Smith v. State , 111 Nev. 499 ( 1995 )

OPINION

By the Court,

Springer, J.:

Defendant John Allen Smith (Smith) was convicted, pursuant to a jury verdict, of eight counts of incest involving his oldest daughter (the adult-victim) and two counts of sexual assault with a minor under fourteen years of age and one count of child abuse and neglect with substantial mental injury. Both the sexual assault and child abuse and neglect charges involved Smith’s younger daughter (the child-victim). The charges involving the adult-victim were raised in a separate information than those involving the child-victim. The two cases were consolidated for trial on February 19, 1992.

On appeal, Smith raises two assignments of error that we conclude have merit: (1) that his Sixth Amendment right to confront the witnesses against him was violated when the prosecutor during the direct examination of the child-victim positioned himself such that the child-victim could not view Smith, and, conversely, completely obstructed Smith’s view of the child-victim; and (2) that the district court erroneously admitted the testimony of Sanity Commission doctors. We conclude that the admission of the Sanity Commission doctors’ testimony, while erroneous, was harmless. The violation of Smith’s Sixth Amendment right, however, cannot be considered harmless with respect to the sexual assault and child abuse and neglect charges. Accordingly, we affirm Smith’s conviction on the incest charges, reverse Smith’s conviction on the sexual assault, child abuse and child neglect charges and remand the sexual assault and child abuse and neglect charges to the trial court for a new trial.

CONFRONTATION CLAUSE CHALLENGE

During the prosecutor’s direct examination of the child-victim, the prosecutor intentionally positioned himself such that he blocked the victim’s view of Smith and, conversely, completely obstructed Smith’s view of the victim.¹ Smith claims that this tactic violated his Sixth Amendment right to confront the witnesses against him. We agree.

The Sixth Amendment to the United States Constitution gives a criminal defendant the right to confront the witnesses against him or her. The United States Supreme Court addressed the issue of a defendant’s right to confront his child accuser in a sexual assault case in Coy v. Iowa, 487 U.S. 1012 (1987). In that case the Supreme Court stated, “We have never doubted . . . that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Id. at 1016. In Coy, a screen was placed between the defendant and the child sexual assault victims during their testimony. This screen blocked the defendant from the child witnesses’ view but allowed the defendant to hear and dimly perceive the children. The court in Coy stated, “It is difficult to imagine a more obvious or damaging violation of the defendant’s right to a face-to-face encounter.” Id. at 1020.

The State argues that this case is distinguishable from Coy. While there are obvious distinctions between Coy and the facts of this case, we conclude that they do not render Coy inapplicable. First, we discern no cognizable distinction between the placement of a screen between a defendant and the witness against him or her as was done in Coy, and the prosecutor’s intentional positioning of his or her body such that the witness’ view of the defendant is completely obscured as occurred in this case. Indeed, in Coy the defendant was able to see the witnesses, if only “dimly.” See id. at 1015. Here, Smith could not see the witness at all.

In addition, the fact that the prosecutor was seated and the child-victim’s view of the defendant unobstructed during her cross-examination does not, as the State argues, fulfill the constitutional mandate of face-to-face confrontation. The United States Supreme Court has held that the relevant inquiry in determining whether a defendant’s Sixth Amendment right to confront witnesses against him or her has been infringed upon is whether the alleged violation of that right interfered with the defendant’s opportunity for effective cross-examination. Kentucky v. Stincer, 482 U.S. 730, 740 (1986). While Smith had the unfettered opportunity to cross-examine the child-victim, we do not believe he could do so effectively under the circumstances of this case. “It is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’ In the former context, even if a lie is told, it will often be told less convincingly.” Coy, 487 U.S. at 1019. If a child witness is permitted to testify on direct examination “behind the defendant’s back,” so to speak, and does so credibly, the damage has already been done; it would be very difficult to impeach or discredit that testimony on cross-examination. As the defense aptly puts it, cross-examination of a child witness in a sexual assault case is akin to dancing a “tango in a mine field.” Instead, the likely result is that defense counsel will alienate the jury against him or her and the defendant.

