Ex parte Scroggins
Decision Date | 10 July 1998 |
Citation | 727 So.2d 131 |
Parties | Ex parte Nathaniel SCROGGINS (Re Nathaniel Scroggins v. State.) |
Court | Alabama Supreme Court |
Charles Amos Thompson, Birmingham, for petitioner.
Bill Pryor, atty. gen., and Beth Slate Poe, asst. atty. gen., for respondent.
We granted Nathaniel Scroggins's petition for certiorari review of a judgment of the Court of Criminal Appeals affirming his conviction of capital murder for the shooting of Richard Fields. See Scroggins v. State, 727 So.2d 123 (Ala.Cr.App.1997). The basis for granting review was to determine whether the State met its burden to establish that the only eyewitness in this capital murder case was "unavailable" to testify at trial, as that term is defined in Rule 804, Ala. R. Evid.; if he was, then his testimony at the preliminary hearing was admissible at trial. We reverse and remand.
Nathaniel Scroggins was indicted for the murder of Richard Fields; he was charged on three counts of capital murder: 1) robbery/murder, in violation of § 13A-5-40(a)(2); 2) murder while the victim is in a vehicle, in violation of § 13A-5-40(a)(17); and 3) murder by and through the use of a deadly weapon fired or otherwise used within or from a vehicle, in violation of § 13A-5-40(a)(18). The indictment charged that Scroggins murdered Richard Fields while Scroggins was in the course of stealing Fields's Buick automobile.
At trial, Judge James Hard allowed the State to offer the testimony an eyewitness, Billy Joe Williams, had given at the preliminary hearing; Judge Hard allowed that evidence on the grounds that at trial Williams was "unavailable," as that term is defined in Rule 804, Ala. R. Evid. The opinion of the Court of Criminal Appeals recites facts taken from Williams's testimony:
727 So.2d at 124-125. The jury convicted Scroggins, who was 16 years old at the time of the murder. The court sentenced him to life imprisonment on count one and to life imprisonment without the possibility of parole on counts two and three. The Court of Criminal Appeals affirmed Scroggins's convictions, holding that whether a witness is "unavailable" is left to the sound discretion of the trial court, 727 So.2d at 126, citing Johnson v. State, 623 So.2d 444, at 448 (Ala.Crim. App.1993). The Court of Criminal Appeals concluded that "unless this witness wanted to be found, locating him would have been virtually impossible," 727 So.2d at 128, and, therefore, that the trial court did not abuse its discretion in admitting the testimony from the preliminary hearing. The Court of Criminal Appeals did not explain in its opinion why it would have been "virtually impossible" for the state to find the only witness to this crime.
The Confrontation Clause of the Sixth Amendment to the Constitution of the United States requires that in all criminal prosecutions the accused shall have the right to be confronted with the witnesses against him. Tomlin v. State, 591 So.2d 550, 555 (Ala.Cr. App.1991), citing Kirby v. United States, 174 U.S. 47, 55, 19 S.Ct. 574, 43 L.Ed. 890 (1899). The United States Supreme Court in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), emphasized that the Confrontation Clause reflects a preference for face-to-face confrontation at trial and that a primary interest secured by the Confrontation Clause is the right of cross-examination. Grantham v. State, 580 So.2d 53, 55 (Ala.Cr. App.1991), citing Ohio v. Roberts, 448 U.S. at 63, 100 S.Ct. 2531.
The Confrontation Clause and the hearsay exclusionary rule are generally designed to protect similar values. California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). The hearsay exclusionary rule makes hearsay evidence inadmissible unless it falls into one of the recognized exceptions. The Alabama Rules of Evidence incorporate "unavailability" as such an exception in Rule 804:
Evidence that would normally be admissible under an exception to the hearsay rule may be inadmissible because it violates the Confrontation Clause of the Sixth Amendment. Grantham v. State, 580 So.2d 53, 55 (Ala.Cr. App.1991), citing United States v. Bernard S., 795 F.2d 749, 753 (9th Cir.1986); United States v. Oates, 560 F.2d 45, 81 (2d Cir.1977). When the prosecution seeks to introduce, against a criminal defendant, the former testimony of a now unavailable witness, its burden in seeking the witness's presence is enhanced by the defendant's Sixth Amendment right to confront witnesses. Ex parte Wright, 625 So.2d 1135, 1136 n. 2 (Ala.1993). Thus, when at trial the State wishes to use a person's statement against a criminal defendant, in order for that statement to be admissible the State must either produce as a witness the person whose statement it wishes to use or else demonstrate that that person is "unavailable" for the trial. Inmon v. State, 585 So.2d 261, 265 (Ala.Cr.App.1991).
Professor Charles Gamble, the preeminent authority on Alabama evidence law, has stated, "[T]he prerequisite showing of unavailability may be greater as to prosecution witnesses in a criminal case because it takes on constitutional dimensions." C. Gamble, McElroy's Alabama Evidence, § 242.01(6)(f), p. 1130 (5th ed.1996). Professor Gamble notes that "[t]he United States Supreme Court, in a long line of decisions culminating with Ohio v. Roberts, has concluded that [admitting against a criminal defendant the testimony of a witness who does not appear at trial] may violate the Sixth Amendment right of the accused `to be confronted with the witnesses against him.'" Id., § 242.01(7), p. 1132. In order for the admission of a statement of a witness who is not present at trial to satisfy the right to confrontation of witnesses, the concerns of necessity and reliability must be satisfied. "The necessity concern customarily requires that the prosecution either produce or account for the unavailability of the declarant." Id. See Thompson v. State, 106 Ala. 67, 74, 17 So. 512, 514 (1895). Ohio v. Roberts "mandates that the prosecution have made a good faith effort to obtain the presence of the declarant at trial." C. Gamble, supra, § 242.01(7), p. 1132.
The Court of Criminal Appeals relied upon Johnson v. State, supra, to affirm the trial court's holding that the witness was "unavailable." However, Johnson v. State sets a high standard for proving that the State exercised due diligence in its attempt to procure the presence of a witness:
623 So.2d at 447. In Johnson, the hearing on the unavailability of the witness included testimony of the witness's mother, the witness's girlfriend, an investigator for the State, and a jailer for the City of Birmingham. The testimony of these persons indicated that each of them had made efforts to locate the witness but had been unable to find him. The witness sought had a murder charge pending against him, and he had recently escaped from jail. Id. at 447.
Johnson's standard of due diligence is based upon Alabama law holding that a declarant is not rendered "unavailable" by absence alone. The party seeking to introduce the declarant's statement has to show that it is unable to procure the declarant's attendance either by legal process or by other reasonable means:
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