Mechler v. Procunier, 84-1252

Decision Date15 March 1985
Docket NumberNo. 84-1252,84-1252
Citation754 F.2d 1294
Parties17 Fed. R. Evid. Serv. 947 Larry J. MECHLER, Plaintiff-Appellant, v. Raymond K. PROCUNIER, Director, Texas Department of Corrections, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Harry A. Nass, Jr., Ruben Montemayor, San Antonio, Tex., for plaintiff-appellant.

Jim Mattox, Atty. Gen., Charles A. Palmer, Laurie A. Booras, Asst. Attys. Gen., Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, GARWOOD, and JOLLY, Circuit Judges.

CLARK, Chief Judge:

Larry Mechler appeals from a judgment denying a petition for a writ of habeas corpus. The principal issue on appeal is whether the introduction at trial of the preliminary hearing testimony of an unavailable witness denied Mechler his constitutional right to confront witnesses against him. We hold that Mechler's constitutional rights were not violated and affirm denial of the writ.

I

Larry Mechler is serving a 75-year prison sentence for murder. After exhausting his state court remedies, Mechler filed a petition for writ of habeas corpus under 28 U.S.C. Sec. 2254. In his petition, Mechler alleges that introducing into evidence the transcript testimony of Frances Wise, given at the preliminary hearing (in Texas called the "examining trial"), 1 violated his sixth amendment right to confront witnesses against him. Mechler asserts his right of confrontation was violated because 1) the state failed to adequately prove Wise was unavailable to testify, and 2) his attorney was denied an effective opportunity to cross examine Wise at the hearing. The case was referred to a magistrate, who, after an evidentiary hearing, recommended granting habeas corpus relief and a new trial. On review, the district court denied relief. Mechler filed a timely notice of appeal and was granted a certificate of probable cause to appeal by the district court.

II

The underlying facts are not substantially in dispute. Mechler's retained counsel had travelled to Uvalde, Texas to appear at Mechler's bail hearing. Upon arrival, counsel was surprised to learn that Frances Wise, the only eyewitness to the murder, was leaving the state the next day. She was moving to Missouri. Upon learning this, Mechler's counsel requested a preliminary hearing be held immediately. The hearing was held, and Wise testified as the state's witness concerning her knowledge of the murder.

Counsel subsequently learned that autopsy and ballistics reports had been prepared approximately one week before the preliminary hearing. However, at the time of the hearing counsel had not seen these reports and was unaware of their existence.

Mechler asserts that without knowing the contents of these reports his counsel was unable to effectively cross-examine Wise at the preliminary hearing. These reports indicated both a .357 caliber bullet and a .38 caliber bullet were taken from victims who were at the murder scene. 2 Because Mechler owned a .357 magnum pistol and argued self defense at trial, he claims these reports bolstered his defense and were essential to effective cross-examination of Wise on the critical question of whether other guns were present at the scene of the crime. He asserts that the absence of effective cross-examination constitutionally precluded admission of Wise's testimony at trial.

The primary object of the sixth amendment was to prevent the use of ex parte statements against an accused who has no opportunity to confront and cross-examine the witness. It guarantees the accused an opportunity to test the recollection and sift the conscience of the witness. California v. Green, 399 U.S. 149, 157-58, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970). In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the United States Supreme Court reviewed the relationship between the confrontation clause and the hearsay rule. The Court noted that historically the focus of concern with absent witnesses has been to insure their statements demonstrate "indicia of reliability." Thus, the Court devised a two-prong test in Ohio v. Roberts, under which the confrontation clause would operate to restrict admissible hearsay in two ways: 1) the party seeking to introduce the hearsay statement must demonstrate the unavailability of the declarant who made the statement, and 2) the statement must bear sufficient "indicia of reliability." Id. at 66, 100 S.Ct. at 2539.

A

Wise's "availability" is the first issue. Mechler claims the state failed to prove it made a good faith effort to secure Wise's presence at trial. Therefore, because Wise was not technically "unavailable," use of her previous testimony at trial was constitutionally prohibited.

In Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), the Supreme Court stated "there may be some justification for holding 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...." Id. at 725-26; 88 S.Ct. at 1322. A witness is "unavailable" for purposes of the confrontation clause, only if the government makes a good faith effort to obtain his or her presence. Id. at 724-25; 88 S.Ct. at 1322. Upon reviewing the record, we find Wise was constitutionally unavailable to testify at trial, and the state demonstrated adequate, though unsuccessful, attempts to secure her presence.

At the preliminary hearing, Wise stated under oath that she intended to move out-of-state the next day. The prosecuting attorney testified at trial that approximately one year earlier he had received a telephone call from Wise who told him her address in Danville, Illinois. Prior to trial, the prosecutor telephoned Wise at the number she had given him and was told Wise had not been seen "in some time." The state was unsuccessful in its efforts to locate and serve Wise in either Illinois or Texas.

