State v. Brooks

• Citation: 638 P.2d 537
• Decision Date: 18 November 1981
• Docket Number: No. 16639,16639
• Parties: STATE of Utah, Plaintiff and Respondent, v. Cecil Earl BROOKS and James Charles Edward Good, Defendants and Appellants.
• Court: Supreme Court of Utah

Page 537

638 P.2d 537

STATE of Utah, Plaintiff and Respondent, v. Cecil Earl BROOKS and James Charles Edward Good, Defendants and Appellants.

No. 16639.

Supreme Court of Utah.

Nov. 18, 1981.

Glenn K. Iwasaki, Suzan Pixton, Jo Carol Nesset-Sale, Salt Lake City, for defendants and appellants.

David L. Wilkinson, Robert N. Parrish, Salt Lake City, for plaintiff and respondent.

HOWE, Justice:

This is an appeal by defendants Cecil Earl Brooks and James Charles Edward Good from a jury conviction of aggravated assault. The victims were not present at the trial and defendants were found guilty principally upon the testimony of the victims which had been recorded at the preliminary hearing. Other corroborative evidence was adduced at the trial.

Defendants raise three issues: (1) whether the admission at the trial of the taped preliminary hearing testimony violated defendants' right to confrontation of witnesses afforded by the U. S. and the Utah Constitutions; (2) whether the trial judge's refusal to give a specific cautionary instruction regarding absent witnesses was an abuse of discretion; and (3) whether the evidence was sufficient to support the verdict of the jury.

The defendants and victims were four transients who had recently joined together to ride the rails but were camped at Roper Yards in the "hobo jungle" when the offense occurred. One of the victims, Donald Storie, testified at the preliminary hearing that a dispute over $14 had developed resulting in the victims and defendants splitting up. Defendants left the campsite but returned. Upon returning, Brooks came at Storie with a knife saying, "I didn't steal the $14," and stabbed Storie in the chest. Storie claimed that as he struggled with Brooks, Good hit Storie with an ax handle. He was knocked unconscious but awoke to find Richard Vinson, the other victim, "bleeding real bad." Although his memory was somewhat unclear, Vinson also testified at the preliminary hearing.

Vinson remembered the four had eaten dinner and had drunk wine, but he had then fallen asleep and did not recall the dispute over the money or the decision of the men to split up. He did remember waking up when it was dark and seeing a man standing over him. Vinson said he was hit suddenly before he could arise. Both victims were treated for the injuries they sustained.

Counsel for defendants cross-examined both victims at the preliminary hearing. The victims left the county before the trial took place and could not be located although a police officer made attempts to find them. The preliminary hearing testimony was introduced at trial, over objection of defense counsel. The court did, however, edit the tapes to delete certain objectionable statements. Although it was discussed, no separate hearing on the question of reliability was held; and no cautionary instruction with respect to the weight to be given by the jury to the preliminary hearing testimony was given at trial even though defendants requested one.

At the trial, additional testimony was received. A trainyard supervisor and a carman, members of a group of employees at Roper Yards who were the first to encounter the defendants after the fight, testified. The remainder of testimony in the prosecution's case consisted of testimony by doctors, police officers and the custodians of court recordings of the victims' testimony taken at the preliminary hearing.

Both defendants took the stand in their own defense at trial. Good claimed that Storie brought out the knife when Good attempted to take tobacco and leave camp as Vinson had directed him to do. At that point Good took two swings with an ax handle at Storie. When Storie fell back, Good turned and hit Vinson with a club to get him off Brooks.

Brooks' testimony at trial corroborated an argument over the money and Good's attempt to take the tobacco as well as Vinson being involved in the fight. However, Brooks said that Storie came at Brooks with a knife and turned toward Good whereupon Vinson came at Brooks. They scuffled until Good pulled Vinson off. Then Brooks and Good left the scene.

I.

Defendants' right to confrontation is guaranteed by the Utah Constitution, Article I, Section 12, and by the Sixth Amendment to the United States Constitution.

In the context of federal constitutional law, the court in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), (hereinafter Roberts) outlined a two-pronged test to determine the admission of prior testimony in relationship to confrontation considerations. The first requirement is that the witness must be unavailable; the second requirement is that the testimony must bear sufficient indicia of reliability to permit its introduction at trial. Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972); Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Pointer v. Texas, 380 U.S. 400, 88 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895). See also State v. Mannion, 19 Utah 505, 57 P. 542 (1899).

