448 U.S. 56 (1980), 78-756, Ohio v. Roberts

Docket Nº:No. 78-756
Citation:448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597
Party Name:Ohio v. Roberts
Case Date:June 25, 1980
Court:United States Supreme Court
 
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448 U.S. 56 (1980)

100 S.Ct. 2531, 65 L.Ed.2d 597

Ohio

v.

Roberts

No. 78-756

United States Supreme Court

June 25, 1980

Argued November 26, 1979

CERTIORARI TO THE SUPREME COURT OF OHIO

Syllabus

At respondent's preliminary hearing in an Ohio state court on charges of forgery of a check in the name of one Bernard Isaacs and of possession of stolen credit cards belonging to Isaacs and his wife, respondent's counsel called as a witness the Isaacs' daughter, who testified that she had permitted respondent to use her apartment for several days while she was away. However, she refused to admit that she had given respondent checks and the credit cards without informing him that she did not have permission to use them. Respondent's counsel did not ask to have the witness declared hostile or to place her on cross-examination. At respondent's subsequent criminal trial, he testified that the daughter had given him her parents' checkbook and credit cards with the understanding that he could use them. When the daughter failed to appear at the trial despite the State's having issued five separate subpoenas to her at her parents' residence, the State offered in rebuttal the transcript of her preliminary hearing testimony, relying on an Ohio statute which permits the use of such testimony when the witness "cannot for any reason be produced at the trial." At a voir dire hearing on admissibility, conducted after the defense objected to the use of the transcript as violative of the Sixth Amendment's Confrontation Clause, the mother, as the sole witness, testified that the daughter had left home soon after the preliminary hearing; that, about a year before the trial, a San Francisco social worker had communicated with the parents about the daughter's welfare application filed there; that the last time the daughter telephoned, some seven or eight months before trial, she told her parents that she "was traveling" outside Ohio, but did not reveal where she was; that the mother knew of no way to reach the daughter in case of an emergency; and that she did not know of anybody who knew where the daughter was. The trial court admitted the transcript into evidence, and respondent was convicted. Affirming the Ohio Court of Appeals' reversal of the conviction, the Ohio Supreme Court held that the transcript was inadmissible because the daughter had not been actually cross-examined at the preliminary hearing and was absent at trial, the admission of the transcript thus having violated respondent's confrontation right.

Held: The introduction in evidence at respondent's trial of the daughter's

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preliminary hearing testimony was constitutionally permissible. Pp. 62-77

(a) When a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. Cf. Mancusi v. Stubbs, 408 U.S. 204. Pp. 62-66.

(b) The daughter's prior testimony at the preliminary hearing bore sufficient "indicia of reliability." Cf. California v. Green, 399 U.S. 149. It need not be decided whether, under Green, the mere opportunity to cross-examine satisfies the Confrontation Clause, for defense counsel tested the daughter's testimony with the equivalent of significant cross-examination. His questioning, which was replete with leading questions, clearly partook of cross-examination as a matter of form, and comported with the principal purpose of cross-examination by challenging the daughter's veracity. Regardless of how state law might formally characterize the questioning, it afforded substantial compliance with the purposes behind the confrontation requirement. Nor can this case be distinguished from Green merely because the daughter was not personally available for questioning at trial or because respondent had a different lawyer at trial from the one at the preliminary hearing. Moreover, this case does not fall among those in which a particularized search for "indicia of reliability" must be made. Pp. 67-73.

(c) On the facts presented, the trial court and the Ohio Supreme Court correctly concluded that the daughter's unavailability to appear at the trial, in the constitutional sense, was established. Pp. 74-77.

55 Ohio St.2d 191, 378 N.E.2d 492, reversed and remanded.

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and STEVENS, JJ., joined, post, p. 77.

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BLACKMUN, J., lead opinion

MR. JUSTICE BLACKMUN delivered the opinion of the Court.

This case presents issues concerning the constitutional propriety of the introduction in evidence of the preliminary hearing testimony of a witness not produced at the defendant's subsequent state criminal trial.

