State v. Madison

• Decision Date: 30 December 1980
• Docket Number: No. 80-298,80-298
• Citation: 415 N.E.2d 272,18 O.O.3d 491,64 Ohio St.2d 322
• Parties: , 18 O.O.3d 491 The STATE of Ohio, Appellee, v. MADISON, a.k.a. Branch, Appellant.
• Court: Ohio Supreme Court

Page 322

64 Ohio St.2d 322

415 N.E.2d 272, 18 O.O.3d 491

The STATE of Ohio, Appellee, v. MADISON, a.k.a. Branch, Appellant.

No. 80-298.

Supreme Court of Ohio.

Dec. 30, 1980.

Syllabus by the Court

R.C. 2945.49 permits the admissibility at trial of prior recorded testimony taken at a preliminary hearing upon a showing that, despite a good faith effort to secure the witness' presence at trial, the witness was unavailable, and that the witness' prior recorded testimony bears an "adequate indicia of reliability."

On December 16, 1978, John Roe was working at a gas station in Toledo, Ohio. At approximately 4:30 a. m., two men walked into the station. One man used the telephone, and, after completing the call, one of the men pulled out a gun and demanded that Roe give him his money. Roe complied with the demand, and, thereafter, the men left the station.

Immediately after the robbery, Roe called the police. The police officers, responding to the call, took a statement from Roe concerning the robbery. Roe described the man with the gun as wearing a three-quarter length tan cashmere coat and a tan hat and as being approximately 28 years old with a mustache, six feet-five inches tall and weighing 185 pounds. The police officers at the gas station put a bulletin over the radio, relating the incidents of the robbery and the descriptions of the suspects.

After hearing the report of the robbery, other police officers on patrol noticed an automobile change direction in an apparent attempt to avoid the police. The police officers followed the automobile and then saw the door on the driver's side open. At this point, the police could tell there were three men in the car. A cloud of money and a dark object were discarded from the open door. The dark object made a spark when it hit the concrete curb.

The police stopped the car, apprehended one suspect who had attempted to flee the scene, and removed the other two suspects from the automobile. Two of the suspects fit the descriptions of the robbers.

Within approximately 30 minutes, Roe was brought to the scene of the arrest. He observed and identified Arnel Madison (hereinafter appellant) as one of the perpetrators of the robbery who was armed. Roe also identified John Lipkins as the other robber. He did not identify Robert Bragg, the driver of the car. The police also recovered the money and the gun that had been discarded from the automobile.

Appellant was charged with aggravated robbery in violation of R.C. 2911.01. On January 8, 1979, a preliminary hearing was held in Toledo Municipal Court, after which appellant was bound over to the Lucas County grand jury. On January 25, 1979, the grand jury issued a one-count indictment, charging appellant with aggravated robbery. Lipkins and Bragg, the other codefendants, were also indicted, but their cases were severed prior to trial.

At the preliminary hearing, Roe testified as to the incidents concerning the robbery of December 16, 1978. There was direct examination, cross-examination, questions from the bench, redirect examination and even recross-examination of Roe.

Prior to trial, appellant filed a motion to suppress the identification. A hearing on this motion was set for February 15, 1979, but was not concluded, and then set for further hearing on February 21, 1979. A subpoena was issued for Roe, but service was not perfected. On February 21, Roe's whereabouts were still unknown, and, therefore, the hearing was again reset for March 5, 1979. By March 5, vigorous efforts by the state of Ohio (hereinafter appellee) failed to disclose any knowledge concerning Roe's whereabouts. The motion hearing was again reset for March 8, 1979.

On March 8, appellee asked leave of the court to use at trial the transcript of Roe's testimony taken at the preliminary hearing of January 8, 1979. Appellee presented evidence concerning the efforts to locate the witness.

After reviewing such evidence and reading the transcript of the preliminary hearing, the judge granted appellee's request for the use of Roe's transcript at trial. Appellant's motion to suppress was overruled.

The case proceeded to trial and Roe's transcript at the preliminary hearing was read to the jury. Appellant was found guilty of aggravated robbery, and judgment was entered on the verdict.

Upon appeal, the Court of Appeals affirmed the conviction.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Anthony G. Pizza, Pros. Atty., James D. Bates and Julia A. Griffis, Asst. Pros. Atty., for appellee.

John F. Potts, Toledo, for appellant.

LOCHER, Justice.

I.

Appellant, in his first proposition of law, asserts, in essence, that the prosecution "may not use the prior recorded testimony of that witness where there was no adequate cross-examination at the preliminary hearing" and that the determination of the adequacy of the cross-examination is not merely demonstrated by the length of the cross-examination.

We hold that appellant's first proposition of law is without merit.

This court is called upon to consider the delicate relationship of the right to confrontation as expressed within the United States and Ohio Constitutions and the necessity, in certain instances, for the allowance of exceptions when public policy and the necessity of the case so warrant.

The confrontation clause of the Sixth Amendment to the United States Constitution states, in pertinent part, that:

"(I)n all criminal prosecutions, the accused shall * * * be confronted with the witnesses against him; * * * "

This right of confrontation of a witness applies to the states by virtue of the Fourteenth Amendment. Pointer v. Texas (1965), 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.

Ohio has recognized by statute that prior recorded testimony is such an exception to the general rule of mandating confrontation of a witness.

R.C. 2945.49 reads as follows:

"Testimony taken at an examination or a preliminary hearing at which the defendant is present, or at a former trial of the cause, or taken by deposition at the instance of the defendant or the state, may be used whenever the witness giving such testimony dies, or cannot for any reason be produced at the trial, or whenever the witness has, since giving such testimony, become incapacitated to testify. If such former testimony is contained within a bill of exceptions, or authenticated transcript of such testimony, it shall be proved by the bill of exceptions or transcript, otherwise by other testimony."

This statute recognizes the core constitutional values yet allows for substitutions in certain circumstances.

Case law has specified that, in criminal prosecutions, prior recorded testimony may be introduced in certain circumstances if a two-prong test is adhered to. In Barber v. Page (1968), 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, the United States Supreme Court set forth the criteria for the allowance of prior recorded testimony at trial when the witness is unavailable.

First, the witness must be shown to be unavailable, and there also must be shown a good faith effort to secure the witness' presence at trial. The second prong or burden is to show that there must have been an opportunity for cross- examination to satisfy the constitutional right of confrontation. See California v. Green (1970), 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489.

The second prong was further analyzed and refined by the court in Mancusi v. Stubbs (1972), 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293.

In Mancusi, supra, the court, at page 213, 92 S.Ct. at 2313, stated:

" * * * (R)ecent decisions of this Court that have dealt at some length with the requirements of the Confrontation Clause are California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), and Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). The focus of the Court's concern has been to insure that there 'are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant,' Dutton v. Evans, supra, at 89, 91 S.Ct. at 219, and to 'afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement,' California v. Green, supra, 399 U.S. at 161, 90 S.Ct. at 1936. It is clear from these statements, and from numerous prior decisions of this Court, that even though the witness be unavailable his prior testimony must bear some of these 'indicia of reliability' referred to in Dutton.'' (Emphasis added.)

We hold, for the reasons more fully explained herein, that appellee has met its burden on both prongs of the test, and, therefore, the transcript of Roe at the preliminary hearing was properly introduced at trial.

Initially, our discussion concerns the parameters of what constitutes unavailability and what is considered a good faith effort to secure attendance of a witness at trial. There is no clear legal pronouncement as to what constitutes a good faith effort to secure a witness for trial, but certain guidelines do emerge from case law analysis.

In Barber, supra (390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255), the use of a prior recorded testimony was not admissible at trial in lieu of actual face-to-face confrontation, when it was determined that the witness was in a federal prison in a neighboring state and the prosecution made no attempt to secure the witness for trial.

In Mancusi, which distinguished Barber on its facts, the declarant, who had been born in Sweden but had become a naturalized citizen, had returned to Sweden and taken up permanent residence there. The court allowed the use of the prior recorded testimony because "the predicate of unavailability was sufficiently stronger here than in Barber * * *." Id., 408 U.S. at 212, 92 S.Ct. at 2313.

In Ohio v. Roberts (1980), --- U.S. ----, 100 S.Ct. 2531, 65 L.Ed.2d 597, the United States Supreme Court set forth general guidelines for...