State v. Hobson

• Decision Date: 20 May 1991
• Docket Number: No. 23628-8-I,23628-8-I
• Citation: 810 P.2d 70,61 Wn.App. 330
• Parties: STATE of Washington, Respondent, v. Bill Ronald HOBSON, Appellant, Michael J. Hrvatin, and each of them, Defendant.
• Court: Washington Court of Appeals

Page 330

61 Wn.App. 330

810 P.2d 70

STATE of Washington, Respondent, v. Bill Ronald HOBSON, Appellant, Michael J. Hrvatin, and each of them, Defendant.

No. 23628-8-I.

Court of Appeals of Washington,

Division 1.

May 20, 1991.

Joshua Weinstein, Washington Appellate Defender, Seattle, for appellant.

Jeanette Dalton, King County Deputy Pros. Atty., Seattle, for respondent.

WEBSTER, Acting Chief Judge.

Bill R. Hobson appeals his conviction of second degree theft. He contends that the trial court erred in admitting the victim's video-taped deposition because the State failed to show that the victim was unavailable to testify. He also claims that admitting the

videotaped deposition violated his Sixth Amendment right to confront and cross-examine a State witness.

FACTS

A couple of weeks prior to the theft in question, Hobson and his friend, Hrvatin, moved in with DiBenedetto, their employer. DiBenedetto observed them placing dirty "coppery nuggets" in a solution and using an "electrical gadget," which turned the nuggets a gold color. At first, they told DiBenedetto they were "cleaning" gold nuggets using an electroplate process. Later, they told him that the copper nuggets were not really gold.

On August 27, 1987, Hobson and his friend, Hrvatin, went to the Lucky Loans Pawn Shop, which was owned by Marenakos. Hobson pawned a necklace made from the nuggets, using it as collateral to obtain two $500 loans from Marenakos. Marenakos expressed interest in buying some of the nuggets. Hobson exchanged 150 grams of the nuggets for two generators and two chain saws. He told Marenakos that his friend had mined the gold nuggets in Alaska.

After Hobson and Hrvatin left the pawn shop, Marenakos became nervous and asked a friend to test the nuggets. When his friend tested the nuggets with nitric acid, the acid "boiled up green", revealing the nuggets to be copper. Marenakos contacted the Kent Police Department and reported the incident. A detective who investigated the incident contacted Hobson. Hobson stated to the detective that he did not know the nuggets were fake and apologized for the "inconvenience." He told the detective that he would make good on the loan. Hobson eventually paid back the two $500 loans in full plus interest, and told Marenakos that if the gold nuggets were truly fake, he would take them back to Alaska and try to get his money back.

Hobson and Hrvatin were charged on May 4, 1988, with second degree theft by color and aid of deception, in violation of RCW 9A.56.040(1)(a) and RCW 9A.56.020(1)(b). The matter was originally set for trial on September 15, 1988, with an expiration date of September 29. Marenakos On October 19, the State moved to continue the trial to November 7, 1988, because Marenakos, the victim, had made prior arrangements to go on a pre-paid, 3-week hunting trip beginning October 21. The court denied the State's motion. On October 20, the State moved in the alternative to videotape a deposition of Marenakos to preserve his testimony. The court granted the motion, ordering that the deposition take place on or before October 21, 1988. The court at that time did not rule on the admissability of the deposition. The deposition was held on October 21 and the defendant, co-defendant, and their respective attorneys were present. Hobson's attorney cross-examined Marenakos.

                was personally served with a subpoena to appear for trial on September 15.   On September 14, Hobson moved to continue the matter until October 3, to give his attorney time to prepare, thus waiving his right to a speedy trial until October 21.   The State did not oppose the motion.   Marenakos was again subpoenaed to appear for trial on October 3.   Due to several scheduling conflicts, Hobson's trial did not begin until October 21, 1988
                

The trial began later that day, and the State moved to admit the videotaped deposition. The defense counsel objected, arguing that the State did not take reasonable steps to secure Marenakos's presence for trial and that he was not informed of Marenakos's vacation plans until approximately 1 week before the deposition. The State represented that Marenakos was never released from his subpoena, and that he had indicated that he would not forego his trip to testify at Hobson's trial, although he agreed to postpone his trip by 1 day in order to have his deposition taken. The State did not obtain a material witness warrant or request the court to order Marenakos to remain. The court granted the State's motion to admit the videotaped deposition. Hobson was convicted as charged.

