Com. v. Childs, 90-P-267

• Decision Date: 26 September 1991
• Docket Number: No. 90-P-267,90-P-267
• Parties: COMMONWEALTH v. Thomas CHILDS.
• Court: Appeals Court of Massachusetts

Page 65

575 N.E.2d 65

31 Mass.App.Ct. 64

COMMONWEALTH v. Thomas CHILDS.

No. 90-P-267.

Appeals Court of Massachusetts Suffolk.

Argued March 8, 1991.

Decided July 17, 1991.

Further AppellateReview Granted

Sept. 26, 1991.

D. Lloyd Macdonald (James L. Bryant, with him), Boston, for defendant.

Brian J. Carney, Asst. Dist. Atty., for the Com.

Before KASS, FINE and IRELAND, JJ.

IRELAND, Justice.

This case comes to us after two trials and involves the admission of testimony given in the first trial by a witness whom the court declared "unavailable" in the second trial. After the defendant was found guilty of murder in the second degree, we reversed on the basis of ineffective assistance of counsel. ¹ In the second trial, the judge admitted the prior recorded testimony of the absent witness who had testified in the first trial. The second trial jury also returned a verdict of guilty of murder in the second degree. The defendant appeals, claiming that the judge erred when he declared the witness unavailable and allowed the Commonwealth to use his prior recorded testimony. In support of his claim of error, the defendant argues that (1) the Commonwealth failed to make a diligent, good faith, and vigorous effort to secure the witness's presence; and (2) the defense attorney's representation at the first trial, declared ineffective in the first appeal, called into question his handling of the entire trial, including his cross-examination of the now absent witness. For the reasons set out below, we remand this matter for a hearing to determine the present availability of the absent witness. If he is now available, a new trial shall be held; if he is not now available, the conviction will stand.

Certain facts are not in dispute. In the early morning hours of August 20, 1983, two groups of people had an encounter in the parking lot of a Dunkin Donuts establishment in Roslindale after a night or more of drinking and partying. ² Shortly after an exchange of hostile words, Kostas Efstathiou, a passenger in one of the automobiles was shot and killed. At the first trial, George S. DeMattia, Jr., a witness for the Commonwealth, provided the only testimony that the defendant intentionally shot the victim. The defendant, on the other hand, testified that his gun accidentally discharged when the victim struck his hand.

As we have said, the defendant was found guilty of murder in the second degree and successfully appealed. One day before the second trial began, the Commonwealth reported to the court that DeMattia was missing. The prosecutor then recited the efforts the State had taken to locate him. The assistant district attorney reported that he had ordered the police to search the area of the Commonwealth where the witness was known to reside (Randolph) and had also asked the local police to make inquiry. He had called the witness's father, George S. DeMattia, Sr., who had recently moved from Randolph, Massachusetts, to Fort Myers, Florida. Mr. DeMattia informed him that his son was not living with him in Fort Myers and was not likely to be in Massachusetts because he had outstanding arrest warrants. The father also reported that the last known address he had for his son was in the Northampton County Jail, in Bethlehem, Pennsylvania. The assistant district attorney then called the jail, and was informed that they had no one there by the witness's name. The assistant district attorney went on to report that the Commonwealth had done a search, using credit card data bases, which indicated that a person with the same name, age, and social security number as DeMattia had used a credit card in North Fort Myers, Florida, the same area that DeMattia's father had moved to from Massachusetts. The prosecutor said, "I believe that's him." Notwithstanding this information, the Commonwealth made no effort to contact the police in Fort Myers. Additionally, though specifically requested by the defense attorney, the judge refused to issue a warrant to compel the attendance of an out of State witness pursuant to the Uniform Law to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, G.L. c. 233, § 13A (Uniform Act). Further, in his "Memorandum and Order", the judge found that "[A] credit check with Mr. DeMattia's social security number and date of birth and name revealed nothing of import." The judge declared DeMattia an unavailable witness, apparently adopting the Commonwealth's contention that it had established the witness's unavailability by a showing that the witness was not within the Commonwealth. ³ DeMattia's prior testimony was read to the jury.

