Petition — Ohio v. Roberts

- Supreme Court, U,

{ FILED

S6T—FY 1978

Supreme Court of the United Semtes near JR., CLERK

October Term, 1978

No. A Qo G 5 6

STATE OF OHIO,

Petitioner,

VS.

HERSCHEL ROBERTS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the Supreme Court of Ohio

JOHN E. SHoop

Prosecuting Attorney for the State

of Ohio

Lake County Court House

Painesville, Ohio 44077

(216) 352-6281

Attorney for Petitioner

MakrvIn R. PLasco

301 Parkhill Professional Building

35100 Euclid Avenue, No. 301

Willoughby, Ohio 44094

(216) 951-811)

Attorney for Respondent

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

TABLE OF CONTENTS

TABLE OF AUTHORITIES 000.00... c.ecccccccecesccccsssceeseseeeee. I

ES 1

JURISDICTIONAL STATEMENT |... 1

QUESTION PRESENTED FOR REVIEW ............... 2

CONSTITUTIONAL AND STATUTORY PROVI-

RES IR aa 2

STATEMENT OF THE CASE 0ooon.o.n.ococcecccccccsccscssoccocose. 3

AS a EEE ee 7

APPENDIX—

Opinion of the Ohio Supreme Court .......... 15

Judgment Entry of the Ohio Supreme Court ............ 27

Mandate of the Ohio Supreme Court ............... 28

en 29

TABLE OF AUTHORITIES

Cases

Barber v. Page, 390 U.S. 719, 20 L. Ed. 2d 255, 88 S. Ct.

i eee eee 7, 8,9

California v. Green, 399 U.S. 149, 26 L. Ed. 2d 489, 90

A erases osetncoeeee 7,9, 10-11

Dutton v. Evans, 400 U.S. 74, 27 L. Ed. 2d 213, 91 S. Ct.

-Ge Se e 7,11, 12

Mancusi v. Stubbs, 408 U.S. 204, 33 L. Ed. 2d 293, 92

Oo. Gee 7, 12

Pointer v. Texas, 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct.

WE Ge wee 7-8, 10, 12

II

State of Ohio v. Minneker, 27 Ohio St. 2d 155, 56 Ohio

Ops. 2d 97, 271 N.E.2d 821 (1971) o.oo ecccecccecccccecoseseeee 8

State of Ohio v. Parrott, 27 Ohio St. 2d 205, 56 Ohio

Ops. 2d 124, 272 N.E.2d 112 (1972) oeocececoccccoccccseeceeeees 8

State of Ohio v. Roberts, 55 Ohio St. 2d 191, 378 N.E.2d

ee Ohio Ops. ........ So , ee 1

United States v. Huff, 332 F.2d 702 (C.A. Mich., 1964) 8

Other Authorities

Constitution of the United States, Sixth Amendment ... ie

Ohio Revised Code, Section 2945.49 0 2, 3,4

28 United States Code, Section 1257(3) 0.00.00 2

Supreme Court of the United States

October Term, 1978

STATE OF OHIO,

Petitioner,

vs.

HERSCHEL ROBERTS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the Supreme Court of Ohio

OPINIONS BELOW

The opinion and judgment of the court below giving

rise to this petition are as follows:

State of Ohio v. Roberts, 55 Ohio St. 2d 191, 378

N.E.2d 492, ........ Ohio Ops. ........ (1978)

A copy of said opinion is appended.

JURISDICTIONAL STATEMENT

The opinion and judgment of the Supreme Court of

Ohio herein was rendered July 19, 1978. No motion for

a rehearing was filed.

This court has jurisdiction to review this matter upon

certiorari pursuant to 28 U.S.C., Section 1257(3), in that

the validity of Section 2945.49, Ohio Revised Code, has

been drawn into question on the ground that it is repug-

nant to the Sixth Amendment to the Constitution of the

United States.

QUESTION PRESENTED FOR REVIEW

Where a witness, called by a criminal defendant at

a preliminary hearing, testifies in a manner incriminating

the defendant and was not cross-examined although there

was opportunity to do so, is later shown to be unavailable

to testify at the trial of the same defendant on the same

charge, does the confrontation clause of the Sixth Amend-

ment to the Constitution of the United States preclude the

State’s use of the witness’ recorded testimony?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Sixth Amendment, Constitution of the United States

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been previ-

ously ascertained by law, and to be informed of the nature

and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for

obtaining witnesses in his favor; and to have the Assistance

of Counsel for his defense.

ath

3

Section 2945.49, Ohio Revised Code

Testimony taken at an examination or a preliminary

hearing at which the defendant is present, or at a former

trial of the cause, or taken by deposition at the instance

of the defendant or the state, may be used whenever

the witness giving such testimony dies, or cannot for any

‘reason be produced at the trial, or whenever the witness

has, since giving such testimony, become incapacitated to

testify. If such former testimony is contained within a

bill of exceptions, or authenticated transcript of such testi-

mony, it shall be proven by the bill of exceptions, or

transcript, otherwise by other testimony.

STATEMENT OF THE CASE

The facts underlying this case which are germane

to this appeal are as follows:

The defendant, Herschel Roberts, was arrested in Lake

County, Ohio, on January 7, 1975, and charged with forg-

ery. Later, additional charges of receiving and concealing

stolen property and possession of heroin were brought.

