State v. Hicks

• Citation: 591 S.W.2d 184
• Decision Date: 26 November 1979
• Docket Number: No. 11048,11048
• Parties: STATE of Missouri, Plaintiff-Respondent, v. John W. HICKS, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 184

591 S.W.2d 184

STATE of Missouri, Plaintiff-Respondent, v. John W. HICKS, Defendant-Appellant.

No. 11048.

Missouri Court of Appeals, Southern District, Division Two.

Nov. 26, 1979.

Motion for Rehearing and for Transfer Denied Dec. 14, 1979.

Application to Transfer Denied Jan. 15, 1980.

John Ashcroft, Atty. Gen., Steven D. Steinhilber, Donna Bowles, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

James A. Miller, Springfield, for defendant-appellant.

MAUS, Judge.

The defendant was charged with first degree robbery by a deadly and dangerous weapon in taking the automobile of Charles Roberds. On appeal the defendant does not complain of the sufficiency of the evidence. Only a brief summary is required.

On November 12, 1975, the defendant, David Joe Corona and Jerry Tim Corona were confined in the Dallas County jail. Bill Morrow was a deputy sheriff acting as jailor. When Morrow permitted the defendant to leave his cell to make a phone call, the defendant grabbed Morrow's gun. The defendant was joined by the two Coronas. They then locked Morrow in a cell, took his revolver and automobile and left.

That evening Charles Roberds was City Marshall (also deputy sheriff) on duty patrolling Niangua. At about 8:00 p. m. he observed Morrow's car with a flat tire. Roberds stopped to give assistance. Roberds saw one man sitting in the driver's seat. When Roberds got out, this man got out and put a gun in Roberds' stomach. Then two other men got out of the rear seat of the Morrow automobile. One had a shotgun. The other took Roberds' revolver and pointed it at Roberds' head. The three took Roberds' car and left. They were apprehended together the next day. Roberds identified the Coronas as the white men involved, one as the man in the driver's seat and the other as the man with the shotgun. He was not able to identify the defendant as the black man who took his revolver and pointed it at his head. A preliminary hearing was held. The defendant was then represented by the Public Defender. Morrow was a witness for the state. His testimony consisted of relating the events of the escape and the recovery of his car in Niangua.

The case went to Greene County on a change of venue. It was set for trial for the week of March 20, 1978. It was continued and reset for the week of May 1, 1978, when it was tried. At the trial, upon the state's representation that Morrow was not available as a witness, and over the objection of the defendant, the state read a transcript of Morrow's former testimony to the jury. It is the admission of this transcript as a denial of his right of confrontation guaranteed by the Sixth Amendment of the Constitution of the United States and Art. I, § 18(a) Constitution of Missouri, that forms the basis of three of defendant's points on appeal.

In support of these points the defendant incorporates arguments that have been presented to appellate courts time and time again: The use of the transcript deprives the defendant of the right to have the jury observe the demeanor of the witness and the difference in the nature of cross-examination at a preliminary hearing as distinguished from a trial. Never have these arguments been more eloquently expressed than in the defendant's brief set forth in State v. McO'Blenis, 24 Mo. 402, 69 Am.Dec. 435 (1857). Yet from that case to State v. Phillips, 511 S.W.2d 841 (Mo.1974) the appellate courts of Missouri have held that, when a witness is "unavailable" in the constitutional sense, a transcript of his testimony at the preliminary hearing is admissible at the trial. ¹ The answers to these contentions have been clearly expressed. The advantage, if indeed it be such, of having the jury observe the demeanor of the witness is not inflexibly established as a constitutionally established right but is "an incidental advantage which must sometimes give way to considerations of public policy and the necessities of the case". Phillips v. Wyrick, 558 F.2d 489, 495 (8th Cir. 1977), cert. den. 434 U.S. 1088, 98 S.Ct. 1283, 55 L.Ed.2d 793 (1978). As to the possible difference in cross-examination: "We believe that the test is the opportunity for full and complete cross-examination rather than the use which is made of that opportunity." United States v. Allen, 409 F.2d 611, 613 (10th Cir. 1969). Also, State v. Logan, 344 Mo. 351, 126 S.W.2d 256 (1939).

