{ "id": 731659, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Rodolfo RODRIGUEZ, Defendant-Appellant", "name_abbreviation": "State v. Rodriguez", "decision_date": "1992-07-28", "docket_number": "No. 12626", "first_page": "265", "last_page": "268", "citations": [ { "type": "official", "cite": "114 N.M. 265" }, { "type": "parallel", "cite": "837 P.2d 459" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "291 U.S. 97", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1498121 ], "weight": 4, "year": 1934, "pin_cites": [ { "page": "116-18", "parenthetical": "defendant's exclusion from jury view of crime scene held harmless error when the facts were viewed in their entirety" }, { "page": "336-37", "parenthetical": "defendant's exclusion from jury view of crime scene held harmless error when the facts were viewed in their entirety" }, { "parenthetical": "defendant's exclusion from jury view of crime scene held harmless error when the facts were viewed in their entirety" } ], "opinion_index": 0, "case_paths": [ "/us/291/0097-01" ] }, { "cite": "111 S.Ct. 1246", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 11318776 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "1264-65", "parenthetical": "opinion for Court of Chief Justice Rehnquist" }, { "parenthetical": "opinion for Court of Chief Justice Rehnquist" } ], "opinion_index": 0, "case_paths": [ "/us/499/0279-01" ] }, { "cite": "110 N.M. 237", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716997 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/110/0237-01" ] }, { "cite": "541 F.2d 958", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1034980 ], "weight": 2, "pin_cites": [ { "page": "964" }, { "page": "964-66", "parenthetical": "one witness held non-crucial; crucial witness recalled to testify in the defendant's presence" } ], "opinion_index": 0, "case_paths": [ "/f2d/541/0958-01" ] }, { "cite": "878 F.2d 33", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10528953 ], "weight": 2, "pin_cites": [ { "page": "37" }, { "page": "37-38", "parenthetical": "read-back of testimony and giving deadlocked jury additional instruction" } ], "opinion_index": 0, "case_paths": [ "/f2d/878/0033-01" ] }, { "cite": "562 A.2d 445", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7347913 ], "weight": 3, "pin_cites": [ { "page": "455-56" }, { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/a2d/562/0445-01" ] }, { "cite": "120 N.J. 649", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1388873 ], "weight": 2, "year": 1990, "pin_cites": [ { "parenthetical": "citing State v. Hudson" }, { "page": "487", "parenthetical": "citing State v. Hudson" } ], "opinion_index": 0, "case_paths": [ "/nj/120/0649-01" ] }, { "cite": "119 N.J. 165", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 299613 ], "weight": 3, "year": 1990, "opinion_index": 0, "case_paths": [ "/nj/119/0165-01" ] }, { "cite": "108 N.M. 13", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592876 ], "weight": 7, "pin_cites": [ { "page": "17" }, { "page": "1199" }, { "page": "18" }, { "page": "1200" }, { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0013-01" ] }, { "cite": "95 N.M. 246", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575489 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "249-50" }, { "page": "1274-75" } ], "opinion_index": 0, "case_paths": [ "/nm/95/0246-01" ] }, { "cite": "397 U.S. 337", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054264 ], "weight": 5, "year": 1970, "pin_cites": [ { "page": "338" }, { "page": "1058" }, { "page": "338" }, { "page": "1058" } ], "opinion_index": 0, "case_paths": [ "/us/397/0337-01" ] } ], "analysis": { "cardinality": 627, "char_count": 11375, "ocr_confidence": 0.753, "pagerank": { "raw": 9.032040731679379e-08, "percentile": 0.5040494638876629 }, "sha256": "b613dac7b6c908fa8c5a2a5507fe57c15916861d7336471fa0d2e3ac8a60362d", "simhash": "1:08696e67706a84ee", "word_count": 1865 }, "last_updated": "2023-07-14T15:11:13.314573+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HARTZ and PICKARD, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Rodolfo RODRIGUEZ, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nMINZNER, Judge.\nRodriguez appeals his convictions of two counts of criminal sexual penetration of a minor (hereinafter \u201cF.\u201d or \u201cthe child\u201d), contrary to NMSA 1978, Section 30-9-ll(A)(l) (Cum.Supp.1991). He contends that the procedure for taking the child\u2019s testimony when she collapsed outside the courtroom upon being called to testify denied him his right to notice and a hearing as required by statute, his right to confront witnesses, his right to be present at his trial, his right to an open trial, his right to counsel, and his right to an interpreter. Rodriguez also contends that the procedures adopted denied him due process.\nRodriguez has argued in effect that NMSA 1978, Section 30-9-17 (Repl.Pamp.1984) and SCRA 1986, 5-504 (Cum.Supp.1991) control, that the trial court adopted procedures not provided for by either the statute or the rule, and that the procedures adopted denied him rights guaranteed by the Fifth and Sixth Amendments of the United States Constitution. We conclude that the procedures adopted denied Rodriguez his constitutional right to be present in the courtroom, and accordingly do not discuss the other issues. We reverse and remand.\nI.