Shortly after defendant’s arrest, a preliminary hearing

was held in which witnesses were called both by the

State of Ohio and by the defendant. One of the witnesses

called on behalf of the defendant, Anita Isaacs, testified

in such a manner that incriminated the defendant. Co-insel

for defendant had, but did not exercise, an opportunity

to declare her a hostile witness and cross-examine. At

the conclusion of said preliminary hearing, the defendant

was bound over to the Lake County Common Pleas Court.

Numerous trial dates were set in Common Pleas Court.

As a result of continuances all occasioned on the part

4

of the defendant and his leaving the jurisdiction, however,

trial was not held until March 4, 1976.

During defendant’s March 4, 1976 trial, the State of

Ohio offered as evidence, and the Court admitted over

defendant’s objections, a transcript of Anita Isaac’s prelimi-

nary hearing testimony, admissible pursuant to Section

2945.49 of the Ohio Revised Code, the witness Anita Isaacs

being an unavailable witness pursuant to said Section.

Prior to the admission of the recorded preliminary

hearing testimony of Anita Isaacs, her mother, Amy Isaacs,

was questioned outside the hearing of the jury to determine

the whereabouts of Anita Isaacs, the last time Anita had

been seen by her mother or father, and whether or not

Amy Isaacs had had any communication with her daughter

(R. 193-199). Amy Isaacs testified that she had not been

in contact with or had word of her daughter for 13 months

(R. 194) other than two telephone calls; one received from

Anita in which Anita did not indicate her whereabouts

but indicated she was not in the State of Ohio (R. 194),

and another from a California social worker who indicated

that Anita was trying to obtain welfare in California (R.

196). Mrs. Isaacs also testified that neither her husband

nor any of her friends or relatives had been in any commu-

nication with Anita Isaacs, and that Anita’s whereabouts

were unknown (R. 195).

Counsel for defendant objected to the introduction

of the recorded testimony at R. 274-275, viz:

“The Court:, Are you acquainted with the testi-

mony about to be heard?

Mr. Plasco: Your Honor, for the record, I was

furnished the day before trial with a copy of a tran-

script that allegedly took place at a preliminary hear-

ing in the Mentor Municipal Court on January 10,

5

1975. I have a number of objections to the admissi-

bility of said transcript into evidence, or being read

to the jury in the present case at bar.

The Court: Proceed.

Mr. Plasco: Thank you, your Honor. To begin

with, I’m objecting to the constitutionality of Ohio

Revised Code Section 2945.49. The general purpose

of a preliminary hearing is a discovery tool where

the defense attorney attempts to get information out

so he can best represent his client. It is not to elimi-

nate hearsay. Many times hearsay evidence is inten-

tionally left in so the defense attorney can get more

information. * * *”

Defendant’s counsel continued his objections through

R. 277, specifically stating therein:

“Mr. Plasco: I further object your Honor, * * *

* * + * *

For these reasons, we would strongly object to

the admissibility of the transcript as being prejudicial

to Mr. Roberts’ rights in violation of the U.S. Consti-

tution—confrontation of witnesses, allowing hearsay

testimony into evidence. Thank you.”

Although the trial judge did not specifically overrule

defendant’s objections, he did say, at R. 278:

“The Court: That’s the danger that you take

when you conduct a fishing expedition in a prelimi-

nary, instead of going by the new rules providing

for discovery. Proceed, Mr. Perez?

Mr. Perez: Proceed with argument, or proceed

with—

° The Court: With your transcript.”

6

The defendant was found guilty by the jury on counts

of forgery, receiving stolen property, and possession of

heroin, and subsequently appealed the convictions to the

Lake County Court of Appeals on the question presented

herein. The Court of Appeals reversed the judgment of

the trial court on the grounds that the admission of the

preliminary hearing testimony violated the defendant’s

Sixth Amendment right to confrontation of witnesses, and

because the State had failed to make a sufficient effort

to locate the missing witness.

After allowing a motion filed by the State of Ohio

to certify the record, the Ohio Supreme Court affirmed

the judgment of the Court of Appeals. The Ohio Supreme

Court held, as a matter of state law, that the language

of the statute, “whenever the witness .. . cannot for

any reason be produced,” is satisfied by a showing that

the witness has disappeared; that her whereabouts were

entirely unknown.

But by a 4-3 majority, the Ohio Supreme Court af-

firmed the reversal of the conviction, holding that notwith-

standing several U.S. Supreme Court decisions contra, the

confrontation clause of the Sixth Amendment was offended

in this situation because the witness was not actually cross-

examined.

It is from the judgment of the Ohio Supreme Court

that the State of Ohio seeks a writ of certiorari.

ARGUMENT

In several decisions' during the past decade, this court

has reviewed the import and effect of the confrontation

clause of the Sixth Amendment to the Constitution of the

United States on the use of various types of out-of-court

statements sought to be introduced in criminal cases.

There is no need in this petition to cite authority for

the proposition that the Sixth Amendment is applicable

to the states via the Fourteenth; nor are cases necessary to

support the proposition that the confrontation right is to

be measured by the same standard in both federal and

state prosecutions.

But what must be cited here is the common thread

linking all the recent “confrontation cases”—the theory

that the confrontation right is satisfied provided counsel for

a criminal defendant has an opportunity to cross-examine

the witnesses against his client.

