State v. Grier, 471A84

• Decision Date: 03 July 1985
• Docket Number: No. 471A84,471A84
• Citation: 331 S.E.2d 669,314 N.C. 59
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Charles Allen GRIER.

Page 669

331 S.E.2d 669

314 N.C. 59

STATE of North Carolina v. Charles Allen GRIER.

No. 471A84.

Supreme Court of North Carolina.

July 3, 1985.

Lacy H. Thornburg, Atty. Gen. by William B. Ray, Asst. Atty. Gen., Raleigh, for the State.

Fritz Y. Mercer, Jr., Charlotte, for defendant-appellant.

MEYER, Justice.

The sole issue presented for review is whether the trial court erred by allowing into evidence, over the defendant's objection, that portion of the transcript of evidence at defendant's former trial containing the testimony of State's witness Ronnie Easterling, who was not available to testify at defendant's subsequent trial for the same offenses. It is the defendant's contention that the witness was available and that the State failed to make the "good faith effort" to locate him prior to trial required before this form of hearsay evidence may be admitted against a defendant in a criminal action under the state and federal constitutions. For the reasons set forth below, we conclude that the prior recorded testimony of the unavailable witness was properly admitted into evidence at the defendant's second trial for the burglary of the Lee residence and the rape of Mrs. Lee and affirm the convictions and sentences imposed as a result of defendant's new trial.

As a general rule, the recorded testimony of a witness in a former trial will not ordinarily be admitted as substantive evidence in a later criminal trial as the prior testimony is considered hearsay, the admission of which would violate the accused's right of confrontation guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. If possible, the witness himself must be produced to testify de novo. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); State v. Prince, 270 N.C. 769, 154 S.E.2d 897 (1967); State v. Cope, 240 N.C. 244, 81 S.E.2d 773 (1954).

However, despite the "preference for face-to-face confrontation at trial" reflected by the Confrontation Clause, Ohio v. Roberts, 448 U.S. at 63, 100 S.Ct. at 2537, 65 L.Ed.2d at 606, it has long been held that an exception to the confrontation requirement will be recognized where a witness is unavailable to testify, but has given testimony at a previous judicial proceeding against the same defendant, and was at that time subject to cross-examination by that defendant. Barber v. Page, 390 U.S. at 722, 88 S.Ct. at 1320, 20 L.Ed.2d at 258; Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895); State v. Graham, 303 N.C. 521, 279 S.E.2d 588 (1981); State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977); State v. Jackson, 30 N.C.App. 187, 226 S.E.2d 543 (1976); State v. Biggerstaff, 16 N.C.App. 140, 191 S.E.2d 426 (1972). As we stated in State v. Graham, "[i]n such a situation, the transcript of the witness' testimony at the prior trial may be admitted as substantive evidence against the same defendant at a subsequent trial. The justification for this exception is that the defendant's right of confrontation is adequately protected by the opportunity to cross-examine afforded at the initial proceeding." 303 N.C. at 523, 279 S.E.2d at 509.

In State v. Smith, 291 N.C. at 524, 231 S.E.2d at 675, Justice Huskins, writing for the Court, established the three-pronged test which must be met prior to the admission of the prior recorded testimony of a witness at a subsequent trial as follows: "(1) The witness is unavailable; (2) the proceedings at which the testimony was given was a former trial of the same cause, or a preliminary stage of the same cause, or the trial of another cause involving the issue and subject matter at which the testimony is directed; and (3) the current defendants were present at that time and represented by counsel."

As to the first requirement, the United States Supreme Court has held that "a witness is not 'unavailable' for purposes of the ... exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial." Barber v. Page, 390 U.S. at 724-25, 88 S.Ct. at 1321-22, 20 L.Ed.2d at 260. (Emphasis added). Accord Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597; Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293; California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). "The lengths to which the prosecution must go to produce a witness ... is a question of reasonableness." California v. Green, 399 U.S. at 189, n. 22, 90 S.Ct. at 1951, n. 22, 26 L.Ed.2d at 514 (Harlan, J., concurring). Ultimately, the question is whether the witness is unavailable despite good faith efforts undertaken prior to trial to locate and present that witness. Ohio v. Roberts, 448 U.S. at 74, 100 S.Ct. at 2543, 65 L.Ed.2d at 613. The prosecution bears the burden of establishing this evidentiary predicate. Id. at 75, 100 S.Ct. at 2543, 65 L.Ed.2d at 613.

The defendant in the present case challenges only the prosecution's showing as to the first prong of the three-prong Smith test, that of the unavailability of the witness Easterling. On the facts presented by the record, we hold that the trial court correctly determined that Ronnie Easterling's unavailability in the constitutional sense was established.

On voir dire to determine the admissibility of the prior recorded testimony of Ronnie Easterling, the State's evidence tended to show that the prosecution made repeated although unsuccessful attempts to locate Easterling and secure his attendance at defendant's upcoming trial. Calvin Murphy, an attorney and a former District Attorney involved in the initial prosecution of the defendant, testified that at the request of the District Attorney's Office, he attempted to locate the witness by calling an address where the witness formerly lived and by leaving a message for the witness to return his call. Easterling returned Murphy's call at a time when Murphy was away from his office and left a message with Murphy's secretary, but Easterling could not be reached when his telephone call to Murphy was returned. Later, Murphy was given a Piedmont Courts address by the District Attorney's Office. When he went there, he saw a young lady, but the witness himself was not present. Murphy also testified that Easterling had been cooperative at the first trial and had voluntarily appeared, but that the District Attorney's office was having difficulty in locating him for the subsequent trial.

Arthur F. Herron testified that he was employed by the Mecklenburg County Sheriff's Department as a Deputy Sheriff. Deputy Herron testified that he attempted to serve a subpoena on the witness at three different addresses during the month of February and also during the month of March 1984. Specifically, he had attempted to serve the subpoena during the morning shift on 28 March and again during the afternoon shift on 29 March. Deputy Herron encountered no one at the Louise Avenue or East 20th Street addresses provided to him, but did see the witness' girlfriend at the Piedmont Courts address in February.

Deputy Leroy Perry of the Mecklenburg County Sheriff's Department, who worked the shift opposite Deputy Herron, attempted to serve the subpoena on the witness at the residence of his mother at 821 East 20th Street on 28 March. The witness' mother told the deputy that the witness did not live there, that she did not know where he was, and knew nothing of the other two addresses given. Deputy Perry gave the information on a card with his name on it and told the mother that if the witness called or if she happened to get in touch with him, to give the witness his card and the information thereon.

Arthur Wholley testified that he was employed as an investigator with the District Attorney's Office for Mecklenburg County. Wholley was asked to locate Ronnie Easterling for the defendant's trial. He went through the files in his office and discovered three "leads" for the witness: his mother's address at 821 East 20th Street; a former wife, who worked as an Assistant Manager at the K-Mart on Independence Boulevard; and a sister who lived on Louise Avenue. Wholley prepared the subpoenas and discussed the leads and addresses where the witness might be located with the supervisor of the Sheriff's Office. Mr. Wholley found the witness' ex-wife to be cooperative and he spoke with her several times. When the case came up in February, she told Wholley that the witness was living with a girlfriend at 206 McQuay Street in Piedmont Courts. At Wholley's request, the witness' ex-wife sent a message to the witness requesting him to call the District Attorney's Office regarding the defendant's case, but Easterling never called. Wholley had similar conversations with...