavailable as within meaning of the Protected Person Statute. And, because the child was present at trial and took the stand but refused to testify, the child was not “unavailable.”

The Supreme Court of Indiana also addressed if a proper unavailability determination is made, whether the child’s pre-trial deposition may be admitted into evidence. This Court observed that the defense counsel “conducted a vigorous and lengthy examination” during the course of the child’s pre-trial deposition and that the deposition lasted “approximately two hours and resulted in ninety-two typewritten pages, nearly all of which constitute [defense] counsel’s examination of [child].” And the record shows that the defense counsel deposed the child on two separate occasions. This Court rejected the defendant’s claim that he was denied his right of confrontation. “[Defendant] had full, fair, and adequate opportunity to confront and cross-examine [child], within meaning of the Sixth Amendment, when her pre-trial deposition was taken. Accordingly, subject to a trial court finding of unavailability consistent with the protected person statute, [child’s] deposition may be introduced into evidence at any subsequent trial.”

Court determines that witness cannot be cross-examined on mental illness that does not affect ability to perceive events in question

People v. Kennaley
2006 Cal. App. LEXIS 8822
Court of Appeal of California, First Appellate District, Division Four

After being convicted of felony assault with intent to commit rape and misdemeanor indecent exposure, the defendant argued on appeal that his constitutional rights were violated because the trial court limited the cross-examination of the complaining witness and her grandmother regarding the complaining witness’s mental health.

The California Court of Appeals disagreed reasoning as follows:

"It is true, as defendant argues, that 'mental illness or emotional instability of a witness can be relevant on the issue of credibility, and a witness may be cross-examined on that subject, if such illness affects the witness's ability to perceive, recall or describe the events in question.'" (People v. Gurule, 28 Cal. 4th 557, 591-592). However, the court reasoned that this principle didn't apply in this case because there was no factual basis for asserting that the complaining witness suffered from a mental disorder or any other disorder that would affect her ability to "perceive, recall, or describe the events in question." On the contrary, the witness was able to recall and describe with specificity a detailed description of the defendant, his car, and even related the defendant's license plate number within one number to the police. The appellate further reasoned that the witness's medical history (mental health or disability) were of marginal relevance and as such, the trial court retained discretion in restricting the cross-examination.

Witness testimony admitted as exception to hearsay rule

Medina v. State of Nevada
2006 WL 2830167 (Nev.)
Supreme Court of Nevada

After being convicted by a jury of five counts of sexual assault of a victim 65 years or older, one count of batter with intent to commit a crime, victim 65 years or older, and one count of first-degree kidnapping of a victim 65 years or older, the defendant argued on appeal that the trial court erroneously admitted hearsay testimony of a neighbor who discovered the victim at the victim’s home a day after the rape and to whom the victim recounted the details of the rape and the testimony of a Sexual Assault Nurse Examiner (SANE) who examined the victim.

The Supreme Court of Nevada disagreed reasoning as follows:

Hearsay is admissible if it falls within one of the exceptions to the general rule. Here, the admitted testimony falls within the “excited utterance” exception. “An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” “The court further discussed that the elapsed time between the event and the statement is a factor to be considered but only to aid in determining whether the declarant was under stress of the startling event when he or she made the statement.” Here, the declarant (victim), a day later, was still in the excitement of the rape and the statements made to the neighbor and SANE are admissible.