In Pointer v. Texas, infra at fn. 1, the state introduced

at a criminal trial the transcript of testimony given at a

preliminary hearing of the case. The witness who had

given the preliminary hearing testimony had moved out of

the state and was unavailable to testify at trial. The de-

fendant, who was unrepresented at the preliminary hear-

ing, was not given the opportunity to cross-examine the

witness.

1. Mancusi v. Stubbs, 408 U.S. 204, 33 L. Ed. 2d 293, 92

S. Ct. 2308 (1972); Dutton v. Evans, 400 U.S. 74, 27 L. Ed. 2d

213, 91 S. Ct. 210 (1970); California v. Green, 399 U.S. 149, 26

L. Ed. 2d 489, 90 S. Ct. 1930 (1970); Barber v. Page, 390 US.

719, 20 L. Ed. 2d 255, 88 S. Ct. 1318 (1966); Pointer v. Texas,

380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965).

8

This court held, at 380 U.S. 407-408, 13 L. Ed. 2d at 928:

“Because the transcript of (the witness’) state-

ment offered agairst petitioner at his trial had not

been taken at a time and under circumstances affording

petitioner through counsel an adequate opportunity to

cross-examine the witness, its introduction in a fed-

eral court in a criminal case against Pointer would

have amounted to a denial of the privilege of con-

frontation guaranteed by the Sixth Amendment.” (Em-

phasis added.)

In Barber v. Page, supra at fn. 1, Barber’s co-conspira-

tor inculpated him during testimony at the preliminary hear-

ing. Barber’s attorney had every opportunity to, but did

not, cross-examine.? By the time of Barber’s trial, the

co-conspirator was incarcerated in a federal prison 225 miles

away from the trial forum, and in another state. The prose-

cution knew of the co-conspirator’s location, but made no

attempt to bring him to testify, relying instead on a tran-

script of the preliminary hearing testimony. This court

reversed the conviction.

2. This was the situation herein. Counsel for defendant

had called Anita Isaacs to testify at the preliminary hearing and

was surprised by her incriminating testimony of his client. He

had every opportunity to ask the court to declare the witness

hostile and proceed to cross-examine, but did not. Whether a

witness is declared hostile or not is within the sound discretion

of the trial court. State of Ohio v. Parrott, 27 Ohio St. 2d 205,

96 Ohio Ops. 2d 124, 272 N.E.2d 112, cert. den. 405 US. 1040, 31

L. Ed. 2d 580, 92 S. Ct. 1306 (1971); State of Ohio v. Minneker,

27 Ohio St. 2d 155, 56 Ohio Ops. 2d 97, 271 N.E.2d 821 (1971),

citing, at 27 Ohio St. 2d 158, 271 N.E.2d 824; United States v.

Duff, 332 F.2d 702 (C.A. Mich., 1964) and 98 C.J.S. Witnesses,

section 368, fn. 86, p. 120. Counsel for defendant, by not asking

the court to declare Anita Isaacs hostile, thus did not ask the

court to exercise its discretion. This failure on the part of defense

counsel cannot be imputed to the state.

9

It noted, at 390 U.S. 722, 20 L. Ed. 2d 258:

“It is true that there has traditionally been an ex-

ception to the confrontation requirement where a wit-

ness is unavailable and has given testimony at previous

judicial proceedings against the same defendant which

was subject to cross-examination by that defendant.

E. g., Mattox v. United States, supra (witnesses who

testified in original trial died prior to the second trial).

This exception has been explained as arising from ne-

cessity and has been justified on the ground that the

right of cross-examination initially afforded provides

substantial compliance with the purposes behind the

confrontation requirement. See 5 Wigmore, Evidence

Sections 1395-1396, 1402 (3d ed 1940), C. McCormick,

Evidence Sections 231, 234 (1954).” (Emphasis added.)

Barber turned on the failure of the State of Oklahoma

to expend the minimal effort needed to secure the presence

of the co-conspirator, a failure which correctly justified

reversal. And wu. those facts, this court observed, at 390

U.S. 725-726, 20 L. Ed. 2d 260:

“While there may be some justification for holding

that the opportunity for cross-examination of a witness

at a preliminary hearing satisfies the demands of the

confrontation clause where the witness is shown to be

actually unavailable, this is not, as we have pointed

out, such a case.” (Emphasis added; footnotes omitted. )

In California v. Green, supra at fn. 1, a similar tran-

script was introduced to impeach a witness whose trial tes-

timony was far less favorable to the prosecution than the

same witness’ preliminary hearing testimony. The Cali-

fornia Supreme Court reversed the conviction of Green,

holding that a state statute which authorized such introduc-

tion of recorded preliminary hearing testimony violated the

10

confrontation clause.* This court said, at 399 U.S. 153, 26

L. Ed. 2d at 494:

“The California Supreme Court construed the

confrontation clause of the Sixth Amendment to re-

quire the exclusion of (the witness’) prior testimony

offered in evidence to prove the State’s case against

Green because, in the court’s view, neither the right to

cross-examine Porter at the trial concerning his cur-

rent and prior testimony, nor the opportunity to cross-

examine Porter at the preliminary hearing satisfied the

commands of the Confrontation Clause. We think the

California court was wrong on both counts.” (Emphasis

added. )

