State v. Gray

616 S.W.2d 102, 1981 Mo. App. LEXIS 3338

• Court: Missouri Court of Appeals
• Decided: May 4, 1981
• Docket: No. WD 31629
• Status: Published

Opinions

WASSERSTROM, Chief Judge.

The question for decision is whether the trial court properly permitted the use of the transcript of prior testimony when one of the State’s witnesses failed to appear. This question arises in the context of a jury trial which resulted in a verdict of guilty of the sale of controlled substance.

On November 2, 1978, John Cornell and Kent McGregor were an investigating team for the Metropolitan Drug Squad in Kansas City, Missouri. They arranged an introduction to defendant through an informer, and Cornell then made a “buy” of ten Ritalin pills for $100. Defendant was arrested and brought to trial, and both Cornell and McGregor testified for the prosecution. That trial resulted in a hung jury.

A retrial was set and the State’s witnesses, including McGregor, appeared ready to testify. However, defendant did not appear, and the trial had to be reset.

The retrial did begin on November 14, 1979. The prosecution expected McGregor to appear, but when the time for his testimony came, he was not present. The following colloquy then appeared between court and counsel:

“THE COURT: Go ahead and tell us about your problem.

MS. PETREN: Okay. At the first trial Kent McGregor, one of the State’s witnesses, was present and testified and I have before me, and I also believe Cynthia Dodge has had before her for some time, a transcript of his testimony at the first trial.

A second trial in regards to Jewel Gray was scheduled and Kent McGregor was on his way here and appeared at that particular hearing. Jewel Gray failed to show, so he had to be sent back to Parsons, Kansas.

Knowing that Jewel Gray was scheduled for this week, I notified Kent McGregor last week, through Chris Malo-ney, that he would be needed for trial. At that time he said that he would be on a search warrant, but he would try to make it.

I have talked to him personally this morning and gotten in touch with him several times and left messages. And he is evidently on surveillance that involves a sizable amount of drugs and after the surveillance they must execute a search warrant on several premises. So for that reason he is in Parsons, which is a three and a half hour drive and as a police officer he has duties in Parsons, Kansas, making him unavailable for trial.

And the State would like to ask for use of the transcript of the proceedings at which he testified at the first trial to be read into evidence.

MS. DODGE: Is he under subpoena?

MS. PETREN: No, it’s not necessary. He might have been under subpoena the very first trial, but he is not under subpoena in this trial.

THE COURT: He lives in Parsons, Kansas?

MS. PETREN: He lives in Parsons, Kansas. He’s head of the drug unit over there.

THE COURT: I see. All right.

MS. DODGE: What attempt have you made to contact him?

MS. PETREN: I made attempts last week and have left messages with him. Last week Chris Pogy Maloney, who knows Kent, called him during the week and he said he was on a search warrant but as far as he could see he would, try to be here. I called him last night twice, left a message with him, called him at his home this morning and he wasn’t home. I called his office again this morning and he wasn’t there. So I finally was able to get in touch with someone who works there, because he only has a part-time secretary that comes in at noon, so the lady got in touch with the part-time secretary and was able to contact Kent McGregor who told me at that time he was on a search warrant, a surveillance that would lead to search warrants that involved a sizable amount of drugs and could not leave his job in Parsons.

MS. DODGE: You have actually spoken to him on the phone?

MS. PETREN: Yes, about fifteen minutes ago when they got him through the police radio and he responded at a prearranged number for me to call him in case he couldn’t be reached over the police radio.

THE COURT: All right.

MS. DODGE: I would object to the use of the transcript from the prior proceeding. I believe it denies my client the right of confrontation and cross-examination and thus denies him his constitutional right to a fair trial and due process.

THE COURT: The Supreme Court of the United States, in California v. Green, 399 U.S. 149 [90 S.Ct. 1930, 26 L.Ed.2d 489], held that the use of transcripts of a witness testimony given in some former proceeding did not violate a defendant’s Sixth Amendment right of confrontation when the witness is unavailable at trial and the accused had full opportunity to cross-examination of the witness at the time he testified.

