# Petition — Ohio v. Roberts

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 448 U.S. 56

## Text

- 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0030%3A01. Public record. Not legal advice.