Judge Price delivered the opinion of the Court, joined by Presiding Judge Keller, and Judges Meyers, Womack, and Cochran.
In this case, the appellant was convicted of aggravated sexual assault of a child. The appellant made a pretrial motion for a hearing to determine the child’s competence to testify. The trial judge conducted the competency examination in camera, in the absence of both the appellant and his attorney, and found the child to be competent to testify. On appeal, the appellant asserted that by excluding him and his attorney from the hearing, the trial court had violated certain rights afforded by the Sixth Amendment. The court of appeals rejected the appellant’s constitutional assertions.
Issue: Was the appellant’s Sixth Amendment right to assistance of counsel at a critical stage of the trial proceeding violated when the trial judge conducted a competency examination of the child-witness in the absence of both the appellant and his attorney?
The Court of Criminal Appeals granted the appellant’s petition for discretionary review after the court of appeals rejected his constitutional claims. Of the points of error raised on appeal, the Sixth Amendment right to counsel at a critical stage of the trial proceeding was the only issue not reached by the court of appeals. The Court of Criminal Appeals decided to grant review of the issue, even though it was not directly addressed by the court of appeals, because the appellant “seemed to also be challenging the court of appeals’ resolution of some of the other, non-right-to-counsel issues that were raised.” After the initial grant of the petition, though, the appellant’s brief insisted that his argument was limited to a violation of his Sixth Amendment right to assistance of counsel. Additionally, the appellant argued—for the first time—that the court of appeals incorrectly categorized the pretrial hearing as not being a critical stage of the adversarial proceeding.
The Court of Criminal Appeals first addressed whether to reach the merits of the appellant’s argument. It found that this particular scenario qualified as an exception to the court’s practice of only reviewing actual decisions of the court of appeals. It explained this decision by noting that a remand would burden the court of appeals with having to address a number of ancillary issues.
After the court’s decision to reach the merits of the argument, it ultimately held that the pretrial competency hearing did not constitute a critical stage of the adversarial proceeding, in which either the appellant or his attorney was entitled to be present. The court noted that the language of Rule 601(a)(2) gives the trial court the discretion to permit a party’s participation in the hearing, but does not require that permission. Although the result of the hearing could lead to adverse consequences for the appellant, the court found that the ability of the appellant’s counsel to later challenge the child’s testimonial deficiency during the trial itself through crossexamination—in an effort to avoid or ameliorate such adverse consequences—rendered the hearing a non-critical stage of the proceeding. The court also highlighted that the appellant’s counsel had further opportunities to expose the child-witness’s deficiencies by being allowed to submit questions for the trial judge to ask during the hearing, and by being afforded the opportunity to review a transcript of the examination after-thefact. Quoting United States v. Ash, the court stated that “the opportunity to cure defects at trial causes [a] confrontation to cease to be ‘critical.’” Finally, the court discussed the appellant’s inaccurate reliance on the case of Kentucky v. Stincer, stating that the case’s language does not indicate the Supreme Court would regard the hearing at issue as a critical stage for purposes of the Sixth Amendment.
Judge Keasler, dissenting, joined by Judges Hervey and Alcala
Judge Keasler’s dissent argues that because the court of appeals never directly addressed the right-to-counsel issue, it was improperly reached by the Court of Criminal Appeals and should dismissed, or at the very least remanded for further review. It argues that the Court of Criminal Appeals improperly employed the “judicial economy” exception to the case, because the resolution of the outstanding issue was not clear enough to fall under this exception. The court of appeals had the opportunity to address the right-tocounsel claim, but its silence on the matter was indicative of that court’s conclusion that it was not an appropriate issue to reach. Finally, the dissent contends that because the issue is not clear, it is worthy of a thorough review by the court of appeals—on remand—but not the Criminal Court of Appeals.
Judge Johnson, dissenting
Judge Johnson’s dissent argues that the competency hearing was a critical stage of the trial proceeding, and that we cannot constitutionally use, as a standard, a task that cannot be performed. It argues that the remedies purportedly available to the appellant’s counsel during and post-competency examination, in reality, were not possible for the appellant to utilize. Because the party seeking to exclude a witness from testifying has the burden of establishing incompetency, that party should have the opportunity to question, or at least observe the questioning of, the witness. Additionally, the appellant could not know what supplemental questions to provide to the trial judge if it did not know what the initial questions were. Further, body language, tone, and inflection are important factors to consider in deciding how to question a witness, and the appellant was denied the opportunity to observe such factors. The dissent notes that to the extent the majority indicated that the appellant could have reviewed a transcript of the hearing, at that stage of the trial, a transcript was likely unavailable—nor can one observe body language, tone, or inflection from a transcript alone. Finally, the dissent argues that the majority’s interpretation of Kentucky v. Stincer was misplaced, because in that case, unlike the case at bar, the defendant’s attorney was present during the competency hearing—only the defendant was excluded.