This case was tried in December, 1977. Authorities made at least five separate attempts to compel Wise's attendance at trial. Subpoenas for her presence were issued in Medina County, Texas in November 1976, June 1977 and October 1977. The Sheriff of Medina County testified he could not locate Wise within his jurisdiction. Judge Jack Woodley of the 38th District of Texas issued two requests under the Uniform Act to Secure Attendance of Out-of-State Witnesses. Tex.Crim.Proc.Code Ann. art. 24.28 (Vernon 1966). These requests, issued in January and in November of 1977, were forwarded to authorities in Vermilion County, Illinois, where Wise had told the prosecutor she lived. Illinois authorities were unable to locate and serve her. Efforts to procure Wise's presence included application for and receipt of over $300 from the state comptroller to pay for Wise's travel expenses.

In sum, Wise, under oath, expressed an intent to move to another state. Her last reported address was Danville, Illinois. Nothing in the record suggests Wise returned to Texas. All efforts to locate and serve Wise in the county of her last known address and in the county where the offense occurred were unsuccessful. The record clearly reflects that reasonable efforts were made to secure Wise's presence at trial. These attempts were sufficient to prove an adequate good faith effort, and that Wise was therefore unavailable to testify at Mechler's trial.

B

Besides contesting Wise's availability, Mechler claims he was denied an effective opportunity to cross-examine Wise because his attorney had not seen the ballistics and autopsy reports prior to the preliminary hearing. The narrow question Mechler asks us to decide is whether de minimis questioning or ineffective cross-examination satisfies the sixth amendment right to confrontation. In Ohio v. Roberts, the Supreme Court expressly declined to decide this issue, 448 U.S. at 70, 100 S.Ct. at 2541, and we find no Fifth Circuit precedent on point. However, because we find that cross-examination of Wise was neither de minimis nor ineffective, we also expressly decline to reach that issue in this case. Rather, we find that Wise's testimony bore sufficient indicia of reliability to permit its admission in complete conformity with the sixth amendment.

Under the second prong of the Roberts test, the confrontation clause is not abridged by the admission of hearsay, provided it bears sufficient "indicia of reliability." To determine whether cross-examination of Wise was effective and reliable we look more closely at the Supreme Court's decision in Ohio v. Roberts, a case which factually resembles Mechler's case.

In Roberts, the witness, Anita, failed to appear despite the issuance of five separate subpoenas directed to her parents' home, which was her last known address. Her parents had not spoken with Anita in seven or eight months and did not know how to contact her, even in an emergency. They knew only that she was travelling somewhere outside the state. The Supreme Court found her testimony admissible because it bore adequate "indicia of reliability," even though, technically, she had not been cross-examined at the preliminary hearing. Anita was a witness for the defense; technically, her testimony was direct examination. However, her testimony so resembled cross-examination in character and substance that the Court found it substantially complied with the purposes behind the confrontation clause.

Wise's testimony, like that at question in Roberts, was tested "with the equivalent of significant cross-examination." 448 U.S. at 70, 100 S.Ct. at 2541. As in Roberts, the questioning of Wise clearly partook of cross-examination as a matter of form, replete with leading questions, "the principal tool and hallmark of cross-examination." Id. at 70-71, 100 S.Ct. at 2541. In addition, Mechler's counsel's questioning comported with the principal purpose of cross-examination: "to challenge...

To continue reading

Request your trial
10 cases
  • State v. James Edward S.
    • United States
    • West Virginia Supreme Court
    • December 12, 1990
    ...to secure the witness for trial, the prosecution has failed to carry its burden of proving unavailability. See also Mechler v. Procunier, 754 F.2d 1294 (5th Cir.1985); Ewing v. Winans, 749 F.2d 607 (10th Cir.1984); State v. Edwards, 136 Ariz. 177, 665 P.2d 59 (1983); People v. Dement, 661 P......
  • Lowery v. Anderson
    • United States
    • U.S. District Court — Southern District of Indiana
    • July 6, 1999
    ...been successful and should have been required before admitting testimony from the preliminary hearing). Similarly, in Mechler v. Procunier, 754 F.2d 1294 (5th Cir.1985), the only eyewitness to the murder testified at a preliminary hearing and then left the state. Applying Ohio v. Roberts an......
  • Martinez v. Sullivan
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • August 4, 1989
    ...faith and reasonableness necessarily require use of the procedures available under the Act.3 The Fifth Circuit in Mechler v. Procunier, 754 F.2d 1294, 1297 (5th Cir.1984), held that the prosecution acted in good faith in attempting to secure the presence of an out-of-state witness when, int......
  • Woodfox v. Cain
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • June 21, 2010
    ...was one in which at a preliminary hearing, some cross-examination of the later unavailable witness had occurred. Mechler v. Procunier, 754 F.2d 1294, 1297-98 (5th Cir.1985). Even though defense counsel in the earlier proceeding had not yet seen the ballistics and autopsy reports, we held th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT