State v. HobsonState v. Hobson
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Bill R. Hobson appeals his conviction of second degree theft. He contends that the trial court erred in admitting the victim‘s videotaped deposition because the State failed to show that the victim was unavailable to testify. He also claims that admitting the
Facts
A couple of weeks prior to the theft in question, Hobson and his friend, Hrvatin, moved in with DiBenedetto, their employer. DiBenedetto observed them placing dirty “coppery nuggets” in a solution and using an “electrical gadget“, which turned the nuggets a gold color. At first, they told DiBenedetto they were “cleaning” gold nuggets using an electroplate process. Later, they told him that the copper nuggets were not really gold.
On August 27, 1987, Hobson and his friend, Hrvatin, went to the Lucky Loans Pawn Shop, which was owned by Marenakos. Hobson pawned a necklace made from the nuggets, using it as collateral to obtain two $500 loans from Marenakos. Marenakos expressed interest in buying some of the nuggets. Hobson exchanged 150 grams of the nuggets for two generators and two chain saws. He told Marenakos that his friend had mined the gold nuggets in Alaska.
After Hobson and Hrvatin left the pawn shop, Mare-nakos became nervous and asked a friend to test the nuggets. When his friend tested the nuggets with nitric acid, the acid “boiled up green“, revealing the nuggets to be copper. Marenakos contacted the Kent Police Department and reported the incident. A detective who investigated the incident contacted Hobson. Hobson stated to the detective that he did not know the nuggets were fake and apologized for the “inconvenience“. He told the detective that he would make good on the loan. Hobson eventually paid back the two $500 loans in full plus interest, and told Marenakos that if the gold nuggets were truly fake, he would take them back to Alaska and try to get his money back.
Hobson and Hrvatin were charged on May 4, 1988, with second degree theft by color and aid of deception, in violation of
On October 19, the State moved to continue the trial to November 7, 1988, because Marenakos, the victim, had made prior arrangements to go on a prepaid, 3-week hunting trip beginning October 21. The court denied the State‘s motion. On October 20, the State moved in the alternative to videotape a deposition of Marenakos to preserve his testimony. The court granted the motion, ordering that the deposition take place on or before October 21, 1988. The court at that time did not rule on the admissibility of the deposition. The deposition was held on October 21 and the defendant, codefendant, and their respective attorneys were present. Hobson‘s attorney cross-examined Marenakos.
The trial began later that day, and the State moved to admit the videotaped deposition. The defense counsel objected, arguing that the State did not take reasonable steps to secure Marenakos‘s presence for trial and that he was not informed of Marenakos‘s vacation plans until approximately 1 week before the deposition. The State represented that Marenakos was never released from his subpoena, and that he had indicated that he would not forgo his trip to testify at Hobson‘s trial, although he agreed to postpone his trip by 1 day in order to have his deposition taken. The State did not obtain a material witness warrant or request the court to order Marenakos to remain. The court granted the State‘s motion to admit the videotaped deposition. Hobson was convicted as charged.
Discussion
In
Ohio v.
Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), the United States Supreme Court
a personal examination and cross-examination of the witness in which the accused has an 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, 242-43, 39 L. Ed. 409, 15 S. Ct. 337 (1895). In the instant case, Marenakos testified under oath, Hobson was present, and his attorney cross-examined Marenakos. Moreover, the jury had the opportunity to view Marenakos‘s demeanor and manner in which he testified against Hobson in Hobson‘s presence. The only difference between admitting Marenakos‘s deposition and having him testify in person is that Marenakos did not give his testimony in the presence of the jury. Although it would have been preferable to have Marenakos testify in person, we hold that admitting the videotaped deposition satisfied the “central concern” of the confrontation clause, which “is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Maryland v. Craig, _U.S._, 111 L. Ed. 2d 666, 678, 110 S. Ct. 3157 (1990).
