State v. Oniskor, 12696
| Decision Date | 31 May 1973 |
| Docket Number | No. 12696,12696 |
| Citation | 29 Utah 2d 395,510 P.2d 929 |
| Parties | d 395 STATE of Utah, Plaintiff and Respondent, v. Edward ONISKOR, Defendant and Appellant. |
| Court | Utah Supreme Court |
L. G. Bingham and Lynn R. Brown, Weber County Legal Aid Services, Ogden, for defendant and appellant.
Vernon B. Romney, Atty. Gen., David S. Young and Kent S. Lewis, Asst. Attys. Gen., Salt Lake City, for plaintiff and respondent.
Defendant appeals from his conviction by a jury of the crimes of murder in the first degree, rape, and robbery. He was sentenced to a term of life imprisonment in the Utah State Prison.
In the early morning hours of New Year's Day, 1971, defendant committed these crimes against a 55-year-old woman, named Lucille Perrin. Among the items which defendant took from the victim were a unique ring and wrist watch and two keys to the premises where she resided in Ogden, Utah. A few days later, defendant was observed by a friend of the victim in possession of the ring. Subsequently, defendant was arrested with the ring and keys on his person and confessed to the commission of the crimes. At the trial, defendant testified extensively, including a complete admission of his perpetration of the crimes charged. His defense was predicated on a plea of not guilty by reason of insanity.
On appeal, defendant urges that the trial court erred by permitting the jury to hear the testimony from defendant's preliminary hearing by two witnesses, who were outside of the state at the time of trial. Defendant contends that it was a denial of his Sixth Amendment right of confrontation to read this testimony to the jury, until the State showed that its efforts to secure the attendance of these witnesses pursuant to Section 77--45--11 et seq., 1 U.C.A.1953, had been unsuccessful.
The trial court ruled that under the laws of Utah, the testimony from the preliminary hearing could be used at trial. This ruling was in conformity with Section 77--1--8, U.C.A.1953, which provides for the admission of such testimony, if, at the preliminary hearing, the testimony was taken down by question and answer in the presence of the defendant, who had, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness, and the witness cannot with due diligence be found within the state. Furthermore, this court has held that the provisions for securing the attendance of a witness under Section 77--45--11, U.C.A.1953, were permissive in nature and that a defendant, who has failed to invoke the act, may not urge that it was error on the part of the prosecution to fail to do so. 2
The two absent witnesses were Charles Evans and Dr. Irvin H. Moncrief. The prosecution represented that Mr. Evans was employed as a security guard for a casino in Carson City, Nevada, and that Dr. Moncrief was employed in a criminal hospital in California. The testimony of Mr. Evans was to the effect that he had observed the victim's ring and wrist watch in the possession of the defendant in Elko, Nevada, on January 2, 1971. Dr. Moncrief's testimony was that he, in his capacity as a Weber County Health Officer, examined the victim's body at her apartment, the scene of the crime. He related that the observations that he had made of the victim and expressed the opinion that death was caused by external suffocation.
Defendant cites Barber v. Page, 3 as authority to sustain his argument that the ruling of the court deprived him of his constitutional right of confrontation. In the Barber case, the Stage urged that the introduction of the transcript was within the exception to the confrontation requirement on the ground that the witness was outside the jurisdiction and, therefore, unavailable at the time of trial, and the right of cross-examination was afforded to the defendant at the preliminary hearing.
The court responded that it started with the fact that the State made absolutely no effort to obtain the presence of the witness other than to ascertain that he was outside of the jurisdiction. The court acknowledged that heretofore the more absence of a witness from the jurisdiction was sufficient ground for dispensing with confrontation on the theory that it was impossible to compel his attendance because the process of the court was of no force without the jurisdiction. The court stated that whatever may have been the accuracy of that theory at one time, it has presently lost its validity in the criminal law by the increased cooperation between the states. The court specifically cited the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings.
The court stated that a witness is not 'unavailable' for purposes of the exception to the confrontation requirement, unless the prosecutional authorities have made a good-faith effort to obtain his presence at trial. The court concluded that the State had not attempted to secure the attendance of the witness and that the right of confrontation may not be dispensed with so lightly.
The instant action bears a strong similarity to Berger v. California, 4 wherein a state investigator located the witness in Colorado, but the State failed to serve a subpoena on him. The court vacated the judgment and remanded the case to be reconsidered in light of Barber v. Page. The court observed that one of the important objectives of the right of confrontation was to guarantee that the fact finder had an adequate opportunity to assess the credibility of witnesses.
In the instant action, the State failed to sustain its burden that it had made a good-faith effort to secure the attendance of the witnesses and had been unsuccessful. The use of the depositions at the trial constituted a denial of defendant's constitutional right of confrontation. However, the testimony of these two absent witnesses was merely cumulative since others also testified to essentially the same facts. A survey of the record reveals that the other evidence against defendant was so overwhelming that this court is compelled to conclude beyond a reasonable doubt that the denial of defendant's rights constituted harmless error. 5
Defendant further contends that the trial court erred in its ruling that an expert witness may render an opinion based upon hearsay evidence. Dr. Weston, the state medical examiner, testified that he had performed an autopsy on the victim. He initially concluded that the cause of death was bilateral...
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State v. Carter, 920110
...1974). A witness is unavailable under Utah law if a good faith effort was made to secure the witness's presence at trial. State v. Oniskor, 510 P.2d 929, 931 (Utah), cert. denied, 414 U.S. 861, 94 S.Ct. 78, 38 L.Ed.2d 112 (1973). We recently characterized the unavailability requirement as "......
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State v. Brooks
...Nonetheless, the two-pronged test in Roberts appears to be a correct and reasonable standard to this Court. In State v. Oniskor, 29 Utah 2d 395, 510 P.2d 929 (1973), we held that the testimony of an unavailable witness given at the preliminary hearing could be used at trial provided prosecu......
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...L.Ed.2d 300 (1979); State v. Howard, 544 P.2d 466, 468-69 (Utah 1975); State v. Winkle, 535 P.2d 82, 83 (Utah 1975); State v. Oniskor, 29 Utah 2d 395, 399, 510 P.2d 929, 932, cert. denied, 414 U.S. 861, 94 S.Ct. 78, 38 L.Ed.2d 112 (1973); State v. Johnson, 25 Utah 2d 160, 162, 478 P.2d 491,......
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State v. Chapman
...be used at trial provided prosecutorial authorities have made a good faith effort to obtain his presence at trial. State v. Oniskor, 29 Utah 2d 395, 510 P.2d 929 (1973), cert. denied, 414 U.S. 861, 94 S.Ct. 78, 38 L.Ed.2d 112 (1974); Brooks, supra. The ruling of the trial court on prosecuto......