DISCUSSION

In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the United States Supreme Court "announced that confrontation clause analysis should proceed case-by-case under a two-track approach that tests the necessity and reliability" of the hearsay testimony offered against the defendant. United States v. McClintock, 748 F.2d 1278, 1291 (9th Cir.1984) (quoting United States v. Perez, 658 F.2d 654, 660 (9th Cir.1981) (citing Roberts, 448 U.S. at 65-66, 100 S.Ct. at 2538-39)). We first consider the "reliability" of the hearsay testimony offered against Hobson. The "Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination." Coy v. Iowa, 487 U.S. 1012, 1017, 108 S.Ct. 2798, 2801, 101 L.Ed.2d 857 (1988) (quoting Pennsylvania v.Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40 (1987)). The purpose of the guarantee is to provide

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). In the instant case, Marenakos testified under oath, Hobson was present, and his attorney cross-examined Marenakos. Moreover, the jury had the opportunity to view Marenakos's demeanor and manner in which he testified against Hobson in Hobson's presence. The only difference between admitting Marenakos's deposition and having him testify in person is that Marenakos did not give his testimony in the presence of the jury. Although it would have been preferable to have Marenakos testify in person, we hold that admitting the videotaped deposition satisfied the "central concern" of the Confrontation Clause, which "is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. ----, ----, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666, 678 (1990).

Washington courts have held that former testimony of a State witness is generally immune from subsequent attack as a violation of the defendant's right to confrontation if the defendant had a full opportunity for effective cross examination. State v. Jenkins, 53 Wash.App. 228, 235-36, 766 P.2d 499 (1989); see Roberts, 448 U.S. at 56, 100 S.Ct. at 2533. An exception to this rule might be made in certain circumstances if the defendant or his attorney had no knowledge that the witness would be unavailable for trial. See Barber, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968) (witness's testimony at preliminary hearing held inadmissible). In the instant case, Hobson's attorney stated that he first heard of Marenakos's planned hunting trip on October 13, approximately 7 days before the deposition took place. Thus, Hobson's attorney knew at the time of the deposition that Marenakos might not be present to testify at trial and that the deposition might be his last chance to cross-examine Marenakos.

Another consideration is whether the defendant's attorney had adequate time to prepare for the deposition. In State v. Hewett, 86 Wash.2d 487, 545 P.2d 1201 (1976), the court held that introducing the victim's deposition, which was taken with only 4 hours notice to the defendant, did not violate the defendant's right of confrontation when the State gave the defendant an opportunity to secure further testimony at a later date and the defendant declined. In the instant case, since Marenakos's deposition took place 1 day before trial, Hobson's attorney should have been prepared to cross-examine him. Moreover, Hobson's attorney received a full day's notice of the deposition. We conclude under the facts of this case that admitting the videotaped deposition did not infringe on Hobson's right to confront and cross-examine his accuser.

We next consider the "necessity" of the hearsay testimony offered against Hobson. The necessity requirement is addressed by ER 804(b)(1), which prohibits the admission of former testimony unless the proponent of the former testimony first demonstrates that the declarant is unavailable to testify. ER 804(a)(5) deems a witness unavailable if the witness is "absent from the hearing and the proponent of his statement has been unable to procure his attendance ... by process or other reasonable means." When the State is the proponent of the former testimony, the Confrontation Clause imposes the additional requirement that the prosecution prove it made a "good-faith effort" to obtain the witness's presence at trial. State v. Rivera, 51 Wash.App. 556, 559, 754 P.2d 701 (1988) (citing Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 1321-22, 20 L.Ed.2d 255 (1968)). Washington courts have held, as a general rule, that the prosecution must use all available means to compel the witness's presence at trial. State v. Sweeney, 45 Wash.App. 81, 86, 723 P.2d 551 (1986); Rivera, 51 Wash.App. at 560, 754 P.2d 701; State v. Goddard, 38 Wash.App. 509, 513, 685 P.2d 674 (1984)...