The trial court stated that “it’s difficult enough for adults to look another individual in the face and accuse [him or her] of serious misconduct or of a crime. It’s additionally difficult, exceedingly difficult for a nine-year old girl to look her father in the face and so accuse him.” This is undoubtedly true. However, while “face-to-face presence may, unfortunately, upset the truthful rape victim or abused child ... 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 cost.” Id. at 1020.

In summary, we hold that the prosecutor’s shielding of the child-victim with his body during direct examination denied Smith his constitutional right to a face-to-face confrontation and interfered with his ability to cross-examine effectively the child-victim.² We must now assess whether this violation can be considered harmless.

While the United States Supreme Court has suggested that the denial of a face-to-face confrontation in violation of the Sixth Amendment may be subject to a harmless error analysis, it has also indicated that an “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.” Id. at 1021-22. Assessing the remaining evidence in this case, we cannot say that the denial of Smith’s right to confront the child-victim was harmless. The only other evidence, besides the child-victim’s testimony, the State presented supporting its case on the sexual assault and child abuse and neglect charges was the testimony of a former friend of Smith’s who testified that while Smith was visiting him Smith insisted on sleeping in the same bed with the child-victim, even though a bed was available in another room, and the testimony of Dr. Paul G. Webb, a school psychologist who examined the child-victim and concluded that her “mental condition and behavior was consistent with a victim of child sexual assault.” Although Dr. Webb gave very detailed and extensive testimony supporting this conclusion, we cannot say that “it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty” absent the testimony of the child-victim. United States v. Hasting, 461 U.S. 499, 511 (1983). Accordingly, we must reverse Smith’s conviction of the sexual assault and child abuse and neglect charges.³

SANITY COMMISSION TESTIMONY

The first three witnesses called by the State were Dr. Richard Taylor, Dr. Roger Agre, and Dr. Charles Mac Van Valkenburg, who examined Smith to determine whether he was competent to stand trial. All three doctors testified that in their opinion Smith was “malingering” which Dr. Taylor described as the “intentional description of signs and symptoms that the individual knows are not accurate but [with] which the individual hopes to attain some sort of goal” — e.g., when a child pretends he or she has the flu on a day he or she has a test in order to avoid taking the test. In this case, Smith claimed to have suffered a severe head trauma which precluded his remembering many details. He also claimed he was unable to place himself in the proper time and place and did not know who he was. After reviewing Smith’s medical records and neurological work-ups, each doctor concluded that there was no indication of head trauma. In addition, during each doctor’s interview with Smith, it became clear that Smith in fact was oriented to time and place and knew who he was. Each doctor reached his diagnosis of malingering independently of the other doctors’ diagnoses.

In addition to the testimony regarding malingering, Dr. Taylor, who is a psychiatrist licensed to practice in Nevada, testified that Smith suffered from an anti-social personality disorder. Dr. Taylor described this disorder as “a personality in which the individual lacks what we would call in lay terms a conscience.” Dr. Taylor then went on to further describe anti-social personality disorders as follows:

Personality disordered people, and there are 12 types of personality disorders, are people who are usually defined most adequately as people who manage to get under our skin in some way. Anti-social people can be mildly anti-social, and usually one sees them in used .car lots — that’s a perfect example, selling used cars. And at the very extreme levels, these are people that hopefully you will never see and they’re on the back wards of the state hospitals where they have committed and will commit and can commit the most violent of crimes without a second thought, without a bit of conscience.

Dr. Taylor did not testify as to the severity of Smith’s anti-social personality disorder.

Neither Dr. Agre nor Dr. Van Valkenburg testified regarding a personality disorder. Dr. Van Valkenburg, however, testified that he diagnosed Smith as having an alcohol dependence and a narcotics dependence in remission.

These doctors’ testimony was patently inadmissible. The State asserts that the doctors’ testimony is analogous to evidence of flight from the scene of the crime or to evade apprehension by the authorities, and correctly points out that this court has permitted the admission of “flight” evidence to demonstrate “consciousness of guilt or wrongful conduct.” See Turner v. State, 98 Nev. 103, 107, 641 P.2d 1062, 1064 (1982); see also Santillanes v. State, 104 Nev. 699 (1988). In this case, the State claims Smith attempted to convince the Sanity Commission doctors that he was incompetent to stand trial by “malingering” in order to avoid having to proceed to trial. According to the State, “[attempting to avoid trial and the inevitable judgment of one’s actions is tantamount to fleeing the scene of a crime and is therefore relevant to the proceedings as evidence of consciousness of guilt.”

