Right to confront witnesses violated when computer monitors blocks defendant’s view of a witness

People v. Arredondo, 2019 WL 6834808 Supreme Court of California, S244166, December 16, 2019

John Arredondo was convicted of lewd acts on child under age 14, lewd act on child under age 16, oral copulation with a child under age 14, and sexual penetration with child under age 14 and was sentenced to 33 years plus 275 years to life in state prison.

Supreme Court grants review

Arredondo appealed and his conviction was affirmed. He petitioned for review in the California Supreme Court and his petition for review was granted to consider the following issue: “Was defendant’s right of confrontation violated when he was unable to see witnesses as they testified because the trial court allowed a computer monitor on the witness stand to be raised by several inches to allow them to testify without seeing him when they testified in his presence?”

Holdings: The Supreme Court held that:

statute allowing child witnesses 13 or younger to testify about sexual offenses remotely by closed-circuit television did not preclude court from ordering accommodation other than testimony by closed-circuit television;
positioning computer monitor to block defendant’s view of 18-year old witness while testifying violated confrontation clause;
confrontation clause violation required reversal;
failure to object to monitor blocking two other witness resulted in forfeiture of claim;
and failure to object was not shown to be ineffective assistance of counsel.

Facts at trial: infringement on right to confront witness

The victim, F.R. was 18 years of age when she testified. She began sobbing when she was being sworn in. The Court took a 30 minute recess to allow her to gain composure. When trial resumed, but before the jury entered, the court stated, “We’ve made some modifications to the witness box to accommodate the witness.”

About 45 minutes later, the court took another recess. After the jurors left the courtroom, it said: “I just want to note for the record too that I had mentioned earlier that the witness box had been reconfigured a little bit. It’s not a big change, but the monitor was placed kind of to the witness’s right, apparently blocking at least some of her view of possibly [defendant]. And I think that was the only change that’s been made.” Addressing defendant’s counsel, the court then asked, “Did you have anything you wanted to say about that?” Defendant’s counsel responded, “Yes I did, Your Honor. It does block [defendant’s] entire view of the witness.” The court replied, “Well, he is present in court. He can hear the witness, hear her answers. I think [the accommodation is] appropriate given her initial reaction. Again, for the record when she first came in to take the oath, she was unable to proceed at that time. We took about a 15–minute break before she could get her emotions back in order.” Defendant’s counsel responded, “[F]or the record, I object to my client being unable to view the witness as the witness testifies in that his knowledge of the witness would be able to assist counsel in her demeanor and looks, you know, as the quasi parent. He is aware of how the witness looks when the witness is maybe not telling the truth or when the witness is feigning something. I don’t have that knowledge. I have never seen this witness before. And [defendant] is unable to assist me in that regard because he is unable to see the witness.”

The court then stated: “It’s a fairly small computer monitor that’s on the witness stand. It’s there for the witness to be able to view photographs that are shown on the monitor. Again, it was simply repositioned so that the witness doesn’t have to look at [defendant]. I think — at best it’s a small infringement on his confrontation rights. I think it’s an allowable infringement on his right to confrontation, but it’s a very limited blockage, if you will.” The prosecution, stating that it wanted “to clarify” the record, then added: “The position of the monitor in terms of where it is in the witness box is the exact same as it was for [M.C.]. It was elevated with a Penal Code as well as one volume of the CALCRIMs.” The court thanked the prosecution “for noting that” and commented, “I didn’t see that.” The prosecution continued, “Given that the witness had indicated that the defendant looked at her the first time she came in.” The court added, “And whether that happened or didn’t, I think it’s appropriate.”

Defendant’s counsel responded, “[F]or the record, Your Honor, when the witness first came in, she began crying before she was even able to see [defendant’s] face. So [defendant] made no effort to look at her, intimidate her, or make any kind of eye contact or suggestive contact with her.” The court replied: “I understand. I’m not casting any aspersions at this point. But it clearly affected her, and I think it’s appropriate for the court to take whatever small efforts it can make to make the witness more comfortable without infringing on any of [defendant’s] constitutional rights, and I don’t believe that his rights have been infringed on at this point.” The court then “note[d]” counsel’s objection “for the record” and “overruled” it.

Before closing arguments, the prosecution noted on the record that the monitor had been similarly repositioned during the testimony of Ar.R and An.R. Defendant’s counsel did not object to the repositioning with respect to Ar.R and An.R. The fourth victim, M.C., had testified without the repositioned monitor.

Relevant legal precedents

The California Supreme Court reviewed the two decisions of the United States Supreme Court that provide principal guidance on the issue — Maryland v. Craig (1990) 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (Craig), and Coy v. Iowa (1988) 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (Coy) — and the only case in which it applied those decisions in an analogous context — People v. Gonzales (2012) 54 Cal.4th 1234, 144 Cal.Rptr.3d 757, 281 P.3d 834 (Gonzales).

In Coy, the Court acknowledged that “face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs. The Coy court held that use of the screen at trial had violated the defendant’s constitutional right. With the screen in place and the courtroom lighting adjusted, the defendant could “dimly … perceive the witnesses” while they testified, but they could not see him “at all.” “It is difficult,” the court said, “to imagine a more obvious or damaging violation of the defendant’s right to a face-to-face encounter.

In Craig, the Supreme Court reviewed a Maryland practice which a,lowed the victim to testify in a separate room and where testimony was viewed by the defendant on a on-way television monitor.

The Court found that the Maryland procedure provided sufficient “assurances of reliability” because it “preserve[d] all of the other elements of the confrontation right: The child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies.”

In Gonzales, the trial court made extensive findings that the child would be traumatized if he were made to testify at trial. The Court found defendant’s confrontation rights were not violated when the videotape of the child’s preliminary hearing testimony was introduced at trial. The seating arrangement at the preliminary hearing satisfied the central concerns of the confrontation clause: physical presence, oath, cross-examination, and observation of demeanor by the trier of fact.

Holding: confrontation clause violated requiring reversal of conviction

The Court could not find that the accommodations or the witness was “fully justified by the record.” Abridging the right to confrontation simply because F.R. — a young adult — started crying the first time she entered the courtroom and the court took a short recess to allow her to compose herself, would give courts license to abridge the right of face-to-face confrontation almost any time a witness breaks down on the stand. In Craig, the Court admonished that the constitutional “face-to-face confrontation requirement” may not be “easily… dispensed with,” and then added that “a defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy.” (Craig, supra, 497 U.S. at p. 850, 110 S.Ct. 3157.) The record here failed to establish the necessity for abridging the right of confrontation

Violations of the confrontation clause are subject to the federal harmless error analysis of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, under which reversal is required unless it is clear beyond a reasonable doubt that a rational jury would have reached the same verdict absent the error. (People v. Livingston (2012) 53 Cal.4th 1145, 1159, 140 Cal.Rptr.3d 139, 274 P.3d 1132.) In Coy, the high court explained that in this context, “[a]n assessment of harmlessness cannot include consideration of whether the witness’ testimony would have been unchanged, or the jury’s assessment unaltered, had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence.” (Coy, supra, 487 U.S. at pp. 1021-1022, 108 S.Ct. 2798.) The error was not harmless in light of the remaining evidence and the Court reversed the conviction.