State v. Young

• Decision Date: 15 October 1984
• Docket Number: No. 47906,47906
• Citation: 20 OBR 332,485 N.E.2d 814,20 Ohio App.3d 269
• Parties: , 20 O.B.R. 332 The STATE of Ohio, Appellee, v. YOUNG, Appellant. *
• Court: Ohio Court of Appeals

Page 269

20 Ohio App.3d 269

485 N.E.2d 814, 20 O.B.R. 332

The STATE of Ohio, Appellee, v. YOUNG, Appellant. ^*

No. 47906.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Oct. 15, 1984.

Syllabus by the Court

1. R.C. 2939.25 to 2939.29, Ohio's enactment of the Uniform Act to Secure the Attendance of Witnesses from Without the State, is not something which the prosecutor must use in every situation involving an out-of-state witness; it is a remedy which may be used when the situation calls for it. Thus, when an out-of-state witness appears very willing to cooperate, it is not reasonable to expect the prosecution to expend the time and energy to set the wheels of the Act in motion; under such circumstances, the prosecutor may use the out-of-state witness' prior testimony.

2. A witness is not "unavailable" for purposes of the exception to the confrontation requirement of the Sixth Amendment, unless the prosecutorial authorities have made a good faith effort to obtain his presence at trial. However, "good faith" does not require the exhaustion of all available remedies; the crucial question is one of reasonableness.

3. Evid.R. 804(A)(3) provides that the declarant is "unavailable as a witness" if he testifies to a lack of memory of the subject matter of his statement. It is unnecessary for an expert to testify concerning the authenticity of a witness' claim of loss of memory, i.e., a court can, in its discretion, admit the former testimony of a witness based on the witness' own present testimony regarding his loss of memory.

John T. Corrigan, Pros. Atty., and Jerome E. Dowling, Cleveland, for appellee.

Robert J. Lewis and Jeffry F. Kelleher, Cleveland, for appellant.

CORRIGAN, Chief Justice.

Appellant James Young was indicted on June 17, 1980 on counts of aggravated murder, attempted murder, and aggravated robbery. He was tried in January 1981 and was convicted on all counts. For reasons unrelated to the instant appeal, this court reversed appellant's conviction, see State v. Young (Feb. 11, 1982), Cuyahoga App. Nos. 43439 and 43465, and this court's decision was affirmed by the Ohio Supreme Court on July 6, 1983, see State v. Young (1983), 5 Ohio St.3d 221, 450 N.E.2d 1143. The case was then remanded to the trial court for a new trial.

The second trial began on November 9, 1983. During its course, the prosecution sought to introduce into evidence the testimony of two witnesses from the first trial. Those witnesses, Dr. Anthony Nahkle and Barry Wallace, testified in a very damaging fashion to the appellant's case. At the second trial, the prosecution argued that Nahkle and Wallace were unavailable to testify. Wallace, who now lives in Georgia, was at first willing to come to Cleveland to testify; but, at the last minute, he refused to appear. Nahkle, who still lives in the Cleveland area, testified that he could no longer remember the events in question. The court thus declared each witness unavailable and allowed his testimony from the first trial to be introduced into evidence. Appellant was subsequently convicted on the counts of aggravated murder and aggravated robbery and on the lesser included offense of felonious assault. He is now before this court assigning the following two errors:

"I. It was error for the trial court to permit the introduction of the former testimony of witness Barry Wallace.

"II. It was error for the trial court to permit the introduction of the former testimony of witness Anthony Nahkle."

I

Appellant's initial contention is that the trial court erred by allowing Wallace's previous testimony to be admitted into evidence. In Ohio v. Roberts (1980), 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597, the United States Supreme Court established a two-pronged test to be used when determining whether former testimony of a witness should be admitted into evidence. First, it must be established that the witness is unavailable. Second, the witness's former testimony must bear adequate "indicia of reliability." In this case, the appellant is not challenging the reliability of Wallace's previous testimony; his challenge goes to the issue of Wallace's unavailability.

In Ohio v. Roberts, supra, at 74-75, 100 S.Ct. at 2543, the Supreme Court stated:

"The basic litmus of Sixth Amendment unavailability is established: '[A] witness is not "unavailable" for purposes of ... the exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.' Barber v. Page [(1968) ] 390 U.S. , at 724-725 [88 S.Ct. 1318 at 1322, 20 L.Ed.2d 255] (emphasis added). Accord, Mancusi v. Stubbs [ (1972), 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293], supra; California v. Green [ (1970)], 399 U.S. , at 161-162, 165, 167, n. 16 [90 S.Ct. 1930 at 1936-37, 1938, 1939 n. 16, 26 L.Ed.2d 489]; Berger v. California, 393 U.S. 314 [89 S.Ct. 540, 21 L.Ed.2d 508] (1969).

"Although it might be said that the Court's prior cases provide no further refinement of this statement of the rule, certain general propositions safely emerge. The law does not require the doing of a futile act. Thus, if no possibility of procuring the witness exists (as, for example, the witness' intervening death), 'good faith' demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. 'The lengths to which the prosecution must go to produce a witness ... is a question of reasonableness.' California v. Green, 399 U.S., at 189, n. 22 (concurring opinion, citing Barber v. Page, supra). The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness. As with other evidentiary proponents, the prosecution bears the burden of establishing this predicate."

Appellant maintains that Wallace was available to testify and that the prosecution did not make a good faith effort to "obtain Wallace's presence at trial."

Wallace's location was discovered by the prosecution, and he was subpoenaed to appear at appellant's second trial. He was provided with a plane ticket and was told that his lodging and all other needs would be taken care of. Wallace was scheduled to arrive in Cleveland during the evening of November 13, 1983. At no time prior to that date did he express any unwillingness to testify or seem uncooperative. However, when a detective from the Cleveland Police Department went to meet Wallace at the airport, Wallace was not on his flight. The next day, Wallace was contacted in Georgia and stated that he changed his mind and no longer intended to come to Cleveland. The assistant prosecutor informed Wallace, as did the court's bailiff, that he was under subpoena and under a legal duty to come to Cleveland to appear in court.

Appellant maintains that despite these efforts, the prosecution failed to demonstrate good faith. Appellant contends that the prosecution should have availed itself of the provisions of the Uniform Act to Secure the Attendance of Witnesses from Without the State ("the Act") which would have allowed it to compel Wallace to come to Cleveland. While utilization of the Act, which is codified in R.C. 2939.25 to 2939.29 and Ga.Code Ann. Sections 38-2001a to 38-2008a, was available to the prosecution, we do not agree with appellant that, in this case, good faith required its use.

Until November 13, 1983, the prosecution believed that Wallace would willingly come to Cleveland to testify. Wallace himself acted in a cooperative fashion and gave no indication that he had decided not to appear in court. It was only when Wallace did not get off the flight from Atlanta, Georgia, that the prosecution realized that he had decided not to come to Cleveland.

The Act sets forth a procedure by which a party can attempt to secure the attendance of an out-of-state witness. The court in which the witness has been subpoenaed to appear must send a certificate to the court in the county in the state in which the witness resides stating that the witness is material and necessary to the first court's action. The court in the witness's home county must then conduct a hearing at which the party seeking the attendance of the witness bears the burden of proving that the witness is material and necessary to the case. It is only after the court in the witness' home county determines that the witness is material and necessary that measures will be taken to insure the witness' appearance in court in the first state. Thus, the result of utilizing the procedure in the Act is not automatic.

In the instant case, appellant's trial began...