State v. Grier
331 S.E.2d 669
N.C.
1985
Check Treatment
MEYER, Justice.

The sole issue presented for review is whether the trial court erred by allowing into evidence, over the defendant’s objection, that portion of the transcript of evidence at defendant’s former trial containing the testimony of State’s witness Ronnie Easter-ling, who was not available to testify at defendant’s subsequent trial for the same offenses. It is the defendant’s contention that the witness was available and that the State failed to make the “good faith effort” to locate him prior to trial as required before this form of hearsay evidence may be admitted against a defend *64 ant in a criminal action under the state and federal constitutions. For the reasons set forth below, we conclude that the prior recorded testimony of the unavailable witness was properly admitted into evidence at the defendant’s second trial for the burglary of the Lee residence and the rape of Mrs. Lee and affirm the convictions and sentences imposed as a result of defendant’s new trial.

As a general rule, the recorded testimony of a witness in a former trial will not ordinarily be admitted as substantive evidence in a later criminal trial as the prior testimony is considered hearsay, the admission of which would violate the accused’s right of confrontation guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. If possible, the witness himself must be produced to testify de novo. Ohio v. Roberts, 448 U.S. 56, 65 L.Ed. 2d 597 (1980); Mancusi v. Stubbs, 408 U.S. 204, 33 L.Ed. 2d 293 (1972); Barber v. Page, 390 U.S. 719, 20 L.Ed. 2d 255 (1968); State v. Prince, 270 N.C. 769, 154 S.E. 2d 897 (1967); State v. Cope, 240 N.C. 244, 81 S.E. 2d 773 (1954).

However, despite the “preference for face-to-face confrontation at trial” reflected by the Confrontation Clause, Ohio v. Roberts, 448 U.S. at 63, 65 L.Ed. 2d at 606, it has long been held that an exception to the confrontation requirement will be recognized where a witness is unavailable to testify, but has given testimony at a previous judicial proceeding against the same defendant, and was at that time subject to cross-examination by that defendant. Barber v. Page, 390 U.S. at 722, 20 L.Ed. 2d at 258; Mattox v. United States, 156 U.S. 237, 39 L.Ed. 409 (1895); State v. Graham, 303 N.C. 521, 279 S.E. 2d 588 (1981); State v. Smith, 291 N.C. 505, 231 S.E. 2d 663 (1977); State v. Jackson, 30 N.C. App. 187, 226 S.E. 2d 543 (1976); State v. Biggerstaff, 16 N.C. App. 140, 191 S.E. 2d 426 (1972). As we stated in State v. Graham, “[i]n such a situation, the transcript of the witness’ testimony at the prior trial may be admitted as substantive evidence against the same defendant at a subsequent trial. The justification for this exception is that the defendant’s right of confrontation is adequately protected by the opportunity to cross-examine afforded at the initial proceeding.” 303 N.C. at 523, 279 S.E. 2d at 509.

In State v. Smith, 291 N.C. at 524, 231 S.E. 2d at 675, Justice Huskins, writing for the Court, established the three-pronged test which must be met prior to the admission of the prior recorded *65 testimony of a witness at a subsequent trial as follows: “(1) The witness is unavailable; (2) the proceedings at which the testimony was given was [sic] a former trial of the same cause, or a preliminary stage of the same cause, or the trial of another cause involving the issue and subject matter at which the testimony is directed; and (3) the current defendants were present at that time and represented by counsel.”

As to the first requirement, the United States Supreme Court has held that “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, 390 U.S. at 724-25, 20 L.Ed. 2d at 260 (emphasis added). Accord Ohio v. Roberts, 448 U.S. 56, 65 L.Ed. 2d 597; Mancusi v. Stubbs, 408 U.S. 204, 33 L.Ed. 2d 293; California v. Green, 399 U.S. 149, 26 L.Ed. 2d 489 (1970). “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, 26 L.Ed. 2d at 514 (Harlan, J., concurring). Ultimately, the question is whether the witness is unavailable despite good faith efforts undertaken prior to trial to locate and present that witness. Ohio v. Roberts, 448 U.S. at 74, 65 L.Ed. 2d at 613. The prosecution bears the burden of establishing this evidentiary predicate. Id. at 75, 65 L.Ed. 2d at 613.

The defendant in the present case challenges only the prosecution’s showing as to the first prong of the three-prong Smith test, that of the unavailability of the witness Easterling. On the facts presented by the record, we hold that the trial court correctly determined that Ronnie Easterling’s unavailability in the constitutional sense was established.

