Phillips v. Wyrick

• Decision Date: 11 August 1977
• Docket Number: No. 76-2107,76-2107
• Citation: 558 F.2d 489
• Parties: Freddie Joseph PHILLIPS, Appellant, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 489

558 F.2d 489

Freddie Joseph PHILLIPS, Appellant, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Appellee.

No. 76-2107.

United States Court of Appeals,

Eighth Circuit.

Submitted May 20, 1977.

Decided July 20, 1977.

Rehearing and Rehearing En Banc Denied Aug. 11, 1977.

H. David Robards, Asst. Federal Public Defender, Kansas City, Mo., for appellant; David R. Freeman, Federal Public Defender, Western District of Mo., Kansas City, Mo., on brief.

Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Mo., for appellee; John D. Ashcroft, Atty. Gen., Jefferson City, Mo., on brief.

Before BRIGHT and HENLEY, Circuit Judges, and LARSON, District Judge. ^*

HENLEY, Circuit Judge.

Petitioner appeals from the district court order ¹ denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 in which he collaterally attacked his conviction for robbery, claiming a deprivation of his constitutional right of confrontation. We affirm the district court's denial of relief.

Petitioner Freddie Joseph Phillips was convicted by jury of first degree robbery in the Circuit Court of Jasper County, Missouri. Phillips was initially charged and afforded a preliminary hearing in the Magistrate Court for Jasper County. At the preliminary hearing, Phillips' alleged accomplice Chris Brownfield testified for the prosecution which was conducted by Grant Scott, Assistant Prosecuting Attorney for Jasper County. Phillips was represented by counsel at the preliminary hearing, and had an opportunity to cross-examine Brownfield. No stenographic record of Brownfield's testimony at the preliminary hearing was made.

When the case was subsequently tried in the Circuit Court of Jasper County, witness Brownfield invoked his privilege against self-incrimination and refused to answer any questions. Thereafter, the state called Assistant Prosecutor Scott who testified as to the substance of Brownfield's testimony at the preliminary hearing.

According to Scott, Brownfield had testified to the effect that on April 18, 1972 he and Phillips had driven to the Koronado Kourts in Joplin, Missouri, where they had fought with the seventy-one year old proprietor John Dobrauc and had robbed him of his billfold containing $225.00. Scott indicated at trial that he had no difficulty recalling Brownfield's testimony from the preliminary hearing because when he was questioning Brownfield at the preliminary proceeding Scott had had before him a prior out-of-court statement given by Brownfield to the state. As recounted by Scott at trial, Brownfield's sworn testimony at the preliminary hearing basically corroborated the trial testimony of the victim, Mr. Dobrauc, who was the state's principal witness.

The defense rested without presenting any evidence, the jury returned a verdict of guilty, and Phillips was sentenced to fifteen years imprisonment. On direct appeal, the Missouri Supreme Court affirmed the conviction finding, inter alia, that Phillips' right of confrontation had not been violated by the admission of Scott's testimony, and that its admission did not constitute error. State v. Phillips, 511 S.W.2d 841 (Mo.1974). Phillips again raised the confrontation issue in his habeas corpus petition. Without holding a hearing, the federal magistrate made findings of fact and conclusions of law adverse to petitioner, and these were adopted by the district court.

In this appeal, Phillips continues to maintain that the introduction at trial of Brownfield's preliminary hearing testimony through the testimony of prosecutor Scott constituted an infringement of his right of confrontation. He further contends that he was entitled to an evidentiary hearing in the district court to explore the details of Brownfield's cross-examination at the preliminary hearing and to determine whether Scott had examined Brownfield's written out-of-court statement prior to testifying at trial.

The state argues that there was no constitutional violation because the introduction at trial of the disputed testimony fell within an established exception to the confrontation requirement, and in light of that the evidentiary hearing requested by the petitioner was not necessary. We agree.

The Supreme Court has repeatedly noted the near unanimity with which it has consistently expressed the belief that "the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal." Barber v. Page,390 U.S. 719, 721, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255 (1968); Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

An exception to the confrontation requirement was established in the early case of Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895), where a witness who testified at defendant's first trial died before his second trial. The Supreme Court held that admitting the prior testimony of a witness does not violate the Confrontation Clause where the witness is unavailable at trial, the testimony was given at a previous judicial proceeding against the same defendant, and the defendant had an opportunity to cross-examine the witness. See cases collected in Annot., 15 A.L.R. 495 (1921), and supplemental annotations at 79 A.L.R. 1392 (1932); 122 A.L.R. 425 (1939); 159 A.L.R. 1240 (1945).

