State v. Edwards, 3957-2

• Decision Date: 04 May 1983
• Docket Number: No. 3957-2,3957-2
• Citation: 136 Ariz. 177,665 P.2d 59
• Parties: STATE of Arizona, Appellee, v. Robert EDWARDS, aka Willie Barefield, Appellant.
• Court: Arizona Supreme Court

Page 59

665 P.2d 59

136 Ariz. 177

STATE of Arizona, Appellee, v. Robert EDWARDS, aka Willie Barefield, Appellant.

No. 3957-2.

Supreme Court of Arizona, In Banc.

May 4, 1983.

Rehearing Denied June 14, 1983.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Barbara A. Jarrett, Asst. Attys. Gen., Phoenix, for appellee

Michael J. Meehan, Tucson, for appellant.

FELDMAN, Justice.

Robert Edwards was convicted of first degree felony murder, armed robbery and armed burglary. He was sentenced to life imprisonment for murder, and two terms of twelve to thirty-five years for the other crimes, the terms to run concurrently. ¹ He appeals. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. § 13-4031.

At approximately one o'clock on the morning of October 10, 1974, the La Conga Bar in Tucson, Arizona was robbed at gunpoint. The proprietor suffered a fatal heart attack during the robbery. The robbers obtained money and valuables and fled. The police investigation following the incident was unsuccessful. However, in January of 1976, Cleveland Reed, while in jail for unrelated charges, admitted his involvement in the La Conga Bar robbery and gave the police information which led to the arrest of defendant and several alleged co-conspirators. Reed was granted immunity from all charges stemming from the La Conga Bar incident in exchange for his testimony concerning the robbery.

Defendant raises several issues on appeal. Additional facts will be set out as necessary in the discussion of these issues.

RIGHT OF CONFRONTATION

The defendant argues that his right of confrontation was violated by the admission of testimony given by Delores Williams at his second trial. The testimony had been admitted under Ariz.R.Crim.P. 19.3 and Ariz.R.Evid. 804(b)(1) because Ms. Williams was found to be "unavailable" at the third trial.

The right of an accused to confront an adverse witness is guaranteed by the sixth amendment to the United States Constitution ² which is applicable to the states under the fourteenth amendment, Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067-68, 13 L.Ed.2d 923 (1965), and by art. 2, § 24 of the Arizona Constitution, ³ State v. Pereda, 111 Ariz. 344, 345, 529 P.2d 695, 696 (1974). This right has been considered one of the most important safeguards to a fair trial. Its purpose is to give an accused the Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895).

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.

Notwithstanding its essential nature in securing a fair trial, the confrontation clause has never been interpreted literally to require the exclusion of all statements of persons who do not appear at trial. The problem becomes determining when "considerations of public policy and the necessities of the case" permit dispensing with confrontation at trial. Mattox v. United States, 156 U.S. at 243, 15 S.Ct. at 340.

In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the United States Supreme Court formulated a two-step approach in order to accommodate these competing interests. Before the statements of a witness who is not present for cross-examination at trial may be admitted into evidence, the confrontation clause first requires a showing that the witness is unavailable. Id. at 65, 100 S.Ct. at 2538. Once a witness is shown to be unavailable, the statement is admissible only if it bears adequate "indicia of reliability." Id. at 65-66, 100 S.Ct. at 2539. This reliability may be inferred where the evidence falls within a "firmly rooted hearsay exception." Id. at 66, 100 S.Ct. at 2539; Mancusi v. Stubbs, 408 U.S. 204, 213-16, 92 S.Ct. 2308, 2313-15, 33 L.Ed.2d 293 (1972) (cross-examined prior trial testimony). The prosecution bears the burden of establishing these predicates. Ohio v. Roberts, 448 U.S. at 65, 100 S.Ct. at 2538-39; State v. Alexander, 108 Ariz. 556, 561, 503 P.2d 777, 782 (1972).

