* Judge King did not participate in the consideration of the

suggestion for rehearing en banc.

 

1 See FED. R. APP. P. 35; 5th Cir. Loc. R. 35.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________________

No. 91-5086

_____________________________

MITCHELL LOWERY,

Petitioner-Appellant,

versus

JAMES COLLINS, Director, Texas Department

of Criminal Justice, Institutional Division,

Respondent-Appellee.

_________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

_________________________________________________

ON SUGGESTION FOR REHEARING EN BANC

(Opinion April 7, 1993, 5 Cir.,1993, 988 F.2d 1364)

Before WIENER, BARKSDALE, and DeMOSS, Circuit Judges.

WIENER, Circuit Judge:

Treating the Suggestion for Rehearing En Banc as a petition

for panel rehearing, it is ordered that the petition for panel

rehearing is DENIED. No member of the panel nor Judge* in regular

active service of this Court having requested that the Court be

polled on rehearing en banc,1 the Suggestion for Rehearing En Banc

is DENIED.

In conjunction with our denial of the State's Suggestion, we

offer the following additional words of explanation on two points.
 

2 609 F.2d 230 (5th Cir. 1980).

 

3 113 S. Ct. 1710 (Apr. 21, 1993).

 

4 742 S.W.2d 302 (Tex. Ct. Crim. App. 1987).

2

First, in its Suggestion, the State asserts that this panel's

decision in the instant case is contrary to our prior opinion in

United States v. Stephens.

2 Disagreeing, we write today to attempt

once again to explain to counsel for the State why there is an

unwaived Sixth Amendment violation in the instant case. Second, we

write to revisit our opinion in light of the Supreme Court's recent

decision in Brecht v. Abrahamson.

3 Issued two weeks after the panel

opinion, Brecht affects the reasoning in parts II.B. and II.C. of

our opinion but not its result.

I

The Sixth Amendment Violation and the State's Waiver Argument

The State continues to argue that Lowery waived his Sixth

Amendment rights by not calling the child-complainant to the stand.

To bolster this argument, the State cites to several places in the

trial record demonstrating that the court explicitly informed

Lowery's attorney that the child-complainant was available to

testify, and that he could be called to the stand. The State notes

that each time Lowery's attorney was thus informed, he chose not to

call the boy as a witness. In continuing its dogged insistence

that such action constitutes waiver, the State is simply refusing

to accept both the ruling of the Texas Court of Criminal Appeals

(TCCA) in Long v. State,

4 and this panel's determination that 

forcing a defendant to call a child complainant to
 

5 988 F.2d at 1368 (quoting the TCCA's Lowrey decision, 757

S.W.2d at 358-59, which was discussing Long).

 

6 See United States v. Wright, 904 F.2d 403, 405-06 (8th

Cir. 1990)(holding that no Sixth Amendment violation occurred

when defendants declined (for tactical reasons) to cross-examine

witnesses who were called by the prosecution); United States v.

Howard, 751 F.2d 336, 338 (10th Cir. 1984)(same), cert. denied,

472 U.S. 1030 (1985); United States v. Hines, 696 F.2d 722, 731

(10th Cir. 1982)(same); United States v. Zurosky, 614 F.2d 779,

792-93 (1st Cir. 1979)(same); United States v. Richman, 600 F.2d

286, 299 (1st Cir. 1979).

3

testify in order to cross-examine that individual creates

a risk of inflaming the jury against a criminal defendant

and also unfairly requires a defendant to choose between

his right to cross-examine a complaining witness and his

right to rely on the State's burden of proof in a

criminal case.5

The State cites several cases that it insists stand for the

proposition that, as a defendant can waive his or her Sixth

Amendment rights, a witness's physical presence in the courtroom

assures the defendant of all the opportunity to confront the

witnesses against him that the Sixth Amendment provides. As

counsel for Lowery correctly points out, however, the cases cited

by the State do not support that contention. Rather, they stand

for the proposition that the Sixth Amendment is complied with when

the prosecution calls the witness first, and then the defendant,

for tactical or other reasons, voluntarily limits or chooses to

forego cross-examination.6 The first step))the prosecution's

initial call for the witness to testify))is crucial to the instant

inquiry. Only when that is done does the failure of the defense to

cross-examine the witness constitute a waiver.

The State argues that, given the choice discussed above,

Lowery's decision to not call the boy was a waiver of his Sixth
 

7 Also eschewing the State's claim of waiver are the several

general objections, reflected in the record, made by counsel for

Lowery, clearly preserving rather than waiving his right to

assert the constitutional error of admitting the videotape, and

without succumbing to the State's attempt to induce Lowery to

call the youth for direct examination.

 

8 609 F.2d at 232-33.

