State v. SamState v. Sam
The defendant was indicted for murder,
Bills Nos. 10 and 11 were taken when the State was allowed to introduce deposition testimony of an allegedly unavailable witness. In introducing this constitutionally disfavored form of testimony, which has the effect of limiting the defendant‘s right of cross-examination in the light of other trial testimony and of depriving him of dеmeanor-evaluation by the trial jury, the State made no real showing, as will be stated more fully, that the witness was not available for live testimony.
I. Context Facts
The victim (“Elma“) was found dead on July 3rd. She and the defendant had been living together in her apartment for about a year. However, in June, after a violent argument, shе made the defendant leave the apartment.
During the month of separation, the defendant had repeatedly attempted reconciliation with the victim Elma, sometimes cajoling, sometimes threatening. He hung around her (formerly their) apartment, parked all night in the adjacent parking lоt, called her repeatedly, knocked on her door without success, etc.
The victim was found dead in the apartment at 3:30 to 4:00 P.M. on July 3rd. She had been stabbed and choked. She was found in an overflowing bathtub, and the cause of her death was drowning. (She was found because of complaints by tenants оn a lower floor of water leakage through the ceilings.)
The medical examiner estimated the time of death at some six to eight hours earlier
On the day of her death, the victim left her apartment before 8:00 A.M. to visit hеr mother and to do some shopping. She returned at about 9:00 A.M. and was never seen alive again by any witness.
The witnesses at the trial, all neighbors in the apartment house, testified that the defendant Sam was seen in the vicinity on July 3rd, the day of the crime, as follows: in the parking lot, walking around, at one time standing оn the ground beneath the decedent‘s second floor window, between 3:00 and 4:45 A.M. (and still there at the latter time) (Watson and Williams); at 3:00 A.M. in the parking lot, and again at about 8:00 to 8:15 A.M. taking down the screen to the kitchen window of the decedent‘s apartment (Latham son; positive as to time because the witnеss had to be at work at 8:30); at 8:00 A.M., when he passed a neighbor‘s window and knocked at the decedent Elma‘s door, and at 8:05 A. M., when he passed back and went down the stairs (Latham mother); and at about 9:15-9:30 A.M. when he was seen walking hurriedly from the apartment building to the parking lot (the Stewarts, husband and wife).
It is in this context that thе State introduced, over objection, the deposition testimony of Larry Bellizan, a 15-year-old high school boy. This testimony had been taken at a preliminary examination on July 22, 1971, some six months before the trial. The State introduced this deposition testimony on its contention that this witness was unavailable fоr the trial.
At the preliminary examination, Bellizan testified (a) that he had seen the defendant go in the decedent‘s apartment at 11:00 A.M. (a time of which he was positive)1 and come out some ten minutes later; (b) that between 11:00 A.M., when he got up, and 3:00 P.M., when he left for the barber shop, no one else had come to the apartment. His further testimony indicates he was an eleventh grade student at a nearby high school.
The examination and cross-examination as to where he was when he observed the defendant and how consecutive and detailed his observation was of other possible visitаtions was at best sketchy. This might be expected of a pre-indictment preliminary examination principally directed to probable cause for a charge for the offense with which held,
The defense produced no witnesses. In closing argument, the defendant‘s counsel primarily relied upon the discrepancy between the time of death (10:00 A.M. to noon) and the fact that the defendant was seen leaving the scene at 9:15 to 9:30. Counsel also strongly suggested that some other lover might have killed the decedent.
The importance of Bellizan‘s testimony to the State‘s case may be measured by the numerous, extensive and repeated references to it during the State‘s closing argument (Tr. 867-887; see Tr. 875-876, 877-78, 881, 883, 884) and during the State‘s rebuttal argument (Tr. 904-912, see, e. g., 903-04, 907).
The trial jury itself had difficulty in arriving at a verdict. Sеe Bill of Exceptions No. 17. After a period of deliberation, the jury informed the court that it was not able to reach a verdict. The trial judge ordered the jury to return for further deliberation. After it did, the jury agreed on the compromise verdict of guilty of manslaughter rather than murder as charged.