1. The judge's ruling that the witness was unavailable. Introduction in evidence of prior recorded testimony involves the right of confrontation under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. Commonwealth v. Salim, 399 Mass. 227, 234, 503 N.E.2d 1267 (1987). The right of confrontation under the Sixth Amendment, "of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the States by the Fourteenth Amendment." Ibid., quoting from Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067, 13 L.Ed.2d 923 (1965). The essence of the right of confrontation is the right of cross-examination. Salim, supra.

Testimony given at a prior hearing may be introduced at a later criminal trial if the defendant had the opportunity fully to cross-examine the witness at the prior proceeding, the witness was unavailable at trial because of death or other legally sufficient reason, and the testimony could be substantially reproduced in all material particulars. Commonwealth v. Mustone, 353 Mass. 490, 494, 233 N.E.2d 1 (1968). Commonwealth v. Canon, 373 Mass. 494, 499-501, 368 N.E.2d 1181 (1977), cert. denied, 435 U.S. 933, 98 S.Ct. 1510, 55 L.Ed.2d 531 (1978). See also Mancusi v. Stubbs, 408 U.S. 204, 213-214, 92 S.Ct. 2308, 2313-2314, 33 L.Ed.2d 293 (1972); Commonwealth v. Gallo, 275 Mass. 320, 328-335, 175 N.E. 718 (1931); Commonwealth v. Clark, 363 Mass. 467, 470-471, 295 N.E.2d 163 (1973). Prior recorded testimony is admissible only when it is established that (a) the witness is "unavailable" to testify at the trial, and (b) the prior testimony is reliable. Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980). Commonwealth v. Bohannon, 385 Mass. 733, 740-749, 434 N.E.2d 163 (1982). Commonwealth v. Salim, supra. Commonwealth v. Siegfriedt, 402 Mass. 424, 427-430, 522 N.E.2d 970 (1988).

a. Unavailability of the witness. "Before allowing the introduction of prior recorded testimony, the judge must be satisfied that the Commonwealth has made a good faith effort to produce the witness at trial." See Commonwealth v. Siegfriedt, supra at 427, 522 N.E.2d 970, citing Barber v. Page, 390 U.S. 719, 724-725, 88 S.Ct. 1318, 1321-1322, 20 L.Ed.2d 255 (1968). A witness is not "unavailable" unless such a good faith effort has been demonstrated by the government. Barber v. Page, supra. When the State seeks to use former testimony against an accused, the standard of good faith and due diligence applicable to finding the person who gave the testimony is particularly demanding. Commonwealth v. Bohannon, 385 Mass. at 745, 434 N.E.2d 163. See Commonwealth v. Canon, supra, 373 Mass. at 507, 368 N.E.2d 1181 (Liacos, J., dissenting) (unavailability of witness must be "diligently" established). Gorum v. Craven, 465 F.2d 443, 445 (9th Cir.1972) (defendant need not resort to Uniform Act to secure attendance of prosecution witness). "Only by demanding rigorous compliance with the evidentiary definitions of 'unavailability as a witness' for the purpose of invoking the former testimony exception to the hearsay rule can we adequately insure that this fundamental constitutional guarantee is preserved for the accused." State v. Scholz, 432 A.2d 763, 767 (Me.1981).

Although on its facts it is a stronger case for the defendant than the present one, Barber v. Page, supra, sheds light on the right of confrontation and a State's duty to make a diligent and good faith effort to obtain the presence of a witness at trial before using his prior recorded testimony. In Barber, the State sought to introduce the prior recorded testimony of an out-of-State witness, who was then in prison. The State argued that the introduction of the transcript was within the hearsay exception relating to prior testimony of an unavailable witness on the grounds that the witness was outside the jurisdiction and, therefore, "unavailable" at the time of trial. The Court stated that

"[A] witness is not 'unavailable' for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good faith effort to obtain his presence at trial. The State made no such effort here, and, so far as this record reveals, the sole reason why [the witness] was not present to testify in person was because the State did not attempt to seek his presence. The right of confrontation may not be dispensed with so lightly." 390 U.S. at 724-725, 88 S.Ct. at 1321-1322.

In our case, although the assistant district attorney was aware that the missing witness might well be in Fort Myers, he did nothing to attempt to bring him before the court. See note 3, supra. For a witness who is outside a State but not in prison, as might have been the situation in the instant case,

"the Uniform Act to Secure the Attendance of Witnesses from...