State v. Alexander

• Decision Date: 30 November 1972
• Docket Number: No. 2230,2230
• Citation: 503 P.2d 777,108 Ariz. 556
• Parties: STATE of Arizona, Appellee, v. Billy Ray ALEXANDER, Appellant.
• Court: Arizona Supreme Court

Page 777

503 P.2d 777

108 Ariz. 556

STATE of Arizona, Appellee, v. Billy Ray ALEXANDER, Appellant.

No. 2230.

Supreme Court of Arizona, In Division.

Nov. 30, 1972.

Gary K. Nelson, Atty. Gen., William P. Dixon, Mary Z. Chandler, Asst. Attys. Gen., Phoenix, for appellee; Joel J. Finer, College of Law, University of Arizona, Tucson, of counsel.

Clay G. Diamos, Tucson, for appellant.

LOCKWOOD, Justice.

At 2:45 a.m. on November 26, 1969, two men entered the lobby of the Tidelands Motor Inn in Tucson. One, who was tall and wearing a 'Fu Man Chu mustache,' went into the men's restroom. The second man approached the night desk clerk, Steven Kasai, asked about accommodations, and then entered the restroom. Ronald Battleson, a night porter at the Tidelands, observed the two men enter the lobby and the activities that transpired. When the two men emerged from the restroom, they were armed with guns. The taller man now wore a handkerchief over his mouth and he stated, 'This is a robbery.' Kasai and Battleson were ordered to lie on the floor with their faces down. Before fleeing, the robbers took the cash drawer and Kasai's billfold and ring.

Several months later, following a police investigation, defendant Billy Ray Alexander and another man were charged with the armed robbery, a violation of A.R.S. §§ 13--641, 13--643, subsec. B. Alexander pled not guilty and was tried alone. He presented an alibi but was convicted by a jury and sentenced pursuant to Arizona's Recidivist Statutes to from fifteen to twenty years in prison. He appeals, raising several questions for review.

'DID THE TRIAL COURT ERR IN PERMITTING THE USE OF THE TRANSCRIPT OF PRELIMINARY HEARING TESTIMONY OF MR. KASAI, A VICTIM OF THE ROBBERY?'

At some time subsequent to the robbery, Kasai moved from Tucson to California. He returned to Tucson, however, to testify at Alexander's preliminary hearing on February 20, 1970. On the morning of August 25, 1970 (several hours before Alexander's Superior Court trial was to begin), the prosecutor filed a motion for continuance on the ground that Kasai could not be located. Supplementing this motion was an affidavit by the prosecutor that Kasai was 'on business' in Florida. The affidavit further stated that the prosecutor had personally telephoned Mrs. Kasai in Anaheim, California, and that:

'she does not know Mr. Kasai's whereabouts in the State of Florida, that Mr. Kasai has informed her that he will call her when he intends to leave Florida, and that until he calls she has no idea of where Mr. Kasai is located in Florida. Further, that I have been informed by Mrs. Kasai that as soon as she is contacted by Mr. Kasai she will call me and have Mr. Kasai call me. Furthermore, in the past both Mr. Kasai and Mrs. Kasai have both been extremely cooperative with the State of Arizona in this matter, and I have every reason to believe that Mr. Kasai, at the present time, cannot be located by his wife in Florida.'

The motion for continuance was argued orally before the court on the same morning. The prosecutor stated that:

'I have made several phone calls to her (Mrs. Kasai). She has told me that she will call me as soon as she hears from her husband. I called her back and she hasn't heard from her husband yet. Yesterday was the last day I called her. I received no calls last night or this morning from her. And she just, according to her, does not know where he is in Florida until he calls.'

Defense counsel argued that while he opposed a continuance on the ground of Alexander's right to a speedy trial, he also opposed the alternative solution of introducing in evidence at trial the transcript of Kasai's testimony at the preliminary hearing, because it would violate Alexander's right to have a face to face confrontation with the witnesses against him. After questioning by the court, defense counsel acknowledged that were Kasai present at the trial his testimony would probably be 'substantially the same' as the testimony Kasai had given at the preliminary hearing. On the basis of defense counsel's acknowledgment of this fact, the trial court, pursuant to Arizona Rule of Criminal Procedure 246, ¹ 17 A.R.S., denied the motion for continuance and granted permission to the state, over defense objection, to introduce the transcript of Kasai's testimony at the preliminary hearing.

