378 N.E.2d 492 (Ohio 1978), 77-530, State v. Roberts

Docket Nº:77-530.
Citation:378 N.E.2d 492, 55 Ohio St.2d 191
Opinion Judge:C. WILLIAM O'NEILL, Chief Justice. O'NEILL, C.J.
Party Name:The STATE of Ohio, Appellant, v. ROBERTS, Appellee.
Attorney:John E. Shoop, Pros. Atty., and Richard J. Perez, Asst. Pros. Atty., for appellant. Mr. John E. Shoop, prosecuting attorney, and Mr. Richard J. Perez, for appellant., Messrs. Stoneman, Plasco & Bean, and Mr. Marvin R. Plasco, for appellee.
Judge Panel:WILLIAM B. BROWN, PAUL W. BROWN and SWEENEY, JJ., concur. HERBERT, CELEBREZZE and LOCHER, JJ., dissent. CELEBREZZE, Justice, dissenting. HERBERT and LOCHER, JJ., concur in the foregoing dissenting opinion.
Case Date:July 19, 1978
Court:Supreme Court of Ohio

Page 492

378 N.E.2d 492 (Ohio 1978)

55 Ohio St.2d 191

The STATE of Ohio, Appellant,


ROBERTS, Appellee.

No. 77-530.

Supreme Court of Ohio.

July 19, 1978

Page 493

Syllabus by the Court

Where a witness, who testified against the defendant at preliminary hearing and was not cross-examined, is later shown to be unavailable to testify at the trial, the Sixth Amendment to the United States Constitution precludes the state's use of the witness' recorded testimony, notwithstanding R.C. 2945.49.

The Mentor police arrested the defendant, Herschel Roberts, on January 7, 1975, and charged him with forging a check in the name of Bernard Isaacs, and with receiving stolen property, namely, a number of credit cards belonging to Bernard Isaacs and his wife, Amy.

On January 10, the defendant came before the Mentor Municipal Court for preliminary hearing. At the hearing, the defendant offered the testimony of Anita Isaacs, the daughter of Bernard Isaacs. She testified that she had become friends with her classmate's younger sister, who was Roberts' girl friend, and that she had seen Roberts occasionally since June or July of 1974, On December 23, 1974, she had given the key of her apartment to Roberts' girl

Page 494

friend, and had told her it would be all right if she and Roberts used the apartment while she was away for the next few days. When she returned on December 30, Roberts said he was having trouble finding a place to stay, so she let Roberts go on using the apartment, while she stayed at the home of a friend. She never spent any time in her apartment with Roberts.

Having thus described her acquaintance with Roberts, the witness denied ever having given him her parents' credit [55 Ohio St.2d 192] cards, and she denied ever having talked to him about giving him the credit cards to help him pay for a television. Roberts' attorney did not ask to have the witness declared hostile, and he did not ask to examine her as on cross-examination.

The Municipal Court bound Roberts over to the grand jury which indicted him for receiving stolen property, R.C. 2913.51, and forgery, R.C. 2913.31. The grand jury also returned a secret indictment against Roberts for receiving stolen property, namely, silverware and appliances belonging to Mr. and Mrs. Isaacs, and for possession of heroin, R.C. 3719.09. The Court of Common Pleas of Lake County consolidated the proceedings on the two indictments and set the trial for July 17, 1975.

The case was continued six times, and the trial finally took place on March 4, 1976. Between November 1975, and February 1976, the trial court issued five subpoenas for four different trial dates to Anita Isaacs at her parents' address. It is undisputed that the last three subpoenas, showing returns on December 10, 1975, February 3, 1976, and February 25, 1976, respectively, all carried instructions to "please call before appearing." The witness never telephoned, nor did she appear at the trial.

At the trial, the prosecutor and the defense attorney both questioned Amy Isaacs on voir dire to determine whether Anita Isaacs was available to testify. Mrs. Isaacs testified that at the end of January 1975, Anita had left home for Tucson. She said that in April or May, she had received a form from a welfare office in San Francisco stating that Anita had applied for welfare. Mrs. Isaacs had used the address on the form to locate the social worker who was dealing with Anita. She had then talked to the social worker by telephone, and had spoken to Anita by telephone that same day. Later in the summer, Anita had called her parents and had indicated that she was traveling somewhere outside Ohio. From January 1975 to the date of the trial, neither Anita's parents nor any other relative had received any other communication from Anita. [55 Ohio St.2d 193] Mrs. Isaacs testified that she did not know what state Anita was in, and that she did not know how to contact Anita.

Citing R.C. 2945.49, 1 the prosecutor offered to introduce the transcript of the testimony which Anita had given at the preliminary hearing on the grounds that the witness was unavailable to testify in person. The court admitted the transcript over objection. The jury convicted the defendant on all counts, and the court entered judgment.

The Court of Appeals reversed. It held that by admitting the recorded testimony, the trial court had violated the defendant's right to confront adverse witnesses, as guaranteed by the Sixth Amendment to the United States Constitution.

The cause is before this court upon the allowance of the state's motion for leave to appeal.

John E. Shoop, Pros. Atty., and Richard J. Perez, Asst. Pros. Atty., for appellant.

Stoneman, Plasco & Bean and Marvin R. Plasco, Willoughby, for appellee.

Page 495

C. WILLIAM O'NEILL, Chief Justice.

The issue before this court is as follows: When a witness testifies against the accused...

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