State v. Roberts

• Decision Date: 19 July 1978
• Docket Number: No. 77-530,77-530
• Citation: 55 Ohio St.2d 191,378 N.E.2d 492
• Parties: , 9 O.O.3d 143 The STATE of Ohio, Appellant, v. ROBERTS, Appellee.
• Court: Ohio Supreme Court

Page 191

55 Ohio St.2d 191

378 N.E.2d 492, 9 O.O.3d 143

The STATE of Ohio, Appellant, v. ROBERTS, Appellee.

No. 77-530.

Supreme Court of Ohio.

July 19, 1978.

Syllabus by the Court

Where a witness, who testified against the defendant at preliminary hearing and was not cross-examined, is later shown to be unavailable to testify at the trial, the Sixth Amendment to the United States Constitution precludes the state's use of the witness' recorded testimony, notwithstanding R.C. 2945.49.

The Mentor police arrested the defendant, Herschel Roberts, on January 7, 1975, and charged him with forging a check in the name of Bernard Isaacs, and with receiving stolen property, namely, a number of credit cards belonging to Bernard Isaacs and his wife, Amy.

On January 10, the defendant came before the Mentor Municipal Court for preliminary hearing. At the hearing, the defendant offered the testimony of Anita Isaacs, the daughter of Bernard Isaacs. She testified that she had become friends with her classmate's younger sister, who was Roberts' girl friend, and that she had seen Roberts occasionally since June or July of 1974, On December 23, 1974, she had given the key of her apartment to Roberts' girl friend, and had told her it would be all right if she and Roberts used the apartment while she was away for the next few days. When she returned on December 30, Roberts said he was having trouble finding a place to stay, so she let Roberts go on using the apartment, while she stayed at the home of a friend. She never spent any time in her apartment with Roberts.

Having thus described her acquaintance with Roberts, the witness denied ever having given him her parents' credit cards, and she denied ever having talked to him about giving him the credit cards to help him pay for a television. Roberts' attorney did not ask to have the witness declared hostile, and he did not ask to examine her as on cross-examination.

The Municipal Court bound Roberts over to the grand jury which indicted him for receiving stolen property, R.C. 2913.51, and forgery, R.C. 2913.31. The grand jury also returned a secret indictment against Roberts for receiving stolen property, namely, silverware and appliances belonging to Mr. and Mrs. Isaacs, and for possession of heroin, R.C. 3719.09. The Court of Common Pleas of Lake County consolidated the proceedings on the two indictments and set the trial for July 17, 1975.

The case was continued six times, and the trial finally took place on March 4, 1976. Between November 1975, and February 1976, the trial court issued five subpoenas for four different trial dates to Anita Isaacs at her parents' address. It is undisputed that the last three subpoenas, showing returns on December 10, 1975, February 3, 1976, and February 25, 1976, respectively, all carried instructions to "please call before appearing." The witness never telephoned, nor did she appear at the trial.

At the trial, the prosecutor and the defense attorney both questioned Amy Isaacs on voir dire to determine whether Anita Isaacs was available to testify. Mrs. Isaacs testified that at the end of January 1975, Anita had left home for Tucson. She said that in April or May, she had received a form from a welfare office in San Francisco stating that Anita had applied for welfare. Mrs. Isaacs had used the address on the form to locate the social worker who was dealing with Anita. She had then talked to the social worker by telephone, and had spoken to Anita by telephone that same day. Later in the summer, Anita had called her parents and had indicated that she was traveling somewhere outside Ohio. From January 1975 to the date of the trial, neither Anita's parents nor any other relative had received any other communication from Anita. Mrs. Isaacs testified that she did not know what state Anita was in, and that she did not know how to contact Anita.

Citing R.C. 2945.49, ¹ the prosecutor offered to introduce the transcript of the testimony which Anita had given at the preliminary hearing on the grounds that the witness was unavailable to testify in person. The court admitted the transcript over objection. The jury convicted the defendant on all counts, and the court entered judgment.

The Court of Appeals reversed. It held that by admitting the recorded testimony, the trial court had violated the defendant's right to confront adverse witnesses, as guaranteed by the Sixth Amendment to the United States Constitution.

The cause is before this court upon the allowance of the state's motion for leave to appeal.

John E. Shoop, Pros. Atty., and Richard J. Perez, Asst. Pros. Atty., for appellant.

Stoneman, Plasco & Bean and Marvin R. Plasco, Willoughby, for appellee.