4

Amendment confrontational rights. The choice put to Lowery,

however, was a constitutionally unacceptable Catch 22. Assuming

that the State is correct in insisting that Lowery's attorney

recognized that the trial court was committing error by forcing the

defendant to choose between his Sixth Amendment rights and Fifth

and Fourteenth Amendment due process right to require the State to

bear its burden of proof, we still cannot accept that Lowery must

be penalized for doing exactly what he should have done))objecting

to the admission of the videotape.7

As noted, the State asserts that our panel decision is

contrary to this court's decision in Stephens, which held that 

counsel in a criminal case may waive his client's Sixth

Amendment right of confrontation by stipulating to the

admission of evidence, so long as the defendant does not

dissent from his attorney's decision, and so long as it

can be said that the attorney's decision was a legitimate

trial tactic or part of a prudent trial strategy.8

The State badly misapprehends the materiality of the factual

distinction between Stephens and the instant case. In Stephens the

defendant's attorney "stipulat[ed] to the admission of [the

contested] evidence"; in the instant case, Lowery's attorney

objected to the admission of the contested evidence. The factual

distinction between the two cases eschews any potential application

of the Stephens decision to the instant case.
 

9 386 U.S. 18, 24 (1967).

 

10 328 U.S. 750 (1946).

 

11 Id. at 776.

5

II

The Effect of Brecht v. Abrahamson

In our panel decision, we applied the harmless beyond a

reasonable doubt analysis set forth in Chapman v. California,

9

finding that the admission of the videotaped interview was harmful

error under that standard. Since 1967, Chapman has supplied the

appellate test))both on direct appeal and habeas corpus review))for

harmlessness of constitutional errors in state criminal trials. In

Brecht, which as noted above was handed down two weeks after our

panel opinion was issued, the Supreme Court retracted its Chapman

analysis for purposes of habeas review in favor of the harmless

error standard originally espoused forty-six years ago in Kotteakos

v. United States,

10 leaving Chapman in place for direct appeals.

The venerable Kotteakos test requires reversal if the error "'had

substantial and injurious effect or influence in determining the

jury's verdict.'"11

When we test the facts of the instant case under Kotteakos, we

invariably reach the same conclusion that we did when we applied

the Chapman standard. Admission of the videotape was harmful error

under both standards.

Justice Stevens, in his concurring opinion in Brecht, wrote to

explicate the Kotteakos standard and to "emphasize that the
 

12 Id. at 1723-24 (Stevens, J., concurring).

 

13 Id.

 

14 Id. at 1724 (Stevens, J., concurring). Justice Stevens

included a long quote from the Kotteakos opinion to remind the

lower courts that, under Kotteakos, the question is not

were they [the jurors] right in their judgment, regardless

of the error or its effect upon the verdict. It is rather

what effect the error had or reasonably may be taken to have

had upon the jury's decision. The crucial thing is the

impact of the thing done wrong on the minds of other men,

not on one's own, in the total setting.

This must take account of what error meant to them, not

singled out and standing alone, but in relation to all else

that happened. And one must judge others' reactions not by

his own, but with allowance for how others might react and

not be regarded generally as acting without reason. This is

the important difference, but one easy to ignore when the

sense of guilt comes strongly from the record.

Id. (quoting Kotteakos, 328 U.S. at 764).

6

standard is appropriately demanding."12 Under Kotteakos, "the

burden of sustaining a verdict by demonstrating that the error was

harmless rests on the prosecution" unless that "error is merely

'technical'"))which a constitutional violation could never be.13

As applied by the Court in Brecht, Kotteakos commands that, in

determining whether a constitutional error is harmless, a de novo

review of the entire trial record must be performed by the

reviewing court. In performing that review, 

[t]he habeas court cannot ask only whether it thinks the

petitioner would have been convicted even if the

constitutional error had not taken place. Kotteakos is

full of warnings to avoid that result. It requires a

reviewing court to decide that "the error did not

influence the jury," and that "the judgment was not

substantially swayed by the error."14

For purposes of the State's Suggestion for Rehearing En Banc,

we have followed the Brecht cum Kotteakos mandate and reviewed

again the evidence presented at Lowery's trial. As a result of
 

15 Kotteakos, 328 U.S. at 776.

 

16 988 F.2d at 1373.

7

this painstaking re-review, we are convinced beyond peradventure

that the erroneous admission of the videotaped interview "had

substantial and injurious effect in determining the jury's

verdict."15 We noted in our panel opinion and we reiterate here

that the State failed to introduce any non-hearsay, direct evidence

of Lowery's guilt other than the videotaped interview))one that

reveals a little boy describing in innocent yet prurient detail

those acts of molestation that he indicates were perpetrated upon

him by Lowery. Our post-Brecht review of the entire record only

reinforces our firm conclusion that the playing of the videotape to

the jury was substantially injurious to Lowery, mandating reversal

under Kotteakos just as it did under Chapman. This conclusion is

buttressed now as it was prior to Brecht by a comparison of the

videotaped interview and "the only other basis for the conviction:

physical evidence not tied to the defendant except by hearsay

testimony."16

III

Conclusion

We find that Lowery did not waive his Sixth Amendment rights

by declining to call the child-complainant as a witness after the

State played a videotaped interview of that child describing the

acts of sexual molestation but did not call him as a witness.

Also, from our review of the trial record, we have determined that

the constitutional error which occurred in the trial of this case
8

had a "substantial and injurious effect or influence in determining

the jury's verdict." Thus, the result we originally reached on

appeal of this case stands, for it continues to meet muster under

the Supreme Court's new application of Kotteakos for cases such as

this, just as it did, pre-Brecht, under the test of Chapman.