State v. Briley
| Decision Date | 18 January 1973 |
| Docket Number | No. 2036--2,2036--2 |
| Citation | 109 Ariz. 74,505 P.2d 245 |
| Parties | STATE of Arizona, Appellee, v. William Auston BRILEY, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., Phoenix by Jerry Schmidt, former Asst. Atty. Gen., Tucson, for appellee.
O'Dowd, Fahringer & Diamos by Clay G. Diamos, Tucson, for appellant.
Defendant, William A. Briley, was found guilty of armed robbery in February of 1969. Upon appeal, this Court reversed and ordered a new trial, State v. Briley, 106 Ariz. 397, 476 P.2d 852 (1970). In March of 1971 the defendant was again found guilty by a jury of armed robbery. He was sentenced to serve not less than 8 nor more than 10 years. From this judgment of conviction and sentence he appeals.
The facts of the case were set forth in State v. Briley, Supra, and the facts presented at the retrial were essentially the same as presented at the first trial. At the second trial, the court allowed the testimony of the victim, Ray Owens, from the first trial to be read into evidence over the objection of the defense.
In this appeal the defendant challenges as error the admission of the transcript from the prior trial into evidence and the admission of certain exhibits placed into evidence.
Ordinarily, the defendant must be given the opportunity to test the recollection and credibility of the witnesses against him in a face to face encounter before the jury. This Sixth Amendment right of confrontation in the Constitution is essential and fundamental, and has been made obligatory upon the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). A.R.S. Arizona Constitution Art. 2, § 24, A.R.S. § 13--161. There is, though, a well cited and well reasoned exception to this rule. The defendant's rights of confrontation and cross-examination are not violated where the witness is presently unavailable, his testimony has been preserved in a prior judicial proceeding and defendant has had at least the opportunity to confront the witness and cross-examine him. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); State v. Lippi, 108 Ariz. 342, 498 P.2d 209 (1972); State v. Stuard, 104 Ariz. 305, 452 P.2d 98 (1969); State v. Head, 91 Ariz. 246, 371 P.2d 599 (1962).
In the recent case of Barber v. Page, Supra, the U.S. Supreme Court held 'a witness is not 'unavailable' for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.' In Barber, it was held that no good faith efforts had been made. The witness in the cited case was in a federal penitentiary out of the state. His presence there was known but no attempt was made to have him brought before the trial court to testify. Mere absence then, from the jurisdiction where the witness' address is known is no longer a sufficient showing to dispense with the right of confrontation. There must be a showing of a good faith effort to obtain the presence of the witness for the trial. But in the case at bar, the exact whereabouts of the witness was not known. It was apparent from Owens' testimony at the first trial that he was a hobo who never stayed long in one place. Testimony at a hearing on the motion to admit the transcript revealed what was undoubtedly a 'good-faith' effort by the State to secure the presence of the witness at the trial. A check was made at least three times at his last known address in Tucson; attempts were made to find the witness in the Marana and Eloy areas; and a teletype message was sent to all law enforcement agencies in the state with a description of the witness with a request that he be located. These efforts produced no results.
The defendant contends the State had reason to believe that the witness was out of the state, somewhere in the state of Washington, and that the prosecution failed in its duty under Barber to inquire as to his whereabouts there. The fact that the witness might have been somewhere in the state of Washington does not mean that the prosecution must contact all law enforcement agencies in that state to locate the witness. In State v. Owens, 103 Ariz. 541, 447 P.2d 233 (1968), we recognized the problems of securing the presence of an 'itinerant laborer' and held that under such circumstances, where there was evidence to show the witness had left the state, there was no requirement that subpoenas be issued and sent to the sheriffs of other states.
Barber does not require more than was done in this case. Essentially, Barber stands for the proposition that a showing of...
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State v. Edwards, 3957-2
...that a witness has possibly left the jurisdiction does not result in the automatic finding of unavailability. State v. Briley, 109 Ariz. 74, 75-76, 505 P.2d 245, 246-47 (1973); State v. Ratzlaff, 27 Ariz.App. 174, 176, 552 P.2d 461, 463 (1976). In situations where there is evidence that the......
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State v. Reid
...personally in the presence of the jury trying the accused. The most recent statement of this Court was made in 1973 in State v. Briley, 109 Ariz. 74, 505 P.2d 245. There, we 'Ordinarily, the defendant must be given the opportunity to test the recollection and credibility of the witnesses ag......
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State v. Ratzlaff, 1
...is not sufficient to dispense with the right of confrontation, especially when the address of a witness is known. State v. Briley, 109 Ariz. 74, 505 P.2d 245 (1973). This is undoubtedly due in large part to the state's ability to utilize the Uniform Act to Secure the Attendance of Witnesses......