I

Local police arrested respondent, Herschel Roberts, on January 7, 1975, in Lake County, Ohio. Roberts was charged with forgery of a check in the name of Bernard Isaacs, and with possession of stolen credit cards belonging to Isaacs and his wife Amy.

A preliminary hearing was held in Municipal Court on January 10. The prosecution called several witnesses, including Mr. Isaacs. Respondent's appointed counsel had seen the Isaacs' daughter, Anita, in the courthouse hallway, and called her as the defense's only witness. Anita Isaacs testified that she knew respondent, and that she had permitted him to use her apartment for several days while she was away. Defense counsel questioned Anita at some length, and attempted to elicit from her an admission that she had given respondent checks and the credit cards without informing him that she did not have permission to use them. Anita, however, denied this. Respondent's attorney did not ask to have the witness declared hostile, and did not request permission to place her on cross-examination. The prosecutor did not question Anita.

A county grand jury subsequently indicted respondent for forgery, for receiving stolen property (including the credit cards), and for possession of heroin. The attorney who represented respondent at the preliminary hearing withdrew upon

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becoming a Municipal Court Judge, and new counsel was appointed for Roberts.

Between November, 1975, and March, 1976, five subpoenas for four different trial dates1 were issued to Anita at her parents' Ohio residence. The last three carried a written instruction that Anita should "call before appearing." She was not at the residence when these were executed. She did not telephone, and she did not appear at trial.

In March, 1976, the case went to trial before a jury in the Court of Common Pleas. Respondent took the stand and testified that Anita Isaacs had given him her parents' checkbook and credit cards with the understanding that he could use them. Tr. 231-232. Relying on Ohio Rev.Code Ann. § 2945.49 (1975),2 which permits the use of preliminary examination testimony of a witness who "cannot for any reason be produced at the ;trial," the State, on rebuttal, offered the transcript of Anita's testimony. Tr. 273-274.

Asserting a violation of the Confrontation Clause and, indeed, the unconstitutionality thereunder of § 2945.49, the defense objected to the use of the transcript. The trial court conducted a voir dire hearing as to its admissibility. Tr.194-199. Amy Isaacs, the sole witness at voir dire, was questioned by both the prosecutor and defense counsel concerning her daughter's whereabouts. Anita, according to her mother, left home for Tucson, Ariz., soon after the preliminary

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hearing. About a year before the trial, a San Francisco social worker was in communication with the Isaacs about a welfare application Anita [100 S.Ct. 2536] had filed there. Through the social worker, the Isaacs reached their daughter once by telephone. Since then, however, Anita had called her parents only one other time, and had not been in touch with her two sisters. When Anita called, some seven or eight months before trial, she told her parents that she "was traveling" outside Ohio, but did not reveal the place from which she called. Mrs. Isaacs stated that she knew of no way to reach Anita in case of an emergency. App. 9. Nor did she "know of anybody who knows where she is." Id. at 11. The trial court admitted the transcript into evidence. Respondent was convicted on all counts.

The Court of Appeals of Ohio reversed. After reviewing the voir dire, that court concluded that the prosecution had failed to make a showing of a "good faith effort" to secure the absent witness' attendance, as required by Barber v. Page, 390 U.S. 719, 722-725 (1968). The court noted that

we have no witness from the prosecution to testify . . . that no one on behalf of the State could determine Anita's whereabouts, [or] that anyone had exhausted contact with the San Francisco social worker.

App. 5. Unavailability would have been established, the court said,

[h]ad the State demonstrated that its subpoenas were never actually served on the witness and that they were unable to make contact in any way with the witness. . . . Until the Isaacs' voir dire, requested by the defense, the State had done nothing, absolutely nothing, to show the Court that Anita would be absent because of unavailability, and they showed no effort having been made to seek out her whereabouts for purpose of trial.

Ibid.

The Supreme Court of Ohio, by a 4-3 vote, affirmed, but did so on...

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