Another consideration is whether the defendant‘s attorney had adequate time to prepare for the deposition. In State v. Hewett, 86 Wn.2d 487, 545 P.2d 1201 (1976), the court held that introducing the victim‘s deposition, which was taken with only 4 hours’ notice to the defendant, did not violate the defendant‘s right of confrontation when the State gave the defendant an opportunity to secure further testimony at a later date and the defendant declined. In the instant case, since Marenakos‘s deposition took place 1 day before trial, Hobson‘s attorney should have been prepared to cross-examine him. Moreover, Hobson‘s attorney received a full day‘s notice of the deposition. We conclude under the facts of this case that admitting the videotaped deposition did not infringe on Hobson‘s right to confront and cross-examine his accuser.
We next consider the “necessity” of the hearsay testimony offered against Hobson. The necessity requirement is addressed by ER 804(b)(1), which prohibits the admission of former testimony unless the proponent of the former testimony first demonstrates that the declarant is
The instant case is distinguishable from Sanchez. Marenakos was subpoenaed to appear on September 15, 1988, and again on October 3. The State never lifted Marenakos‘s subpoena. See State v. Scott, 48 Wn. App. 561, 566, 739 P.2d 742 (1987), aff‘d, 110 Wn.2d 682, 757 P.2d 492 (1988). When the State learned that Marenakos would not forfeit his hunting trip in order to testify against Hobson, it moved for a continuance to postpone Hobson‘s trial until Marenakos returned from his trip. See Rivera, at 556. Aside from issuing a material witness warrant, there was little more the prosecution could have done to procure Marenakos‘s presence at trial.
Coleman and Kennedy, JJ., concur.
Notes
In the following cases, the court held that the State did not make a good faith effort to obtain a material witness‘s presence at trial, and that admitting the witness‘s deposition therefore was reversible error: State v. Goddard, supra (State did not issue subpoena or attempt to induce witness to remain in the state); State v. Sweeney, supra (State made no attempt to secure the witness‘s presence using the procedure for obtaining out-of-state witnesses (ROW 10.55)); State v. Scott, 48 Wn. App. 561, 739 P.2d 742 (1987), aff‘d, 110 Wn.2d 682, 757 P.2d 492 (1988) (after taking witness‘s deposition, prosecutor released witness‘s subpoena so he could visit his sick wife in Korea); State v. Aaron, 49 Wn. App. 735, 743, 745 P.2d 1316 (1987) (State made no attempt to obtain presence of witness who was temporarily residing in England. Even though the State could not compel the witness‘s presence, the State should have tried to obtain the voluntary presence of the witness. The court suggested it would have been adequate for the State to show that the witness “was financially unable to return” or “would have declined to return.“); State v. Sanchez, 42 Wn. App. 225, 711 P.2d 1029 (1985), review denied, 105 Wn.2d 1008 (1986) (State did not subpoena witness or accept the defendant’s offer to postpone trial to accommodate witness‘s vacation plans); State v. Rivera, supra (State‘s only effort in obtaining witness‘s attendance was the issuance of a subpoena; State made no attempt to locate the witness).
In several other cases, the court held that the State satisfied the good-faith-effort rule, and that the witness‘s deposition therefore was admissible: State v. Allen, 94 Wn.2d 860, 866, 621 P.2d 143 (1980) (witness was under Army orders to be in another state at the time of the trial, and although State made no attempt to seek permission of Army to procure witness for trial, testifying would have caused a setback in the witness‘s Army career); State v. Hewett, supra (witness‘s ship was scheduled to sail for Japan the day before the trial began and victim was at sea during the trial); State v. Firven, 22 Wn. App. 703, 706, 591 P.2d 869 (1979) (witnesses were subpoenaed, but were scheduled to leave on their ship just after the deposition, and the State could not procure them for the trial); United States v. Acevedo-Ramos, 842 F.2d 5 (1st Cir. 1988) (state authorities refused to release witness from state prison to testify at the defendant‘s trial).
Nevertheless, defense counsel‘s argument that the record does not indicate whether the State attempted to persuade Marenakos to stay for trial is well taken. In the future, the State should submit affidavits or otherwise create a record as to its communications with an uncooperative witness in order to demonstrate that it acted in good faith and to create a record for review on appeal.
In so holding, we note that the strict requirement of unavailability set forth in Barber v. Page, 390 U.S. at 724-25, was announced at a time when videotaping a deposition for use at trial was probably not an economically viable option and face-to-face confrontation and cross examination of a witness in the presence of the jury could not be as easily simulated.