On voir dire to determine the admissibility of the prior recorded testimony of Ronnie Easterling, the State’s evidence tended to show that the prosecution made repeated although unsuccessful attempts to locate Easterling and secure his attendance at defendant’s upcoming trial. Calvin Murphy, an attorney and a former District Attorney involved in the initial prosecution of the defendant, testified that at the request of the District Attorney’s Office, he attempted to locate the witness by calling an address where the witness formerly lived and by leaving a message for the witness to return his call. Easterling returned Mur *66 phy’s call at a time when Murphy was away from his office and left a message with Murphy’s secretary, but Easterling could not be reached when his telephone call to Murphy was returned. Later, Murphy was given a Piedmont Courts address by the District Attorney’s Office. When he went there, he saw a young lady, but the witness himself was not present. Murphy also testified that Easterling had been cooperative at the first trial and had voluntarily appeared, but that the District Attorney’s Office was having difficulty in locating him for the subsequent trial.

Arthur F. Herron testified that he was employed by the Mecklenburg County Sheriffs Department as a Deputy Sheriff. Deputy Herron testified that he attempted to serve a subpoena on the witness at three different addresses during the month of February and also during the month of March 1984. Specifically, he had attempted to serve the subpoena during the morning shift on 28 March and again during the afternoon shift on 29 March. Deputy Herron encountered no one at the Louise Avenue or East 20th Street addresses provided to him, but did see the witness’ girlfriend at the Piedmont Courts address in February.

Deputy Leroy Perry of the Mecklenburg County Sheriffs Department, who worked the shift opposite Deputy Herron, attempted to serve the subpoena on the witness at the residence of his mother at 821 East 20th Street on 28 March. The witness’ mother told the deputy that the witness did not live there, that she did not know where he was, and knew nothing of the other two addresses given. Deputy Perry gave the mother information on a card with his name on it and told the mother that if the witness called or if she happened to get in touch with him, to give the witness his card and the information thereon.

Arthur Wholley testified that he was employed as an investigator with the District Attorney’s Office for Mecklenburg County. Wholley was asked to locate Ronnie Easterling for the defendant’s trial. He went through the files in his office and discovered three “leads” for the witness: his mother’s address at 821 East 20th Street; a former wife, who worked as an Assistant Manager at the K-Mart on Independence Boulevard; and a sister who lived on Louise Avenue. Wholley prepared the subpoenas and discussed the leads and addresses where the witness might be located with the supervisor of the Sheriffs Office. Mr. Wholley *67 found the witness’ ex-wife to be cooperative and he spoke with her several times. When the case came up in February, she told Wholley that the witness was living with a girlfriend at 206 McQuay Street in Piedmont Courts. At Wholley’s request, the witness’ ex-wife sent a message to the witness requesting him to call the District Attorney’s Office regarding the defendant’s case, but Easterling never called. Wholley had similar conversations with Easterling’s ex-wife in March and was told that Easterling was afraid to contact the District Attorney’s Office or to testify because of an assault involving a relative of the witness and the defendant’s relatives.

In addition to these efforts, Wholley had twice gone to the address at 821 East 20th Street, but found no one at home. He had also been informed by the witness’ ex-wife that Easterling was working on a construction job for the new Marriott Hotel on Tryon and Trade Streets and went to this location, but neither the foreman nor anyone else at the construction site knew of the witness. Wholley had also requested Calvin Murphy to attempt to contact Easterling because Murphy had a good rapport with him, but these attempts also proved to be unsuccessful. Meanwhile, the defendant’s case had been set for trial on four different occasions. Because the District Attorney’s Office and the Sheriffs Department had ultimately been unsuccessful in locating the witness, he was never actually served with any of the subpoenas issued in connection with defendant’s second trial.

At the conclusion of the voir dire, the trial court found that the State had made a good-faith effort to locate the witness and that the witness was unavailable. The court further ruled that the State would, therefore, be permitted to read the unobjected to portions of Easterling’s testimony from the transcript of the defendant’s prior trial for the benefit of the jury. Later, the trial court made more detailed findings of fact and conclusions of law regarding the admissibility of Easterling’s prior recorded testimony. The trial court found, inter alia, that the officers of the Sheriffs Department of Mecklenburg County made repeated efforts to locate the witness at the addresses given their office by the District Attorney; that the District Attorney who originally prosecuted the case also assisted in attempting to locate Easter-ling by visiting one of the addresses; that various members of the Sheriffs Office had attempted to reach Easterling by telephone *68 and in person, but ultimately failed to contact him; and that in addition to the foregoing, an investigator for the District Attorney’s Office made personal efforts to locate Easterling, including repeated conversations with Easterling’s ex-wife and visits to Easterling’s purported place of employment. Furthermore, the trial court specifically found that “investigator Wholley, in the course of his efforts to locate the witness, was advised that one reason why the witness was not responding to any of the efforts to locate him was his fear of testifying a second time in the trial.”