\nOn the first day of trial, the child was called to testify as the State\u2019s first witness. After several minutes\u2019 delay, the prosecutor approached the bench and advised the court that the \u201cwitness had collapsed on the verge of a nervous breakdown.\u201d The prosecutor asked for a recess or, in the alternative, to depose F. by videotape so she would not have to confront Rodriguez. The State proposed that the witness be examined in order to determine whether or not she was capable of testifying in his presence. If not, the State proposed that the courtroom be cleared of everyone but the child, the judge, the court reporter, counsel, and the jury, while Rodriguez, with members of the public in another room, watched her testify on closed circuit television.\nRodriguez objected to the procedure as denying him his right to confrontation. He specifically objected to his removal from the presence of the jury. He also objected that there had been no evidence prior to trial that the witness would be unable to testify in his presence, since she had been in almost daily contact with him when she visited her mother. In addition, Rodriguez suggested that the child was not competent to testify and moved for a mistrial. He suggested that if the State wished to take the child\u2019s deposition pursuant to Section 30-9-17 and Rule 5-504, it should proceed by motion after the trial court had granted Rodriguez\u2019s motion for a mistrial The trial court then called for a conference in chambers.\nIn chambers, F. was hysterical. Sobbing, she repeatedly said that she was scared. The trial court ordered an examination by F.\u2019s counselor, a clinical psychologist. After taking the psychologist\u2019s testimony outside the presence of the jury and allowing Rodriguez an opportunity to cross-examine, the court found that the child was demonstrably harmed by the prospect of testifying in Rodriguez\u2019s presence and that the emotional distress was not de minimus.\nThe trial court then ordered that the courtroom would be cleared of everyone but the court, the court reporter, F., counsel, and the jury. Rodriguez would watch the live testimony, along with his interpreter, in a secretary\u2019s office via closed circuit television. The testimony would also be videotaped to preserve a record. Any members of the public who wanted to watch the testimony could also watch in the secretary\u2019s office. The court and defense counsel, after discussion, agreed that constant communication between counsel and defendant would not be necessary and that a lengthy recess would be taken between direct and cross-examination to facilitate effective cross-examination.\nAlthough the child attempted to testify in the cleared courtroom that afternoon, she broke down several times. Finally, after about twenty minutes of testimony, the court recessed the trial for the day.\nThe next day Rodriguez renewed his objection to his exclusion from the child\u2019s presence and presented further extended argument on issues we do not address. The court again overruled all of Rodriguez\u2019s objections to the procedure. F. then continued her testimony in court while Rodriguez watched, along with members of the public, from a monitor in the secretary\u2019s office.\nII.\nThe right to be present in the courtroom during one\u2019s trial is protected by the Sixth Amendment\u2019s confrontation clause, see Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970), which applies to the states under the Fourteenth Amendment\u2019s due process clause. State v. Garcia, 95 N.M. 246, 249-50, 620 P.2d 1271, 1274-75 (1980). \u201cThis right has been incorporated into our rules of criminal procedure for the district courts, specifically SCRA 1986, 5-612(A), which requires the defendant\u2019s presence \u2018at every stage of the trial.\u2019 \u201d State v. Clements, 108 N.M. 13, 17, 765 P.2d 1195, 1199 (Ct.App.1988). The State concedes in its supplemental brief that Rodriguez did not knowingly and voluntarily waive his right to be present. We conclude that the procedures adopted by the trial court deprived Rodriguez of his constitutional right to be present. See State v. Hudson, 119 N.J. 165, 574 A.2d 434 (1990).\nWe recognize that the trial court admonished the jury not to hold against Rodriguez the manner in which F.\u2019s testimony was being taken. The trial court was clearly making a thoughtful effort to make the best out of a difficult situation. Nevertheless, in the absence of necessity or the defendant\u2019s consent, testimony should not be presented to the jury in the defendant\u2019s absence. In this case, there was no necessity for Rodriguez to be outside the courtroom because F.\u2019s testimony could have been conducted with F. in the other room Or by deposing her during trial. The jury could then have been shown a videotape of the deposition.\nThe State contends that the impact of Rodriguez\u2019s presence at the trial outweighed his right to be present, making it \u201cexceedingly difficult or wholly impossible to carry on the trial\u201d within the holding in Allen. See id., 397 U.S. at 338, 90 S.Ct. at 1058. Unlike the defendant in Allen, however, Rodriguez did not deliberately disrupt his trial, and the findings the trial court made in this case do not support a conclusion that Rodriguez did or said anything at trial that could be said to have been the equivalent.