We agree that Smith’s malingering could be construed as “consciousness of guilt.” However, as Smith suggests, if the reasoning of the State is carried further, then evidence that a defendant filed a motion to suppress his or her confession should be admitted as well. In other words, the State, under its rationale, would be able to tell a jury “the defendant tried to beat this case on a technicality instead of wanting to go to trial. This is evidence of consciousness of guilt.” Obviously, this is inappropriate.

Further, and more importantly, the State’s argument fails to take into account a defendant’s Fifth Amendment rights. There was no evidence presented that the doctors in question advised Smith that any statement he made would be admissible in court and that by submitting to a competency examination he was waiving his right against self-incrimination by answering the State-employed doctors’ questions or that they advised him that they could be called to testify against him.

Finally, the State fails altogether to address the fact that Dr. Van Valkenburg testified that he diagnosed Smith as having an alcohol dependence and a narcotics dependence in remission and that Dr. Taylor diagnosed Smith as having an “anti-social personality disorder” and likened him to a used car dealer at best or someone who belonged on the back wards of a mental hospital at worst because he could “commit the most violent of crimes without a second thought, without a bit of conscience.” This testimony was clearly inadmissible character evidence. See NRS 48.045(2).

Although we conclude that the Sanity Commission doctors’ testimony should have been excluded from evidence, we hold that the admission of this evidence is harmless with respect to Smith’s conviction on the incest charges.⁴ The considerations relevant to deciding whether error is harmless or prejudicial include whether the issue of innocence or guilt is close, the quantity and character of the error and the gravity of the crime charged. Big Pond v. State, 101 Nev. 1, 692 P.2d 525 (1985). The evidence presented in support of the incest charges was overwhelming. The adult-victim’s testimony was very compelling and was supported by other witnesses. Two friends of Smith testified. One testified that Smith bragged about the adult-victim’s sexual prowess. Another testified that Smith had admitted to him that he and the adult-victim were living together as husband and wife and that they had a sexual relationship. This same individual also testified that Smith had warned him that “there would be consequences” if he ever disclosed that Smith had made this admission. In light of this evidence, we conclude that while the crimes at issue are “grave” and the “quantity and character” of the error is not small, “ ‘it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty’” on the incest charges notwithstanding the erroneous admission of the Sanity Commission doctors’ testimony. Weathers v. State, 105 Nev. 199, 202, 772 P.2d 1294, 1297 (1989); Big Pond v. State, 101 Nev. 1, 692 P.2d 525 (1985). Accordingly, we affirm Smith’s incest conviction.

CONCLUSION

For the foregoing reasons, we affirm Smith’s conviction of the eight counts of incest involving the adult-victim and reverse his conviction and remand for a new trial on the remaining counts.⁵

Young and Rose, JJ., concur.

1 The prosecutor did step out of the way at the point in his direct examination when the child-victim identified Smith as her assailant.

2 The prosecution made no offer of proof that the child-victim would be traumatized or otherwise affected by having an unobstructed view of Smith during direct examination and the district court made no specific finding regarding this issue. Accordingly, we do not reach the issue left open by the United States Supreme Court in Coy of whether an exception to the constitutional mandate of a face-to-face confrontation exists when a trial court makes a case specific, individualized determination that such a confrontation would traumatize the witness at issue. See Coy, 487 U.S. at 1020-21.

3 We note that the child-victim also testified that she had observed her father and the adult-victim “humping” on one occasion. As discussed below, the evidence the State presented in support of the incest charges was overwhelming; we thus conclude that, with respect to the incest conviction, this testimony was harmless.

4 We need not assess the impact of the evidence on Smith’s conviction of sexual assault and child abuse and neglect as we conclude that these convictions must be reversed as a result of the Confrontation Clause violation discussed above.

5 Smith raised two additional issues in his appeal that are not addressed in this opinion. We have considered these assignments of error and conclude that they lack merit.