State v. Washington, 45719

• Decision Date: 23 January 1971
• Docket Number: No. 45719,45719
• Citation: 206 Kan. 336,479 P.2d 833
• Parties: STATE of Kansas, Appellee, v. Vernon Roosevelt WASHINGTON, Appellant.
• Court: Kansas Supreme Court

Page 833

479 P.2d 833

206 Kan. 336

STATE of Kansas, Appellee, v. Vernon Roosevelt WASHINGTON, Appellant.

No. 45719.

Supreme Court of Kansas.

Jan. 23, 1971.

Syllabus by the Court

1. As an exception to the confrontation requirement of both the federal and state constitutions, where a witness testifies at defendant's preliminary examination and is subject to cross-examination by defendant, such testimony is admissible at trial upon a proper showing that the witness is unavailable. The right of cross-examination initially afforded the defendant substantially complies with the basic purpose underlying the confrontation requirement. (Following State v. Terry, 202 Kan. 599, 451 P.2d 211.)

2. The rule in this jurisdiction is that before the state may use the testimony of an absent witness given at a preliminary hearing, it must be made to appear the witness cannot, by the exercise of reasonable diligence, be produced at trial.

3. The exclusion of jurors opposed to capital punishment will not be presumed to result in an unrepresentative jury on the issue of guilt or to increase the risk of conviction, in violation of constitutional standards. (Following Zimmer v. State, 206 Kan. 304, 477 P.2d 971.)

4. The record is examined in a criminal prosecution wherein defendant was convicted of murder in the first degree and sentenced to life imprisonment, and it is held: (1) the trial court did not err in (a) permitting the testimony of an absent witness given at the preliminary hearing to be read to the jury; (b) instructing the jury that the testimony of an unavailable witness was to be weighed by the same standards as other testimony; (c) ruling on certain objections to the testimony of the absent witness; and (2) defendant was not denied a trial by an 'impartial jury.'

Daniel B. Denk, Kansas City, argued the cause and was on the brief for appellant.

Frank D. Menghini, County Atty., argued the cause, and Kent Frizzell, Atty. Gen., and Nick A. Tomasic, Deputy County Atty., were with him on the brief for appellee.

O'CONNOR, Justice:

The defendant, Vernon Roosevelt Washington, has appealed from his conviction by a jury of the crime of murder in the first degree (K.S.A. 21-401) and his sentence of life imprisonment. The offense occurred on October 14, 1967, when one Mancel Lewis was killed during the perpetration of a robbery.

The various questions raised in this appeal center primarily on the trial court's permitting the testimony of a witness given at the preliminary hearing to be read to the jury.

Louise Anderson testified as a state's witness at the preliminary examination held on December 21, 1967. At that time she was subjected to vigorous and extensive cross-examination by Anthony Russo, defendant's retained counsel. When the case came on for trial in district court in April 1969, the state presented evidence with respect to its unsuccessful efforts to locate the witness. Thereupon, the trial court determined the witness was unavailable and, over defendant's objection, permitted the testimony she had given at the preliminary hearing to be read to the jury.

At the trial, as well as on appeal, defendant complains of the trial court's ruling on the ground that his constitutional right to be confronted with the witnesses against him was violated. He argues that the right of confrontation includes not only the right to cross-examine the witness, but also the right to have the jury weigh the witness's demeanor. Furthermore, he stresses that a preliminary examination is far different in nature and purpose than the trial itself.

The identical arguments now advanced were fully answered in State v. Terry, 202 Kan. 599, 451 P.2d 211, where our own decisions on the point were examined in light of recent pronouncements by the United States Supreme Court. There we held:

'Under both the federal and state constitutions a defendant charged with crime is entitled to be confronted with the witnesses against him-that is, to meet them face to face.

'The basic reason underlying the constitutional 'confrontation' rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.

'An exception to the confrontation requirement is that where a witness is unavailable and has given testimony at a previous judicial proceeding (such as a preliminary examination) against the same defendant which was subject to cross-examination by that defendant-the testimony of such witness may, upon a proper showing and foundation-be introduced at the subsequent proceeding. This exception has been explained as arising from practical necessity and justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement.' (Syl. 1, 2, 3.)

The provisions of K.S.A. 60-460(c)(2) for the most part codify the decisions in this jurisdiction, permitting the testimony of a witness given at a preliminary hearing to be used at trial. Even though the witness's testimony given at the preliminary examination was subject to cross-examination by the defendant, as a condition precedent to the testimony being admissible at trial, it must be shown that the witness is unavailable.

Under the federal constitutional standard as applied to the states, the test of unavailability, for the purposes of the exception to the confrontation requirement, is whether the prosecutorial authorities have made a 'good faith effort' to...