Green admittedly involved a situation where the wit-

ness whose prior recorded testimony was used was present

at trial and not unavailable as in Pointer and the case

herein. But this court found such a distinction not to be

relevant at 399 U.S. 165, 26 L. Ed. 2d 501:

“We also think that Porter’s preliminary hearing

testimony was admissible as far as the Constitution is

concerned wholly apart from the question of whether

respondent had an effective opportunity for confronta-

tion at the subsequent trial. For Porter’s statement at

the preliminary hearing had already been given under

circumstances closely approximating those that sur-

round the typical trial. Porter was under oath; re-

spondent was represented hy counsel—the same coun-

sel in fact who later represented him at the trial:

respondent had every opportunity to cross-examine

Porter as to his statement; and the proceedings were

3. A highly analogous situation is present in this case, where

the Ohio Supreme Court has severely limited the applicability of

a similar state statute on identical grounds.

11

conducted before a judicial tribunal, equipped to pro-

vide a judicial record of the hearings. Under these

circumstances, Porter’s statement would, we think,

have been admissible at trial even in Porter’s absence

if Porter had been actually unavailable, despite good-

faith efforts of the State to produce him. That being

the case, we do not think a different result should

follow where the witness is actually produced.” (Em-

phasis added. )

In Dutton v. Evans, supra at fn. 1, a federal habeas

corpus action, out-of-court incriminatory statements made

by a co-conspirator about the defendant were testified to

by a second co-conspirator. The second co-conspirator was

then cross-examined by defendant’s counsel. It was alleged

that introduction of this hearsay violated the confrontation

clause. This court held otherwise, noting the strong case

against the defendant and the probable harmless nature of

the error, if any. (Blackmun, J., concurring).

Mr. Justice Harlan, concurring in the result, noted

significantly at 400 U.S. 95, 27 L. Ed. 2d 230:

“If one were to translate the confrontation clause

into language in more common use today, it would

read: ‘In all criminal prosecutions, the accused shall

enjoy the right to be present and (the right) to cross-

examine the witnesses against him.’ ”

And even in his dissent, Marshall, J., notes, after re-

viewing the pertinent cases at 400 U.S. 103, 27 L. Ed. 2d

235:

“The teaching of this line of cases seems clear:

absent the opportunity for cross-examination, testi-

mony about the incriminating and implicating state-

* ment made by Williams was constitutionally inadmis-

sible in the trial of Evans.” (Emphasis added. )

The plurality opinion in Dutton, supra, notes that the

basic test of admissibility of any out-of-court statement is

the “indic.a of reliability’ regarding the statement.

In Mancusi v. Stubbs, supra at fn. 1, this court held,

at 408 US. 216, 33 L. Ed. 2d 303:

“Since there was an adequate opportunity to cross-

examine (unavailable witness) Holm at the first trial,

and counsel for Stubbs availed himself of that oppor-

tunity, the transcript of Holm’s testimony in the first

trial bore sufficient ‘indicia of reliability’ and afforded

‘the trier of fact a satisfactory basis for evaluating the

truth of the prior statement.’ ” (Citing Dutton.)* (Em-

phasis added. )

II.

Despite all of the cases cited above—and the common

concept in each that opportunity for cross-examination is

the gravamen of the confrontation clause—the Ohio Su-

preme Court chose to hold that without actual cross-

examination, the transcript of unavailable witness’ testi-

mony could not later be used. The Ohio Supreme Court

4. 400 U.S. at 88-89; 27 L. Ed. 2d 227.

5. The only factual differences between Stubbs and the case

herein are that (1) the opportunity for cross-examination existed

at trial in Stubbs but at a preliminary hearing herein, and (2)

that counsel for defendant availed himself of that opportunity

in Stubbs. See fn. 2, supra. Yet the preliminary hearing was

“a full-fledged hearing at which petitioner had been represented

by counsel who had been given a complete and adequate oppor-

tunity to cross-examine.” See Pointer, supra at 399 US. 165, 26

L. Ed. 2d 501.

P. The syllabus to the opinion in the Ohio Supreme Court

reads:

“Where a witness, who testified against defendant at

preliminary hearing and was not cross-examined, is later

shown to be unavailable to testify at the trial, the Sixth

Amendment to the United States Constitution precludes the

mya A witness’ recorded testimony, notwithstanding

13

chose to base its decision not upon any state grounds, but

rather on the confrontation clause of the Sixth Amendment

to the Constitution of the United States.’

Since the Ohio Supreme Court has thus decided a

federal question of substance in a way probably not in ac-

cordance with the applicable decisions of this court, sound

discretion should be exercised to grant certiorari herein.

Respectfully submitted,

JOHN E. SHOoP

Prosecuting Attorney for the State

of Ohio

Lake County Court House

Painesville, Ohio 44077

(216) 352-6281

Attorney for Petitioner

Marvin R. PLasco

301 Parkhill Professional Building

35100 Euclid Avenue, No. 301

Willoughby, Ohio 44094

(216) 951-8111

Attorney for Respondent

7. Since the original objection to the use of the transcript of

Anita Isaacs’ testimony at trial, much has been made of the notion

that a preliminary hearing should be a discovery tool for the

defense. See Statement of the Case, supra, at 4. The Ohio

Supreme Court made much of this notion in their opinion at 55

Ohio St. 2d 196. But as the trial judge correctly noted, supra, at

4, the time and manner of discovery is set forth in Ohio’s Rules

of Criminal Procedure. And the dissent of the Ohio Supreme

Court correctly noted, at 55 Ohio St. 2d 200: “The extent of

cross-examination, whether at a preliminary hearing or at trial, is

a trial tactic. The manner of use of that trial tactic does not

create a constitutional right.”

