James v. State, Q--130

• Decision Date: 02 December 1971
• Docket Number: No. Q--130,Q--130
• Citation: 254 So.2d 838
• Parties: Roosevelt JAMES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 838

254 So.2d 838

Roosevelt JAMES, Appellant, v. STATE of Florida, Appellee.

No. Q--130.

District Court of Appeal of Florida, First District.

Dec. 2, 1971.

Rehearing Denied Dec. 22, 1971.

Carlton P. Maddox and Henry H. Wells, of Dawson, Galant, Maddox, Boyer, Sulik & Nichols, Jacksonville, for appellant.

Robert L. Shevin, Atty. Gen., and William W. Herring, Asst. Atty. Gen., for appellee.

WIGGINTON, Judge.

Appellant was indicted, tried by a jury, and found guilty of murder in the first degree. From his judgment of conviction and sentence this appeal is taken.

The sole point on appeal challenges the correctness of the trial court's ruling which admitted into evidence over appellant's timely objection a transcript of the testimony given by a state witness during appellant's preliminary hearing prior to trial.

The facts in this case are not in dispute. Appellant was arrested on a warrant charging him with first degree murder. One week after his arrest a preliminary hearing was held by the County Judge of Columbia County. At this hearing a witness, one Andrew Wilson, was sworn and testified on behalf of the State. Wilson identified appellant as the person who bludgeoned to death the victim of the crime with which appellant was charged. Appellant was present at the preliminary hearing and represented by counsel who fully cross-examined the witness.

The State established that subsequent to the preliminary hearing but prior to trial the witness, Andrew Wilson, met his death by accidental means and was therefore not available to testify as a witness. Upon that predicate the State proffered in evidence a certified transcript of the testimony given by Wilson at the preliminary hearing. Appellant timely objected to the introduction of this testimony on the ground that it denied him his constitutional right to confront at trial adverse witnesses testifying against him. ¹ Appellant's objection was overruled and the testimony of Wilson was read into the record. The court instructed the jury over appellant's objection that the transcript of Wilson's testimony was to be considered by it in the same manner as though the witness had personally appeared in court and testified.

It was stipulated between counsel for the parties that the only evidence directly implicating appellant as the perpetrator of the crime with which he was charged was the testimony given by Wilson at the preliminary hearing.

It is appellant's contention on this appeal that the established rule of law which provides that testimony of a witness taken at an earlier trial between the parties may be admitted in evidence at a later trial involving the same parties and issues under certain qualifying conditions, is not applicable to the case sub judice. Appellant contends that a preliminary hearing conducted by a magistrate pursuant to the statutes of this state ² and the rule of court applicable thereto ³ cannot be equated with a judicial trial and, therefore, the testimony given by witnesses at the preliminary hearing should not be accorded the same status or be received on the same basis as testimony given by witnesses during a trial on the merits of the charge in issue. Appellant argues, and correctly so, that the sole purpose of a preliminary hearing is to ascertain if a crime has been committed and, if so, whether the evidence establishes sufficient probable cause to believe that the person charged is the one guilty of having committed it. At such a hearing the strict rules of evidence are relaxed and the proceeding partakes of the nature of an inquiry bearing little resemblance to a judicial trial. ⁴ It has been correctly held that a preliminary hearing is not a step in due process of law nor a prerequisite to a criminal prosecution but serves only to determine whether probable cause exists to hold the accused for trial. ⁵

Appellant also correctly invites attention to the fact that a preliminary hearing is required to be held without unnecessary delay after an arrest and before any formal charges have been filed against the accused. Under these circumstances the accused's attorney, if one has then been engaged or appointed to represent him, has done little toward investigating or preparing for a defense of the charge and therefore is not in an adequate position to intelligently cross-examine the witnesses whose testimony is adduced by the State. Since the only issue before the magistrate is that of probable cause, defendant's counsel seldom deems it wise or prudent to disclose the theory of his defense or the evidence on which he will rely at trial by conducting a searching cross-examination of the State's witnesses at the hearing. Appellant therefore urges that the opportunity for cross-examination of the State's witnesses at a preliminary hearing does not form an adequate basis for satisfying the constitutional guarantee of the right to confront at trial adverse witnesses and subject them to an intelligent and meaningful cross-examination on the testimony given by them.

In the early case of Blackwell v. State ⁶ the Supreme Court considered whether a transcript of testimony given by witnesses at a former trial of the same case was admissible in evidence at the later trial because the witnesses were ill and could not appear to testify in person. In holding that a transcript of such testimony was admissible at the second trial, the Supreme Court adopted and quoted with approval the following principle of law, to wit:

"Because of the universal constitutional right of the accused to be confronted by the witnesses, it is absolutely necessary, in order that the testimony of a deceased or absent witness may be admissible at a subsequent trial against the accused, that the party against whom it is offered should have had an opportunity of cross-examining him at the earlier trial.

"If the accused has once enjoyed his right to confront witnesses, his constitutional right to meet the witnesses against him face to face is not violated by the admission of the testimony of such a witness, who is absent, at a subsequent trial. Hence, if the defendant was represented by counsel at the preliminary examination and has had on opportunity of cross-examining the witnesses, he has enjoyed his right to meet his accusers face to face, and no objection exists to receiving the testimony of deceased or insane witnesses.'

'Underhill on Criminal Evidence (2d Ed.) § 265.'

It will be noted that the above-quoted authority holds as admissible not only a transcript of testimony of an absent witness taken at a former trial but also the testimony of an absent witness taken at a preliminary hearing before trial. No distinction is made between a preliminary hearing and a former trial insofar as concerns the admissibility of testimony given by an unavoidably absent witness.

This question was again raised and considered by the Supreme Court of our state in the case of Davis v. State ⁷ decided in 1953 in which it reached a decision contrary to its prior holding in Blackwell, supra. The factual situation in Davis is identical in all material respects with the factual situation in the case sub judice. The question on appeal involved the admissibility of a transcript of testimony given at a preliminary hearing by several witnesses whose attendance could not be procured at the trial. In holding that the transcript of such testimony was not admissible against the defendant at the trial, the Supreme Court gave as reasons the same ones advanced by appellant in the case sub judice. In addition, the Supreme Court pointed out that the statutes of this state which permit the deposition to be taken of a material witness who testifies at a preliminary hearing strictly prohibit such deposition from being used as substantive evidence by the State at the trial except with the consent of the defendant. In this connection, the Supreme Court said:

'Chapter 902, F.S.A., relates to preliminary examinations in criminal cases. It is interesting to note that the Chapter makes no direct provision for the use of such evidence in a criminal trial, except in two instances. The first is, 902.12, that if the defendant testifies, And if he signs his deposition it may be used against him At the trial, and the second is that, in the case of depositions taken under Section 902.17, F.S.A. of a witness who does not give security, that such deposition may be used in the trial by the Defendant. The statute prohibits its use by the State 'unless the defendant consents thereto.' This chapter clearly negatives the idea that--even if such evidence would be admissible in view of the provisions of the Constitution above quoted--the Legislature ever intended that evidence at a preliminary hearing could be used in the trial of a defendant on an information based upon the evidence so adduced.'

The statute referred to by the court in Davis, to wit, F.S. § 902.17, F.S.A.,...