C. WILLIAM O'NEILL, Chief Justice.

The issue before this court is as follows: When a witness testifies against the accused at a preliminary and is not cross-examined, and the witness is later shown to be unavailable to testify at the trial, may the prosecution introduce the witness' recorded testimony pursuant to R.C. 2945.49?

The confrontation clause of the Sixth Amendment to the Constitution of the United States, which applies to the states by virtue of the Fourteenth Amendment, Pointer v. Texas (1965), 380 U.S. 400, 85 S.Ct. 1054, 13 L.Ed.2d 923, requires that "(i)n all criminal prosecutions, the accused shall * * * be confronted with the witnesses against him * * *." Although confrontation serves the subordinate function of letting the jury see the witness' demeanor, its main purpose is to guarantee the accused the right to cross-examine. See Mattox v. United States (1895), 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409. It has even been said that the right to cross-examine and the right of confrontation are "the same right under different names." 5 Wigmore on Evidence, 155, 158, Section 1397 (Chadbourne Ed.1974). Thus, if a witness who is unavailable to testify in a criminal trial has already testified against the defendant, subject to cross-examination, in a judicial proceeding concerning substantially the same issues, the main concern of the confrontation clause is satisfied, and the state may introduce the witness' prior recorded testimony. See Mattox, supra; Wigmore, supra, 90, Section 1386. If, however, the witness is available, then the state must still produce him in person so as to serve the additional purpose of showing his demeanor to the jury. See Mattox, supra; Wigmore, supra, 154 Section 1396; cf. New York Central R. R. v. Stevens (1933), 126 Ohio St. 395, 185 N.E. 542. If the witness is outside the court's jurisdiction, and if the prosecutor knows his whereabouts, the state may introduce his prior recorded testimony only after proving that it made a good-faith effort to obtain his actual presence. Barber v. Page (1968), 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255.

In the instant cause the appellee argues that the state failed to show a good-faith effort to produce the witness in person, as required by the rule in Barber. But in Barber, the government knew where the absent witness was. In the instant cause, the reason for the witness' unavailability was not that she was at some known location beyond the court's power of subpoena, but that her whereabouts were entirely unknown; and it is recognized that witness who has disappeared from observation is unavailable for purposes of the confrontation clause. Wigmore, supra, 215, Section 1405 and cases therein cited. As a matter of state law, R.C. 2945.49, authorizing the use of prior recorded testimony "whenever the witness * * * cannot for any reason be produced," is broad enough to cover instances where the witness has disappeared.

The burden was on the state to show that the witness was unavailable by reason of her disappearance. Wigmore says that "such a disappearance is shown by the party's inability to find (the witness) after diligent search," but New York Central R. R. v. Stevens, supra, 126 Ohio St. at page 405, 185 N.E. at page 546, suggests that in Ohio it is sufficient if the proponent of the prior testimony shows that "by diligence * * * (the witness') attendance could not have been procured," at least in a civil case.

We see no reason not to follow the same rule in a criminal proceeding. We hold that in the present cause, the trial judge could reasonably have concluded from Mrs. Isaacs' voir dire testimony that due diligence could not have procured the attendance of Anita Isaacs. The last definite word of Anita's whereabouts was that she was in San Francisco in April or May of 1974. Later, her parents learned that she was "traveling" somewhere outside Ohio. From this the trial judge could reasonably infer that Anita had left San Francisco, and that it would have been fruitless for the prosecution to have contacted the San Francisco social worker in order to locate Anita. Therefore, the trial judge could properly hold that the witness was unavailable to testify in person.

Nevertheless, the trial court erred in admitting the testimony. As noted earlier, prior recorded testimony of an unavailable witness is admissible against a criminal defendant only if the testimony was given subject to cross-examination by the defendant in a judicial proceeding concerning substantially the same issues. The issues at the trial and the issues at the prior proceeding must be similar enough so that the cross-examination to which the defendant was subjected at the earlier proceeding can be held adequate for purposes of the trial.

In the cause at bar, the basic factual issues e. g whether the defendant had stolen the credit cards were the same. The ultimate factual issues, however, were quite different. At trial, the ultimate issue was the defendant's guilt beyond a reasonable doubt. At the preliminary hearing, in contrast, the ultimate issue was whether there was probable cause to believe that a crime had been committed and that the defendant had committed it. The difference in the ultimate object of proof makes a...