This exception has been contained within carefully drawn confines. In Pointer v. Texas, supra, the introduction at trial of a witness' testimony from a prior preliminary hearing was found to violate defendant's right of confrontation because the defendant, for lack of counsel at the preliminary hearing, had been denied an adequate opportunity to cross-examine the witness. Similarly, in Barber v. Page, supra, use of the preliminary hearing testimony of an absent witness did not fall within the exception because there was not a sufficient showing that the witness was actually unavailable in that the state had failed to make a good faith effort to obtain the presence of the witness at trial.

Significantly, the Court in both Pointer and Barber distinguished the particular case before it from one in which the fatal defect had been cured, indicating that the introduction at a subsequent trial of the preliminary hearing testimony of a witness would probably avoid a confrontation problem where the defendant was afforded through counsel an adequate opportunity to cross-examine the witness at the preliminary proceeding, and the witness was shown to be actually unavailable at the time of trial.

The circumstances in which the preliminary hearing testimony of an unavailable witness would be constitutionally admissible were articulated in greater detail in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), where the witness, though physically available at trial, claimed lapse of memory. The Court stated that admission of the prior testimony was proper "wholly apart from the question of whether respondent had an effective opportunity for confrontation at the subsequent trial" because the witness' statement at the preliminary hearing "had already been given under circumstances closely approximating those that surround the typical trial." 399 U.S. at 165, 90 S.Ct. at 1938. The factors set forth as determinative were that at the preliminary hearing the witness was under oath; the defendant was represented by counsel, the same counsel, in fact, who later represented him at trial; the defendant had every opportunity to cross-examine the witness as to his statement; and the proceeding was conducted before a judicial tribunal equipped to provide a record of the hearing. Id.

The threshold issue to be considered in the instant case is whether the witness Brownfield was actually unavailable to testify at the petitioner's trial. When called to the stand, Brownfield invoked his Fifth Amendment privilege against self-incrimination and declined to answer questions. It is generally recognized that the "availability" of a witness depends as much on the production of his testimony as it does on his presence in court. Testimony from a witness who has claimed a privilege is for all practical purposes just as inaccessible as if he were dead or out of the jurisdiction of the court. Mason v. United States, 408 F.2d 903 (10th Cir. 1969); State v. Phillips, supra, 511 S.W.2d at 846-47. See Annot., 45 A.L.R.2d 1354, § 2 (1956).

The Court in California v. Green, supra, acknowledged the situation now before us when it commented that once the state had made a good faith effort to introduce evidence through the live testimony of a witness, " whether (the witness) then testified in a manner consistent or inconsistent with his preliminary hearing testimony, claimed a loss of memory, claimed his privilege against compulsory self-incrimination, or simply refused to answer, nothing in the Confrontation Clause prohibited the State from also relying on his prior testimony to prove its case against (the defendant)." (Emphasis added.) 399 U.S. at 167-68, 90 S.Ct. at 1940.

We conclude that Brownfield, by asserting his Fifth Amendment privilege, became an unavailable witness within the meaning of the traditional exception to the Sixth Amendment confrontation requirement so that use at trial of his preliminary hearing testimony was not constitutionally impermissible as long as the requisite safeguards were present at the time the prior testimony was given. United States v. Allen, 409 F.2d 611 (10th Cir. 1969); Gov. of the Virgin Islands v. Aquino, 378 F.2d 540 (3d Cir. 1967); State v. Phillips, supra; State v. Solomon, 5 Wash.App. 412, 487 P.2d 643 (1971). See United States v. Milano, 443 F.2d 1022 (10th Cir. 1971); United States v. Mobley, 421 F.2d 345 (5th Cir. 1970); United States v. Mason,supra ; Annot., 45 A.L.R.2d 1354 (1956).

We recognize, of course, that a preliminary hearing serves a more limited function than does a trial, and that the right of confrontation is...