\nAs for consent, the New Jersey Supreme Court has concluded that:\n[I]f the child fears only the defendant, the trial court should order the use of a procedure in which the child testifies outside the courtroom unless defendant requests that the child testify before the jury. In that event, defendant should be informed of the possible adverse consequences of such a procedure, namely, that he or she could not be present in the courtroom during the child\u2019s testimony and that he or she would be required to waive the right of presence. In essence, to insist that the child testify before the jury, a defendant must execute a knowing and intelligent waiver of the right to be present.\nState v. Crandall, 120 N.J. 649, 577 A.2d 483, 487 (1990) (citing State v. Hudson). Here, Rodriguez was not given that choice.\nThe Rhode Island Supreme Court has suggested that videotaped testimony or closed-circuit television viewing does not violate a defendant\u2019s right to a fair trial, because a jury might reasonably suppose that there were a number of reasons a child was unable to make a live court appearance. See State v. Taylor, 562 A.2d 445, 455-56 (R.I.1989). The court notes that \u201cthe jury may suppose that the child had moved from the area, was sick, or was traumatized by the occurrence and so was unable to testify in a public setting.\u201d Id. at 455. Live-court testimony in a defendant\u2019s absence is less susceptible to neutral inferences. Rodriguez\u2019s exclusion from the courtroom while F. testified created a substantial risk that the jury would assume that the trial court believed that Rodriguez had engaged in misconduct necessitating his absence from the courtroom.\nThe State contends that the trial court\u2019s decision is affirmable under the standards articulated in Clements, in which this court held that \u201ca court may exercise its discretion to proceed in absentia only when the public interest is clearly persuasive.\u201d Id., 108 N.M. at 18, 765 P.2d at 1200. \u201cIn exercising that discretion, the trial court must examine a \u2018complex of issues\u2019 or, as we term them, a number of relevant factors.\u201d Id. We disagree. Those factors were to be applied only when the defendant was absent from trial voluntarily, see, e.g., United States v. Fontanez, 878 F.2d 33, 37 (2d Cir.1989); see also United States v. Toliver, 541 F.2d 958, 964 (2d Cir.1976), which is not the situation before us. The State also contends that this court sustained a similar procedure in State v. Benny E., 110 N.M. 237, 794 P.2d 380 (Ct.App.1990). We note that Benny E. did not involve a jury trial and that this issue was not raised on appeal. We conclude that it does not support affirmance.\nThe exclusion of the defendant from the courtroom while crucial testimony is being presented may well be the sort of structural defect, such as total deprivation of the right to counsel or the right to a public trial, which is not subject to harmless-error analysis. See Arizona v. Fulminante, \u2014 U.S.-,-, 111 S.Ct. 1246, 1264-65, 113 L.Ed.2d 302 (1991) (opinion for Court of Chief Justice Rehnquist); cf. Snyder v. Massachusetts, 291 U.S. 97, 116-18, 54 S.Ct. 330, 336-37, 78 L.Ed. 674 (1934) (defendant\u2019s exclusion from jury view of crime scene held harmless error when the facts were viewed in their entirety). In any event, we will not presume that an instruction such as that given here can cure the potential prejudice. This court said in Clements that once the defendant was no longer voluntarily absent from his trial, the state \u201chad the burden of demonstrating beyond a reasonable doubt that conducting the trial during defendant\u2019s absence would be harmless.\u201d Id., 108 N.M. at 19, 765 P.2d at 1201 (citing United States v. Toliver). This the State failed to do. State v. Clements; see also United States v. Fontanez, 878 F.2d at 37-38 (read-back of testimony and giving deadlocked jury additional instruction); cf. United States v. Toliver, 541 F.2d at 964-66 (one witness held non-crucial; crucial witness recalled to testify in the defendant\u2019s presence).\nIII.\nSpecial procedures adopted by the trial court to facilitate the testimony of child witnesses and protect them from unnecessary harm implicate a number of constitutional' rights guaranteed to a defendant. In this case, the procedures adopted denied Rodriguez his right to be present in the courtroom. We need not discuss the other rights on which he relies. For this reason, Rodriguez\u2019s convictions are reversed, and the cause is remanded for a new trial.\nIT IS SO ORDERED.\nHARTZ and PICKARD, JJ., concur.", "type": "majority", "author": "MINZNER, Judge." } ], "attorneys": [ "Tom Udall, Atty. Gen., Margaret McLean, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.", "Sammy J. Quintana, Chief Public Defender, Sheila Lewis, Asst. Appellate Defender, Santa Fe, for defendant-appellant." ], "corrections": "", "head_matter": "837 P.2d 459\nSTATE of New Mexico, Plaintiff-Appellee, v. Rodolfo RODRIGUEZ, Defendant-Appellant.\nNo. 12626.\nCourt of Appeals of New Mexico.\nJuly 28, 1992.\nTom Udall, Atty. Gen., Margaret McLean, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\nSammy J. Quintana, Chief Public Defender, Sheila Lewis, Asst. Appellate Defender, Santa Fe, for defendant-appellant." }, "file_name": "0265-01", "first_page_order": 299, "last_page_order": 302 }