15

APPENDIX

OPINION OF THE OHIO SUPREME COURT

(Decided July 19, 1978)

No. 77-530

THE SUPREME COURT OF THE STATE OF OHIO

THE STATE oF On10, Crry or CoLumBuS

THE STATE OF OHIO,

Appellant,

VS.

HERSCHEL ROBERTS,

Appellee.

Where a witness, who testified against the defendant at

preliminary hearing and was not cross-examined, is

later shown to be unavailable to testify at the trial,

the Sixth Amendment to the United States Constitu-

tion precludes the state’s use of the witness’ recorded

testimony, notwithstanding R. C. 2945.49.

APPEAL from the Court of Appeals for Lake County.

The Mentor police arrested the defendant, Herschel

Roberts, on January 7, 1975, and charged him with forg-

ing a check in the name of Bernard Isaacs, and with

receiving stolen property, namely, a number of credit cards

belonging to Bernard Isaacs and his wife, Amy.

On January 10, the defendant came before the Mentor

Municipal Court for preliminary hearing. At the hearing,

16

the defendant offered the testimony of Anita Isaacs, the

daughter of Bernard Isaacs. She testified that she had

become friends with her classmate’s younger sister, who

was Roberts’ girl friend, and that she had seen Roberts

occasionally since June or July of 1974. On December

23, 1974, she had given the key of her apartment to Rob-

erts’ girl friend, and had told her it would be all right

if she and Roberts used the apartment while she was

away for the next few days. When she returned on Decem-

ber 30, Roberts said he was having trouble finding a place

to stay, so she let Roberts go on using the apartment

while she stayed at the home of a friend. She never

spent any time in her apartment with Roberts.

Having thus described her acquaintance with Roberts,

the witness denied ever having given him her parents’

credit cards, and she denied ever having talked to him

about giving him the credit cards to help him pay for

a television. Roberts’ attorney did not ask to have the

witness declared hostile, and he did not ask to examine

her as on cross-examination.

The Municipal Court bound Roberts over to the grand

jury which indicted him for receiving stolen property,

R. C. 2913.51, and forgery, R. C. 2913.31. The grand jury

also returned a secret indictment against Roberts for re-

ceiving stolen property, namely, silverware and appliances

belonging to Mr. and Mrs. Isaacs, and for possession of

heroin, R. C. 3719.09. The Court of Common Pleas of

Lake County consolidated the proceedings on the two in-

dictments and set the trial for July 17, 1975.

The case was continued six times, and the trial finally

took place on March 4, 1976. Between November 1975,

and February 1976, the trial court issued five subpoenas

for four different trial dates to Anita Isaacs at her parents’

17

address. It is undisputed that the last three subpoenas,

showing returns on December 10, 1975, February 3, 1976,

and February 25, 1976, respectively, all carried instructions

to “please call before appearing.” The witness never tele-

phoned, nor did she appear at the trial.

At the trial, the prosecutor and the defense attorney

both questioned Amy Isaacs on voir dire to determine

whether Anita Isaacs was available to testify. Mrs. Isfacs

testified that at the end of January 1975, Anita had left

home for Tucson. She said that in April or May, she

had received a form from a welfare office in San Francisco

stating that Anita had applied for welfare. Mrs. Isaacs

had used the address on the form to locate the social

worker who was dealing with Anita. She had then talked

to the social worker by telephone, and had spoken to

Anita by telephone that same day. Later in the summer,

Anita had called her parents and had indicated that she

was traveling somewhere outside Ohio. From J anuary

1975 to the date of the trial, neither Anita’s parents nor

any other relative had received any other communication

from Anita. Mrs. Isaacs testified that she did not know

what state Anita was in, and that she did not know how

to contact Anita.

Citing R. C. 2945.49,1 the prosecutor offered to intro-

duce the transcript of the testimony which Anita had

given at the preliminary hearing on the grounds that the

1. R. C. 2945.49. “Testimony taken at an examination or a

preliminary hearing at which the defendant is present, or at a

former trial of the cause, or taken by deposition at the instance of

the defendant or the state, may be used whenever the witness

giving such testimony dies, or cannot for any reason be produced

at the trial, or whenever the witness has, since giving such testi-

mony, become incapacitated to testify. If such former testimony is

contained within a bil! of exceptions, or authenticated transcript of

such testimony, it shall be proven by the bill of exceptions, or

transcript, otherwise by other testimony.”

18

witness was unavailable to testify in person. The court

admitted the transcript over objection. The jury convicted

the defendant on all counts, and the court entered judg-

ment.

The Court of Appeals reversed. It held that by admit-

ting the recorded testimony, the trial court had violated

the defendant’s right to confront adverse witnesses, as

guaranteed by the Sixth Amendment to the United States

Constitution.

The cause is before this court upon the allowance

of the state’s motion for leave to appeal.

Mr. John E. Shoop, prosecuting attorney, and Mr. Rich-

ard J. Perez, for appellant.

