Romero v. State

¶1filed a dissenting opinion.

¶2Mr. Israel G. Romero, this is your lucky day. You’re going to get a new trial. The trial judge erred by allowing an eye witness to your crime to wear a ball cap, jacket, and sunglasses while testifying. And, even more amazing is that this type of error is immune from a harm analysis.1

¶3The majority says that two elements of the confrontation clause2 were eompro-mised — that being presence and demeanor. While I’m unsure what compromise means here, I’m fairly confident that the witness was there face-to-face to testify, was cross-examined, and that his demeanor showed that he was scared to death of the defendant. In Texas, is an accused entitled to more than this? Apparently so. Since Mr. Vasquez spoke through an interpreter, I really think this whole controversy is probably “lost in translation.”

¶4In Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the Supreme Court discussed the purpose of the Confrontation Clause.

The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. The word “confront,” after all, also means a clashing of forces or ideas, thus carrying with it the notion of adversariness. As we noted in our earliest case interpreting the Clause:

“The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-exami*508nation 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 at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox [v. United States] 156 U.S. [237] at 242-243, 15 S.Ct. 337, 39 L.Ed. 409.

As this description indicates, the right guaranteed by the Confrontation Clause includes not only a “personal examination,” 156 U.S. at 242, [15 S.Ct. 337] but also “(1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth’; [and] (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.” [California v.] Green, [399 U.S. 149] at 158[, 90 S.Ct. 1930],

The combined effect of these elements of confrontation — physical presence, oath, cross-examination, and observation of demeanor by the trier of fact — serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings.

¶5Craig, 497 U.S. at 845-46, 110 S.Ct. 3157.

¶6But here’s the catch, the defense basically neutralized the witness’s disguise. Mr. Vasquez was the only one in the courtroom who thought he was The Phantom of the Opera. The only effect that wearing a hat and sunglasses had was to make Mr. Vasquez more comfortable on the stand and to limit the trauma he felt when testifying against someone whom he feared. This is similar to the cases cited by the parties, Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), and Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666, in which measures were used to prevent face-to-face contact between the defendant and the witness in order to prevent trauma to the victims. However, unlike the screen in Coyand the closed circuit television in Craig, in this case, the outfit worn by Mr. Vasquez did not prevent or encroach upon face-to-face contact between the defendant and the witness.

¶7Attorneys often change the appearance of witnesses appearing in court. Drunks are sobered up, addicts are cleaned up, and the homeless are dressed up; prostitutes even appear in business suits. These modifications are intended to persuade the jury that the witness is reliable. Mr. Vasquez’s additions were not intended to fool the jury. Rather it was simply a method to allay his fears about testifying. Nothing was compromised-just slightly camouflaged.

¶8I agree with the trial court’s decision to allow the witness to appear as secret agent man. Therefore, I respectfully dissent.

¶11filed a dissenting opinion.

¶12I respectfully dissent. On the record before us, I discern no violation of appellant’s Sixth Amendment right to confront the witnesses against him. Accordingly, I would reverse the judgment of the court of appeals.

¶13The central concern of the Sixth Amendment’s Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rig*509orous testing in an adversarial proceeding before the trier of fact. Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1992). In accord with that central concern, “the Confrontation Clause reflects a preference for face-to-face confrontation at trial.” Id. at 849 (emphasis in original). In the absence of an actual face-to-face confrontation, a defendant’s right to confront accusatory witnesses may be satisfied if (1) denial of such confrontation is necessary to further an important state interest and (2) the reliability of the testimony is otherwise assured. Id. at 850.

¶14After considering the record and the arguments of the parties, I conclude that an important state interest is implicated in this case. On this record, the trial court could have reasonably concluded that Vasquez’s disguise was necessary to further the important state interest in protecting the physical well-being of witnesses who have a well-founded fear of retaliation on the part of the defendant. Vasquez testified that he witnessed appellant engage in an unprovoked, determined, and lethal attack on a nightclub in Houston. Vasquez also testified that he was afraid to testify against appellant because of what he had seen appellant do. Finally, Vasquez remarked, during his testimony, about how appellant was looking at him in the courtroom, apparently in a threatening manner. On this record, the trial court could have reasonably concluded that Vasquez reasonably believed appellant was a dangerous person, possibly a sociopath, and that Vasquez had a well-founded fear of retaliation on appellant’s part. The fact that the trial court made no such finding on the record is not determinative. “Nothing in Maryland v. Craig requires that a trial court make explicit, as opposed to implicit, findings regarding the necessity of a special procedure to protect a ... witness.” Lively v. State, 968 S.W.2d 363, 367 (Tex.Crim.App.1998).

¶15I also conclude that the trial court could have reasonably concluded that Vasquez’s disguise was necessary to further the important state interest in presenting key evidence to establish guilt in a felony case. The record reflects that Vasquez was a key witness in the State’s prosecution of appellant for a very serious felony offense. The record further reflects that Vasquez absolutely refused to testify unless he was allowed to wear his disguise.

¶16Finally, I conclude that the reliability of Vasquez’s testimony was otherwise assured, because (1) both parties were aware of his name and residence address, i.e., he was not an anonymous witness; (2) he testified in the courtroom and under oath, thus impressing him with the seriousness of the matter and the possibility of a penalty for perjury; (3) he was able to see appellant’s face in the courtroom, thus reducing the risk that he would wrongfully implicate an innocent person; (4) he was subject to cross-examination; and (5) the jury was able to hear his voice and observe his overall demeanor.

¶17Undoubtedly, the Sixth Amendment does not always require that the jurors have the ability to see the witness’ eyes or see his mouth move as he talks. In some situations, for example, a witness may be blind and may wear sunglasses over his sightless eyes; in other situations, a witness may testify in sign language.

¶18In my view, the Sixth Amendment was satisfied in this case. Accordingly, I respectfully dissent.