II. The Applicable Legal Principles
We have gone to some detail to illustrate that, if inadmissible, substantial prejudice was caused to the accused by improper admission of the deposition testimony of Bellizan. However, if the deposition testimony was erroneously admitted, reversal is required because of the substantial violation оf the constitutional and statutory right of the accused not to be deprived of his right of confrontation of the witness and of trial-jury evaluation of the witness’ demeanor, unless such witness is shown to be unavailable.
In speaking of the right of confrontation guaranteed to the accused in state trials by the Sixth and Fourteenth Amendments to the federal constitution, the United States Supreme Court stated in Barber v. Page, 390 U.S. 719, 721, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255 (1968): “Many years ago this Court stated that `[t]he primary object of the [Confrontation Clause of the Sixth Amendment] * * * was to prevent depositions or ex parte affidavits * * * being used against the prisoner in lieu of 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, 242-243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895). More recently, in holding the Sixth Amendment right of confrontation applicable to the States through the Fourteenth Amendment, this Court said, `There are few subjects, perhaps, upon which this Court and other courts have been more neаrly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country‘s constitutional goal.’ Pointer v. State of Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). See also Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L. Ed.2d 934 (1965).”
In Barber v. Page, a stаte conviction was reversed because the state made no effort to obtain the live presence of an out-of-state witness. The preliminary-examination testimony of this witness, at which cross-examination by the accused‘s counsel was permissible, was introduced at the merit-trial of thе defendant.
In its unanimous reversal of the state conviction, the Supreme Court stated, “In short, a witness is not `unavailable’ for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtаin his presence at the trial.” 390 U.S. 724-725, 88 S.Ct. 1322. The court concluded, 390 U.S. 725-726, 88 S.Ct. 1322: “The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness. A preliminary hearing is ordinarily a much less searching exploration into the merits of a case thаt a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial. While there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demand of the confrontation clause where the witness is shown to be actually unavailable, this is not, as we have pointed out, such a case.”
Article 295 of our Code of Criminal Procedure permits to be introduced at the trial the preliminary-examination testimony of witnesses other than the defendant, “if the court finds that the witness ... cannot be found.”3
The state argues that Bellizan‘s preliminary-examination testimony could be introduced at the merit-trial because he was unavailable and could not be found. The state introduced no testimony to this effect but simply relies upon the sheriff‘s return of December 22, 1971, to a subpoena to Bellizan issued on December 17, 1971. The return was dated one month and two days before the trial date of January 24, 1972.
The address of Bellizan shown on the subpoena is his address at the time of the preliminary examination some five months earlier. Without further elaboration, the sheriff‘s return cheсked printed descriptive phrases: “Unable to locate” and “Moved to unknown“, the last italicized word being completed in ink.
The state‘s assistant district attorney argues that the sheriff‘s return, without more, is an adequate showing that the witness could not be found and that the state had made a good faith effort to locate him. The state‘s argument to the trial court, Tr. 328, stated that State v. Nelson, 261 La. 153, 259 So.2d 46 (1972), just decided and then not yet reported, was authority to such effect.
As in State v. Augustine, 252 La. 983, 215 So.2d 634 (1968), we must reverse. There is no showing that the witness has been diligently sought without avail or that the prosecution has made a good-faith effort to secure the witness’ presence at the trial,4 in the absence of which showing the defendant‘s constitutional and statutory rights to have the live-witness testify before the trial jury were violated by the introduction of the deposition testimony. See also State v. Jones, 261 La. 422, 259 So.2d 899 (1972).
Decree
For the reasons assigned, we reverse the conviction and sentence appealed from and we remand for a new trial.
Reversed and remanded.
SUMMERS, J., dissented and filed opinion.
MARCUS, J., dissented.
SUMMERS, Justice (dissenting).
I would not reverse this conviction by presuming that the sheriff did not perform his duty in attempting to find the witness. To the contrary, the law prеsumes that officials have performed their duties, and a return on the subpoenae that the witness could not be found should be adequate in the absence of proof to the contrary.
I respectfully dissent.