Assessing The “Prior Opportunity For Cross-Examination” Under The Confrontation Clause

Sixth Circuit explores the Confrontation Clause requirement concerning “a prior opportunity for cross-examination” of an unavailable witness from two separate preliminary hearings, in Williams v. Bauman, _ F.3d _ (6th Cir. July 21, 2014) (13–1463)

Under the Confrontation Clause, testimonial statements of a non-testifying witness “unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.’” Davis v. Washington, 547 U.S. 813, 821 (2006) (quoting Crawford v. Washington, 541 U.S. 36, 53–54 (2004)). A recent case from the Sixth Circuit had the chance to review the requirement concerning “a prior opportunity for cross-examination” of an unavailable witness.

Trial Court Proceedings: Admitting Preliminary Hearing Testimony Of An Unavailable Witness From Two Hearings

In the case, following a robbery and shooting at a video store, a percipient witness testified at two separate preliminary hearings involving two co-defendants, Williams and Coleman. DNA and gunshot residue evidence was recovered. A percipient witness testified at both hearings. At the first preliminary hearing (involving co-defendant Coleman), the witness testified “that he could not identify the man who had come into the store with the gunman but that he would be able to identify the gunman ‘if he were dressed like he was before’.” At the second preliminary hearing (involving defendant Williams), the witness “identified Williams as the gunman who had entered the video store” and noted his prior lineup identification of Williams “as the gunman” was based “[n]ot because of a dark shirt but because of an ID of his face, even though he did have a dark shirt on.” By the time of the joint trial, the percipient witness had died and was unavailable to testify.

The testimony from both preliminary hearings was read to the jury. No objection was lodged by Williams’ counsel. The jury convicted defendant Williams of felony murder and possession of a firearm during the commission of a felony. The state court imposed a life sentence. The conviction was affirmed on appeal. See People v. Williams, 2008 WL 239648 (Mich. Ct. App. Jan. 29, 2008). Defendant Williams sought federal habeas relief. As summarized in the opinion:

The district court agreed, in part, with Williams by concluding that the admission of [witness] Banks’s testimony at Coleman’s preliminary hearing violated Williams’s confrontation rights because “Williams did not have any opportunity to cross-examine Banks at Coleman’s preliminary examination.” Nevertheless, the district court held that Williams’s claims for relief had no merit, given the reasonableness of the state court’s determination that any constitutional errors were harmless. The district court denied Williams’s petition and granted a certificate of appealability on the claims at issue. Williams appeals.

Williams v. Bauman, _ F.3d at _.

Sixth Circuit Review

The Sixth Circuit began its analysis by noting that there was no dispute that the preliminary hearing testimony was “testimonial” under the Confrontation Clause. Williams v. Bauman, _ F.3d at _ (citing Davis, 547 U.S. at 822 (defining “testimonial” statements); Crawford, 541 U.S. at 68 (noting that testimony at a preliminary hearing is “testimonial”)). Because the issue was presented on federal habeas review, was whether the state court ruling “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Williams v. Bauman, _ F.3d at _ (citing 28 U.S.C. § 2254(d); White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (“[A]n unreasonable application of [the Supreme Court’s] holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice.”) (internal quotation marks omitted)).

The witness testimony at the defendant’s own preliminary hearing was admissible under the Confrontation Clause. The defendant was able to cross-examine the witness at the hearing about the testimony introduced at trial. The circuit found the defense claims that more was required to be unfounded. The circuit noted, “Williams has failed to identify any Supreme Court precedent supporting his contention that his opportunity to cross-examine Banks at his own preliminary hearing was inadequate to satisfy the rigors of the Confrontation Clause.” Williams, _ F.3d at _ (citing Parker v. Matthews, 567 U.S. _, 132 S.Ct. 2148, 2155 (2012) (observing that appellate court precedent does not satisfy § 2254(d)’s requirement that a state-court error violate “clearly established Federal law, as determined by the Supreme Court”); but see Al-Timimi v. Jackson, 379 Fed. App’x 435, 437 (6th Cir. 2010) (noting “there is some question whether a preliminary hearing necessarily offers an adequate prior opportunity for cross-examination for Confrontation Clause purposes.”)).

A more challenging constitutional issue was presented by the introduction of the witness’s preliminary hearing testimony involving co-defendant Coleman. Defendant Williams did not have an opportunity to cross-examine the witness at this hearing. The purpose of the Confrontation Clause did not appear to have been fulfilled. Nonetheless, the circuit found it unnecessary to “decide whether the state court unreasonably applied clearly established federal law as determined by the Supreme Court because a confrontation violation, if any, was harmless” under Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) (concluding that “an error requires reversal only if it ‘had substantial and injurious effect or influence in determining the jury’s verdict.’”) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Since the witness testimony was “substantially identical testimony at both hearings,” the second preliminary hearing “added little to the case against Williams” particularly since the positive identification was made in the Williams’ preliminary hearing.

Conclusion

The Williams case presents two scenarios concerning “a prior opportunity for cross-examination” under the Confrontation Clause. The first situation presented an example where the defendant had a prior opportunity to cross examine the unavailable witness at a prior hearing. In the second example, it was questionable whether the Confrontation Clause was satisfied. Nonetheless, any error was harmless under the circumstances.

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