The right of criminal defendants to personally confront the witnesses against them is historically well-established and explicit. The Sixth Amendment right of confrontation is applicable as against the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

In Barber v. Page, 390 U.S. 719 at 724--725, 88 S.Ct. 1318 at 1322, 20 L.Ed.2d 255 at 260 (1968), the United States Supreme Court stated that '* * * a witness is not 'unavailable' (to testify in person) unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.'

The Arizona Constitution, art. 2, § 24, A.R.S., also grants this right of confrontation.

To implement the stringent standard of the Arizona Constitution, A.R.S. § 13--161 provides that:

'In a criminal action defendant is entitled:

'1. To have a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.

'2. To have counsel.

'3. To produce witnesses on his behalf, and To be confronted with the witnesses against him in the presence of the court, except that the testimony or deposition of a witness may be received in evidence at the trial as by law prescribed.' (Emphasis added.)

The Arizona Rules of Criminal Procedure also recognize the right of confrontation. Rule 23 states that 'all witnesses (at a preliminary hearing) shall be examined in the presence of the defendant and may be cross-examined.' However, Rule 30(B) provides that:

'B. When a witness has been examined as provided in Rule 23 and his testimony taken as provided in Rule 28 (i.e., reduced to writing by the magistrate or taken, transcribed, and certified by a court reporter), such testimony may be admitted in evidence upon the trial of the defendant for the offense for which he is held, either on behalf of the state or the defendant, If for any reason the testimony of the witness cannot be obtained at the trial and the court is satisfied that the inability to procure such testimony is not due to the fault of the party offering it.' (Emphasis added.)

Defendant Alexander does not now argue that the denial of the state's motion for continuance was error. Rather, his claim is that the trial court abused its discretion in allowing witness Kasai's preliminary hearing testimony to be read to the jury. We agree that the latter procedure constituted an abuse of discretion--despite the defendant's objection to a continuance.

In Valuenzuela v. State, 30 Ariz. 458, 248 P. 36 (1926), this Court held that the issuance of a subpoena for a missing witness coupled with an affidavit by a deputy sheriff that he had been unable to find the witness but believed him to be in Nevada, was insufficient to justify the admission of the transcript. Judge Henry Ross wrote that:

'(B)efore the testimony of a witness upon a previous trial can be used (pursuant to § 1052 of the Penal Code of 1913, a statutory predecessor to the present Ariz.R.Crim.P. 256, which allows testimony recorded in a court of record to be read at a subsequent trial or proceeding in the same action), it must be made to appear by competent evidence that such witness is either dead or beyond the jurisdiction of the court. The preliminary fact, whichever it may be, must be shown to exist. It is not sufficient to show simply that the witness had testified in a prior trial, and that his testimony had been stenographically reported.

* * *

* * * 'By the common law it was absolutely essential that the preliminary proof of the facts permitting the use of the secondary evidence should be established by competent evidence, and, as we conceive it, the same rule should, and does, apply under section 1052 * * *.' 30 Ariz. at 461, 462, 248 P. at 37, 38.

The opinion then cited a California case in which a woman signed an affidavit affirming that her brother, the would-be witness, was deceased. The California Supreme Court held that

'The evidence introduced to show the death of the witness was as much a part of the trial as any other part of it, and the fact that the witness was dead could no more be shown by affidavit than the fact that dying declarations could be shown by affidavit to have been made under the sense of impending death, or that the contents of a written document could be shown, supplemented by an affidavit to the effect that the document was lost. The statute says the fact of death must be satisfactorily shown to the court. (People v. Plyler, 126 Cal. 379, 58 P. 904 (1899).)' 30 Ariz. at 463, 248 P. at 38.

Judge Ross of this Court then noted that:

'While section 1052, supra, does not provide that the foundation for the use of the testimony shall be satisfactorily shown to the court, that, no doubt, is the right rule, and it means it must be shown by competent evidence.

* * *

* * *

'We are of the opinion the court erred in permitting the deposition to be read over the objection of the appellant.

'It only remains to determine whether the testimony thus read to the jury was prejudicial to appellant's rights. We think there can be no question about that.' 30 Ariz. at 463--465, 248 P. at 38--39.

In Sam v. State, 33 Ariz. 383, 265 P. 609 (1928), involving facts quite similar to those in the instant case, this court reaffirmed the rule promulgated in the Valuenzuela case, Supra:

'We think the rule laid down in the Valuenzuela Case is the one to apply in this. While the statute in question states that the witness must be shown by the return of the sheriff on a subpoena duly issued to be out of the jurisdiction of the court, such subpoena is merely preliminary evidence, and not...