Based upon the foregoing findings of fact, the trial court concluded as a matter of law that the witness, Ronnie Easterling, “is unavailable and after repeated efforts and repeated continuances of the trial in this criminal case is not available for trial; that he testified under oath at a former trial of this same cause and was extensively cross-examined, and that the defendant, Charles Grier, was present at the time when the defendant [sic] previously testified under oath at the former trial.” We find no error in the trial court’s determination that the witness was unavailable in the constitutional sense.

The rule of Barber v. Page, 390 U.S. 719, 20 L.Ed. 2d 255, relied upon by the defendant, requires only that the prosecutorial authorities make a “good-faith effort” to obtain the presence of the witness at trial. The lengths to which the prosecution must go in that effort is a question of reasonableness. See California v. Green, 399 U.S. 149, 172, 26 L.Ed. 2d 489, 504 (Harlan, J., concurring). The defendant in this case argues that although the authorities made some efforts to locate Easterling, they did not do enough in that regard and that other measures were at their disposal which were never effectuated. The test, however, is not that the prosecution must exhaust all conceivable means in the effort to locate a witness, but only that they undertake, in good faith, some reasonable, affirmative measures to produce the witness for trial. Barber v. Page involved a situation in which no affirmative measures were made to locate the witness in question. Here, in contrast, the prosecution made repeated efforts to locate Easterling at the various addresses they had for him both in person and by telephone. That the witness remained unavailable despite these repeated efforts indicates neither a lack of good faith on the part of the prosecution nor a lack of reasonable affirmative measures undertaken to locate Easterling.

*69 In Ohio v. Roberts, 448 U.S. 56, 65 L.Ed. 2d 597, the Supreme Court held that a good faith effort on the part of the prosecution was demonstrated by evidence showing that the prosecutor had served the witness with five subpoenas at her parents’ home over a period of several months and had discussed the matter with her parents, who were also unable to locate the witness. Although with the aid of hindsight, it seemed that other steps might have been undertaken in the effort to locate the witness, who had apparently run away from home, the test of reasonableness was satisfied under the circumstances by “investigation at the last-known real address, and . . . conversation with a parent who was concerned about her daughter’s whereabouts.” Id. at 76, 65 L.Ed. 2d at 614.

We also note that in this case, there was evidence that the witness had been cooperative at the first trial but was afraid to contact the District Attorney’s Office or to testify by reason of an assault involving another member of the Easterling family and the defendant’s relatives. The trial court specifically found that the witness was not responding to known efforts to locate him by reason of fear of testifying a second time in the trial of the defendant for these offenses. This creates a strong inference that a reason for the unavailability of the witness was in some measure due either to the connivance of the defendant or to the witness’ actions to avoid the prosecution’s attempt to locate him. It is well-established that a defendant is in no position to complain of his constitutional rights of confrontation and due process by the absence of a material witness if the witness’ absence or unavailability is due to the procurement or connivance of the defendant. Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878); State v. Maynard, 184 N.C. 653, 113 S.E. 682 (1922); State v. Small, 20 N.C. App. 423, 201 S.E. 2d 584 (1974).

Under the circumstances of this case, the repeated attempts made by the prosecutorial authorities to contact the witness at the three known addresses where he could either be located or reached; the repeated conversations and messages left with the defendant’s ex-wife; the visit to defendant’s purported workplace and the enlistment of the aid of the original District Attorney who had a good rapport with the witness, in the effort to locate and present him to testify were sufficient to satisfy the confrontation requirement that “good-faith efforts” be made to locate *70 Easterling before his prior recorded testimony be admitted into evidence against the defendant at his second trial. See also State v. Keller, 50 N.C. App. 364, 273 S.E. 2d 354, disc. rev. denied and appeal dismissed, 302 N.C. 400, 279 S.E. 2d 354 (1981) (due diligence in searching for the absent witness shown by issuance of subpoena in the county of the trial, but not in the county of the witness’ residence, where witness had left home, and interviews with his neighbors, family and former associates failed to disclose his whereabouts).

In conclusion, we hold that Ronnie Easterling was unavailable to testify at defendant’s second trial despite the good faith efforts of the prosecution to locate and present him to testify in person and that Easterling’s prior recorded testimony was properly admitted into evidence. In the trial of the defendant, we find

No error.