State v. Dreiling

• Court: Missouri Court of Appeals
• Writing for the Court: BILLINGS
• Citation: State v. Dreiling, 601 S.W.2d 660 (Mo. App. 1980)
• Decision Date: 26 June 1980
• Docket Number: No. 11324,11324
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Terry Dennis DREILING, Defendant-Appellant.

Page 660

601 S.W.2d 660

STATE of Missouri, Plaintiff-Respondent, v. Terry Dennis DREILING, Defendant-Appellant.

No. 11324.

Missouri Court of Appeals, Southern District, Division Two.

June 26, 1980.

John D. Ashcroft, Atty. Gen., Steven W. Garrett, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Charles E. Buchanan, Asst. Public Defender, Joplin, for defendant-appellant.

BILLINGS, Presiding Judge.

The pivotal issue in defendant's appeal of his felonious stealing conviction is the State's use of preliminary hearing testimony of an absent witness at the trial of the defendant. We reverse and remand for a new trial.

The alleged offense occurred in Jasper County on April 10, 1978. A preliminary hearing for defendant and two codefendants was held on May 11, 1978. Bernie Rose Jeffcoat testified for the State under an agreement that no charges would be lodged against her for her alleged participation in the crime. Her testimony was the only evidence linking the defendant to the alleged theft of monies from a service station cash register. The public defender, representing the three named defendants, cross-examined Jeffcoat. An information against defendant was filed May 23, 1978. ¹

The defendant's trial was apparently scheduled for January 31, 1979, but continued to February 1, 1979. On January 29, 1979, the prosecuting attorney requested that a subpoena be issued to Jasper County authorities for Jeffcoat. The prosecuting attorney explained he requested the subpoena "primarily as a formality on my part to show that I had issued a subpoena, period . . . ." On the same date the prosecutor notified the public defender that the State intended to use Jeffcoat's preliminary hearing testimony. By formal motion and voiced objections the public defender sought to bar the use of Jeffcoat's earlier testimony, contending, inter alia, the State had not exercised due diligence in subpoenaing Jeffcoat and that the use of the prior testimony would run afoul of the Constitutional provisions guaranteeing a defendant's rights of confrontation and cross-examination.

Immediately before trial the court conducted a hearing on the "unavailability" of Jeffcoat and the State's efforts to subpoena this witness. The only evidence on this question came from the testimony of Deputy Sheriff York of Jasper County. ² The deputy knew Jeffcoat and her parents, and in fact lived next door to them in Jasper, Missouri. He stated that when a subpoena had been issued for Jeffcoat in December he had telephoned the girl's mother and had been advised the daughter was then living in Kansas City but that the mother did not know her address. A week or so before defendant's trial the prosecuting attorney asked the deputy to check on the witness and the deputy, again by telephone, contacted the witness' mother. The mother said she had seen her daughter one time since the deputy's earlier inquiry but that she still did not know where her daughter was living. The deputy admitted he had not made any inquiries as to Jeffcoat's whereabouts of other members of her family or of her acquaintances in Jasper, Missouri. There was no evidence any effort was made to serve the January 29 subpoena and if it was returned, the record fails to reflect such. No subpoena was directed to Jackson County authorities and no effort was made to attempt to locate Jeffcoat in the Kansas City area.

Based upon the foregoing, the trial court found the State had made diligent efforts to subpoena Jeffcoat, ruled that this witness was unavailable, and the State could use her preliminary hearing testimony. A "transcript" of this testimony was prepared from a tape recording and was admitted as a part of the State's case.

The general rule is that testimony given by a witness at a former trial or at a preliminary examination is not admissible at a subsequent trial in the absence of some adequate justification and proper predication therefor, or an agreement of counsel. 23 C.J.S. Criminal Law §§ 892-896, pp. 506-525. The conditions under which such evidence is admissible as substantive evidence are that such an examination or trial was had in a judicial tribunal; that the witness was sworn and testified; that the accused was present and had an opportunity for cross-examination; that the parties and issues were substantially the same as in the case on trial; and, the witness has since died (Garret v. State, 6 Mo. 1 (1839)), become insane (State v. Pierson, 337 Mo. 475, 85 S.W.2d 48 (1935)), left the state permanently or for an indefinite time (State v. Williamson, 343 Mo. 732, 123 S.W.2d 42 (1939)), ³ is unable to attend and testify on account of sickness or physical disability, or after due diligence cannot be found (State v. Purl, 183 S.W.2d 903 (Mo.1944)). ⁴ Another recognized exception is where a witness who has testified at a previous trial or at a preliminary examination invokes the privilege against self-incrimination and becomes "unavailable." State v. Holt, 592 S.W.2d 759 (Mo. banc 1980).

We cannot agree that two telephone calls to Jeffcoat's mother over a space of approximately six weeks and the request for a subpoena for the witness on the eve of trial, as a "formality", constitutes a good-faith effort or amounts to diligence on the part of the State. "Greater diligence should be exercised with respect to a witness who was a resident at the time of testifying for the admissibility of the former testimony for the purpose of establishing the facts therein asserted as true." State v. Gallina, 352 Mo. 557, 560, 178 S.W.2d 433, 434 (1944). No inquiry as to the girl's whereabouts was directed to her father, sister, ...