We have been doing that in this Court for a long time and the witness is not here in this case because of the fault of the defendant. The defendant failed to appear when he was set for trial the last time and I revoked his bond, that’s why he’s now in jail.

MS. DODGE: I don’t believe Mr. McGregor’s absence today is due to the fault of the defendant. He’s absent due to his duties elsewhere.”

The transcript of McGregor’s testimony at the first trial was then read to the jury. The propriety of allowing that to be done is the sole point raised by defendant on this appeal.

The Sixth Amendment to the Constitution of the United States and Article 1, Section 18(a) of the Missouri Constitution guarantees the right of a criminal defendant to confront and cross-examine the adverse witnesses. An exception is permitted on the grounds of necessity where a witness becomes unavailable who testified at a previous trial and was at that time subject to cross-examination. For that exception to apply, the prosecution must normally show as a fact that the witness is unavailable. In order to establish that unavailability, the prosecution has the burden of proving a good faith effort, exercising reasonable diligence, to obtain the presence of the witness at trial. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); State v. Murphy, 592 S.W.2d 727 (Mo. banc 1980); State v. Kain, 330 S.W.2d 842 (Mo. 1960).

At one time McGregor would have been considered to be unavailable simply by reason of the fact that he was outside the State of Missouri and therefore beyond the reach of a Missouri subpoena. That state of the law, however, changed with the adoption throughout most of the nation of the Uniform Law to Secure Attendance of Witnesses From Within or Without State in Criminal Proceedings. The Uniform Act has been adopted in both Missouri and Kansas. Section 491.400 to 491.450, RSMo 1978; K.S.A. 22-4201 to 22-4206. In view of the Uniform Act, there is effective means by which a witness in a criminal case can be subpoenaed in Kansas to attend a criminal trial in Missouri.

In Barber v. Page, supra, the United States Supreme Court recited the former rule that any witness beyond the jurisdiction was unavailable but then went on to hold: “Whatever may have been the accuracy of that theory at one time, it is clear that at the present time increased cooperation between the States themselves and between the States and the Federal Government has largely deprived it of any continuing validity in the criminal law.” The court in that connection made footnote reference to the Uniform Act. The court went on to hold that since no effort had been made by the prosecution to utilize the Uniform Act or alternative methods to reach the witness, there had not been a reasonable good faith effort to produce the witness at trial.

A heavy majority of the cases which have considered this matter since the Barber decision hold that the prosecution must attempt to utilize the Uniform Act, if available, in order to show a good faith effort on its part to produce the witness at trial. Gorum v. Craven, 465 F.2d 443 (9th Cir. 1972); Eastham v. Johnson, 338 F.Supp. 1278 (D.C.Mich. 1972); State v. Ray, 123 Ariz. 171, 598 P.2d 990 (banc 1979); State v. Waits, 92 N.M. 275, 587 P.2d 53 (1978); Brooks v. State, 35 Md.App. 461, 371 A.2d 674 (1977); Anderson v. State, 362 So.2d 1296 (Ala.Cr.App. 1978). Contra: State v. Kirk, 211 Kan. 165, 505 P.2d 619 (1973); State v. Davis, 2 Kan.App.2d 10, 573 P.2d 1124 (1978); State v. Martin, 73 Wash.2d 616, 440 P.2d 429 (1968). (It should be noted, however, that Martin was decided only two days after the decision in Barber and makes no reference to that opinion. Martin cites and relies upon a number of decisions which predated Barber.)

The closest Missouri authority in point is State v. Brookins, 478 S.W.2d 372 (Mo.1972). There the prosecution took the deposition of a witness who was about to move from Missouri to Texas. Just before trial the prosecutor tried unsuccessfully to serve a subpoena on the witness in St. Louis, but made no effort to secure any subpoena for service in Texas under the Uniform Act. Under those circumstances, the court held that it was error to allow the use of the deposition.