To establish the element of unavailability, the State must have made a good-faith effort to obtain the witness' presence at trial. Ohio v. Roberts, 448 U.S. at 74, 100 S.Ct. at 2543; Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968); State v. Ray, 123 Ariz. 171, 172, 598 P.2d 990, 991 (1979); State v. Watson, 114 Ariz. 1, 6, 559 P.2d 121, 126 (1976); State v. Alexander, supra. It is within the discretion of the trial court to determine whether the State has made a sufficient effort to locate the witness. State v. Pereda, supra; State v. Owens, 103 Ariz. 541, 543, 447 P.2d 233, 235 (1968); State v. Greer, 27 Ariz.App. 197, 201, 552 P.2d 1212, 1216 (1976), overruled on other grounds, State v. Hughes, 120 Ariz. 120, 128, 584 P.2d 584, 592 (App.1978). In the instant case, the trial court determined that the State made a good-faith effort to locate Delores Williams. Defendant claims that the evidence was not sufficient to support that ruling.

The evidence offered by the State on this issue consisted of the testimony of Carl Kishman, an investigator for the Pima County Attorney's Office. Kishman testified that two weeks prior to the trial, the prosecuting attorney instructed him to locate and subpoena Delores Williams. Kishman first checked the records of the local utility company. The records indicated that a Delores Williams had been receiving utility service at 1802 East 31st Street in Tucson, but service under that name had been discontinued three months earlier. He then checked the police and sheriff records. The police records revealed that an arrest warrant had been issued for Williams in connection with a previous hearing; Kishman testified that the address listed on the warrant was the same residence on 31st Street. He then checked, without success, the Tucson city directory, telephone directory, and the local office of the Department of Economic Security; he also contacted the Florence Prison to see if the witness' brother had been in touch with her.

Kishman located and was able to talk with the witness' mother. The mother told him that she believed Williams had moved to Seattle, Washington, but she did not know how to reach her daughter. Following this lead, Kishman telephoned the district attorney's office in Seattle and requested that a search be made in that city We note first that no subpoena was issued for this witness. Defendant argues that under Alexander, supra, failure to issue a subpoena establishes the lack of a "good-faith effort" as a matter of law. We are unwilling to adopt so strict a rule. Ordinarily, a good-faith effort would require issuance of a subpoena and diligent efforts to serve it. However, if the witness' whereabouts are unknown and if the prosecution makes a diligent but unsuccessful effort to locate the witness, issuance of a subpoena which could not be served would add nothing and would be futile. As stated previously, the true issue is whether the State made a good-faith effort to locate the witness so that he or she could be put under subpoena. State v. Pereda, supra.

for the witness. Kishman testified that a Seattle investigator had been unsuccessful in locating Williams.

Defendant argues with persuasive force that the State's attempt to locate the witness was far from thorough. Kishman testified that during his investigation of police records he found a warrant which had been issued at the State's request to ensure Williams' presence at defendant's second trial. Kishman testified that the warrant contained the same address on 31st Street in Tucson. There was also evidence in the record that Williams had lived at that address in 1977 and that her mother had also resided there. In spite of these facts, Kishman did not check the address to confirm that Williams had moved. Kishman was aware that this witness had used aliases. As far as the State knew, the witness was continuing to live at the 31st Street address and had obtained utility service under a different name. The investigator did not interview any neighbors in this area to see if they had information on Williams' whereabouts. In addition, the State did not make a postal check to see if the witness had left any forwarding address.

The State left other leads untouched as well. The bench warrant Kishman discovered in police records also contained six additional addresses where Williams might be found. None of these leads was pursued. The State was also aware that Williams had a boyfriend in Tucson and had lived with him in the past, but no attempt was made to find the friend or check the address to see whether Williams was living there again.

We acknowledge that "a good faith search does not mean that every lead, no matter how nebulous, must be tracked to the ends of the earth ...." State v. Greer, 27 Ariz.App. at 201-02, 552 P.2d at 1216-17; however, obvious and essential leads must be investigated. An appropriate standard to apply is to ask whether the leads which were not followed would have been the subject of investigation if the State had been trying to find an important witness and had no transcript of prior testimony. See United States v. Mann, 590 F.2d 361, 367 (1st Cir.1978); United States v. Lynch, 499 F.2d 1011, 1023 (D.C.Cir.1974).

The State argues that the lack of complete investigation in Tucson was justified because the witness' mother had told the investigator that she believed her daughter had moved to Seattle, Washington. The fact 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 witness...