State v. Davis

400 So. 2d 208, 1981 La. LEXIS 7667

Opinion

In re Arthur Davis, applying for writ of certiorari, and stay order. Parish of Orleans. No. 256-545.

The writ is granted and the ruling of the trial judge is reversed. The testimony of an absent witness may not be used in the new trial unless the witness is “truly unavailable,” Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). The record before us is not convincing that the witness is “truly unavailable,” or that the state has exercised diligent efforts to locate him. See C.Cr.P. art. 857 and comments thereunder; State v. Sam, La., 283 So.2d 81; State v. Moore, La., 305 So.2d 532; State v. Jones, La., 325 So.2d 235; State v. Kaufman, La., 304 So.2d 300. The case is remanded to the district court for further proceedings.