Messrs. Stoneman, Plasco & Bean and Mr. Marvin

R. Plasco, for appellee. —

O’NEILL, C. J. The issue before this court is as follows:

When a witness testifies against the accused at a prelimi-

nary hearing and is not cross-examined, and the witness

is later shown to be unavailable to testify at the trial,

may the prosecution introduce the witness’ recorded testi-

mony pursuant to R. C. 2945.49?

The confrontation clause of the Sixth Amendment to

the Constitution of the United States, which applies to

the states by virtue of the Fourteenth Amendment, Pointer

v. Texas (1965), 380 U. S. 400, requires that “Tijn all

criminal prosecutions, the accused shall * * * be con-

fronted with the witnesses against him * * *,” Although

confrontation serves the subordinate function of letting

the jury see the witness’ demeanor, its main purpose is

to guarantee the accused the right to cross-examine. See

Mattox v. United States (1895), 156 U. S. 237. It has

even been said that the right to cross-examine and the

19

right of confrontation are “the same right under different

names.” 5 Wigmore on Evidence, 155, 158, Section 1397

(Chadbourne Ed. 1974). Thus, if a witness who is unavail-

able to testify in a criminal trial has already testified

against the defendant, subject to cross-examination, in a

judicial proceeding concerning substantially the same is-

sues, the main concern of the confrontation clause is satis-

fied, and the state may introduce the witness’ prior re-

corded testimony. See Mattox, supra; Wigmore, supra,

90, Section 1386. If, however, the witness is available,

then the state must still produce him in person so as

to serve the additional purpose of showing his demeanor

to the jury. See Mattox, supra; Wigmore, supra, 154,

Section 1396; cf. New York Central R. R. v. Stevens (1933),

126 Ohio St. 395, 185 N. E. 542. If the witness is outside

the court’s jurisdiction, and if the prosecutor knows his

whereabouts, the state may introduce his prior recorded

testimony only after proving that it made a good-faith

effort to obtain his actual presence. Barber v. Page (1968),

390 U. S. 719.

In the instant cause the appellee argues that the state

failed to show a good-faith effort to produce the witness

in person, as required by the rule in Barber. But in

Barber, the government knew where the absent witness

was. In the instant cause, the reason for the witness’

unavailability was not that she was at some known location

beyond the court’s power of subpoena, but that her where-

abouts were entirely unknown; and it is recognized that

a witness who has disappeared from observation is unavail-

able for purposes of the confrontation clause. Wigmore,

supra, 215, Section 1405, and cases therein cited. As a

matter of state law, R. C. 2945.49, authorizing the use

of prior recorded testimony “whenever the witness * * *

cannot for any reason be produced,” is broad enough

to cover instances where the witness has disappeared.

20

The burden was on the state to show that the witness

was unavailable by reason of her disappearance. Wigmore

Says that “such a disappearance is shown by the party’s

inability to find [the witness] after diligent search,” but

New York Central R. R. v. Stevens, supra, at page 405,

suggests that in Ohio it is sufficient if the proponent of

the prior testimony shows that “by diligence * * * [the

witness’] attendance could not have been procured,” at

least in a civil case.

We see no reason not to follow the same rule in a

criminal proceeding. We hold that in the present cause,

the trial judge could reasonably have concluded from

Mrs. Isaacs’ voir dire testimony that due diligence could

not have procured the attendance of Anita Isaacs. The

last definite word of Anita’s whereabouts was that she

was in San Francisco in April or May of 1974. Later, her

parents learned that she was “traveling” somewhere out-

side Ohio. From this the trial judge could reasonably infer

that Anita had left San Francisco, and that it would have

been fruitless for the prosecution to have contacted the

San Francisco social worker in order to locate Anita. There-

fore, the trial judge could properly hold that the witness

was unavailable to testify in person.

Nevertheless, the trial court erred in admitting the tes-

timony. As noted earlier, prior recorded testimony of an

unavailable witness is admissible against a criminal de-

fendant only if the testimony was given subject to cross-

examination by the defendant in a judicial proceeding

concerning substantially the same issues. The issues at the

trial and the issues at the prior proceeding must be similar

enough so that the cross-examination to which the defendant

was subjected at the earlier proceeding can be held ade-

quate for purposes of the trial.

21

In the cause at bar, the basic factual issues—e. g.;

whether the defendant had stolen the credit cards—were

the same. The ultimate factual issues, however, were quite

different. At trial, the ultimate issue was the defendant’s

guilt beyond a reasonable doubt. At the preliminary

hearing, in contrast, the ultimate issue was whether there

was probable cause to believe that a crime had been

committed and that the defendant had committed it. The

difference in the ultimate object of proof makes a great

difference in the defense attorney’s strategy. At trial,

defense counsel will cross-examine whenever he may be

able to raise a reasonable doubt of the defendant’s guilt.

