State v. KeairnsState v. Keairns
- Reporters:
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- Before:
- Celebrezze
Lead Opinion
The Confrontation Clause of the Sixth Amendment and the hearsay rule both restrict the use of statements of a person not present at trial. The hearsay rule, however, is subject to a sea of exceptions. This court is again confronted with the task of mapping these relatively uncharted waters and determining what boundaries the Confrontation Clause imposes upon these exceptions.
Huff’s testimony was admitted under
The Confrontation Clause of the Sixth Amendment, made applicable to the states by virtue of the Fourteenth Amendment, Pointer v. Texas (1965), 380 U.S. 400, provides: “In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.” This provision is the embodiment of traditional preferences for testimony of a witness who can be cross-examined and who can be observed face-to-face by the trier of fact. See Mattox v. United States (1895), 156 U.S. 237, 242-243; Ohio v. Roberts (1980), 448 U.S. 56, 63-64. These preferences of the Confrontation
The United States Supréme Court has set forth a two-part test for the admissibility of hearsay. See Barber v. Page (1968), 390 U.S. 719; Ohio v. Roberts, supra; see, also, State v. Madison (1980), 64 Ohio St. 2d 322 [18 O.O.3d 491]. The first prong of the test is a rule of necessity. Generally, this requires a showing that the declarant is unavailable to testify.2 A witness is not considered unavailable unless the prosecution has made reasonable efforts in good faith to secure his presence at trial. Barber v. Page, supra. This reflects the preference for face-to-face confrontation which allows demeanor to be observed and the import of the testimony to be more readily comprehended. Thus, as a predicate to the introduction of hearsay against a defendant in a criminal prosecution, the Confrontation Clause normally requires a showing that the hearsay declarant is unavailable despite reasonable efforts made in good faith to secure his presence at trial.
The second prong requires that the out-of-court statement bear sufficient indicia of reliability. This second requirement is clearly met in the case sub judice. Where the evidence falls within a firmly rooted hearsay exception, reliability can be inferred without a showing of particularized guarantees of trustworthiness. Ohio v. Roberts, supra, at 66. The use of prior trial testimony is one such firmly rooted hearsay exception. See id. at 68 and cases cited therein. Thus, the only issue presented here is whether there was an adequate showing of unavailability.
Appellant correctly contends that there are exceptions to the general rule requiring a showing of unavailability. See Ohio v. Roberts, supra, fn. 7, at 65. In Dutton v. Evans (1970), 400 U.S. 74, the prosecution was not required to produce or explain the absence of an apparently available declarant. The declarant had made a one-sentence statement implicating his co-conspirator, Evans. The court characterized the possibility that cross-examination in the presence of the jury could have altered the impact of the statement as “remote in the extreme” and “wholly unreal.” Id. at 89. Furthermore, the testimony was considered to be of “peripheral significance at most.” Id. at 87. Inasmuch as trial confrontation would not have furthered the truth determining process, it was not mandated by the Confrontation Clause. However, where the import or reliability of an absent declarant’s statement is subject to more than remote uncertainty, and such uncertainty could be reduced by the presence of the declarant, the.Confrontation Clause requires the prosecution to produce, or show the unavailability of, the declarant whose statement it seeks to introduce.
Appellant maintains that the cross-examination of Huff at the first trial
In addition to the constitutional requirement, the express language of
Under the facts of this case, both the Confrontation Clause and
A review of the record shows that the prosecution offered no sworn testimony of its efforts to find the witness. The sole support offered consisted of representations of the prosecutor that subpoenas had been issued, that Huff was not present for the second trial, and that he had “specifically asked the Sheriff to make a continued search for her and they ha[d] done that.” Appellee never conceded that the prosecution had made any efforts, reasonable or otherwise. A showing of unavailability under
Finally, appellant maintains that if the admission of the former testimony was error, it was harmless error. The beneficiary of a federal constitutional error must prove beyond a reasonable doubt that the error complained of did
As the evidence of record is insufficient to establish unavailability under the Confrontation Clause or
Judgment affirmed.
W. Brown, Sweeney and C. Brown, JJ., concur. Celebrezze, C.J., Locher and Holmes, JJ., dissent.Notes
“(B) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
“(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, * * * if the party against whom the testimony is now offered, * * * had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.”
See Ohio v. Roberts (1980), 448 U.S. 56, 65. See, also, Dutton v. Evans (1970), 400 U.S. 74, 95-96 (concurring opinion’s concern that rule which recognized unavailability as the only necessity allowing the use of hearsay would eliminate practically necessary hearsay exceptions such as those for business records, official statements, learned treatises and trade reports). Appellant has offered no reason other than unavailability of the declarant necessitating use of the hearsay.
The parties differed on whether the meaning of appellee’s remarks to Huff was that she had to shoot the deceased because he was threatening the grandchild, or he was threatening the grandchild, but it was the threat to appellee that necessitated the shooting.
In closing argument, the prosecutor stated:
“Why did she call Marsha Huff? Why did she want Fred Tindall? * * * Now, is that indicative of a loving wife who’s just shot her husband in self-defense and is worried and concerned about him, or is that indicative of a person who purposely killed another and would like to cover it up, if possible?
“* * * I had to kill him, he was trying to kill me * * *. That’s what Maxine is saying now. WTiat did she say then? She told Marsha Huff she had to kill Jack, that Jack was threatening the baby.”
Dissenting Opinion
dissenting.
“(B) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
“(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, * * * if the party against whom the testimony is now offered * * * had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. * * *”
In the case at bar, the witness was unavailable pursuant to
“Definition of unavailability. ‘Unavailability as a witness’ includes situations where the declarant:
* *
“(5) is absent from the hearing and the proponent of his statement has been unable to procure his attendance * * * by process or other reasonable means. * * *”
The majority does concede that appellee had an opportunity and similar motive to develop Huff’s testimony at appellee’s first trial. In fact, the majority states that Huff was “thoroughly cross-examined by appellee’s counsel.” In addition, the majority finds that Huff’s former testimony clearly bears sufficient indicia of reliability.
Nevertheless, the majority holds that Huff’s former testimony is inadmissible because the prosecutor, as the proponent of the testimony, failed to establish through sworn testimony that the witness was unavailable, even though the prosecutor explained to the trial court that subpoenas had been issued and that the county sheriff had been requested to conduct an ongoing search for the witness. In my view, such a holding is untenable and not mandated by the Confrontation Clause.
“* * * In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.”
The United States Supreme Court further observed at fn. 7, at 65:
“A demonstration of unavailability, however, is not always required.
* *
That being the case, Ohio v. Roberts, supra, requires no greater demonstration of unavailability under the Confrontation Clause than is required by our Rules of Evidence.
“* * * Preliminary questions concerning the * * * admissibility of evidence shall be determined by the court * * *. In making its determination it is not bound by the rules of evidence except those with respect to privileges.”
It is quite clear that the Rules of Evidence do not compel the formal presentation of sworn testimony on preliminary matters affecting the admissibility of evidence, yet that is precisely the nature of the majority’s decision. I would hold that all that is necessary is that the prosecutor satisfy the trial court that the. witness is unavailable and that a good faith attempt has been made to secure the witness’ attendance. No formal testimony is necessary and, in resolving these preliminary questions of admissibility, the trial court is not bound by the Rules of Evidence.
Accordingly, I would reverse the decision of the court of appeals below.
Locher and Holmes, JJ., concur in the foregoing dissenting opinion.