State v. Brookins

• Decision Date: 13 March 1972
• Docket Number: No. 2,No. 55878,55878,2
• Citation: 478 S.W.2d 372
• Parties: STATE of Missouri, Respondent, v. Milton BROOKINS, Jr., Appellant
• Court: Missouri Supreme Court

Page 372

478 S.W.2d 372

STATE of Missouri, Respondent, v. Milton BROOKINS, Jr., Appellant.

No. 55878.

Supreme Court of Missouri, Division No. 2.

March 13, 1972.

Motion for Rehearing or to Transfer to Court En Banc Denied

April 10, 1972.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

Daniel P. Reardon, Jr., St. Louis, for appellant.

NONNELLY, Judge.

Appellant, Milton Brookins, was convicted of assault with intent to ravish with malice by a jury in the Circuit Court of the City of St. Louis Missouri, and his punishment was assessed at imprisonment for a term of ninety-nine years. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.

The assault occurred on June 29, 1969, in St. Louis, Missouri. Appellant was charged by indictment filed July 15, 1969. Nancy Tresslar, 4924 Buckingham Court, was endorsed on the indictment as a witness. On August 6, 1969, counsel for appellant took the deposition of Nancy Tresslar under the authority of V.A.M.R. 25.10 and 25.11. Nancy Tresslar testified that appellant was at the scene of the crime on the afternoon in question. She also testified that she and her husband were moving to College Station, Texas, on or about September 1, 1969.

The trial began May 11, 1970. The State had made no attempt to secure the attendance of Nancy Tresslar at the trial by having her returned to Missouri under the provisions of the Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings (Missouri: V.A.M.S. §§ 491.400 to 491.450; Texas: Vernon's Ann.Tex.C.C.P. art. 24.28). The State had attempted, without success, to subpoena Nancy Tresslar at 4924 Buckingham Court, St. Louis, Missouri.

At the trial, the Special Assistant Circuit Attorney, in making his opening statement to the jury, referred to the testimony of Nancy Tresslar. Appellant's counsel immediately interrupted, stated that he assumed the State would attempt to introduce Nancy Tresslar's testimony by deposition, and stated he wanted 'to raise an objection to reading into evidence her deposition as a denial of the right secured to this defendant by the Sixth Amendment to the Constitution of the United States, a denial of confrontation of witnesses, the denial of cross examination * * *.' The objection was again asserted by reference when the deposition was offered and admitted in evidence, and again in the motion for new trial. Nancy Tresslar was not present at the trial.

In Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), the Supreme Court of the United States found the 'petitioner was deprived of his Sixth and Fourteenth Amendment right to be confronted with the witnesses against him at his trial in Oklahoma for armed robbery, at which the principal evidence against him consisted of the reading of a transcript of the preliminary hearing testimony of a witness who at the time of trial was incarcerated in a federal prison in Texas', and said:

'Many years ago this Court stated that 'The primary object of the (Confrontation Clause of the Sixth Amendment) . . . was to prevent depositions or ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.' Mattox v. United States, 156 U.S. 237, 242--243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895). More recently, in holding the Sixth Amendment right of confrontation applicable to the States through the Fourteenth Amendment, this Court said, 'There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of 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.' Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). See also Douglas v Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).

'It is true that there has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant. E.g., Mattox v. United States, supra (witnesses who testified in original trial died prior to the second trial). This exception has been explained as arising from necessity and justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement. See 5 Wigmore, Evidence §§ 1395--1396, 1402 (3d ed. 1940); McCormick, Evidence §§ 231, 234 (1954).

'Here the State argues that the introduction of the transcript is within that exception on the grounds that Woods was outside the jurisdiction and therefore 'unavailable' at the time of trial, and that the right of cross-examination was afforded petitioner at the preliminary hearing, although not utilized then by him. For the purpose of this decision we shall assume that petitioner made a valid waiver of his right to...