State v. Pereda

• Decision Date: 13 December 1974
• Docket Number: No. 2844,2844
• Citation: 111 Ariz. 344,529 P.2d 695
• Parties: STATE of Arizona, Appellee, v. Gaspar V. PEREDA, Appellant.
• Court: Arizona Supreme Court

Page 695

529 P.2d 695

111 Ariz. 344

STATE of Arizona, Appellee, v. Gaspar V. PEREDA, Appellant.

No. 2844.

Supreme Court of Arizona, In Banc.

Dec. 13, 1974.

Gary K. Nelson, Former Atty. Gen. by Frank T. Galati, Asst. Atty. Gen., N. Warner Lee, Atty. Gen., Phoenix, for appellee.

Paul Hunter, Yuma, for appellant.

STRUCKMEYER, Justice.

Appellant, Gaspar Pereda, was convicted of kidnapping in violation of A.R.S. § 13--491 by jury of the Superior Court of Yuma County, and appeals.

Those facts necessary for the determination of this appeal establish that a complaint was filed charging Pereda with kidnapping and that a preliminary hearing was held thereon at which Pereda was held to answer to the Superior Court. The victim to the alleged kidnapping was one Mike Brader. He was the State's principal witness at the preliminary hearing. Brader did not testify in person at the trial. In lieu thereof, his testimony at the preliminary hearing was read to the jury, over the objection of appellant.

While there are other grounds of appeal, we think they need not be answered, since it is our conclusion that the court erred in admitting Brader's preliminary hearing testimony and that, consequently, a new trial must be ordered.

Both the Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, and Article II, § 24 of the Arizona Constitution guarantee a defendant the right to confront his accusers and witnesses at trial. This guarantee assures the accused of the 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 (411) (1895).' Barber v. Page, 390 U.S. 719, 721, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255, 258 (1968).

Barber v. Page recognized the traditional exception to the rule of confrontation at trial in a situation where an unavailable witness has previously given testimony at a judicial proceeding subject to cross-examination and Arizona has also recognized this exception. 17 A.R.S., Rules of Criminal Procedure (1956), Rule 30, provided:

'B. When a witness has been examined as provided in Rule 23 and his testimony taken as provided in Rule 28, such testimony may be admitted in evidence * * * if for any reason the testimony of the witness cannot be obtained at the trial And the court is satisfied that the inability to procure such testimony is not due to the fault of the party offering it.' (Emphasis supplied)

The inquiry in the present case is whether the inability to rpocure the witness Brader's testimony was due to the fault of the State. This Court has announced that '* * * it must be made to appear by competent evidence that such witness is either dead or beyond the jurisdiction of the court,' Valuenzuela v. State, 30 Ariz. 458, 461, 248 P. 36, 37 (1926). Furthermore, such evidence must establish that the witness had been subpoenaed and his nonappearance at the trial was in no way the fault of the State State v. Dixon, 107 Ariz. 415, 489 P.2d 225 (1971). If a witness cannot be served by subpoena, it then becomes a matter within the sound discretion of the trial court to determine whether a sufficient effort has been made to place the witness under subpoena. State v. Owens, 103 Ariz. 541, 447 P.2d 233 (1968).

In Owens, we commented that although the evidence that the witness was beyond the jurisdiction of the court was slight, it was still sufficient to sustain the discretion of the trial court. We are compelled, however, to regard the factual evidence of a good faith attempt and failure to subpoena a witness in Owens, as the outer limit of a court's discretionary judgment. In that case, the witness Graves, an itinerant laborer, had recently been released from custody following a mistrial in a proceeding in which he and Owens had been co-defendants. A subpoena was issued and given to a detective sergeant of the Yuma Police Department who twice visited the area where Graves was known to live, although he had no fixed abode. The subpoena was then turned over to a Yuma County Deputy Sheriff who again visited the area, talked to a number of people and concluded that Graves had left town, probably for California. The fact that Graves was an itinerant worker with no fixed place of abode, no place of business, and a suspected accomplice recently released from custody, gave credence to the trial court's conclusion that he had probably left the area. These facts coupled with the efforts of the police and sheriff's department personnel to personally serve the subpoena indicated that the trial court had not abused its discretion in concluding that a good faith effort had been made by the State to subpoena Graves and that he was unavailable as a...