                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.

     *
       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.
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

     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
     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

     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
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.

     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
                                     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



     9
          386 U.S. 18, 24 (1967).
     10
          328 U.S. 750 (1946).
     11
          Id. at 776.

                                     5
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

     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
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

     15
          Kotteakos, 328 U.S. at 776.
     16
          988 F.2d at 1373.

                                       7
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.




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