Therefore, he will often cross-examine extensively both as

to the material elements of the crime charged and also

for impeachment purposes. At a preliminary hearing, on

the other hand, there is seldom any hope that cross-exami-

nation will persuade the judge not to bind the defendant

over, and the danger of disclosing unfavorable facts to the

prosecution makes extensive cross-examination risky. As

the court said in Government of the Virgin Islands v. Aquino

(C. A. 3, 1967), 378 F. 2d 540, 549, “The fear of adding to

the government’s case by extensive cross-examination

weighs heavily on a defendant’s counsel at a preliminary

hearing, where much of the government's case still remains

in doubt * * *. Everyday experience confirms the differ-

ence [between trial and preliminary hearing], for it is rare

indeed that on a preliminary hearing there will be that

full and detailed cross-examination which the witness would

undergo at the trial. Credibility is not the issue at a pre-

liminary hearing as it is in a trial. All the arts of cross-

examination which are exerted to impair the credibility

of a witness are useless in a preliminary hearing.” See,

also, California v. Green (1970), 399 U. S. 149, 189 (Bren-

nan, J., dissenting).

22

Thus, the restriction of the factual issue at preliminary

hearing restricts the scope of the cross-examination which

defense counsel can prudently conduct. Therefore, the

mere oportunity to cross-examine at the preliminary hear-

ing can not be said to afford confrontation for purposes of

the trial. Accordingly, we hold that, where a witness, who

testified against the defendant at preliminary hearing and

was not cross-examined is later unavailable to testify at

the trial, the Sixth Amendment precludes the state’s use

of the witness’ recorded testimony, notwithstanding R. C.

2945.49,

The holding in Barber v. Page, supra, requires this

result. In that case, the defendant was on trial in Okla-

homa for armed robbery. The state’s main evidence was

the recorded testimony which a certain witness had given

at the preliminary hearing. The defendant’s attorney had

not cross-examined at the hearing. Since the witness was

in prison in Texas at the time of the trial, and since

the prosecution had made no effort to produce the witness

in person, the United States Supreme Court held that

the introduction of his prior recorded testimony violated

the defendant’s right of confrontation. The state argued

that the defendant had waived his right to confront the

witness by not cross-examining at the hearing, but the

court held, at page 725, “That contention is untenable.

Not only was petitioner unaware that * * * [the wit-

ness] would be in a federal prison at the time of his

trial, but he was also unaware that, even assuming * * *

[the witness’] incarceration, the State would make no

effort to produce * * * [the witness] at trial. To

suggest that failure to cross-examine in such circumstances

constitutes a waiver of the right of confrontation at a

subsequent trial hardly comports with this Court’s defini-

tion of a waiver as ‘an intentional relinquishment or aban-

donment of a known right or privilege.’ ”

23

The later case of California v. Green, supra, does not

hold otherwise. There, a 16 year-old witness named Mel-

vin Porter sold marijuana to an undercover agent, and

then named Green as his supplier. Green was charged

with selling to a minor. Porter testified at preliminary

hearing, and was cross-examined. At trial, Porter again

testified, but was evasive and uncooperative. So the prose-

cutor introduced Porter’s prior testimony under a statute

allowing statements that would otherwise have been admis-

sible only for impeachment to be introduced also for the

truth of the matter asserted. Green was convicted, and

the California Supreme Court reversed, holding that the

statute was unconstitutional under the confrontation

clause.

The United States Supreme Court reversed, holding

that the use of the prior testimony did not violate the

Sixth Amendment because the declarant was available

in person at the trial itself to be cross-examined as to

his earlier statement. Thus, the case does not directly

concern witnesses who are unavailable to testify at the

trial in person. The opinion includes a dictum upon which

the appellant in the present cause argues that the mere

opportunity to cross-examine at preliminary hearing will

always satisfy the confrontation clause? The dictum, how-

2. “We also think that Porter’s preliminary hearing testimony

was admissible as far as the Constitution is concerned wholly apart

from the question of whether respondent had an effective oppor-

tunity for confrontation at the subsequent trial. For Porter’s

statement at the preliminary hearing had already been given under

circumstances closely approximating those that surround the typical

trial. Porter was under oath; respondent was represented by

counsel—the same counsel in fact who later represented him at

the trial; respondent had every opportunity to cross-examine

Porter as to his statement; and the proceedings were conducted

before a judicial tribunal, equipped to provide a judicial record

of the hearings. Under these circumstances, Porter’s statement

would, we think, have been admissible at trial even in Porter’s

(Continued on following page)

24

ever, must be interpreted in light of the facts. The prelimi-

nary hearing in Green was quite atypical in that the wit-

ness’ “story * * * was subject to extensive cross-exami-

nation by * * * [defendant’s] counsel.” Green, supra,

at page 151. Thus, the case goes no further than to suggest

that cross-examination actually conducted at preliminary

hearing may afford adequate confrontation for purposes

of a later trial. In the instant cause, of course, the witness

was never cross-examined.

Because the Court of Appeals correctly held that the

use of the witness’ prior recorded testimony infringed the

appellee’s Sixth Amendment right of confrontation, its

judgment will be affirmed.

Judgment affirmed.

W. Brown, P. Brown and Sweeney, JJ., concur.

HERBERT, CELEBREZZE and LOcHER, JJ., dissent.

CELEBREZZE, J., dissenting. The majority concedes

that the trial judge properly held that the witness was

unavailable to testify. Nevertheless, the majority con-

cludes that the trial court erred in admitting in evidence

the prior recorded testimony presented by this witness

during the preliminary hearing, at which appellee and

Footnote continued—

absence if Porter had actually been unavailable, despite good-faith

efforts of the state to produce him. That being the case, we do

not think a different result should follow where the witness is

actually produced.