Brookins appears in harmony with the majority rule which requires utilization of the Uniform Act, where available, as a condition precedent to the use of former testimony. To the extent that Brookins leaves any question in that regard, we now approve and adopt that majority rule in this State. The prosecution in the present case not having sought to utilize the Uniform Act, it did not make a sufficient effort to secure the attendance of McGregor, and his former testimony should not have been admitted.

The State argues that even if the admission of that former testimony was error, nevertheless such error was harmless because McGregor’s testimony was simply cumulative to that of Cornell. One major difficulty in the way of accepting that argument lies in the fact that the State’s case lacked something by way of jury persuasiveness, as evidenced by the hung jury in the first trial when both Cornell and McGregor testified. It would seem that the loss of one of its only two witnesses would be seriously harmful to the prosecution. This appraisal of the importance of McGre-gor’s testimony is much emphasized when attention is given to what occurred after the jury retired. The record shows the following:

“THE COURT: I have this inquiry from the jury. ‘We would like to see the testimony of Officer McGregor that was read by the prosecutor. There is a question in our minds as to the dates mentioned.’ And it’s signed, ‘Curtis E. McDaniels.’

I will go along with counsel and say that under the law I am not permitted to send a transcript of the testimony of any witness to the jury room. The members of the jury must rely on their collective memory to remember the testimony given at the trial.”

In light of that inquiry made by the jury, it becomes crystal clear that the jury paid very close attention to McGregor’s testimony.¹ It cannot be said beyond a reasonable doubt that the jury would have come to the same conclusion without the benefit of his testimony.

The result reached here does not impose any impractical difficulties on the prosecution. The prosecution should be held to an obligation to check in advance of trial to see as to the availability of its witnesses. The prosecutor here in fact did so and found out a week in advance of the trial that McGregor might not appear voluntarily. When that strong possibility was disclosed, the prosecutor had three courses of action open. First, the prosecution could have asked for a continuance until such time as McGregor could give assurance of his presence. As a second choice, the prosecution could have sought a subpoena under the Uniform Act, and if the court in Kansas could be shown that it would create an undue hardship to Kansas law enforcement if McGregor were required to drop his surveillance and attend court in Missouri, then the Kansas court would be authorized under K.S.A. 22-4202 to decline to issue a summons. Under such a ruling by the Kansas court, the prosecutor in this case could have made a complete showing of reasonable diligence in trying to secure the presence of McGregor, and his former testimony could have been read. Or, as a third course of action, the prosecution could have accepted and acted upon the analysis urged by the State on this appeal, to the effect that McGregor’s testimony was only marginally useful and its absence would have no significant effect; and it could proceed to trial on the willing gamble that: (a) McGregor might appear in time; (b) if not, the trial court might grant a continuance during trial to allow McGregor further time; or (c) at worst the prosecution could always rely on the testimony of Cornell alone without the corroboration of McGregor.

Even though the restriction here announced may cause inconvenience to the prosecution, that inconvenience must yield to the importance of protecting defendant’s right to give the jury opportunity to judge McGregor’s credibility based upon face to face observation. Because of the erroneous admission of McGregor’s former testimony, the judgment is reversed and the cause is remanded for a new trial.

DIXON, J., concurs.

NUGENT, J., dissents in separate opinion filed.

1 . The transcript of McGregor’s testimony from the first trial contained a discrepancy with respect to the date of the offense. At one point, he placed the events in question to have occurred on October 7, 1978; but he also testified to the events occurring on Novemeber 2, 1978, as alleged in the indictment and as testified to by Cornell. Apparently the jury here concluded that McGregor inadvertently erred in answering in the affirmative to a question as to whether the events happened on October 7. In any event, the jury obviously scrutinized McGregor’s testimony with extraordinary care.