McClain v. State, 81-1787

• Decision Date: 23 March 1982
• Docket Number: No. 81-1787,81-1787
• Citation: 411 So.2d 316
• Parties: Billy McCLAIN, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 316

411 So.2d 316

Billy McCLAIN, Appellant, v. The STATE of Florida, Appellee.

No. 81-1787.

District Court of Appeal of Florida, Third District.

March 23, 1982.

Taffer & Jacobs and Jack J. Taffer, Miami, for appellant.

Jim Smith, Atty. Gen. and Paul Mendelson, Asst. Atty. Gen., for appellee.

Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.

DANIEL S. PEARSON, Judge.

Neither the hospitalization of Daniel Rodriguez's wife, nor Daniel's understandable desire to be at her bedside rather than in court to testify at McClain's second trial, ¹ was a basis for allowing the State, over McClain's objection, to use Daniel's testimony given at McClain's first trial. ²

We reject the State's contention that these circumstances made Daniel "unavailable as a witness" under either Section 90.804(1)(d) or Section 90.804(1)(e), Florida Statutes (1979). Subsection (1)(d) provides that a declarant is unavailable as a witness if he

"(i)s unable to be present or to testify at the hearing because of death or because of then existing physical or mental illness or infirmity."

We are directed to no case, and have found none ourselves, which construes this language to include the death, illness or infirmity of a person other than the witness, no matter how closely related to the witness. Indeed, the very strictness with which the identical Federal Rule of Evidence has been construed in respect to the illness or infirmity of the witness himself, compare, e.g., Peterson v. United States, 344 F.2d 419 (5th Cir. 1965) (witness' pregnancy with complications not sufficient to render witness unavailable), with United States v. Bell, 500 F.2d 1287 (2d Cir. 1974) (witness who had undergone surgery and who would be unable to testify for at least two-and-a-half months could be determined to be unavailable), persuades us that the State's contention is untenable.

The State's argument that the witness comes within the definition in Section 90.804(1)(e) fares worse. That section provides that a declarant who

"(i)s absent from the hearing, and the proponent of his statement has been unable to procure his attendance or testimony by process or other reasonable means"

is unavailable as a witness. It should be obvious that the mere reluctance of a witness to attend a trial-understandable or not-does not mean that the State is unable to procure his attendance. The proponent of the former testimony must establish what steps it took to secure the appearance of the witness, see Government of the Canal Zone v. P (Pinto), 590 F.2d 1344 (5th Cir. 1979); M.S.D., Inc. v. United States, 434 F.Supp. 85 (N.D.Ohio 1977). Here the State, with full knowledge of the witness' whereabouts, ³ did nothing to procure his attendance. ⁴

Notwithstanding that we find error in the trial court's finding of unavailability and the consequent admission of Daniel's former testimony, we conclude that, under the circumstances of the case, the error was not only harmless, but one which could be said to have worked in the defendant's favor. ⁵ As the defendant argued to the jury the sole issue in the case was his identity as the perpetrator of the burglary of the car and the robbery of Daniel's wife, Pastora Rodriguez, who (with Daniel) occupied the vehicle. The only witness who could and did identify the defendant as the culprit was a bystander. ⁶ The former testimony of Daniel primarily consisted of a description of the perpetrator which substantially differed from the defendant's actual appearance and, therefore, was at odds with the bystander's testimony. ⁷ Accordingly, the error is harmless, ⁸ and the judgments of conviction under review are

Affirmed.

1 The defendant's first trial on the same charges resulted in a mistrial for reasons which are not clear from this record, but which are unimportant to our resolution of the issues on this appeal.

2 There is no question here that were the unavailability requirement met, this former testimony would qualify for admission as an exception to the rule making hearsay evidence inadmissible. Section 90.804(2)(a), Florida Statutes (1979), defines former testimony as: "Testimony given as a witness at another hearing of the same or a different proceeding ... if the party against whom the testimony is offered ... had an...