A state may construe its own constitution more narrowly than the federal constitution even though the provisions involved may be similar. Nonetheless, the two-pronged test in Roberts appears to be a correct and reasonable standard to this Court.

In State v. Oniskor, 29 Utah 2d 395, 510 P.2d 929 (1973), we held that the testimony of an unavailable witness given at the preliminary hearing could be used at trial provided prosecutorial authorities have made a good faith effort to obtain his presence at trial. The rule of review enunciated in Gallegos v. Turner, Utah, 526 P.2d 1128 (1974), is that we will not reverse the ruling of the trial judge that the efforts were made in good faith in the absence of a showing of clear abuse of discretion.

In the case at bar, the trial judge heard testimony from an officer who had made various attempts to locate the victims after they had left the county. They had assured the prosecution that they would appear at trial. Defendants argue that other and earlier attempts could have been made to look for them citing a number of cases from other jurisdictions which are not directly on point. See Fresneda v. State, Alaska, 483 P.2d 1011 (1971), where a procedure was available to get a witness from the army to testify; People v. Horn, 225 Cal.App.2d 1, 36 Cal.Rptr. 898 (1964), where the time lapse was held to be one of the factors to consider; People v. Starr, 89 Mich.App. 342, 280 N.W.2d 519 (1979), where other specific available leads were not checked; People v. McIntosh, 389 Mich. 82, 204 N.W.2d 135 (1973), where the most specific lead that the witness was in prison was not checked; Flores v. People, 196 Colo. 565, 593 P.2d 316 (1978), where the likelihood of death or incapacity by the time of trial was known at the time the testimony was taken; People v. Forgason, 99 Cal.App.3d 356, 361, 160 Cal.Rptr. 263 (1979), where the value of a subpoena issued for a known-to-be-unavailable witness was held worthless.

In the instant case, the officer testified as to his attempts to locate the victims including a time lag before he began searching for them and lack of subpoena served upon them. He contacted all known relatives, likely hangouts, the local bus terminals and out of state police. The trial judge determined a good faith effort had been made. Although in retrospect other efforts might have been made, the determination does not appear to us to be an abuse of discretion.

We have not previously ruled what constitutes sufficient indicia of reliability. At the outset, we recognize that to be able to fairly evaluate the truth of a prior statement, the trier of fact must be assured that certain safeguards were followed to protect against the unreliability of the statement. In Barber v. Page, supra, a case where the key witness was in jail available for trial through certain procedures, the court held that confrontation in a preliminary hearing cannot fully compensate for the absence of confrontation at trial. There the court observed, Id. 390 U.S. at 725-726, 88 S.Ct. at 1322, that a less searching exploration into the merits of the case occurred at a preliminary hearing than at trial, but recognized that "there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demand of the confrontation clause where the witness is shown to be actually unavailable." Referring to California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), the U. S. Supreme Court observed in the later Roberts case, supra, that there are "guarantees of trustworthiness in the accoutrements of the preliminary hearing itself," 448 U.S. 56 at 73, 100 S.Ct. 2531 at 2542, 65 L.Ed.2d 597 at 612, and permitted the testimony of an unavailable witness taken at preliminary hearing to be admitted at trial.

In State v. Anderson, Utah, 612 P.2d 778, 786 (1980), a case which held the submission of an affidavit in lieu of the presence of a witness in a preliminary hearing to be harmless error, this Court recognized that a preliminary hearing is "not to be considered a full trial on the merits." At the same time we noted:

... the adversarial qualities of the examination (in a preliminary hearing) allow the defendant an opportunity to attack the prosecution's evidence and to present any affirmative defenses. Although the hearing is not a trial per se, it is not an ex parte proceeding nor one-sided determination of probable cause, and the accused is granted a statutory right to cross-examine the witness against him, and the right to subpoena and present witnesses in his defense. Id. at 783.

The fact that similar procedural protections are available in a preliminary hearing and the same rights are at stake is significant. We agree with the Roberts decision, supra, that a preliminary hearing by...