“* * * If Porter [the witness] had died or was otherwise

unavailable, the Confrontation Clause would not have been violated

by admitting his testimony given at the preliminary hearing—the

right of cross-examination then afforded provides substantial com-

pliance with the purposes behind the confrontation requirement, as

long as the declarant’s inability to give live testimony is in no way

the fault of the State.” California v. Green (1970), 399 U. S. 149,

at pages 165-66.

en

25

his attorney were present. This rather incongruous result

is reached by indulgence in conjecture relative to the

trial tactics of defense counsel, and is supported only by

the highly subjective opinion that “* * * the mere op-

portunity to cross-examine at the preliminary hearing

can not be said to afford confrontation for purposes of

the trial.”

The decision of the majority is not compelled by either

Barber v. Page, supra, or California v. Green, supra. The

holding in Barber was obviously based upon the state’s

failure to make a good-faith effort to produce its witness

at trial, since the high court recognized that “* * *

there may be some justification for holding that the oppor-

tunity for cross-examination of a witness at a preliminary

hearing satisfies the demands of the confrontation clause

where the witness is shown to be actually unavailable

* * *” Barber, at pages 725-726. Similarly, in the

course of holding that the confrontation clause was not

violated by admission in evidence of the prior recorded

testimony of a later reluctant witness, the Supreme Court,

in California v. Green, supra, at page 165, observed that

“* * * respondent had every opportunity to cross-exam-

ine * * * [the witness] as to his statement.” Further-

more, in Pointer v. Texas, supra, wherein the high court

held that the prior recorded testimony of an unavailable

witness could not be admitted in evidence at trial because

counsel had not been appointed to assist the defendant

at the preliminary hearing, it was noted that “* * *

[t]he case before us would be quite a different one had

* * * [the witness’] statement been taken at a full-

fledged hearing at which petitioner had been represented

by counsel who had been given a complete and adequate

opportunity to cross-examine.” Pointer, at page 407.

26

‘In my opinion the Sixth Amendment to the United

States Constitution does not prohibit, under the facts of

the instant cause, the admission in evidence of the witness’

recorded testimony. As was stated in United States v.

Allen (C. A. 10, 1969), 409 F. 2d 611, 613, “* * * the

test is the opportunity for full and complete cross-examina-

tion rather than the use which is made of that opportunity.

* * * The extent of cross-examination, whether at a

preliminary hearing or at a trial, is a trial tactic. The

manner of use of that trial tactic does not create a constitu-

tional right.”

Accordingly, I would reverse the judgment of the

Court of Appeals.

HERBERT and LocHer, JJ., concur in the foregoing dis-

senting opinion.

27

JUDGMENT ENTRY OF THE OHIO

SUPREME COURT

(Dated July 19, 1978)

No. 77-530

THE SUPREME COURT OF THE STATE OF OHIO

THE STATE OF OHIO, City oF COLUMBUS.

STATE OF OHIO,

Appellant,

vs.

HERSCHEL ROBERTS,

Appellee.

APPEAL FROM THE COURT OF APPEALS For LAKE CouUNTY

This cause, here on appeal from the Court of Appeals

for Lake County, was heard in the manner prescribed by

law. On consideration thereof, the judgment of the Court

of Appeals is affirmed; for the reasons set forth in the

opinion rendered herein.

28

MANDATE OF THE OHIO SUPREME COURT

(Dated July 19, 1978)

No. 77-530

THE SUPREME COURT OF THE STATE OF OHIO

THE STATE OF OHIO, City or COLUMBUS.

STATE OF OHIO,

Appellant,

vs.

HERSCHEL ROBERTS,

Appellee.

MANDATE

To the Honorable Common Pleas Court Within and for

the County of Lake, Ohio, Greeting:

The Supreme Court of Ohio commands you to proceed

without delay to carry the following judgment in this cause

into execution:

Judgment of the Court of Appeals affirmed for the rea-

sons set forth in the opinion rendered herein.

_— ee ee

29

NOTICE OF APPEAL TO THE UNITED STATES

SUPREME COURT

(Filed in the Ohio Supreme Court September 20, 1978)

Case No. 77-530

IN THE SUPREME COURT OF OHIO

CoLUMBUS, OHIO

STATE OF OHIO,

Plaintiff-Appellant,

Vs.

HERSCHEL ROBERTS,

Defendant-Appellee.

NOTICE OF APPEAL

Now comes the State of Ohio, by and through John

E. Shoop, Prosecuting Attorney for Lake County, by and

through Richard J. Perez, Assistant Prosecuting Attorney,

and gives notice that the State of Ohio will appeal the

judgment of this Court rendered July 19, 1978, to the Su-

preme Court of the United States, pursuant to 28 U.S.C,

Section 1257 (3).

Respectfully submitted,

JOHN E. SHoop

Prosecuting Attorney

/s/ RIcHARD J. PEREZ

Assistant Prosecuting Attorney

Lake County Court House

Painesville, Ohio 44077

j Telephone: 352-6281, Ext. 281

30

Proor or SERVICE

A copy of the foregoing Notice of Appeal was sent by

regular U.S. mail, postage prepaid, to counsel for the de-

fendant, Marvin R. Plasco, Esq., 35100 Euclid Avenue,

Willoughby, Ohio 44094, this 13th day of September, 1978.

/s/ RicHarp J. PEREz

Assistant Prosecuting Attorney