In 1965 it was determined that the Sixth Amendment to the Constitution of the United States "is 'to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.' " Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923, 928 (1965). While the confrontation clauses of the state and federal constitutions are similar, under that decision the admission of former testimony must also meet the standards of the definitive decisions of the federal courts interpreting and applying the Sixth Amendment. The Sixth Amendment is not a codification of the common law rule pertaining to hearsay evidence, ² however, the two, even though not correlated, are interrelated. The Sixth Amendment is considered in the determination of the admissibility of out-of-court declarations which are exceptions to the hearsay rule because of their "indicia of reliability." ³ Whether former testimony is an exception to or outside the hearsay rule is a debated point. ⁴ If it is hearsay, most of the cases admitting former testimony have done so without separately considering its "indicia of reliability." Perhaps this has been premised upon the proposition that former testimony by reason of having been given in a judicial proceeding when the witness, under oath, is confronting the accused and is subject to cross-examination is thereby sufficiently reliable.

The history of the admissibility of former testimony before the Supreme Court of the United States has been appropriately summarized:

"This Court long ago held that admitting the prior testimony of an unavailable witness does not violate the Confrontation Clause. Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895). That case involved testimony given at the defendant's first trial by a witness who had died by the time of the second trial, but we do not find the instant preliminary hearing significantly different from an actual trial to warrant distinguishing the two cases for purposes of the Confrontation Clause. Indeed, we indicated as much in Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065, 1069, (13 L.Ed.2d 923) (1965), where we noted that '(t)he case before us would be quite a different one had Phillips' statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.' And in Barber v. Page, 390 U.S. 719, 725-726, 88 S.Ct. 1318, 1322, (20 L.Ed.2d 255) (1968), although noting that the preliminary hearing is ordinarily a less searching exploration into the merits of a case than a trial, we recognized that 'there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demand of the confrontation clause where the witness is shown to be actually unavailable . . . .' " California v. Green, 399 U.S. 149, 165-166, 90 S.Ct. 1930, 1939, 26 L.Ed.2d 489, 501 (1970).

The admissibility of former testimony at a preliminary hearing was seemingly settled in California v. Green, supra, in which the court was confronted with a witness who was in court but whose loss of memory was tantamount to unavailability. ⁵ In holding the witness's former testimony to be admissible the court said:

"We also think that Porter's preliminary hearing testimony was admissible as far as the Constitution is concerned wholly apart from the question of whether respondent had an effective opportunity for confrontation at the subsequent trial. For Porter's statement at the preliminary hearing had already been given under circumstances closely approximating those that surround the typical trial. Porter was under oath; respondent was represented by counsel the same counsel in fact who later represented him at the trial; respondent had every opportunity to cross-examine Porter as to his statement; and the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings. Under these circumstances, Porter's statement would, we think, have been admissible at trial even in Porter's absence if Porter had been actually unavailable, despite good-faith efforts of the State to produce him." California v. Green, supra, 399 U.S. at 165, 90 S.Ct. at 1938-1939, 26 L.Ed.2d at 501.

While not dealing directly with former testimony because of its subsequent interrelation, Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), should next be noted. In that case a Georgia statute declared: " 'After the fact of conspiracy shall be proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.' " Dutton v. Evans, supra, 400 U.S. at 78, 91 S.Ct. at 214, 27 L.Ed.2d at 220-221. In holding an out-of-court declaration of a conspirator as related by a third party to be admissible the court reviewed the impact of the statement and circumstances under which the declaration was made. The circumstances were found to provide sufficient indicia of reliability to cause the declaration to be admissible even though there was no confrontation with the declarant. In so holding the court said:

"The decisions of this Court make it clear that the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that 'the trier of fact (has) a satisfactory basis for evaluating the truth of the prior statement.' California v. Green, 399 U.S. at 161...